Supreme Court of Canada Decision on the Issue of Aboriginal Consultation
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43
On October 28, 2010, the Supreme Court of Canada issued a decision which addresses the role of a statutory tribunal when dealing with issues of aboriginal consultation under section 35 of the Constitution.
The CNSC welcomes this decision, which clarifies the role of a statutory body to consider questions of whether a duty to consult arises, whether a duty has been discharged in a particular situation and the extent to which a statutory body is capable of dealing with any particular potential adverse impacts that could arise from a decision.
The case involves a decision of the British Columbia Utilities Commission (“the Commission”) by which it decided that a 2007 contract for the sale of excess power from a dam to BC Hydro did not engage a duty to consult under the constitution. In the 1950s, the BC government had authorized the building of the dam, which altered the flow of the Nechako River, without consulting the Carrier Sekani Tribal Council (CSTC), who assert aboriginal rights in the area. Now, under its authority, the Commission had to determine whether the sale was in the public interest. Whereas the Commission found that it had the power to consider the adequacy of consultation with Aboriginal groups, it concluded that no duty to consult arose respecting the 2007 contract, because it would not adversely affect any Aboriginal interest. The BC Court of Appeal reversed the Commission’s decision, and the matter was appealed to the Supreme Court.
The Supreme Court found that the Commission had been correct to determine there was no duty to consult on the fact of the case. The Court found that “an underlying or continuing breach, while remediable in other ways, is not an adverse impact for the purposes of determining whether a particular government decision gives rise to a duty to consult”. Consultation is about the impact on the claimed right of the current decision under consideration, not past decisions.
On the role of a statutory tribunal, the Court confirmed that a tribunal’s duty to consider consultation, its scope and its adequacy, depends on the statutory mandate of the tribunal. The Court provided the clarification that consultation is a complex constitutional process, such that a tribunal engaging in consultation must possess the remedial powers necessary to do what it is asked to do in connection with the consultation.
The CNSC considers the decision to accord with its own approach to its role respecting upholding the honour of the Crown in the context of its licensing under the Nuclear Safety and Control Act. This decision is also in line with the recent decision of the Federal Court in ARG v. Areva Resources and AG Canada, a case currently under appeal to the Federal Court of Appeal.