Last week (Oct. 28), the Supreme Court of Canada, in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, fine-tuned the “duty to consult” doctrine. That doctrine mandates that governments making decisions which may have an impact on Aboriginal or treaty rights have a duty to consult the potentially affected First Nations – even before final proof of the rights in court or ultimate settlement on the rights in negotiation processes. Here’s a good (2009) summary of the doctrine. Duty to Consult
This duty to consult doctrine was introduced in a quick succession of Supreme Court of Canada cases in 2004 and 2005. Haida and Taku were actually released on the same day and Mikisew, the following year.
Haida Nation v. British Columbia (Minister of Forests)[2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia, [2004] 3 S.C.R. 550; Mikisew Cree First Nation v. Canada, [2005] 3 S.C.R. 388.
The case arose from an application by Rio Tinto Alcan Inc. (Alcan) to the British Columbia Utilities Commission (BCUC) for approval of a purchase agreement, where Alcan was selling excess power to BC Hydro. The provincially appointed Commission had to determine whether the purchase agreement was “in the public interest.” In regards to that purchase agreement, the Carrier Sekani Tribal Council (CSTC) sought to intervene at BCUC hearing on the issue of whether or not the Crown had fulfilled its duty to consult. Whereas Alcan had a permanent water license for the reservoir the company had built in the 1950s, the tribe had an asserted Aboriginal title claim to the water and related resources near the discharge of a reservoir. The Tribe claimed that the diversion of water for Alcan’s use was an infringement of its s.35 rights and that no consultation had ever taken place concerning that that infringement since the 1950s.
Last week’s unanimous Supreme Court decision restated the three criteria which give rise to a duty to consult: (1) There must be Crown knowledge (actual or constructive) of a potential Aboriginal claim or right; (2) there must be potential Crown conduct, and; (3) that conduct must give rise to the possibility that it may adversely affect an Aboriginal right or claim.
Concerning the third point, the Court opined that a tribe must show a causal relationship between the proposed government conduct/decision and the potential for adverse impacts on Aboriginal claims or rights. The court further opined that past wrongs, including previous and/or continuing (as is the case here) breaches of the duty to consult, were not sufficient to create such a causal relationship. The message taken from this is the “honour of the Crown” is irrelevant if the dishonourable deeds have already occurred. How judicially convenient.
The Court then stated that adverse impacts extend to any effect that may prejudice a pending Aboriginal claim or right, including “high level management decisions or structural changes to the resource’s management [which] may also adversely affect Aboriginal claims or rights even if these decisions have no immediate impact on the lands and resources.” In reaching this conclusion, the Court rejected the broader approach suggested by the respondent First Nation which was that any government action, however inconsequential, should suffice to create a duty to consult because it is part of a larger project. In rejecting this approach, the Court narrowed the duty, confining it “to adverse impacts flowing from the specific Crown proposal at issue – not to larger adverse impacts of the project of which it is a part. The subject of the consultation is the impact on the claimed rights of the current decision under consideration.”
Therefore, proposed Crown conduct must either immediately or potentially negatively impact established or claimed rights. “Speculative impacts” or those which do not reduce or remove the power of the Crown (in place to ensure that a resource is developed in accordance with the honour of the Crown) will likely not be sufficient to trigger the duty.
Thus, if the proposed Crown action is not immediate and specific, tribes are up shit reservoir without a paddle. Honour of the Crown be damned.
On the issue of the role of government tribunals in consultation, the Supreme Court held that provincial legislatures may choose to delegate to a provincial tribunal the Crown’s duty to consult. In doing so, the Court rejected the tribe’s argument that every tribunal with the 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. Instead, it affirmed that a tribunal has only those powers which are statutorily conferred, either impliedly or expressly.
In a nutshell:
- Past or speculative impacts, or those decisions which do not impair the Crown’s ability to ensure the honour of the Crown, may avoid the duty.
- Absent a statutory provision to the contrary, tribunals authorized to determine questions of law have the power to assess consultation when the issue is properly before it. A mere “public interest” component to the decision may be enough to empower the tribunal.
- If the tribunal does not have authorization to remedy a “duty to consult” breach, the First Nation may need to resort to the courts.
Turtle Talk 