Historical Infringements Do Not Trigger Current Consultation Duty

Copyright 2010, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Aboriginal Law/Energy, November 2010

In its recent decision in Rio Tinto Alcan v. Carrier Sekani Tribal Council, the Supreme Court of Canada held that the BC Utilities Commission is required to consider aboriginal consultation in determining whether the sale of electricity is in the public interest. The Court reaffirmed the duty to consult Aboriginal Peoples when the Crown contemplates conduct that may adversely affect an aboriginal claim or right. Importantly, the Court declined to extend that duty to situations where the Crown permits the continuation of a long-established activity that is predicated on a historical impact on aboriginal interests, without new adverse effects on aboriginal use of land or resources. The Court's reasoning is significant for users of land and resources across Canada whose activities could affect aboriginal or treaty rights.