Monday, December 6, 2010

Supreme Court of Canada clarifies duty to consult First Nations on hydro project

The Supreme Court of Canada has ruled that First Nations communities must show a causal relationship between a government action and a potentially adverse effect on their interests, for a duty to consult to arise.

The ruling, Rio Tinto Alcan v. Carrier Sekani Tribal Council, relates to a 2007 energy purchase agreement between BC Hydro and Rio Tinto Alcan - the long-time operator of the 60 year-old Kenney Dam project in the Nechako River, in north-west British Columbia.

Alcan (as it was then known) obtained approval to build the dam from the provincial government in the 1950s, so it could produce power for the smelting of aluminium.

Around 60 years after the dam was built, the Carrier Sekani Tribal Council, a group representing eight aboriginal communities in the province, claimed that it had never been consulted on the dam’s construction and asserted a right of consultation in regards to the 2007 agreement.

In its arguments, the tribal council said the dam had affected the amount and timing of water flows into the Nechako River, impacting on fisheries and lands now claimed by the communities it represents.

The British Columbia Utilities Commission considered the matter first. After establishing that it had the power to consider the adequacy of the Crown’s consultation process, the regulator ruled that the 2007 agreement would have no impact on existing water levels in the Nechako River and no new adverse impact on the aboriginal communities’ rights.

Upholding the regulator’s decision, the Supreme Court ruled that to trigger the duty of consultation, aboriginal groups 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,” the court clarified.

The court added that a past or continuing breach of a claim or right would only trigger a duty to consult if the decision at issue caused a “new adverse effect”.

The court agreed that the British Columbia Utilities Commission had jurisdiction to consider the adequacy of Crown consultation in the matters brought before it – but it did not have power under the Utilities Commission Act, to engage in consultations itself to carry out the duty.

Instead, BC Hydro, as a Crown corporation, was responsible for the duty to consult, according to the court.

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