A little certainty for an uncertain process – Supreme Court confirms duty to consult not triggered or informed by adverse impacts from past actions (part I of II)1 


November 2010

Aboriginal Law Bulletin

Jason J. Annibale, Timothy John Murphy, Meital Bar-Dayan, Student-at-Law

Governments and corporations, particularly those in the natural resource and energy sectors, have received some welcome guidance on the limits to the scope of aboriginal consultations.

In Rio Tinto Alcan Inc v Carrier Sekani Tribal , the Supreme Court of Canada clarified that adverse impacts arising from past Crown actions on potential aboriginal and treaty rights do not on their own trigger or otherwise inform the duty to consult. For consultation obligations to be triggered, there must be a current Crown action that creates a further or novel impact.

The Court's decision also provides guidance on what roles a tribunal may have in the consultation process. Only tribunals empowered by their enabling statutes to consider the duty to consult or engage in consultation may do so. Where tribunals lack jurisdiction, the courts remain available to parties to seek redress.

facts and judicial history

In the 1950s, British Columbia authorized Alcan (now Rio Tinto Alcan) to build a dam and reservoir which altered the amount and timing of water flows in the Nechako River. Since 1961, through a series of power sale agreements, Alcan had been selling excess power from the dam to BC Hydro for use in the local area and for transmission to neighbouring communities. The 2007 Energy Purchase Agreement (the "2007 EPA") was the latest of these power sale agreements and was subject to review before the British Columbia Utilities Commission (the "Commission").

The Carrier Sekani Tribal Council ("CSTC") claimed the Nechako Valley as part of their ancestral homeland and the right to fish in the Nechako River. Pursuant to the practice at the time, the CSTC was not consulted about the dam's original construction. The CSTC argued, among other things, that the 2007 EPA was subject to consultation.

The Commission was charged with determining whether the sale of electricity was in the public interest. Contracts found by the Commission to be contrary to the public interest could be declared unenforceable.

The Commission determined that the 2007 EPA would have no physical impact on the existing water levels in the Nechako River or change the current management of the reservoir. The Commission also found that any failure of the Crown to consult on a continuing historical infringement was not relevant to whether the duty arose with respect to the current agreement. Consequently, the duty to consult was not triggered in the circumstances and no further evidence on consultation was considered.

The CSTC appealed the decision to the British Columbia Court of Appeal, where the Commission's decision was overturned. Alcan and BC Hydro appealed to the Supreme Court.

the Supreme Court's decision

The Supreme Court unanimously confirmed the Commission's decision and affirmed the duty of BC Hydro to consult with aboriginals.

the duty to consult

The Court relied on the well-established three-part test in assessing whether a duty to consult existed in the circumstances: (1) the Crown must have real or constructive knowledge of a potential aboriginal or treaty right; (2) there must be some Crown action contemplated; and (3) the Crown action must potentially affect the subject aboriginal or treaty right in some adverse way.

In considering the test's application to the facts in this case, the Court found that "past wrongs, including previous breaches of the duty to consult," are not on their own sufficient to trigger consultation obligations – rather, a current Crown action resulting in a novel adverse impact is required. In such circumstances, the extent of the Crown's obligation to consult is limited to the novel adverse impact flowing from the current government action. Adverse impacts arising from the original Crown action are not to be considered in the analysis. The Court did, however, afford that underlying or continuing breaches may be "remediable in other ways" and suggested that the awarding of damages may be one such remedy.

The Court also found that the impugned Crown action may include "high level management decisions or structured changes"– an immediate, direct impact or the exercise of a statutory power is not necessarily required for the duty to consult to be triggered.

The Court concluded that the Commission reasonably held that the duty to consult did not arise because the 2007 EPA would not adversely affect any aboriginal or treaty rights. The 2007 EPA would have no physical impact on the Nechako River or the release of fish, nor would the 2007 EPA cause any organizational, policy or managerial adverse impacts on the reservoir. The failure to consult on the initial project was an underlying infringement insufficient to trigger the duty to consult.

the role of tribunals

The Court confirmed that a tribunal's obligation to consider the duty to consult and engage in consultation depends on its mandate as conferred by statute. The Court clarified that the legislature may delegate the duty to consult to a tribunal or, as was found to be the case with the Commission, the legislature may empower a tribunal to determine whether adequate consultation has taken place. The Court explicitly rejected the notion that every tribunal with jurisdiction to consider questions of law has a constitutional duty to consider whether adequate consultation has taken place, and if not, to fulfill that duty itself. The Court reasoned that, for a tribunal to engage in consultation, the tribunal must possess adequate remedial powers. Where the tribunal structure set up by the legislature is incapable of dealing with a decision's adverse impacts on aboriginal and treaty rights, appropriate redress may be sought through the courts.

In this case, the Court found that the Commission correctly accepted its power to review the adequacy of the consultation as a matter of law and correctly concluded that it was not mandated by legislation to undertake a consultation on its own.


The Supreme Court's decision is of great assistance to those engaged in designing and implementing aboriginal consultations. While past wrongs may not trigger the Crown's duty to consult, the Supreme Court did consider that other remedies remain available to the aggrieved for underlying or continuing breaches. Understanding the powers and limitations of tribunals in play will assist parties in effectively managing the progress of their dialogues and disputes where adjudication is required.

by Timothy John Murphy, Jason J. Annibale and Meital Bar-Dayan, Student-at-Law

1 The Supreme Court of Canada recently released two decisions in relation to the duty to consult with aboriginals. In part I of this bulletin series of II, we consider the first of these cases, Rio Tinto Alcan Inc v Carrier Sekani, 2010 SCC 43, and limits to the duty to consult. In part II, we consider the second case, Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53, and consultation obligations arising out of a modern treaty.

a cautionary note
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2010