Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Constitutional law - Aboriginal rights - Crown - Honour of Crown - Duty to consult and accommodate Aboriginal peoples prior to decisions that might adversely affect their Aboriginal rights and title claims - B.C. Hydro entered into agreement to purchase excess energy from Alcan - Commission empowered to approve Energy Purchase Agreement if it was of public convenience and necessity - Commission exercising a discretion to determine what is relevant to the public convenience and necessity - Commission found as a fact that BC Hydro’s power purchase would have negligible effect on reservoir levels or water flows - Commission concluded that consultation was not required - Whether the honour of the Crown imposes on tribunals a “duty to decide” consultation questions - Whether a decision by the Commission to “accept” an energy supply contract under s. 71 of the Utilities Commission Act can trigger the duty to consult - Whether it is unreasonable for the Commission to focus its inquiry on cost-effectiveness, in the course of a s. 71 review - Alternatively, whether the Commission correctly concluded that the Energy Purchase Agreement did not trigger the duty to consult described in (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, and whether the Commission decided the consultation issue by way of a fair and adequate process - Whether B.C. Hydro had a duty to consult, and if necessary, accommodate, the Respondent with respect to the Energy Purchase Agreement - Whether B.C. Hydro had a duty to consult, and if necessary, accommodate, the Respondent with respect to any other Crown actor’s conduct - Whether the duty was discharged, assuming B.C. Hydro had such a duty - Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 71.

In 2006, Alcan announced plans to modernize and expand its smelter at Kitimat, B.C., which was powered via a large water diversion project. The Modernization Project depended on the successful conclusion of a power sale agreement with British Columbia Hydro and Power Authority. In 2007, B.C. Hydro entered in an Energy Purchase Agreement under which it would buy Alcan’s surplus electricity. Under s. 71 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, the Energy Purchase Agreement required the approval of the British Columbia Utilities Commission, a quasi-judicial tribunal with the power to decide questions of law. Initially, the First Nations groups intervening before the Commission were not pressing the issue of consultation, and consultation was found not to be in issue. The Carrier Sekani Tribal Council then intervened on the issue of consultation. The Tribal Council had asserted its interest in the water and related resources east of the discharge of the Nechako Reservoir in an action for Aboriginal title and in the treaty process. On reconsideration, the Commission found that the Energy Purchase Agreement would not affect the volume, timing or source of water flows into the Nechako River, that it would not change the volume of water to be released into the Kemano River, and that any variations in the elevation of the Nechako River would only affect the timing of releases into the Kemano River. It dismissed the motion for reconsideration and subsequently approved the Energy Purchase Agreement. Having granted leave to appeal, the Court of Appeal allowed the Tribal Council’s appeals and remitted the consultation issue to the Commission for reconsideration.