Power and Pride: Fishing for a Compromise between Rio Tinto Alcan v Carrier Sekani

The assertion of Crown sovereignty is a question that has never been resolved in Canadian constitutional jurisprudence. The mindset of original settlers was that Aboriginal peoples did not count as inhabitants of the land, so discovery applied in order to assert sovereignty. As Canada moves to an era of equality of all peoples, ignoring a sound basis for the assertion of sovereignty becomes unacceptable. In the spirit of promoting a just and lasting reconciliation for the wrongs done by original settlers to Aboriginals, Canadian constitutional jurisprudence has developed over the years in a manner that recognizes and protects Aboriginal rights. For example, the courts have interpreted s. 35.(1) of the Charter, a provision that entrenches the recognition of Aboriginal rights into our Constitution, to protect activity-specific rights (ie. fishery, hunting, etc.); aboriginal title; self-government; and treaty rights. In Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 [Haida Nation], the courts recognized the Crown’s duty to consult in circumstances where aboriginal rights have not yet legally crystallized. Governments are under an obligation pursuant to the honour of the Crown to consult with Aboriginal peoples before authorizing projects that could have a negative impact on the Aboriginal’s ability to exercise treaty or aboriginal rights in the future. A veto is not granted to Aboriginals, but a significant degree of consultation and accommodation is required. Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 2 SCR 650 deals with Crown’s duty to consult in the context of administrative tribunals.

Power

In the 1950s, the government of British Columbia authorized the building of the Kenney Dam on the Nechako River in Northwest British Columbia for the production of hydropower. A license was granted to Rio Tinto Alcan Inc (“Alcan”) giving use of the water on a permanent basis. Pursuant to practice at the time, the Carrier Sekani Tribal Council (“CSTC”) First Nations were not consulted about the dam project, although they have been using the waters of the Nechako River for fishing and sustenance since time memorial. The dam significantly affected the amount and timing of water flows into the Nechako River to the east, impacting fisheries on lands now claimed by the CSTC. Since 1961, Alcan has sold its excess power from the dam to British Columbia Hydro and Power Authority (“BC Hydro”), a Crown corporation. In 1987, a Settlement Agreement was arranged between Alcan, British Columbia and Canada on the release of waters in order to protect fish stocks. In 2007, an Energy Purchase Agreement (“EPA”) was entered into between BC Hydro and Alcan, committing Alcan to supply and BC Hydro to purchase excess electricity until 2035. Additionally, the EPA establishes a Joint Operating Committee to advise the parties on the administration of the EPA and the operation of the reservoir.

Pride

The CSTC First Nations claim the Nechako Valley as their ancestral homeland, and the right to fish in the Nechako River. Pursuant to rights of the aboriginal peoples of Canada enshrined in s. 35 of the Constitution Act, 1982, the CSTC assert that the 2007 EPA should be subject to consultation. The duty to consult arises “when the Crown has knowledge, real or constructive, of the potential or actual existence of the Aboriginal right or title and contemplates conduct that might adversely affect it (Haida Nation, para 35). In recognition of the honour of the crown, prior to the final resolution of claims, there is an implied duty to consult with Aboriginal claimants with a view to reconciliation. The purpose of consultation is to protect unproven or established rights from irreversible harm as settlement negotiations (ie. treaty process) proceed.

Procedural History

The CSTC First Nations’ assertion was initially raised before Commission Proceedings reviewing whether the sale of electricity contracted for by the 2007 EPA was in the public interest under s. 71 of the Utilities Commission Act, RSBC 1996, c 473 [Utilities Commission Act]. In determining whether the sale of electricity is in the public interest, the Commission is allowed to consider “any other factor that the commission considers relevant to the public interest.” 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. Subsequently, it refused to rescope the inquiry into whether the sale was in the public interest to consider consultation. The EPA was approved. The British Columbia Court of Appeal reversed the Commission’s orders and remitted the case to the Commission.

The Issues on Appeal

There were two main issues on appeal to the Supreme Court of Canada (“SCC”):

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.

The Compromise (Decision of the SCC)

Tribunals are confined to the powers conferred on them by their constituent legislation. The legislature may choose to delegate to a tribunal the Crown’s duty to consult or it may confine a tribunal’s power to determinations of 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; the tribunal must be expressly or impliedly authorized to do so. A tribunal seeking to engage in consultation must possess remedial powers necessary to do what it is asked to do in connection with the consultation. 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 interests must seek appropriate remedies in the courts. Upon inspection of the Utilities Commission Act, the Commission has the constitutional jurisdiction to consider the adequacy of Crown consultation in relation to matters properly before it. However, the Act does not empower the Commission to engage in consultations in order to discharge the Crown’s constitutional obligation to consult.

In reaching its decision to not consider the adequacy of consultation with Aboriginal groups, the Commission concluded that the 2007 EPA would not adversely affect any Aboriginal interest. As aforementioned, the duty to consult arises “when the Crown has knowledge, real or constructive, of the potential or actual existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.” The first element – Crown knowledge of a potential Aboriginal claim or right – is easily established as the CSTC First Nations’ claims were lodged in the Province’s formal claims resolution process. The second element – proposed Crown conduct or decision – is also easily established. Since BC Hydro is a Crown corporation, the proposal to enter into the 2007 EPA is proposed crown conduct. The third element – adverse impact on an Aboriginal claim or right caused by the Crown conduct – is where the difficulties arise.

Firstly, the Commission was correct in concluding that the underlying infringement (ie. the failure to consult when the dam was originally established in the 1950s) in and of itself does not constitute an adverse impact that gives rise to a duty to consult. The duty to consult will be triggered if the present decision has the potential of causing a novel adverse impact on a present claim or existing right. Remedies for past and continuing breaches should be remedied through negotiating compensation (ie. awarding of damages). Secondly, applying a common law reasonableness standard of review, the Commission’s decision that the 2007 EPA did not adversely impact the Aboriginal interests was reasonable. Based upon the evidence before the Commission, the tribunal held that the 2007 EPA would not have an impact on the river’s water levels. Additionally, they found that the 2007 EPA would not effect management changes, ruling out any attendant adverse impact.

These holdings of the SCC are in favour of the appellants (Alcan and BC Hydro); however, the court extended an olive branch to the CSTC First Nations. As mentioned above, the 2007 EPA calls for the creation of a Joint Operating Committee (composed of representatives of Alcan and BC Hydro) to advise the parties on the administration of the EPA and the operation of the reservoir. The honour of the Crown requires BC Hydro to give the CSTC First Nations notice of any decisions under the 2007 EPA that have the potential to adversely affect their claims or rights. They are required to take into account and consult as necessary with affected Aboriginal groups insofar as any decision taken in the future have the potential to adversely affect their rights.