The Supreme Court of Canada clarifies the role of administrative tribunals in discharging the duty to consult

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Case considered: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43

In the 1950s British Columbia authorized Alcan to develop the Nechako and Kemano Rivers for power purposes to supply Alcan’s aluminum facility at Kitimat. This development occurred in the traditional territory of the Carrier Sekani Tribal Council (CSTC) First Nations. There was no consultation at that time. Since then Alcan has sold excess power from its facilities to BC Hydro (a Crown corporation) and in 2007 the parties negotiated an energy purchase agreement (EPA) to cover the period up until 2034. Sales have been growing in recent years as Alcan has found it more profitable to generate electricity than make aluminum: Kitimat (District) v. British Columbia (Minister of Energy and Mines), 2008 BCCA 81.

BC Hydro was required to obtain the approval of the BC Utilities Commission (BCUC) for this agreement under the terms of s.71 of the Utilities Commission Act, RSBC 1996, c. 473. In considering such an application the BCUC is required to assess whether the contract is in the public interest having regard to matters such as the quantity of energy to be supplied, price, alternative sources of energy and “any other factor that the commission considers relevant to the public interest”.

CSTC intervened late in the BCUC proceedings and sought to expand the coverage of the Commission’s review to have the Commission consider whether the Crown had met its duty to consult Aboriginal people, whether the proposed power sale could infringe its Aboriginal rights and title, and also more generally as to the environmental impact of the agreement. The Commission refused to change the scope of the review. It had concluded as part of its Phase I examination of the issues that Alcan would remain responsible for the operation of the reservoir and would continue to optimize power generation; and that releases from the Nechako reservoir (into the Kemano River) for fish purposes would continue to be governed by the term of a settlement agreement between Alcan and the Department of Fisheries and Oceans. In light of these findings the Commission concluded that the EPA would have no adverse effects on the CSTC’s interests.

CSTC appealed the BCUC’s decision to the Court of Appeal. That Court held that the BCUC had to conclude that the duty to consult had been satisfied and that it could not do this as a preliminary manner. The Court of Appeal would have remitted the matter back to the Commission to consider evidence and argument on whether a duty to consult (and accommodate) exists and if so whether that duty had been fulfilled. On further appeal to the Supreme Court of Canada that Court emphasised that the Court of Appeal did not criticize the Commission’s conclusion that there was no adverse impact. As a result, suggested the Supreme Court of Canada (at para. 20), the Court of Appeal “appears to have taken a broader view than did the Commission as to when a duty to consult may arise.”

The Supreme Court in a unanimous decision delivered by Chief Justice Beverley McLachlin reversed and affirmed the Commission’s decision. I think that the decision is significant in two areas: (1) the duty to consult and past harms, and, (2) the role of regulatory tribunals in the context of the duty to consult.

The duty to consult and past harms

The Court emphasised (at para. 45) that “past wrongs, including previous breaches of the duty to consult” will not alone suffice to trigger a duty to consult in relation to a present action such as approval of the EPA. Thus, even where a First Nation continues to suffer from the impacts of past wrongs and activities, further decisions in relation to those activities will not trigger a duty to consult unless the new decision itself has the potential to impair Aboriginal or treaty rights (at paras 48 – 49, 51 – 54 & 84). Thus the duty to consult operates prospectively and seeks to prevent damage. Other remedies such as damages may be appropriate for past actions (at paras. 48 & 54).

The role of regulatory tribunals in the context of the duty to consult

As for the role of a regulatory tribunal in relation to the duty to consult – it all depends. And it all depends on the terms of the relevant provincial or federal statute. The legislature might impose the duty to consult on the tribunal (since the Crown can delegate its duty to consult: Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73), the legislature might charge the tribunal with ensuring that adequate consultation has occurred, or the legislature might give both of these duties or none of these duties to the tribunal (at para. 57). In other words, there are no hard and fast rules; it is simply a question of reading the relevant statutes. Gone is any suggestion that a tribunal with quasi-judicial functions may not, as a matter of law, discharge a duty to consult as well as a duty to impartially fulfill its adjudicative function – and indeed the Court manages to reach its decision in this case without even mentioning its decision in Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 SCR 159 which was the source of this idea (admittedly in the bad old days when the duty to consult was yoked with the Crown’s fiduciary obligations (and again no mention of fiduciary duties here, just, consistently with Haida Nation, the honour of the Crown)).

