Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., (2010) 293 B.C.A.C. 175 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 21, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 293 B.C.A.C. 175 (SCC);2010 SCC 43

Carrier Sekani Tribal Council v. Utilities Comm. (2010), 293 B.C.A.C. 175 (SCC);

    496 W.A.C. 175

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2010] B.C.A.C. TBEd. OC.036

Rio Tinto Alcan Inc. and British Columbia Hydro and Power Authority (appellants) v. Carrier Sekani Tribal Council (respondent) and Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, British Columbia Utilities Commission, Mikisew Cree First Nation, Moosomin First Nation, Nunavut Tunngavik Incorporated, Nlaka'pamux Nation Tribal Council, Okanagan Nation Alliance, Upper Nicola Indian Band, Lakes Division of the Secwepemc Nation, Assembly of First Nations, Standing Buffalo Dakota First Nation, First Nations Summit, Duncan's First Nation, Horse Lake First Nation, Independent Power Producers Association of British Columbia, Enbridge Pipelines Inc. and TransCanada Keystone Pipeline GP Ltd. (intervenors)

(33132; 2010 SCC 43; 2010 CSC 43)

Indexed As: Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

October 28, 2010.

Summary:

B.C. Hydro applied under s. 71 of the Utilities Commission Act for approval by the British Columbia Utilities Commission (the Commission) of an energy purchase agreement (EPA) between B.C. Hydro and Alcan Inc. The Carrier Sekani Tribal Council (CSTC) sought to be heard in the s. 71 proceeding on the issue of whether the Crown had fulfilled its duty to consult before B.C. Hydro entered into the EPA. The Commission dismissed CSTC's motion and approved the EPA. CSTC appealed.

The British Columbia Court of Appeal, in a decision reported at (2009), 266 B.C.A.C. 228; 449 W.A.C. 228, allowed the appeal. The Commission unreasonably refused to include the consultation issue in the scope of the proceeding and oral hearing. The appropriate remedy was to order the s. 71 hearing re-opened for the sole purpose of hearing evidence and argument on whether a duty to consult and, if necessary, accommodate CSTC existed and, if so, whether the duty had been met. B.C. Hydro and Alcan Inc. appealed.

The Supreme Court of Canada allowed the appeal. The court confirmed the Commission's decision to approve the EPA.

