In the recent case of Upper Nicola Indian Band v. British Columbia (Environment), 2011 BCSC 388, the British Columbia Supreme Court considered the scope of the Crown’s duty of consultation with aboriginal people in light of the decision of the Supreme Court of Canada in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, and, not surprisingly, held that the Supreme Court of Canada’s interpretation of the duty as being confined to adverse impacts flowing from the specific Crown proposal at issue – and not to larger adverse impacts of the project of which it is a part – applies beyond the unique circumstances of that case.
Upper Nicola involved an application for judicial review of a decision made under the Environmental Assessment Act, S.B.C. 2002, c. 43, to approve an Environmental Assessment Certificate relating to the construction of a high voltage transmission line from the interior of British Columbia to the Lower Mainland (the “ILM Project”).
For much of its route, the proposed transmission line would parallel and make use of a right-of-way used by two transmission lines known as 5L81 and 5L82, which were planned and built in the late 1960s and early 1970s. Transmission lines 5L81 and 5L82 are part of an electrical grid comprised of four transmission circuits connecting the Interior and Lower Mainland (the “ILM Grid”). The ILM Project would add a fifth circuit to the ILM Grid, and required widening of 49 km of existing right-of-way and 73 km of new right-of-way.
Parts of the ILM Grid, and the ILM Project, traverse areas over which the Petitioner First Nations assert claims of Aboriginal title and/or rights. The Petitioners claimed that the ILM Grid and the new ILM Project resulted in adverse impacts including noise, electromagnetic radiation, decreased wildlife, the introduction of invasive species, herbicide use and the disruptive presence of works.
On the judicial review application, the Petitioner First Nations argued that in approving the Environmental Assessment Certificate the Crown breached its constitutional duty to consult in two ways. The first argument was based on the scope of the duty to consult. The First Nations argued that the scope of the duty to consult, once engaged by current actions, includes existing and ongoing impacts of past failures to consult. Accordingly, the Province breached its duty to consult by refusing to consider aggregate impacts of the ILM Project and the two transmission lines 5L81 and 5L82 which form part of the ILM Grid during the environmental assessment process, offering consultation and accommodation only on impacts which will arise as a result of the new ILM Project.
The second argument of the Petitioner First Nations was grounded in the particular facts of the case and an alleged commitment of the Crown. The First Nations argued that the Crown had committed to engage in concurrent consultation on past claims and ongoing rights infringements related to past actions as part of the environmental assessment process. The honour of the Crown required the Crown to fulfill this commitment.
Both of the Petitioners’ arguments were rejected by the Court. Mr. Justice Savage found the Supreme Court of Canada’s decision in Carrier Sekani to be determinative of the issue of whether the duty to consult includes aggregate impacts, stating:
In my opinion Carrier Sekani explains Haida Nation [v. British Columbia (Minister of Forests), 2004 SCC 73,  3 S.C.R. 511]. It does not support the position that consultation must go beyond contemplated conduct and address the ongoing impacts of past decisions. Carrier Sekani confirms that consultation is to be directed at the potential effects of contemplated conduct, not the past, existing, ongoing or future impacts of past decisions or actions.
[Emphasis in original]
Mr. Justice Savage rejected the First Nations’ argument that the disposition in Carrier Sekani turned on its unique facts and concerned the narrow question of whether a Crown action that was related to an existing, unresolved impact to Aboriginal rights but caused no new impact itself could trigger a duty to consult. Contrary to this submission, Savage J. held that the Court in Carrier Sekani dealt with the scope of consultation in a broader context.
Mr. Justice Savage agreed with the observation of Groberman J.A. in Nlaka’pamux Nation Tribal Council v. British Columbia (Environmental Assessment Office), 2011 BCCA 78 at para. 72, that Carrier Sekani appears to place historic effects on potential claims of Aboriginal rights outside the scope of the right to consultation. The duty to consult is confined to the impact on the claimed rights of the current decision under consideration, and does not extend to consultation on the entire resource, i.e. to the larger adverse impacts of the project of which it is a part. To deal with historic and ongoing issues, First Nations must resort to other avenues such as a claim in damages or treaty negotiations.
Accordingly, the Petitioner First Nations were precluded from using the ILM Project as “the hook that secures and reels in the constitutional duty to consult on the past actions of the Crown or the Crown agency in building and constructing the ILM Grid or, alternatively, the transmission lines 5L81 and 5L82 and the associated substations.”
With regard to the second argument of the Petitioners that the Crown breached its commitment to consult on aggregate impacts as part of the environmental assessment process, Savage J. found that there was no such commitment. The Minister of Aboriginal Relations and Reconciliation had committed to consult on existing works but not as part of the environmental assessment process. There was no broader commitment to consult on the existing or ongoing impacts in a way which harmonized with or displaced or suspended the Environmental Assessment Certificate process.