Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council
Collection
Supreme Court Judgments
Date
2010-10-28
Neutral citation
2010 SCC 43
Report
[2010] 2 SCR 650
Case number
33132
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
British Columbia
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 33132
Decision Content
SUPREME COURT OF CANADA
Citation: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650
Date: 20101028
Docket: 33132
Between:
Rio Tinto Alcan Inc. and
British Columbia Hydro and Power Authority
Appellants
and
Carrier Sekani Tribal Council
Respondent
‑ and ‑
Attorney General of Canada, Attorney General of Ontario,
Attorney General of British Columbia, Attorney General of Alberta,
British Columbia Utilities Commission, Mikisew Cree First Nation,
Moosomin First Nation, Nunavut Tunngavik Incorporated,
Nlaka’pamux Nation Tribal Council, Okanagan Nation Alliance,
Upper Nicola Indian Band, Lakes Division of the Secwepemc Nation,
Assembly of First Nations, Standing Buffalo Dakota First Nation,
First Nations Summit, Duncan’s First Nation,
Horse Lake First Nation, Independent Power Producers Association
of British Columbia, Enbridge Pipelines Inc. and
TransCanada Keystone Pipeline GP Ltd.
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 95)
McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
______________________________
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650
Rio Tinto Alcan Inc. and
British Columbia Hydro and Power Authority Appellants
v.
Carrier Sekani Tribal Council Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of British Columbia,
Attorney General of Alberta,
British Columbia Utilities Commission,
Mikisew Cree First Nation,
Moosomin First Nation,
Nunavut Tunngavik Inc.,
Nlaka’pamux Nation Tribal Council,
Okanagan Nation Alliance,
Upper Nicola Indian Band,
Lakes Division of the Secwepemc Nation,
Assembly of First Nations,
Standing Buffalo Dakota First Nation,
First Nations Summit,
Duncan’s First Nation,
Horse Lake First Nation,
Independent Power Producers Association of British Columbia,
Enbridge Pipelines Inc. and
TransCanada Keystone Pipeline GP Ltd. Interveners
Indexed as: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council
2010 SCC 43
File No.: 33132.
2010: May 21; 2010: October 28.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Honour of the Crown — Aboriginal peoples — Aboriginal rights — Right to consultation — British Columbia authorized project altering timing and flow of water in area claimed by First Nations without consulting affected First Nations — Thereafter, provincial hydro and power authority sought British Columbia Utilities Commission’s approval of agreement to purchase power generated by project from private producer — Duty to consult arises when Crown knows of potential Aboriginal claim or right and contemplates conduct that may adversely affect it — Whether Commission reasonably declined to consider adequacy of consultation in context of assessing whether agreement is in public interest — Whether duty to consult arose — What constitutes “adverse effect” — Constitution Act, 1982, s. 35 — Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 71.
Administrative law — Boards and tribunals — Jurisdiction — British Columbia authorized project altering timing and flow of water in area claimed by First Nations without consulting affected First Nations — Thereafter, provincial hydro and power authority sought British Columbia Utilities Commission’s approval of agreement to purchase power generated by project from private producer — Commission empowered to decide questions of law and to determine whether agreement is in public interest — Whether Commission had jurisdiction to discharge Crown’s constitutional obligation to consult — Whether Commission had jurisdiction
to consider adequacy of consultation — If so, whether it was required to consider adequacy of consultation in determining whether agreement is in public interest — Constitution Act, 1982, s. 35 — Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 71.
In the 1950s, the government of British Columbia authorized the building of a dam and reservoir which altered the amount and timing of water flows in the Nechako River. The First Nations claim the Nechako Valley as their ancestral homeland, and the right to fish in the Nechako River, but, pursuant to the practice at the time, they were not consulted about the dam project.
Since 1961, excess power generated by the dam has been sold by Alcan to BC Hydro under Energy Purchase Agreements (“EPAs”) which commit Alcan to supplying and BC Hydro to purchasing excess electricity. The government of British Columbia sought the Commission’s approval of the 2007 EPA. The First Nations asserted that the 2007 EPA should be subject to consultation under s. 35 of the Constitution Act, 1982 .
The Commission accepted that it had the power to consider the adequacy of consultation with Aboriginal groups, but found that the consultation issue could not arise because the 2007 EPA would not adversely affect any Aboriginal interest. The British Columbia Court of Appeal reversed the Commission’s orders and remitted the case to the Commission for evidence and argument on whether a duty to consult the First Nations exists and, if so, whether it had been met. Alcan and BC Hydro appealed.