Are there any default rules or presumptions that will help us in ascertaining the role of a tribunal (or indeed any statutory decision maker, see R v. Conway, 2010 SCC 22)? I think so. First, the Court suggests that a tribunal that has the authority to decide points of general law will also have the power and the duty to ascertain whether there is a duty to consult and whether the Crown has fulfilled its consultation obligations – at least, that is, unless the legislature expressly denies a tribunal this additional constitutional responsibility. In this case, the provincial legislation provided that the BCUC had no jurisdiction over constitutional questions but the Court interpreted this as applying to division of powers issues, problems of applicability (i.e. interjurisdictional immunity, and on this see the Court’s recent decision in Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39) and Charter questions (all at para. 71) and not the duty to consult: “[the legislation does] not indicate a clear intention … to exclude from the Commission’s jurisdiction the duty to consider whether the Crown has discharged its duty to consult with holders of relevant aboriginal interests” (at para. 72).

Second, the same conclusion (effectively a presumption) does not follow with respect to a tribunal assuming the duty to consult. The power to decide question of law does not imply a duty to consult (at para.60): “A tribunal has only those powers that are expressly or implicitly conferred upon it by statute. 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 must be expressly or implied authorized to do so”. In this case the provincial legislation had not conferred this authority/duty on the BCUC (at para. 74).

Third, a tribunal with the authority to decide if the duty has been fulfilled should provide whatever relief it considers appropriate (at para. 61) (shades here of s.24(1) of the Charter and Conway, above). Fourth, where the tribunal has no authority to consult or to decide on whether the duty has been fulfilled, “the Aboriginal peoples affected must seek appropriate remedies in the Courts” (at para. 63).

Those I think are the two main points of interest in the judgement but here are three additional observations. First, there is a very heavy emphasis in this judgement on the duty to consult as interim relief pending final settlement (see paras 33, 50, & 60) and as an alternative to injunctive relied (although there also is a tipping of the hat to the duty as generative of a constitutional order (at 38) (see reference to Slattery, “Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433 – but do they understand what that means?)). One of the implications of this is that it is hard to get a sense of the implications of this decision in the context of treaty rights. There is a passing mention of treaty rights and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69 (at para. 48) but not much beyond that.

Second, in addition to commenting on the role of BCUC in the context of consultation the Court also commented on the responsibilities of BC Hydro as an agent of the Crown and indeed affirmed the duty of Hydro (at para. 3) “to consult the CSTC First Nations on future developments that may adversely affect their claims and rights.” Thus the Court noted that (at para. 81) “BC Hydro is a Crown corporation. It acts in place of the Crown. No one seriously argues that the 2007 EPA does not represent a proposed action of the Province of British Columbia.” And this was not a situation in which the duty to consult might be triggered because the Crown was divesting itself of land or resources such that it would (at para 47) “remove or reduce the Crown’s power to ensure that the resource is developed in a way that respects Aboriginal interests in accordance with the honour of the Crown” – but this was because (at para 91),

… the Crown remains present on the Joint Operating Committee and as a participant in the reservoir operating model. Charged with the duty to act in accordance with the honour of Crown, BC Hydro’s representatives would be required to take into account and consult as necessary with affected Aboriginal groups insofar as any decisions taken in the future have the potential to adversely affect them. The CSTC First Nations’ right to Crown consultation on any decisions that would adversely affect their claims or rights would be maintained. I add that the honour of the Crown would require BC Hydro to give the CSTC First Nations notice of any decisions under the 2007 EPA that have the potential to adversely affect their claims or rights.

In other words the duty to consult will be asymmetrical – the more that a government hews to social democratic ideals and retains ownership of resources (or worse still the means of production, distribution and exchange) then the more likely it is that it will retain more onerous consultation obligations.

The third point is connected and it relates to the Commission’s findings of fact. The Commission’s decision (and ultimately the Court’s) turns very much upon the conclusion that the EPA would not change the way in which Alcan operated its facilities and that if it didn’t sell this power to BC Hydro it would sell it to somebody else (at paras. 86 & 92). Now I haven’t gone and looked at the terms of the EPA and I am not completely up to speed on the state of deregulation of the power market in BC, but in a dynamic energy market with intermittent sources such as wind increasingly coming on stream, hydro power (especially for peaking rather than base load purposes) becomes increasingly valuable and all other things being equal an operator will choose to use its hydro resources to maximum advantage. In other words, this hydro resource will be increasingly valuable to BC Hydro and future operations may well change from historic operations as the supply mix changes. I guess this is the sort of thing on which BC Hydro might have to consult in the future (as indicated in the last paragraph) but one wonders why entering into the agreement itself did not trigger the duty to consult if, as the Court does emphasise, organizational and structural changes (at para. 90) far removed from operational decisions, may, in principle, trigger.