Administrative Law - Topic 9069

Boards and tribunals - Jurisdiction of particular boards and tribunals - Energy and utility boards - [See fourth and fifth Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The Supreme Court of Canada discussed the law governing when a duty to consult with aboriginals arose - Regarding the source and nature of the duty to consult, the court observed that the duty to consult was a corollary of the Crown's obligation to achieve the just settlement of aboriginal claims through the treaty process - While that process was ongoing, there was an implied duty to consult with the claimants on matters that might adversely affect their treaty and aboriginal rights and to accommodate those interests in the spirit of reconciliation - The duty derived from the need to protect aboriginal interests while claims were ongoing or when a proposed action might impinge on an aboriginal right - The duty sought to provide protection for aboriginal and treaty rights, while furthering reconciliation - The nature of the duty varied with the situation - The richness of the required consultation increased with the strength of the claim and the seriousness of the impact on the underlying right - The remedy for a breach of the duty also varied with the situation and could range from injunctive relief against the threatening activity, to damages, or to an order to carry out the consultation prior to proceeding further with the proposed government conduct - See paragraphs 31 to 39.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The Supreme Court of Canada discussed the three elements that gave rise to a duty to consult with aboriginals: (1) the Crown's knowledge, actual or constructive, of a potential aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct might adversely affect an aboriginal claim or right - Regarding the first element, the threshold was not high - Actual knowledge arose when a claim was filed or advanced in negotiations or when a treaty right might be impacted - Constructive knowledge arose when lands were known or reasonably suspected to have been traditionally occupied by an aboriginal community or an impact on rights might reasonably be anticipated - Proof that the claim would succeed was not required - What was required was a credible claim - The second element required Crown conduct or a Crown decision that engaged a potential aboriginal right and that might adversely affect the claim or right - Regarding the third element, the claimant had to 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 previous breaches of the duty to consult, were not sufficient - The question was whether there was a claim or right that potentially might be adversely impacted by the current government conduct or decision in question - Prior and continuing breaches, including prior failures to consult, would only trigger a duty to consult if the present decision had the potential of causing a novel adverse impact on a present claim or existing right - See paragraphs 40 to 50.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - B.C. Hydro applied under s. 71 of the Utilities Commission Act for approval by the British Columbia Utilities Commission (the Commission) of an energy purchase agreement (EPA) between B.C. Hydro and Alcan Inc. - The Carrier Sekani Tribal Council (CSTC) sought to be heard in the s. 71 proceeding on the issue of whether the Crown had fulfilled its duty to consult before B.C. Hydro entered into the EPA - The Commission dismissed CSTC's motion, finding that the duty to consult was not triggered, and approved the EPA - CSTC's appeal was allowed on the basis that the Commission had erred in refusing to rescope its proceeding to allow submissions on the consultation issue - B.C. Hydro and Alcan Inc. appealed - The Supreme Court of Canada allowed the appeal - The duty to consult arose where there was a causal connection between proposed Crown conduct and a potential adverse impact on an aboriginal right or claim - The court rejected CSTC's position that, even if (as found by the Commission) the EPA would have no impact on water levels, fisheries or the management of the contested resource, the duty to consult might be triggered because the EPA was part of a larger hydro-electric project dating from the 1950s that continued to impact CSTC's rights - The effect of CSTC's proposition was that if the Crown proposed an action, however limited, that related to a project that impacted aboriginal claims or rights, a fresh duty to consult arose - Haida Nation v. British Columbia (Minister of Forests) et al. (2004 S.C.C.) negated such a broad approach - The duty to consult was confined to adverse impacts that flowed from a specific Crown proposal, not to larger adverse impacts of the project of which the proposal was a part - The subject of the consultation was the impact on the claimed rights of the current decision under consideration - See paragraphs 51 to 54.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The Supreme Court of Canada discussed the role of tribunals in relation to the duty to consult with aboriginals - The duty on a tribunal to consider consultation and the scope of that inquiry depended on the mandate conferred by the legislation that created the tribunal - The legislature might choose to delegate to a tribunal the Crown's duty to consult or it might confine the tribunal's power to determinations of whether adequate consultation had taken place - Tribunals considering resource issues touching on aboriginal interests might have a duty to consult, a duty to consider consultation or no duty at all - In order for a tribunal to have the power to enter into interim resource consultations with a First Nation, pending the final settlement of claims, the tribunal had to be expressly or impliedly authorized to do so - The power to engage in consultation could not be inferred from the mere power to consider questions of law - A tribunal that had the power to consider the adequacy of consultation, but did not itself have the power to enter into consultations, had to provide whatever relief it considered appropriate in the circumstances, in accordance with the remedial powers expressly or impliedly conferred on it by statute - The goal was to protect aboriginal rights and interests and to promote the reconciliation of interests - See paragraphs 55 to 65.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - B.C. Hydro applied under s. 71 of the Utilities Commission Act for approval by the British Columbia Utilities Commission (the Commission) of an energy purchase agreement (EPA) between B.C. Hydro and Alcan Inc. - The Carrier Sekani Tribal Council (CSTC) sought to be heard in the s. 71 proceeding on the issue of whether the Crown had fulfilled its duty to consult before B.C. Hydro entered into the EPA - The Commission dismissed CSTC's motion, finding that the duty to consult was not triggered, and approved the EPA - CSTC's appeal was allowed on the basis that the Commission had erred in refusing to rescope its proceeding to allow submissions on the consultation issue - B.C. Hydro and Alcan Inc. appealed - The Supreme Court of Canada, in allowing the appeal, discussed the Commission's jurisdiction to consider consultation - The Commission had not erred in concluding that it had the power to consider the issue of consultation - Beyond its general power to consider questions of law, the factors that the Commission was required to consider under s. 71 of the Utilities Commission Act were broad enough to include the issue of Crown consultation with aboriginal groups - The Commission had the constitutional jurisdiction to consider the adequacy of Crown consultation in relation to matters properly before it, but not to engage in consultation itself - Consultation was not a question of law, but a distinct constitutional process requiring powers to effect compromise and to do whatever was necessary to achieve reconciliation of Crown and aboriginal interests - The Commission's power to consider questions of law and matters relevant to the public interest did not empower it to engage itself in consultation with aboriginal groups - See paragraphs 66 to 75.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - B.C. Hydro applied under s. 71 of the Utilities Commission Act for approval by the British Columbia Utilities Commission (the Commission) of an energy purchase agreement (EPA) between B.C. Hydro and Alcan Inc. - The Carrier Sekani Tribal Council (CSTC) sought to be heard in the s. 71 proceeding on the issue of whether the Crown had fulfilled its duty to consult before B.C. Hydro entered into the EPA - The Commission dismissed CSTC's motion, finding that the duty to consult was not triggered, and approved the EPA - CSTC's appeal was allowed on the basis that the Commission had erred in refusing to rescope its proceeding to allow submissions on the consultation issue - B.C. Hydro and Alcan Inc. appealed - The Supreme Court of Canada allowed the appeal - The determination that rescoping was not required because, as found by the Commission, the EPA would not adversely affect aboriginal interests was a mixed question of fact and law, reviewable on the reasonableness standard - If it was arguable that a duty to consult could have arisen, then the Commission would have been wrong in dismissing the rescoping order - It was argued before the Commission that the Crown had breached CSTC's rights when the original dam and electricity production project was built in the 1950s and that this breach was ongoing - The Commission correctly concluded that an underlying infringement did not, in itself, constitute an adverse impact giving rise to a duty to consult - The real issue was whether a fresh duty to consult arose with respect to the Crown decision that was before the Commission - The Commission examined the evidence on this question, including the organizational implications of the EPA and the physical changes that might occur - The Commission concluded that these did not have the potential to adversely impact CSTC's claims or rights - The Commission acted reasonably in so concluding - See paragraphs 76 to 94.