Held: The appeal should be allowed and the decision of the British Columbia Utilities Commission approving the 2007 EPA should be confirmed.
The Commission did not act unreasonably in approving the 2007 EPA. Governments have a duty to consult with Aboriginal groups when making decisions which may adversely impact lands and resources to which Aboriginal peoples lay claim. The duty to consult is grounded in the honour of the Crown and is a corollary of the Crown’s obligation to achieve the just settlement of Aboriginal claims through the treaty process. While the treaty claims process is ongoing, there is an implied duty to consult with Aboriginal claimants on matters that may adversely affect their treaty and Aboriginal rights, and to accommodate those interests in the spirit of reconciliation. The duty has both a legal and a constitutional character, and is prospective, fastening on rights yet to be proven. The nature of the duty and the remedy for its breach vary with the situation.
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. While the existence of a potential claim is essential, proof that the claim will succeed is not. Second, there must be Crown conduct or a Crown decision. In accordance with the generous, purposive approach that must be brought to the duty to consult, the required decision or conduct is not confined to government exercise of statutory powers or to decisions or conduct which have an immediate impact on lands and resources. 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. The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Past wrongs, speculative impacts, and adverse effects on a First Nation’s future negotiating position will not suffice. Moreover, 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. Where the resource has long since been altered and the present government conduct or decision does not have any further impact on the resource, the issue is not consultation, but negotiation about compensation.
Tribunals are confined to the powers conferred on them by their constituent legislation, and the role of particular tribunals in relation to consultation depends on the duties and powers the legislature has conferred on them. 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.
The power to engage in consultation itself, as distinct from the jurisdiction to determine whether a duty to consult exists, cannot be inferred from the mere power to consider questions of law. Consultation itself is not a question of law; it is a distinct, often complex, constitutional process and, in certain circumstances, a right involving facts, law, policy, and compromise. The tribunal seeking to engage in consultation must be expressly or impliedly empowered to do so and its enabling statute must give it the necessary remedial powers.
The duty to consult is a constitutional duty invoking the honour of the Crown. It must be met. If the tribunal structure set up by the legislature is incapable of dealing with a decision’s potential adverse impacts on Aboriginal interests, then the Aboriginal peoples affected must seek appropriate remedies in the courts. These remedies have proven time‑consuming and expensive, are often ineffective, and serve the interest of no one.
In this case, the Commission had the power to consider whether adequate consultation had taken place. The Utilities Commission Act empowered it to decide questions of law in the course of determining whether an EPA is in the public interest, which implied a power to decide constitutional issues properly before it. At the time, it also required the Commission to consider “any other factor that the commission considers relevant to the public interest”, including the adequacy of consultation. This conclusion is not altered by the Administrative Tribunals Act, which provides that a tribunal does not have jurisdiction over any “constitutional question”, since the application for reconsideration does not fall within the narrow statutory definition of that term.
The Legislature did not delegate the Crown’s duty to consult to the Commission. The Commission’s power to consider questions of law and matters relevant to the public interest does not empower it to engage in consultation because consultation is a distinct constitutional process, not a question of law.
The Commission correctly accepted that it had the power to consider the adequacy of consultation with Aboriginal groups, and reasonably concluded that the consultation issue could not arise because the 2007 EPA would not adversely affect any Aboriginal interest. In this case, the Crown had knowledge of a potential Aboriginal claim or right and BC Hydro’s proposal to enter into an agreement to purchase electricity from Alcan is clearly proposed Crown conduct. However, the 2007 EPA would have neither physical impacts on the Nechako River or the fishery nor organizational, policy or managerial impacts that might adversely affect the claims or rights of the First Nations. The failure to consult on the initial project was an underlying infringement, and was not sufficient to trigger a duty to consult. Charged with the duty to act in accordance with the honour of Crown, BC Hydro’s representatives will nevertheless be required to take into account and consult as necessary with affected Aboriginal groups insofar as any decisions taken in the future have the potential to adversely affect them.