I will try and add something in the next few days on the implications of this decision for the Energy Resources Conservation Board in Alberta – unless that is one of you ABlawg readers out there in cyberspace chooses to relieve me of that self-imposed responsibility! Another idea to pursue is to ask what this decision might lead us to expect when the court hands down its decision in David Beckman, in his capacity as Director, Agriculture Branch, Department of Energy, Mines and Resources et al. v. Little Salmon/Carmacks First Nation et al. (heard 12 November 2009).

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About Nigel Bankes

B.A., M.A. (Cantab.), LL.M. (UBC). Professor. Chair of Natural Resources Law. Member of the Alberta Bar. Please click here for more information.
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5 Responses to The Supreme Court of Canada clarifies the role of administrative tribunals in discharging the duty to consult

  1. Shaun says:

    Alberta Regulation 69/2006 designates the ERCB as a decision-maker with authority to decide all questions of constitutional law. The regulation is issued under the authority of section 16 of the Administrative Procedures and Jurisdiction Act. This effect of this SCC decision would be that the ERCB not only has the power but also the duty to consider whether the Crown has met its duty to consult.

  2. Nigel says:

    Shaun,

    Thanks for this but I think that you reach the correct conclusion for the wrong reasons.

    In Carrier-Sekani the relevant BC legislation precluded the BCUC from deciding “constitutional questions”. However, the Court (at para. 71) noted that this term was defined narrowly in the Administrative Tribunals Act ,SBC 2004, c. 45 and the Constitutional Questions Act RSBC 1996, c.68 in terms of: (1) constitutional validity, (2) constitutional applicability (interjurisdictional immunity) and (3) a constitutional remedy. The Court holds however that the action in this case related to the implications of the duty to consult and that this fell outside the exclusion worked by the BC legislation. At the same time it fell within the general duty of a tribunal to decide questions of law and therefore any questions of constitutional law other than those removed from the jurisdiction of the tribunal.

    If we apply that reasoning in Alberta I think that we might proceed along the following lines: (1) the ERCB has the authority to decide questions of law: (2) the APJA and regulations to which you refer specifically confer the authority to decide questions of constitutional law, (3) a “question of constitutional law” however is narrowly defined in Alberta’s Act (s.10(d)) much as in BC and thus the APJA cannot be the source of the authority to decide a duty to consult matter, hence, (4) the power and the duty to decide questions of consultation falls to the ERCB by virtue of its general authority to decide questions of law and the ERCB is not excluded from doing so (or entitled to escape from doing so) by the language of s.11 of the APJA

    This result will likely send provincial drafter scurrying to get some amendments through provincial legislatures. As things stand any regulatory tribunal with the authority to decide questions of law must also decide questions of consultation unless such questions cannot be separated from questions pertaining to validity or applicability. It must also follow, I think, that a party wishing to raise a duty to consult issue need not provide notice of a constitutional question (s.12 APJA) since that section also adopts the statutory definition of “question of constitutional law”.

    I’d be interested in your thoughts on this and I leave it to you Shaun to figure out the implication of this for Justice Rowbotham’s decision in Big Loop Cattle Co. Ltd v ERCB, http://www.albertacourts.ab.ca/jdb/2003-/ca/civil/2010/2010abca0328.pdf

  3. Shaun says:

    Now I know what it must feel like to be upheld on appeal but for different reasoning. Ouch. Since I have the opportunity for rebuttal I will take it.

    I do think the reasoning in Carrier-Sekani in paras 69 to 71 is somewhat unclear on tribunal obligation to decide on the duty to consult. In para 69 the Court reiterates what it ruled in 2003 in its Paul decision that the power to decide questions of law includes the power to decide questions of constitutional law unless the legislature clearly expresses otherwise. In para 70 the Court seems to place the duty to consult as a factor the BCUC is required to consider as part of its public interest assessment under the Utilities Commission Act. This reference to “requirement” suggests not only does the BCUC have the power to decide whether the duty to consult was met, but under its statute has the legal obligation to do so as part of its public interest assessment. This would suggest the possibility of a much narrower reading on the legal obligation to deal with questions of consultation.

