Rio Tinto decision

Rio Tinto v. British Columbia (Chief Inspector of Mines) [1] Supreme Court of Canada, 2010

In the 1950s, the government of BC authorized the building of a dam and reservoir that altered the flow of the Nechako River without consulting the First Nations of the Carrier Sekani Tribal Council affected by this project. Excess power generated from the dam has been sold by Rio Tinto Alcan to BC Hydro under Energy Purchase Agreements (“EPAs”). Since the initial EPA in 1961 there have been regular renewals of these agreements. At the time of the 2007 EPA the First Nations asserted to the BC Utilities Commission (the “Commission”) that these agreements should be subject to consultation under Section 35 of the Constitution Act, 1982.

The Commission accepted that it had the power to consider the adequacy of consultation with Aboriginal Peoples, but found that there was no need for consultation in this case as the 2007 EPA would not adversely affect any Aboriginal interest. The adverse affects of Aboriginal interest occurred in the 1950s with the construction of the dam.

The Supreme Court of Canada held that it was within the powers of the Commission to determine whether the duty to consult had been met and continued by following the Court’s ruling in Haida Nation’s test of when does the duty to consult arise by outlining the three elements of that test:

1. The Crown must have real or constructive knowledge of a potential Aboriginal claim or right. Potential being the key; it is not proof that the claim will succeed.
2. There must be Crown conduct or a Crown decision. This conduct or decision include government exercise of statutory powers or to decisions or conduct which have an immediate impact on lands and resources and extends to “strategic, higher level decisions” that may have an impact on Aboriginal claims and rights.
3. There must be a possibility that the Crown conduct may affect the Aboriginal claim or right. There must be shown a causal relationship between the conduct and the potential for future adverse impacts on the claim or right. Past wrongs and speculative impacts are not sufficient.

The Court further stated that the duty to consult is confined to the adverse impacts flowing from the specific Crown proposal at issue – not to larger adverse impacts of the projects of which it is a part.  Where the resource has long since been altered and the present government conduct or decision does not have any further impact on the resource, the issue is not consultation, but negotiation about compensation for the failure to have been properly consulted in the past.

The Court upheld the Commission’s ruling that the duty to consult did not arise because the 2007 EPA would not adversely affect any Aboriginal interest. The failure to consult on the initial project was an underlying infringement, but did not affect this 2007 EPA.

[1 ]Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43

This is an excerpt from the 3rd edition of our book Working Effectively with Aboriginal Peoples®

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