Cases Cited
Followed: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; referred to: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Huu‑Ay‑Aht First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697, [2005] 3 C.N.L.R. 74; Wii’litswx v. British Columbia (Minister of Forests), 2008 BCSC 1139, [2008] 4 C.N.L.R. 315; Klahoose First Nation v. Sunshine Coast Forest District (District Manager), 2008 BCSC 1642, [2009] 1 C.N.L.R. 110; Dene Tha’ First Nation v. Canada (Minister of Environment), 2006 FC 1354, [2007] 1 C.N.L.R. 1, aff’d 2008 FCA 20, 35 C.E.L.R. (3d) 1; An Inquiry into British Columbia’s Electricity Transmission Infrastructure & Capacity Needs for the Next 30 Years, Re, 2009 CarswellBC 3637; R. v. Lefthand, 2007 ABCA 206, 77 Alta. L.R. (4th) 203; R. v. Douglas, 2007 BCCA 265, 278 D.L.R. (4th) 653; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Statutes and Regulations Cited
Administrative Tribunals Act, S.B.C. 2004, c. 45, ss. 1, 44(1), 58.
Constitution Act, 1867, s. 91(12) .
Constitution Act, 1982, ss. 24 , 35 , 52 .
Constitutional Question Act, R.S.B.C. 1996, c. 68, s. 8.
Utilities Commission Act, R.S.B.C. 1996, c. 473, ss. 2(4), 71, 79, 101(1), 105.
Authors Cited
Newman, Dwight G. The Duty to Consult: New Relationships with Aboriginal Peoples. Saskatoon: Purich Publishing, 2009.
Slattery, Brian. “Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433.
Woodward, Jack. Native Law, vol. 1. Toronto: Carswell, 1994 (loose‑leaf updated 2010, release 4).
APPEAL from a judgment of the British Columbia Court of Appeal (Donald, Huddart and Bauman JJ.A.), 2009 BCCA 67, 89 B.C.L.R. (4th) 298, 266 B.C.A.C. 228, 449 W.A.C. 228, [2009] 2 C.N.L.R. 58, [2009] 4 W.W.R. 381, 76 R.P.R. (4th) 159, [2009] B.C.J. No. 259 (QL), 2009 CarswellBC 340, allowing an appeal from a decision of the British Columbia Utilities Commission, 2008 CarswellBC 1232, and remitting the consultation issue to the Commission. Appeal allowed; decision of the British Columbia Utilities Commission approving 2007 EPA confirmed.
Daniel A. Webster, Q.C., David W. Bursey and Ryan D. W. Dalziel, for the appellant Rio Tinto Alcan Inc.
Chris W. Sanderson, Q.C., Keith B. Bergner and Laura Bevan, for the appellant the British Columbia Hydro and Power Authority.
Gregory J. McDade, Q.C., and Maegen M. Giltrow, for the respondent.
Mitchell R. Taylor, Q.C., for the intervener the Attorney General of Canada.
Malliha Wilson and Tamara D. Barclay, for the intervener the Attorney General of Ontario.
Paul E. Yearwood, for the intervener the Attorney General of British Columbia.
Stephanie C. Latimer, for the intervener the Attorney General of Alberta.
Written submissions only by Gordon A. Fulton, Q.C., for the intervener the British Columbia Utilities Commission.
Written submissions only by Robert C. Freedman and Rosanne M. Kyle, for the intervener the Mikisew Cree First Nation.
Written submissions only by Jeffrey R. W. Rath and Nathalie Whyte, for the intervener the Moosomin First Nation.
Richard Spaulding, for the intervener Nunavut Tunngavik Inc.
Written submissions only by Timothy Howard and Bruce Stadfeld, for the interveners the Nlaka’pamux Nation Tribal Council, the Okanagan Nation Alliance and the Upper Nicola Indian Band.
Robert J. M. Janes, for the intervener the Lakes Division of the Secwepemc Nation.
Peter W. Hutchins and David Kalmakoff, for the intervener the Assembly of First Nations.
Written submissions only by Mervin C. Phillips, for the intervener the Standing Buffalo Dakota First Nation.
Arthur C. Pape and Richard B. Salter, for the intervener the First Nations Summit.
Jay Nelson, for the interveners the Duncan’s First Nation and the Horse Lake First Nation.
Roy W. Millen, for the intervener the Independent Power Producers Association of British Columbia.
Written submissions only by Harry C. G. Underwood, for the intervener Enbridge Pipelines Inc.
Written submissions only by C. Kemm Yates, Q.C., for the intervener the TransCanada Keystone Pipeline GP Ltd.
