Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43

Supreme Court comments on the Role of Administrative Tribunals in addressing Adequacy of Aboriginal Consultation and Accommodation

Supreme Court of Canada, October 28, 2010

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The Facts of the Case:

In the early 1950s, pursuant to a water license granted to it by the Crown, Rio Tinto Alcan (“Alcan”) dammed and re-routed the Nechako River in the course of constructing electrical generation facilities required to power its aluminum production plant. The dam affected water flows in the river which in turn affected the fisheries on territory claimed by the Carrier Sekani Tribal Council (“CSTC”).

In 2007, British Columbia Hydro and Power Authority (“B.C. Hydro”), a Crown corporation, entered into an Energy Purchase Agreement (“EPA”) with Alcan to purchase the surplus energy produced by Alcan’s plant. The EPA required the approval of the British Columbia Utilities Commission (“Commission”). The CSTC sought to be heard by the Commission on the issue of whether the Crown had fulfilled its duty to consult regarding the EPA.

On a motion to reconsider its earlier decision that the consultation issue was not within its jurisdiction, the Commission assumed that there was a historic infringement and a failure by the Crown to consult. The Commission ultimately held that since there were no new impacts created by the EPA, the duty to consult was not triggered. CSTC appealed to the British Columbia Court of Appeal which held that as an administrative tribunal, the Commission had both the power and the duty to decide issues of consultation. On a review of the Commission’s decision, the Court of Appeal held that the Commission committed two errors: first, the Commission erred by refusing to entertain the issue of consultation within the scope of the full hearing; and second, the Commission erred by restricting its analysis to an examination of whether the EPA resulted in new impacts.

The Supreme Court’s Ruling:

The Supreme Court addressed four questions in its decision:

  1. When does the duty to consult arise?
  2. What is the proper role of a tribunal in consultation?
  3. What is the Commission’s jurisdiction to consider issues of consultation?
  4. Was the Commission’s decision reasonable?

On the first question, the Court reaffirmed its earlier rulings that the duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.

This test can be broken down into three elements. First, the Crown must have real or constructive knowledge of a potential Aboriginal claim or right. Second, there must be Crown conduct or a Crown decision. The Court clarified that the decision or conduct is not confined to an exercise of statutory powers or to decisions or conduct which have an immediate impact on lands and resources. Rather, the duty to consult extends to “strategic, higher level decisions” that may have an impact on Aboriginal claims and rights. Third, there must be a possibility that the Crown conduct may affect the Aboriginal claim or right. Past wrongs, speculative impacts, and adverse effects on a First Nation’s future negotiating position will not suffice. The Court also held that the duty to consult is confined to the adverse impacts flowing from the current government conduct or decision, not to larger adverse impacts of the project of which it is a part, although in such circumstances the Court indicated that compensation may be appropriate.

On the second question, the Court reaffirmed that tribunals are confined to the powers conferred on them by their constituent legislation. The legislature may choose to delegate the duty to consult to a tribunal, and it may empower the tribunal to determine whether adequate consultation has taken place. Where a tribunal is empowered to engage in consultation, it must possess the remedial powers necessary to do what it must do in connection with the consultation.

On the third question, the Court examined whether the Commission had the power to consider the adequacy of the Crown’s consultation by reference to its enabling statute. The Court examined the Utilities Commission Act, finding that the Commission was empowered to decide questions of law and that this implies the power to decide constitutional questions. However, the Court held that the Commission was not empowered to engage in consultation.

Finally, the Court considered the reasonableness of the Commission’s decision, holding that the Commission applied the correct legal test in finding that the underlying infringement did not constitute an adverse impact giving rise to a duty to consult. The Court confirmed that the duty does not arise where a resource has long since been altered and the present conduct does not have any further impact on the resource. The Court also reviewed the Commission’s finding that the 2007 EPA had no potential impact on the claims of the CSTC and ultimately upheld this decision.

This case clarifies the role of administrative tribunals in assessing and engaging in consultation. The Court has clarified that these tribunals have both the power and a duty to assess the adequacy of the Crown’s consultative efforts. In some cases, a tribunal may have the power to engage in consultation. The Court further clarified that the duty to consult is not limited to statutory powers or to decisions or conduct which have an immediate impact on lands and resources, but rather, the duty can extend to strategic, high-level decisions that may impact Aboriginal claims and rights. Finally, the Court clarified that the contemplated action must impact the asserted claim or right. Historical or speculative impacts will not suffice.