Memories of Haida: Two BCCA Decisions on the Crown’s Duty to Consult

Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida], established the Crown’s duty to consult and accommodate First Nations peoples during the pre-proof period where an aboriginal or treaty right is being pursued. Haida is an acknowledgement that it can take a long time to prove an Aboriginal right. In the interim, Chief Justice McLachlin held: “[T]he Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.”

Haida is a milestone in the Supreme Court of Canada’s (“SCC”) journey towards the “reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown” as described in R v Van der Peet, [1996] 2 SCR 507. In 1984, Guerin v The Queen, [1984] 2 SCR 335, introduced the concept that fiduciary obligations are owed by the Crown to First Nations. R v Sparrow, [1990] 1 SCR 1075, was the first SCC decision to apply s. 35 of the Constitution Act 1982, which recognizes “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada.”

Prior to Haida, the Crown had contended that it had no duty to consult unless aboriginal title had been proven in court. Thus Haida is significant because the SCC spoke in clear and unequivocal terms in rejecting unilateral action by the Crown during this period:

To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.

I revisit Haida for two reasons. First, two recent decisions from the British Columbia Court of Appeal (“BCCA”) show how the Crown and courts have interpreted the the duty to consult established in Haida. Some believe there is “no doubt” these cases will eventually reach the SCC. Secondly, in light of these decisions, I wish to take stock of eminent aboriginal lawyer Maria Morellato’s observation: “There is a marked discrepancy between what is required of the Crown at law and how the Crown’s duty to consult and accommodate is currently being exercised.”

Carrier Sekani: “No New Physical Impacts”

Carrier Sekani Tribal Council v British Columbia (Utilities Commission), 2009 BCCA 67 [Carrier Sekani], involves a “massive scale” power project to reverse the flow of a river and drive the water through a tunnel under a mountain to drive generators. The BCCA stated the interests of the Carrier Sekani Tribal Council as follows:

The appellant’s interest (asserted both in a pending action for Aboriginal title and within the treaty process) is in the water and related resources east of the discharge of the Nechako Reservoir created by Alcan in the early 1950s to drive its generators in Kemano for use at the Kitimat aluminum smelter. The appellant claims that the diversion of water for Alcan’s use is an infringement of its rights and title and that no consultation has ever taken place.

The Carrier Sekani sought to be heard before the British Columbia Utilities Commission under s. 71 of the Utilities Commission Act, RSBC 1996, c 473, to determine whether the Crown fulfilled its duty to consult. The Commission rejected the Carrier Sekani’s motion because there were no “new physical impacts” created by the proposed Energy Purchase Agreement. With regards to B.C. Hydro’s duty to consult, the Commission decided not to consider this issue since it had already found there would be no new physical impact.

The BCCA held that the Commission wrongly decided whether it should consider the Crown’s duty to consult:

In my respectful judgment, 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 appellant 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.

The BCCA reopened the Commission’s hearing to determine whether a duty to consult, and if necessary accommodate, the Carrier Sekani exists and has been met.

Kwikwetlem and “Ministerial Discretion”

Kwikwetlem First Nation v British Columbia Utilities Commission, 2008 BCCA 208 [Kwikwetlem], was decided at the same time as Carrier Sekani. This case involves a power line which proponents say is necessary to meet energy demands of the British Columbia lower mainland. The line originates, terminates or passes through the traditional territory of the appellants. The basis for the Kwikwetlem appeal was:

This appeal under s. 101 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, questions the approach of the British Columbia Utilities Commission (“the Commission”) to the application of the principles of the Crown’s duty to consult about and, if necessary, accommodate asserted Aboriginal interests on an application under s. 45 of that Act, for a certificate of public convenience and necessity (“CPCN”) for a transmission line project proposed by the respondent, British Columbia Transmission Corporation (BCTC).

The BCCA identified the major issue in Kwikwetlem is the role of the Commission in assessing the adequacy of the Crown’s consultation prior to issuance of a CPCN. The Commission decided the government’s consultation process involved ministerial discretion and it should defer to that process accordingly. The Kwikwetlem argued “the Commission’s refusal to permit them to lead evidence about the consultation process in that proceeding effectively precludes consideration of alternatives.”

The Court held it was the Commission’s constitutional duty to assess the fulfillment of the Crown’s duty to consult before it decides that a project is “necessary and convenient in the public interest.” Therefore the role of the Commission includes: (1) determining if the Crown’s duty to consult with regards to this project arose; (2) the scope of that duty; and (3) whether it was fulfilled.

The BCCA ordered the Commission reconsider its scoping decision to exclude aboriginal concerns.

Future of the Duty to Consult

Recal Marletto’s “marked discrepancy” between the Crown’s legal duty to consult and the results on the ground post Haida. In my view, Carrier Sekani and Kwikwetlem stand for the proposition that the duty to consult demands a substantive result. Tribunals such as the British Columbia Utilities Commission can no longer dismiss constitutionally protected aboriginal interests by simply finding “no new physical impacts” or “ministerial discretion.” The BCCA held “the Commission is required to assess [consultation] efforts to determine whether the Crown’s honour was maintained in its dealings with First Nations regarding the potential effects of the proposed project.”