The judgment of the Court was delivered by
[1] The Chief Justice — In the 1950s, the government of British Columbia authorized the building of the Kenney Dam in Northwest British Columbia for the production of hydro power for the smelting of aluminum. The dam and reservoir altered the water flows to the Nechako River, which the Carrier Sekani Tribal Council (“CSTC”) First Nations have since time immemorial used for fishing and sustenance. This was done without consulting with the CSTC First Nations. Now, the government of British Columbia seeks approval of a contract for the sale of excess power from the dam to British Columbia Hydro and Power Authority (“BC Hydro”), a Crown corporation. The question is whether the British Columbia Utilities Commission (the “Commission”) is required to consider the issue of consultation with the CSTC First Nations in determining whether the sale is in the public interest.
[2] In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, this Court affirmed that governments have a duty to consult with Aboriginal groups when making decisions which may adversely impact lands and resources to which Aboriginal peoples lay claim. In the intervening years, government-Aboriginal consultation has become an important part of the resource development process in British Columbia especially; much of the land and resources there are subject to land claims negotiations. This case raises the issues of what triggers a duty to consult, and the place of government tribunals in consultation and the review of consultation. I would allow the appeal, while affirming the duty of BC Hydro to consult the CSTC First Nations on future developments that may adversely affect their claims and rights.
I. Background
A. The Facts
[3] In the 1950s, Alcan (now Rio Tinto Alcan) dammed the Nechako River in northwestern British Columbia for the purposes of power development in connection with aluminum production. The project was one of huge magnitude. It diverted water from the Nechako River into the Nechako Reservoir, where a powerhouse was installed for the production of electricity. After passing through the turbines of the powerhouse, the water flowed to the Kemano River and on to the Pacific Ocean to the west. The dam affected the amount and timing of water flows into the Nechako River to the east, impacting fisheries on lands now claimed by the CSTC First Nations. Alcan effected these water diversions under Final Water Licence No. 102324 which gives Alcan use of the water on a permanent basis.
[4] Alcan, the Province of British Columbia, and Canada entered into a Settlement Agreement in 1987 on the release of waters in order to protect fish stocks. Canada was involved because fisheries, whether seacoast-based or inland, fall within federal jurisdiction under s. 91(12) of the Constitution Act, 1867 . The 1987 agreement directs the release of additional flows in July and August to protect migrating salmon. In addition, a protocol has been entered into between the Haisla Nation and Alcan which regulates water flows to protect eulachon spawning grounds.
[5] The electricity generated by the project has been used over the years primarily for aluminum smelting. Since 1961, however, Alcan has sold its excess power to BC Hydro, a Crown Corporation, for use in the local area and later for transmission to neighbouring communities. The Energy Purchase Agreement (“EPA”) entered into in 2007, which is the subject of this appeal is the latest in a series of power sales from Alcan to BC Hydro. It commits Alcan to supplying and BC Hydro to purchasing excess electricity from the Kemano site until 2034. The 2007 EPA establishes a Joint Operating Committee to advise the parties on the administration of the EPA and the operation of the reservoir.
[6] The CSTC First Nations claim the Nechako Valley as their ancestral homeland, and the right to fish in the Nechako River. As was the practice at the time, they were not consulted about the diversion of the river effected by the 1950s dam project. They assert, however, that the 2007 EPA for the power generated by the project should be subject to consultation. This, they say, is their constitutional right under s. 35 of the Constitution Act, 1982 , as defined in Haida Nation.
B. The Commission Proceedings
[7] The 2007 EPA was subject to review before the Commission. It was charged with determining whether the sale of electricity was in the public interest under s. 71 of the Utilities Commission Act, R.S.B.C. 1996, c. 473. The Commission had the power to declare a contract for the sale of electricity unenforceable if it found that it was not in the public interest having regard to the quantity of energy to be supplied, the availability of supplies, the price and availability of any other form of energy, the price of the energy supplied to a public utility company, and “any other factor that the commission considers relevant to the public interest”.
