Kwikwetlem First Nation v. B.C. (Utilities Commission)1 involved an appeal by four First Nations, Nlaka’pamux Nation Tribal Council, Okanagan Nation, the Upper Nicola Indian Band, and the Kwikwetlem First Nation of a BCUC decision related to the issuance of a certificate of public convenience and necessity under s.45 of the UCA.2 The BCUC determined it did not need to consider the adequacy of the Crown’s consultation and accommodation effort with the First Nations to provide the certificate of public convenience and necessity for the proposed transmission line project by the British Columbia Transmission Corporation (BCTC).
It was common ground amongst all the parties that the proposed project had the potential to adversely affect the asserted rights and title of the appellants, that the proposal invoked the Crown’s duty to consult, and that the Crown’s duty with regard to the proposed project had not yet been fully discharged.3 However, the BCUC took the position that it should rely on the environmental assessment process to ensure the Crown fulfilled its duties to First Nations at all stages of the proposed project, rather than assessing the adequacy of such consultation during the granting of the certificate of public convenience and necessity.4
The broad issue before the BCCA was the role of the BCUC in assessing the adequacy of the Crown’s efforts to discharge its duty before granting the requested certificate.
Writing for the unanimous BCCA, Huddart J. began her analysis by highlighting the positions of the BCUC and BCTC with respect to the role BCUC is intended to play in the certification of projects such as the one proposed by BCTC, and specifically, the role BCUC should play in determining issues of consultation in light of the further regulatory processes mandated by the Environmental Assessment Act.5
After a comparison of the two processes mandated by the UCA and the Environmental Assessment Act, the BCCCA noted they were effectively two separate processes aimed at two different stages and involving different decision makers with different considerations.6 According to Huddart J., the processes are sequential and able to be coordinated, but each requires the decision-maker to render a decision in the public interest, taking into account factors relevant to the question on which they are required to form an opinion.7 Huddart J. noted the importance of certification under s.45 of the UCA, as such certification is the vital first step toward the building of a transmission line that ultimately may infringe upon Aboriginal rights.8
In such circumstances, the BCCA took the view that the First Nations were entitled not only to be consulted by the BCTC during its application for the certificate of public necessity and convenience, but also to have the adequacy of such consultation assessed by the BCUC before such a certificate was granted.9 Huddart J. stated that once BCUC had accepted that BCTC had a duty to consult First Nations regarding the project that was requesting certification, it was incumbent on the BCUC to hear the First Nations’ arguments about the Crown’s consultation efforts during the process to that stage, and to determine the adequacy of those efforts.10
The BCCA expressly recognized that the BCTC had a duty to consult with regard to the process of obtaining a certificate of public convenience and necessity, and that given such a duty, the BCUC has an obligation to inquire into the adequacy of consultation before granting the certificate.11
The BCCA, having ruled in favour of the First Nations, sent the matter back to the BCUC for consideration of the matters pertaining to the adequacy of the Crown’s consultation.
Carrier Sekani and Kwikwetlem clarify the BCCA’s view of the role the BCUC is expected to carry out with regard to consideration of the Crown’s duty to consult and the adequacy of consultation efforts. However, both cases raise larger issues that go well beyond simply the BCUC and raise potential issues for many regulatory boards across Canada. These decisions suggest that the honour of the Crown imparts not only a duty to consult, but also a duty on tribunals to determine whether consultation efforts have been adequate when this question is raised in proceedings before them. This "duty to decide" appears to require the tribunal to give substantial consideration to any issues pertaining to consultation that are raised, necessitating the consideration of consultation through a full hearing, rather than addressing the subject as a preliminary matter. As the BCCA noted in Carrier Sekani, "whether the EPA triggered a duty is for a hearing on the merits," and this hearing is to be held by the BCUC.
The BCCA’s finding that the BCUC was required to determine questions relating to the adequacy of the Crown’s consultation may not be surprising, given the broadness of the concept of the "honour of the Crown" in the context of the Crown’s dealings with Aboriginal groups, and given the prominent role of the BCUC, as part of the Crown, in determining whether an EPA is enforceable or should be varied. However, what was more surprising was the BCCA’s willingness to ask the BCUC to entertain issues of past infringements of Aboriginal rights in Carrier Sekani, and the resulting implications for other scenarios in which the level of consultation owed by the Crown may be affected by past infringements. In other words, Carrier Sekani implies that present-day consultation processes may need to be expanded to address historical wrongs. Given the history of the relationship between the Crown and First Nations in Canada, this proposition could be a significant hurdle for most, if not all, consultation relating to present-day land and resource use decisions.
Also noteworthy is the BCCA’s acceptance that a Crown applicant (in this case, BC Hydro) of a project should be deemed to be the "Crown" for holding and carrying out the duty. This appears to contradict Haida, where the Supreme Court seemed to make clear that it was the Crown decision-maker (in this case, the BCUC), that ultimately holds the duty.
Finally, underlying both Kwikwetlem and Carrier Sekani is the acceptance by all parties to these actions (including the BCCA) that in the context of those decisions, the BCUC is not subject to the Crown’s duty to consult Aboriginal groups. However, applying Haida on its face, it is not clear that a quasi-judicial regulatory body cannot be part of the Crown’s overall efforts to carry out the duty. This is particularly true in both of these cases since the ultimate effect of the BCUC’s decision (whether it related to a certificate of public necessity and convenience or a determination of the public interest) is to permit a project to proceed. To this end, the Supreme Court’s 1994 decision of Hydro Quebec, cited by the BCCA in Carrier Sekani,12 does not, with respect, support the conclusion that regulatory boards cannot hold a duty to consult. Hydro-Quebec considered the application of the fiduciary duty to quasi-judicial tribunals, not the Crown’s duty to consult. Indeed, in Hydro-Quebec, the Supreme Court expressly stated some 10 years prior to Haida that decisions of the National Energy Board are subject to s. 35 of the Constitution Act, 1982:
It is obvious that the Board must exercise its decision-making function, including the interpretation and application of its governing legislation, in accordance with the dictates of the Constitution, including s. 35(1) of the Constitution Act, 1982. Therefore, it must first be determined whether this particular decision of the Board, made pursuant to s. 119.08(1) of the National Energy Board Act, could have the effect of interfering with the existing Aboriginal rights of the appellants so as to amount to a prima facie infringement of s. 35(1).13 [emphasis added.]