A dam and reservoir was built in the 1950s which altered the amount and timing of water in the Nechako River. The Carrier Sekani claim the Nechako Valley as their ancestral homeland, and the right to fish in the Nechako River, but, pursuant to the practice at the time, they were not consulted about the dam project. Excess power generated by the dam is sold by Alcan to BC Hydro. In 2007, the First Nation asserted that the new Energy Purchase Agreement should be subject to consultation under s. 35.
The Utilities 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 as the purchase agreement would not adversely affect any aboriginal interest. The British Columbia Court of Appeal reversed the Commission's orders and remitted the case to the Commission for evidence and argument on whether a duty to consult the First Nations exists and, if so, whether it had been met.
- When does a duty to consult arise?
McLachlin, writing for a unanimous court, reaffirmed the general approach set out in Haida Nation that the duty to consult arises when the Crown has knowledge of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. She stated that the Crown’s failure to consult can lead to a variety of remedies including injunctive relief, an order to carry out additional consultation, and/or damages.
She stated that government action which triggers the duty to consult is not limited to the exercise of statutory powers and extends to "strategic, higher level decisions" that may have an impact on aboriginal claims and rights, including the transfer of tree farm licences, the approval of a multi-year forest management plan over a large geographic area, the establishment of a review process for a major gas pipeline, and a comprehensive inquiry to determine a province’s infrastructure and capacity needs for electricity transmission. McLachlin stated that the Court would leave the issue of whether "government conduct" for the purposes of consultation also applies to legislative action for another day.
On the issue of what constitutes an "adverse effect" for the purpose of triggering the duty to consult, the claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending claims or rights; past wrongs, including breaches of the duty to consult, do not suffice.
Regulatory tribunals that address issues that touch on aboriginal interests may have the Crown's duty to consult delegated to them, or may have their power limited to determining whether adequate consultation has taken place, or finally have none of these powers. Tribunals must be expressly or implicitly empowered to consult or consider whether consultation that had occurred has been adequate. 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 peoples potentially impacted must seek the appropriate remedies in the courts. The legislation empowering the tribunal will need to be reviewed carefully to determine whether and to what extent a tribunal can address the issue of consultation.
In this case, McLachlin concluded that the Commission has the constitutional jurisdiction to consider the adequacy of Crown consultation in regard to matters that are properly before it, but the Utilities Commission Act did not empower it to engage in consultations in order to discharge the duty. The Court confirmed that BC Hydro, as a Crown corporation, held the Crown's duty to consult. The Commission acted reasonably and correctly held that the purchase agreement did not have the potential to adversely affect the claims or rights of the Carrier Sekani First Nations.
The duty to consult arises when:
- the Crown has knowledge, actual or constructive, of a potential aboriginal claim or right;
- the Crown must be contemplating conduct which engages a potential aboriginal right; and
- there must be the potential that the contemplated conduct may adversely affect an aboriginal claim or right.