[8] The Commission began its work by holding two procedural conferences to determine, among other things, the “scope” of its hearing. “Scoping” is the process by which the Commission determines what “information it considers necessary to determine whether the contract is in the public interest” pursuant to s. 71(1)(b) of the Utilities Commission Act. The question of the role of First Nations in the proceedings arose at this stage. The CSTC was not party to the proceedings but the Haisla Nation was. The Haisla people submitted that the Province and BC Hydro “ha[d] failed to act on their legal obligation” to them, but refrained from asking the Commission “to assess the adequacy [of consultation] and accommodation afforded . . . on the 2007 EPA”: Re: British Columbia Hydro & Power Authority Filing of Electricity Purchase Agreement with Alcan Inc. as an Energy Supply Contract Pursuant to Section 71, British Columbia Utilities Commission, October 10, 2007 (the “Scoping Order”), unreported. The Commission’s Scoping Order therefore addressed the consultation issue as follows:
Evidence relevant to First Nations consultation may be relevant for the same purpose that the Commission often considers evidence of consultation with other stakeholders. Generally, insufficient evidence of consultation, including with First Nations is not determinative of matters before the Commission.
[9] On October 29, 2007, the CSTC requested late intervener status on the issue of consultation on the basis that the Commission’s decision might negatively impact Aboriginal rights and title which were the subject of its ongoing land claims. At the opening of the oral hearing on November 19, 2007, the CSTC applied for reconsideration of the Scoping Order and, in written submissions of November 20, 2007, it asked the Commission to include in the hearing’s scope the issues of whether the duty to consult had been met, whether the proposed power sale under the 2007 EPA could constitute an infringement of Aboriginal rights and title in and of itself, and the related issue of the environmental impact of the 2007 EPA on the rights of the CSTC First Nations.
[10] The Commission established a two-stage process to consider the CSTC’s application for reconsideration of the Scoping Order: an initial screening phase to determine whether there was a reasonable evidentiary basis for reconsideration, and a second phase to receive arguments on whether the rescoping application should be granted. At the first stage, the CSTC filed evidence, called witnesses and cross-examined the witnesses of BC Hydro and Alcan. The Commission confined the proceedings to the question of whether the 2007 EPA would adversely affect potential CSTC First Nations’ interests by causing changes in water flows into the Nechako River or changes in water levels of the Nechako Reservoir.
[11] On November 29, 2007, the Commission issued a preliminary decision on the Phase I process called “Impacts on Water Flows”. It concluded that the “responsibility for operation of the Nechako Reservoir remains with Alcan under the 2007 EPA”, and that the EPA would not affect water levels in the Nechako River stating, “the 2007 EPA sets the priority of generation produced but does not set the priority for water”. With or without the 2007 EPA, “Alcan operates the Nechako Reservoir to optimize power generation”.
[12] As to fisheries, the Commission stated that “the priority of releases from the Nechako Reservoir [under the 1987 Settlement Agreement] is first to fish flows and second to power service”. While the timing of water releases from the Nechako Reservoir for power generation purposes may change as a result of the 2007 EPA, that change “will have no impact on the releases into the Nechako river system”. This is because water releases for power generation flow not into the Nechako River system to the east, with which the CSTC First Nations are concerned, but into the Kemano River to the west. Nor, the Commission found, would the 2007 EPA bring about a change in control over water flows and water levels, or alter the management structure of the reservoir.
[13] The Commission then embarked on Phase II of the rescoping hearing and invited the parties to make written submissions on the reconsideration application — specifically, on whether it would be a jurisdictional error not to revise the Scoping Order to encompass consultation issues on these facts. The parties did so.
[14] On December 17, 2007, the Commission dismissed the CSTC’s application for reconsideration of the scoping order on grounds that the 2007 EPA would not introduce new adverse effects to the interests of the First Nations: Re British Columbia Hydro & Power Authority, 2008 CarswellBC 1232 (B.C.U.C.) (the “Reconsideration Decision”). For the purposes of the motion, the Commission assumed the historic infringement of Aboriginal rights, Aboriginal title, and a failure by the government to consult. Referring to Haida Nation, it concluded that “more than just an underlying infringement” was required. The CSTC had to demonstrate that the 2007 EPA would “adversely affect” the Aboriginal interests of its member First Nations. Applying this test to its findings of fact, it stated that “a section 71 review does not approve, transfer or change control of licenses or authorization and therefore where there are no new physical impacts acceptance of a section 71 filing [without consultation] would not be a jurisdictional error”. The Commission therefore concluded that its decision on the 2007 EPA would have no adverse effects on the CSTC First Nations’ interests. The duty to consult was therefore not triggered, and no jurisdictional error was committed in failing to include consultation with the First Nations in the Scoping Order beyond the general consultation extended to all stakeholders.
