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.

Aboriginal law — Honour of the Crown — Duty to consult and accommodate Aboriginal peoples — First Nation partnering with power company to submit proposal to public utility for hydro-electric project — Project requiring government amendment to boundary of land — Crown making verbal commitment to First Nation to direct public utility to negotiate if amendment not obtained in timely fashion — Delay in obtaining boundary amendment — Project no longer viable — Can the Crown avoid fulfilling its duty to consult and accommodate through its own definition of the scope of the duty, or its own delay in fulfilling a commitment to accommodate, even where those decisions make an agreed-upon course of accommodation meaningless? — Should commitments made by Government actors in the course of fulfilling the duty to consult and accommodate be interpreted generously, purposively and flexibly, and in a manner that would fulfill the underlying duty of meaningful consultation with a view to effective accommodation?

The applicants sought to develop a hydro-electric power project within the First Nation’s claimed traditional territory. The project, however, could not proceed without the Province altering the boundaries of an environmentally protected area. In 2008, the provincial Energy Minister made a commitment to the applicant First Nation that he would direct the relevant public utility to negotiate an agreement with the applicant power company once the boundaries were adjusted, if the boundary adjustment occurred after the deadline for submitting bids to the public utility during a call for project proposals that same year. When the boundary was eventually amended in 2012, the project was no longer viable given the price for electricity the public utility was willing to pay at that point. The First Nation brought an application for judicial review, claiming that the Minister’s commitment was broader than that stated by the Crown, and required the Crown to not only direct the public utility to negotiate with the power company, but to do so on terms and under a price structure comparable to other similar projects that had been approved in 2008.

A judge of the B.C. Supreme Court dismissed the application for judicial review, finding that the Minister’s commitment in 2008 was more limited in scope in contrast to what the applicants alleged. Nevertheless, the judge issued declarations to the effect that the Crown had a legal duty to consult with the First Nation on the boundary adjustment, and that it had failed to do so. The B.C. Court of Appeal unanimously dismissed the applicants’ appeal and upheld the chambers judge’s characterization of the scope of the commitment. It also allowed the Crown’s cross-appeal and set aside the declarations, and it remitted the matter of a remedy back to the chambers judge.