    The Ct. continues in para 72 by stating that the BC Administrative Tribunal Act does not expressly state that the BCUC does not have this duty to decide whether the Crown has met its duty to consult – but then at the end of para 72 states:

    It follows that, in applying the test articulated in Paul and Conway, the Commission has the constitutional jurisdiction to consider the adequacy of Crown consultation in relation to matters properly before it.

    And then at para 73:

    For these reasons, I conclude that the Commission had the power to consider whether adequate consultation with concerned Aboriginal peoples had taken place.

    If the obligation flows from the power to decide legal questions, shouldn’t this sentence in para 72 read “the Commission has the legal obligation … “? And then at para 73 why doesn’t the Ct also say that the Commission has the “duty” to consider whether adequate consultation took place?

    Anyways, a long way of saying this reasoning here could have been much clearer – such that I’m not convinced an obligation to consider the whether the Crown has met its duty to consult flows from a tribunal’s power to decide questions of law. The Ct seems somewhat ambiguous on this in critical spots.

    As for how this all might apply to Alberta and the ERCB, I still think the question over whether the Crown has met its duty to consult can be handled under the Alberta Administrative Procedures and Jurisdiction Act (APAJ).

    It was the 2003 SCC decision in Paul that led to the enactment of Part 2 in the APAJ in 2005. These provisions are – in my opinion – much clearer than what is drafted in the BC Administrative Tribunals Act. Section 11 in Part 2 of the APAJ states no statutory decision-maker has the power to decide questions of constitutional law – except as set out in the regulations. My recollection from 2005 was the intention by the legislature in adding Part 2 was to clearly delineate which statutory decision-makers could decide questions of constitutional law – in reaction to the Paul decision which if I recall did not subcategorize questions of constitutional law – so one could read this to mean the legislature intended Part 2 to capture all questions of consitutional law. And as I noted earlier … the ERCB is in the regulations as having jurisdiction to decide all questions of constitutional law.

    ‘questions of constitutional law’ is defined in Part 2 as meaning

    any challenge, by virtue of the Constitution of Canada or the Alberta Bill of Rights, to the applicability or validity of an enactment of the Parliament of Canada or an enactment of the Legislature of Alberta, or

    a determination of any right under the Constitution of Canada or the Alberta Bill of Rights.

    Now I think the legislature intended this to capture all questions of constitutional law – and perhaps it was a mistake to define the term in the Act or at least ought to have been more careful with its drafting. It’s interesting when looking at the schedule that actually sets out the jurisdiction for each decision-maker, that the legislator further subdivided this into: all questions of constitutional law; questions of constitutional law arising from the federal or provincial distribution of powers under the Constitution of Canada; and questions of constitutional law relating to the Charter. The ERCB is expressly given the jurisdiction to decide all constitutional questions.

    My understanding was that the Crown’s duty to consult flows from section 35 of the Constitution and the honour of the Crown that demands the rights guaranteed in section 35 be recognized and upheld – or in other words to use the Hohfeldian methodology – the duty to consult is the correlative of the right to be consulted. Such that deciding whether or not the Crown has met its duty to consult is arguably “a determination of any right under the Constitution”.

    So I guess I’m raising 2 points here: 1. Is Carrier-Sekani clear enough in its reasoning to hold that a tribunal with the authority to decide questions of law must also decide questions of consultation; and 2. it is at least arguable that the APAJ was intended to capture questions of consultation and does provide the ERCB with the power to decide those questions.

    Shaun

  4. Shaun says:

    One more item here. I note with interest that this issue over whether the ERCB has a duty to assess consultation was argued in front of the Court of Appeal back in late 2003 in a series of leave applications – Frog Lake First Nation, Whitefish Lake First Nation, and Dene Tha First Nation. The issue there was that the ERCB denied them standing as intervenors to even argue the point. The Court granted leave on the issue – but ultimately affirmed the ERCB’s denial of standing in Dene Tha (2005 ABCA 68).

    Shaun

  5. Is the standing test unconstitutional if it prevents a board from hearing submissions on the adequacy of consultation?

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