[15] The Commission went on to conclude that the 2007 EPA was in the public interest and should be accepted. It stated:
In the circumstances of this review, evidence regarding consultation with respect to the historical, continuing infringement can reasonably be expected to be of no assistance for the same reasons there is no jurisdictional error, that is, the limited scope of the section 71 review, and there are no new physical impacts.
[16] In essence, the Commission took the view that the 2007 EPA would have no physical impact on the existing water levels in the Nechako River and hence it would not change the current management of its fishery. The Commission further found that its decision would not involve any transfer or change in the project’s licences or operations. Consequently, the Commission concluded that its decision would have no adverse impact on the pending claims or rights of the CSTC First Nations such that there was no need to rescope the hearing to permit further argument on the duty to consult.
C. The Judgment of the Court of Appeal, 2009 BCCA 67, 89 B.C.L.R. (4th) 298 (Donald, Huddart and Bauman JJ.A.)
[17] The CSTC appealed the Reconsideration Decision and the approval of the 2007 EPA to the British Columbia Court of Appeal. The Court, per Donald J.A., reversed the Commission’s orders and remitted the case back to the Commission for “evidence and argument on whether a duty to consult and, if necessary, accommodate the [CSTC First Nations] exists and, if so, whether the duty has been met in respect of the filing of the 2007 EPA” (para. 69).
[18] The Court of Appeal found that the Commission had jurisdiction to consider the issue of consultation. The Commission had the power to decide questions of law, and hence constitutional issues relating to the duty to consult.
[19] The Court of Appeal went on to hold that the Commission acted prematurely by rejecting the application for reconsideration. Donald J.A., writing for the Court, stated:
. . . the Commission wrongly decided something as a preliminary matter which properly belonged in a hearing of the merits. The logic flaw was in predicting that consultation could have produced no useful outcome. Put another way, the Commission required a demonstration that the [CSTC] would win the point as a precondition for a hearing into the very same point.
I do not say that the Commission would be bound to find a duty to consult here. The fault in the Commission’s decision is in not entertaining the issue of consultation within the scope of a full hearing when the circumstances demanded an inquiry. [paras. 61-62]
[20] The Court of Appeal held that the honour of the Crown obliged the Commission to decide the consultation issue, and that “the tribunal with the power to approve the plan must accept the responsibility to assess the adequacy of consultation” (para. 53). Unlike the Commission, the Court of Appeal did not consider whether the 2007 EPA was capable of having an adverse impact on a pending claim or right of the CSTC First Nations. The Court of Appeal did not criticize the Commission’s adverse impacts finding. Rather, it appears to have concluded that despite these findings, the Commission was obliged to consider whether consultation could be “useful”. In finding that the Commission should have considered the consultation issue, the Court of Appeal appears to have taken a broader view than did the Commission as to when a duty to consult may arise.
[21] The Court of Appeal suggested that a failure to consider consultation risked the approval of a contract in breach of the Crown’s constitutional duty. Donald J.A. asked, “How can a contract formed by a Crown agent in breach of a constitutional duty be in the public interest? The existence of such a duty and the allegation of the breach must form part and parcel of the public interest inquiry” (para. 42).
[22] Alcan and BC Hydro appeal to this Court. They argue that the Court of Appeal took too wide a view of the Crown’s duty to consult and of the role of tribunals in deciding consultation issues. In view of the Commission’s task under its constituent statute and the evidence before it, Alcan and BC Hydro submit that the Commission correctly concluded that it had no duty to consider the consultation issue raised by the CSTC, since, however much participation was accorded, there was no possibility of finding a duty to consult with respect to the 2007 EPA.
[23] The CSTC argues that the Court of Appeal correctly held that the Commission erred in refusing to rescope its proceeding to allow submissions on the consultation issue. It does not pursue earlier procedural arguments in this Court.
II. The Legislative Framework
A. Legislation Regarding the Public Interest Determination
[24] The 2007 EPA was subject to review before the Commission under the authority of s. 71 of the Utilities Commission Act to determine whether it was in the public interest. Prior to May 2008, this determination was to be based on the quantity of energy to be supplied; the availability of supplies; the price and availability of any other form of energy; the price of the energy supplied to a public utility company; and “any other factor that the commission considers relevant to the public interest”: Utilities Commission Act, s. 71(2)(a) to (e). Effective May 2008, these considerations were expanded to include “the government’s energy objectives” and its long-term resource plans: s. 71(2.1)(a) and (b). The public interest clause, however, was narrowed to considerations of the interests of potential British Columbia public utility customers: s. 71(2.1)(d).