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians - [See fourth, fifth and sixth Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement (incl. requirement of consultation) - [See first, second and third Indians, Inuit and Métis - Topic 3 ].

Public Utilities - Topic 4643

Public utility commissions or corporations (incl. private providers) - Regulation - General principles - General duties of commissions - [See fourth and fifth Indians, Inuit and Métis - Topic 3 ].

Public Utilities - Topic 4644

Public utility commissions or corporations (incl. private providers) - Regulation - General principles - General powers of commissions - [See fourth and fifth Indians, Inuit and Métis - Topic 3 ].

Public Utilities - Topic 4743

Public utility commissions or corporations (incl. private providers) - Judicial review - Appeals - [See sixth Indians, Inuit and Métis - Topic 3 ].

Cases Noticed:

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, consd. [para. 2].

British Columbia Hydro & Power Authority, Re, 2008 CarswellBC 1232 (B.C. Utilities Commission), refd to. [para. 14].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 34].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 36].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 40].

Huu-ay-aht First Nation v. British Columbia (Minister of Forests) et al., [2005] B.C.T.C. 697; [2005] 3 C.N.L.R. 74; 2005 BCSC 697, refd to. [para. 43].

Wii'litswx v. British Columbia (Minister of Forests) et al., [2008] B.C.T.C. Uned. 759; [2008] 4 C.N.L.R. 315; 2008 BCSC 1139, refd to. [para. 43].

Brown v. Hawrys et al., [2008] B.C.T.C. Uned. E73; [2009] 1 C.N.L.R. 110; 2008 BCSC 1642, refd to. [para. 44].

Klahoose First Nation v. Sunshine Coast Forest District (District Manager) - see Brown v. Hawrys et al.

Dene Tha' First Nation v. Canada (Minister of the Environment) et al. (2006), 303 F.T.R. 106; 2006 FC 1354, affd. (2008), 378 N.R. 251; 35 C.E.L.R.(3d) 1; 2008 FCA 20, refd to. [para. 44].

R. v. Lefthand (2007), 77 Alta. L.R.(4th) 203; 2007 ABCA 206, refd to. [para. 44].

R. v. Douglas (K.A.) et al. (2007), 242 B.C.A.C. 164; 400 W.A.C. 164; 278 D.L.R.(4th) 653; 2007 BCCA 265, refd to. [para. 46].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 55].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 65].

Paul v. Forest Appeals Commission (B.C.) et al., [2003] 2 S.C.R. 585; 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1; 2003 SCC 55, refd to. [para. 69].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 78].

Authors and Works Noticed:

Newman, Dwight G., The Duty to Consult: New Relationships with Aboriginal Peoples (2009), pp. 21 [para. 38]; 30 [paras. 41, 46].

Slattery, Brian, Aboriginal Rights and the Honour of the Crown (2005), 29 S.C.L.R.(2d) 433, p. 440 [para. 38].

Woodward, Jack, Native Law (1994) (2010 Looseleaf Update) (Release 4), vol. 1, pp. 5-35 [para. 35]; 5-41 [paras. 44, 47].

