Administrative Law in Context, 2nd Edition_Part35 - IV...

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IV. Respecting Aboriginal Rights and Jurisdictions 471 that the duty to consult applies to decisions that may be excluded by the legislative exemp- tion under a duty of fairness, an issue that will be pursued in greater detail further below. 103 Past Crown conduct and past impacts or infringements of Aboriginal rights will not, on their own, trigger the duty to consult. This issue was recently clarified in Rio Tinto Alcan , in which the Carrier Sekani Tribal Council First Nations argued that the continued negative impact on their Aboriginal fishing rights caused by a dam built on the Nechako River, Brit- ish Columbia, in the 1960s gave rise to a duty to consult. The dam supported a power plant for an aluminum smelter and B.C. Hydro purchased the extra power produced by the power plant. When the energy purchase agreement between B.C. Hydro and Rio Tinto Alcan came up for renegotiation and approval, the Carrier Sekani argued that the B.C. Utilities Com- mission had an obligation to ensure that there was adequate consultation before approving the renegotiated agreement. The Supreme Court disagreed, holding that because the rene- gotiation of the energy purchase agreement created no new impact on the fishing rights in issue—that is, it did not further alter the water levels in the river—the duty to consult was not triggered in this case. The limit on the threshold of the duty drawn in Rio Tinto Alcan does not preclude the consideration of cumulative impacts of development where, unlike in Rio Tinto Alcan , the current Crown conduct can be less clearly detached from the adverse effects of past Crown conduct. However, it is unclear and contested how to define the scope of the duty to consult in such cases, particularly when past impacts must be addressed in the consultation process and accommodated, or whether the consultation process should only seek to address the impact of the most recent Crown conduct. 104 Rio Tinto Alcan clarifies the forward-looking nature of the duty, with the Court address- ing historical grievances by allowing that past breaches of the duty to consult may give rise to a damages remedy. 105 This forward-looking direction is a key indication of how the Su- preme Court envisions the role of the duty to consult and accommodate in supporting reconciliation. 106 It is also a key issue for the development of Aboriginal administrative law, which requires robust procedural safeguards capable of ensuring that Aboriginal perspec- tives are respected within Crown decision-making processes: perspectives that may not accept the separation of past or future from current resource management decisions as a matter of law, justice, or reconciliation. 103 See, generally, Mullan, supra note 78 at 128-29. 104 For example, contrast Upper Nicola Indian Band v. British Columbia (Minister of Environment) , 2011 BCSC 388, [2011] B.C.J. No. 559 (QL) ( Rio Tinto Alcan , supra note 92, was relied on to exclude consideration of the original impacts of a 1960s transmission line right-of-way in the consultation process around a proposed new

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