B. Legislation on the Commission’s Remedial Powers
[25] Based on the above considerations, the Commission may issue an order approving the proposed contract under s. 71(2.4) of the Utilities Commission Act if it is found to be in the public interest. If it is not found to be in the public interest, the Commission can issue an order declaring the contract unenforceable, either wholly or in part, or “make any other order it considers advisable in the circumstances”: s. 71(2) and (3).
C. Legislation on the Commission’s Jurisdiction and Appeals
[26] Section 79 of the Utilities Commission Act states that all findings of fact made by the Commission within its jurisdiction are “binding and conclusive”. This is supplemented by s. 105 which grants the Commission “exclusive jurisdiction in all cases and for all matters in which jurisdiction is conferred on it by this or any other Act”. An appeal, however, lies from a decision or order of the Commission to the Court of Appeal with leave: s. 101(1).
[27] Together, ss. 79 and 105 of the Utilities Commission Act constitute a “privative clause” as defined in s. 1 of the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45. Under s. 58 of the Administrative Tribunals Act, this privative clause attracts a “patently unreasonable” standard of judicial review to “a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause”; a standard of correctness is to be applied in the review of “all [other] matters”.
[28] The jurisdiction of the commission is also arguably affected by s. 44(1) of the Administrative Tribunals Act which applies to the Commission by virtue of s. 2(4) of the Utilities Commission Act. Section 44(1) of the Administrative Tribunals Act states that “[t]he tribunal does not have jurisdiction over constitutional questions”. A “constitutional question” is defined in s. 1 of the Administrative Tribunals Act by s. 8 of the Constitutional Question Act, R.S.B.C. 1996, c. 68. Section 8(2) says:
8. . . .
(2) If in a cause, matter or other proceeding
(a) the constitutional validity or constitutional applicability of any law is challenged, or
(b) an application is made for a constitutional remedy,
the law must not be held to be invalid or inapplicable and the remedy must not be granted until after notice of the challenge or application has been served on the Attorney General of Canada and the Attorney General of British Columbia in accordance with this section.
A “constitutional remedy” is defined as “a remedy under section 24(1) of the Canadian Charter of Rights and Freedoms other than a remedy consisting of the exclusion of evidence or consequential on such exclusion”: Constitutional Question Act, s. 8(1).
D. Section 35 of the Constitution Act, 1982
[29] Section 35 of the Constitution Act, 1982 reads:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
III. The Issues
[30] The main issues that must be resolved are: (1) whether the Commission had jurisdiction to consider consultation; and (2) if so, whether the Commission’s refusal to rescope the inquiry to consider consultation should be set aside. In order to resolve these issues, it is necessary to consider when a duty to consult arises and the role of tribunals in relation to the duty to consult. These reasons will therefore consider:
1. When a duty to consult arises;
2. The role of tribunals in consultation;
3. The Commission’s jurisdiction to consider consultation;
4. The Commission’s Reconsideration Decision;
5. The Commission’s conclusion that approval of the 2007 EPA was in the public interest.
IV. Analysis
A. When Does the Duty to Consult Arise?
[31] The Court in Haida Nation answered this question as follows: 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” (para. 35). This test can be broken down into three elements: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. I will discuss each of these elements in greater detail. First, some general comments on the source and nature of the duty to consult are in order.
[32] The duty to consult is grounded in the honour of the Crown. It is a corollary of the Crown’s obligation to achieve the just settlement of Aboriginal claims through the treaty process. While the treaty claims process is ongoing, there is an implied duty to consult with the Aboriginal claimants on matters that may adversely affect their treaty and Aboriginal rights, and to accommodate those interests in the spirit of reconciliation: Haida Nation, at para. 20. As stated in Haida Nation, at para. 25:
Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982 . The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.
[33] The duty to consult described in Haida Nation derives from the need to protect Aboriginal interests while land and resource claims are ongoing or when the proposed action may impinge on an Aboriginal right. Absent this duty, Aboriginal groups seeking to protect their interests pending a final settlement would need to commence litigation and seek interlocutory injunctions to halt the threatening activity. These remedies have proven time-consuming, expensive, and are often ineffective. Moreover, with a few exceptions, many Aboriginal groups have limited success in obtaining injunctions to halt development or activities on the land in order to protect contested Aboriginal or treaty rights.
[34] Grounded in the honour of the Crown, the duty has both a legal and a constituti