The Supreme Court of Canada recently released its decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 in which the respondents, the Carrier Sekani Tribal Council, argued that the duty to consult on a decision by BC Hydro to purchase electricity under a new electricity purchase agreement may be triggered by a failure to consult on the larger, existing electricity development to which the agreement was to apply. At issue was whether a fresh duty to consult could arise with respect to the Crown decision before the Commission.
The court disagreed with Carrier Sekani’s position and overturned the Court of Appeals decision. Instead, it held that the duty to consult on the agreement was not triggered by a failure to consult on the existing development because the existing development would not adversely affect the claims or rights at issue.
Citing the rule in Haida Nation, the Court confirmed that the duty to consult arises only “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.” The Court held that “to trigger a fresh duty of consultation…a contemplated Crown action must put current claims and rights in jeopardy.”
As the Carrier Sekani did not show that a failure to consult on the larger, existing electricity development could put their current claims and rights in jeopardy, the Court found that there was no fresh duty to consult on the existing development. Though a failure to consult would constitute a breach, the Court held that without any further impact to the resource (a continuing breach) an historical infringement alone would not adversely impact Aboriginal rights, giving rise to a duty to consult.
Moreover, the Court held that the focus of consultation is forward looking, centering on how the resource is to be developed to prevent irreversible harm to existing Aboriginal interests. Therefore, consultation is not possible “where the resource has long since been altered and the present government conduct or decision does not have any further impact on the resource.” In those circumstances, the Court held that “the issue is not consultation, but negotiation about compensation for its alteration without having properly consulted in the past.”
What this means is that a failure to consult on historical or past infringements which are part of a proposed new development but do not constitute a continuing breach nor have the potential to adversely impact current Aboriginal rights, will not trigger fresh consultation. The appropriate remedy for the breach is to negotiate compensation or bring a claim for damages.
The issue of an historical and continuing breach was not before the Commission, given its limited mandate, and therefore, it was not before the Supreme Court in this case. However, the Court stated “that is not to say that there is no remedy for past and continuing breaches, including previous failures to consult. As noted in Haida Nation, a breach of a duty to consult may be remedied in various ways, including awarding damages.”