Counsel:

Daniel A. Webster, Q.C., David W. Bursey and Ryan D.W. Dalziel, for the appellant, Rio Tinto Alcan Inc.;

Chris W. Sanderson, Q.C., Keith B. Bergner and Laura Bevan, for the appellant, the British Columbia Hydro and Power Authority;

Gregory J. McDade, Q.C., and Maegen M. Giltrow, for the respondent;

Mitchell R. Taylor, Q.C., for the intervenor, the Attorney General of Canada;

Malliha Wilson and Tamara D. Barclay, for the intervenor, the Attorney General of Ontario;

Paul E. Yearwood, for the intervenor, the Attorney General of British Columbia;

Stephanie C. Latimer, for the intervenor, the Attorney General of Alberta;

Written submissions only by Gordon A. Fulton, Q.C., for the intervenor, the British Columbia Utilities Commission;

Written submissions only by Robert C. Freedman and Rosanne M. Kyle, for the intervenor, the Mikisew Cree First Nation;

Written submissions only by Jeffrey R.W. Rath and Nathalie Whyte, for the intervenor, the Moosomin First Nation;

Richard Spaulding, for the intervenor, Nunavut Tunngavik Incorporated;

Written submissions only by Timothy Howard and Bruce Stadfeld, for the intervenors, the Nlaka'pamux Nation Tribal Council, the Okanagan Nation Alliance and the Upper Nicola Indian Band;

Robert J.M. Janes, for the intervenor, the Lakes Division of the Secwepemc Nation;

Peter W. Hutchins and David Kalmakoff, for the intervenor, the Assembly of First Nations;

Written submissions only by Mervin C. Phillips, for the intervenor, the Standing Buffalo Dakota First Nation;

Arthur C. Pape and Richard B. Salter, for the intervenor, the First Nations Summit;

Jay Nelson, for the intervenors, the Duncan's First Nation and the Horse Lake First Nation;

Roy W. Millen, for the intervenor, the Independent Power Producers Association of British Columbia;

Written submissions only by Harry C. Underwood, for the intervenor, Enbridge Pipelines Inc.;

Written submissions only by C. Kemm Yates, Q.C., for the intervenor, the TransCanada Keystone Pipeline GP Ltd.

Solicitors of Record:

Bull, Housser & Tupper, Vancouver, B.C., for the appellant, Rio Tinto Alcan Inc.;

Lawson Lundell, Vancouver, B.C., for the appellant, the British Columbia Hydro and Power Authority;

Ratcliff & Company, North Vancouver, B.C., for the respondent;

Attorney General of Canada, Vancouver, B.C., for the intervenor, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of British Columbia, Victoria, B.C., for the intervenor, the Attorney General of British Columbia;

Attorney General of Alberta, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Boughton Law Corporation, Vancouver, B.C., for the intervenor, the British Columbia Utilities Commission;

Janes Freedman Kyle Law Corporation, Victoria, B.C., for the intervenors, the Mikisew Cree First Nation and the Lakes Division of the Secwepemc Nation;

Rath & Company, Priddis, Alberta, for the intervenor, the Moosomin First Nation;

Richard Spaulding, Ottawa, Ontario, for the intervenor, Nunavut Tunngavik Incorporated;

Mandell Pinder, Vancouver, B.C., for the intervenors, the Nlaka'pamux Nation Tribal Council, the Okanagan Nation Alliance and the Upper Nicola Indian Band;

Hutchins Légal inc., Montreal, Quebec, for the intervenor, the Assembly of First Nations;

Phillips & Co., Regina, Saskatchewan, for the intervenor, the Standing Buffalo Dakota First Nation;

Pape Salter Teillet, Vancouver, B.C., for the intervenor, the First Nations Summit;

Woodward  &  Company,  Victoria,  B.C.,  for the intervenors, the Duncan's First Nation and the Horse Lake First Nation;

Blake, Cassels & Graydon, Vancouver, B.C., for the intervenor, the Independent Power Producers Association of British Columbia;

McCarthy Tétrault, Toronto, Ontario, for the intervenor, Enbridge Pipelines Inc.;

Blake, Cassels & Graydon, Calgary, Alberta, for the intervenor, TransCanada Keystone Pipeline GP Ltd.

This appeal was heard on May 21, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. On October 28, 2010, McLachlin, C.J.C., delivered the following reasons for judgment for the court in both official languages.