Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council
Court: Supreme Court of Canada
Citation: 2010 SCC 43
TAGS: Duty to Consult; Natural Resources – Mineral; Natural Resources – Mining
This case defined the duty to consult and established the conditions in which a duty to consult is triggered.
Since the 1950s, Rio Tinto Alcan (RTA) had been producing power for aluminum production using a dam on the Nechako River. Beginning in 1961, RTA had been selling excessive power to BC Hydro under Energy Purchase Agreements (EPAs). In 2007, a new EPA was created for the continued purchase and sale of power.
The Carrier Sekani Tribal Council (CSTC) First Nations claimed that the 2007 EPA should have been subject to consultation, given their claim that the Nechako Valley is their homeland and that they have the right to fish in the Nechako River. They were not consulted prior to the construction of the dam in the 1950s. The British Columbia Utilities Commission (the Commission) held a hearing that concluded water levels in the Nechako River would be unaffected. The Commission acknowledge that there had been a historic infringement of Aboriginal rights and a failure to consult but concluded that the CSTC had failed to demonstrate that the 2007 EPA would “adversely affect” their Aboriginal interest. Therefore, the Commission declared that the duty to consult was not triggered.
Why this Case Matters:
This case defined the duty to consult. If a provincial or federal government believes certain conduct may negatively impact an existing or potentially existing Aboriginal right or title, then the duty to consult will arise. The duty to consult arises when:
- The crown has knowledge of a potential Aboriginal claim or right
- The crown is contemplating conduct which engages a potential Aboriginal right
- The contemplated conduct may adversely affect an Aboriginal claim or right.
To maintain the honour of the Crown, the threshold to trigger the duty to consult is not high. The extent of the duty to consult depends on the strength of the rights claim and the seriousness of the potential infringement on those rights. If a treaty has provided an alternative arrangement that maintains the honour of the Crown, then a duty to consult may not arise.
Supreme Court Judgment: