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Rio Tinto Alcan Inc File No. 33132 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: RIO TINTO ALCAN INC. and BRITISH COLUMBIA HYDRO AND POWER AUTHORITY Appellants (Respondents) and CARRIER SEKANI TRIBAL COUNCIL Respondent (Appellant) and THE BRITISH COLUMBIA UTILITIES COMMISSION Intervener (Respondent) APPELLANT’S FACTUM RIO TINTO ALCAN INC., APPELLANT (Rules 35 and 42 of the Rules of the Supreme Court of Canada) Rio Tinto Alcan Inc., Appellant Agent for Rio Tinto Alcan Inc. Daniel A. Webster, Q.C. Brian A. Crane, Q.C. David W. Bursey Gowling Lafleur Henderson LLP Ryan D.W. Dalziel 2600-160 Elgin Street Bull, Housser & Tupper LLP Box 466 Station D 3000-1055 West Georgia Street Ottawa, Ontario K1P 1C3 Vancouver, B.C. V6E 3R3 Tel: (613) 786-0107 Tel: (604) 641-4874 Fax: (613) 788-3500 Fax: (604) 646-2517 E-mail: [email protected] E-mail: [email protected] 2 British Columbia Hydro and Power Authority, Agent for British Columbia Hydro and Appellant Power Authority Chris W. Sanderson, Q.C. Pierre Landry Keith B. Bergner Noel & Associes Amanda M. Kemshaw 111 rue Champlain Lawson Lundell LLP Gatineau, Quebec J9X 3R1 1600-925 West Georgia Street Tel: (819) 771-7393 Vancouver, B.C. V6C 3L2 Fax: (819) 771-5397 Tel: (604) 685-3456 Fax: (604) 669-1620 E-mail: [email protected] Carrier Sekani Tribal Council, Respondent Agent for the Respondent Gregory J. McDade, Q.C. Jeffrey W. Beedell Ratcliff & Company LLP Lang Michener LLP 500-221 West Esplanade 300-50 O’Connor Street North Vancouver, B.C. V7M 3J3 Ottawa, Ontario K1P 6L2 Tel: 604 988-5201 Tel: (613) 232-7171 Fax: 604 988-1452 Fax: (613) 231-3191 E-mail: [email protected] E-mail: [email protected] The British Columbia Utilities Commission, Agent for the Intervener Intervener Gordon A. Fulton, Q.C. Patricia J. Wilson Boughton Law Corp. Osler, Hoskin & Harcourt LLP 1000-595 Burrard Street 1900-340 Albert Street Vancouver, B.C. V7X 1S8 Ottawa, Ontario K1R 7Y6 Tel: (604) 647-4104 Tel: (613) 787-1009 Fax: (604) 683-5317 Fax: (613) 235-2867 E-mail: [email protected] E-mail: [email protected] TABLE OF CONTENTS PART I: STATEMENT OF FACTS............................................................................................... 1 A. Rio Tinto Alcan Inc.’s Position........................................................................................... 1 B. The Facts............................................................................................................................. 3 (1) The 2007 Electricity Purchase Agreement ..................................................................... 3 (2) BC Hydro and its Decision to Form the 2007 EPA with Alcan ..................................... 4 (3) Alcan’s Power Generation Operations............................................................................ 5 (4) The Scoping Order.......................................................................................................... 6 (5) The Tribal Council’s Application for Reconsideration .................................................. 8 (6) The Findings of Fact Relating to Water Levels and Water Flows.................................. 9 (7) The Decisions of the Commission that are at Issue ...................................................... 11 C. The Judgment of the Court of Appeal ............................................................................... 13 PART II: QUESTIONS IN ISSUE............................................................................................... 15 PART III: ARGUMENT............................................................................................................... 17 A. The Honour of the Crown does not Impose a “Duty to Decide”...................................... 18 B. “Acceptance” of the 2007 EPA was not Unconstitutional ............................................... 25 C. The Commission’s Approach to the “Public Interest” was Reasonable .......................... 32 D. The Consultation Issue was in any Event Correctly Decided........................................... 35 E. The Commission’s Assessment was not “Preliminary” ................................................... 39 PART IV: SUBMISSIONS REGARDING COSTS..................................................................... 40 PART V: ORDER SOUGHT........................................................................................................ 40 PART VI: TABLE OF AUTHORITIES....................................................................................... 41 PART VII: STATUTORY PROVISIONS IN ISSUE.................................................................. 44 1 PART I: STATEMENT OF FACTS A. Rio Tinto Alcan Inc.’s Position 1. This appeal arises out of the developing jurisprudence governing the Crown’s duties to First Nations whose claims have not yet been proven in a court of law. The problem here is one that was left unresolved by this Court’s groundbreaking judgment in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, Tab 10,1 and consists first and foremost of determining the way in which independent and impartial tribunals, exercising an adjudicative function defined by statute, share in the duties that Haida Nation declared. 2. The respondent, the Carrier Sekani Tribal Council, claimed that the appellant British Columbia Hydro and Power Authority (“BC Hydro”), a Crown agent, owed and breached a duty to consult the Tribal Council’s member bands with respect to BC Hydro’s purchase of power from the appellant Rio Tinto Alcan Inc. (“Alcan”).2 Unlike this Court’s previous consultation cases, here the Tribal Council chose to litigate its consultation claim not before a court, but before a quasi-judicial tribunal, the British Columbia Utilities Commission. 3. Early in its proceedings, the Commission ruled that issues relating to the duty to consult First Nations would not be determinative of its analysis. In a motion for reconsideration of that ruling, the Tribal Council argued that because the power sales contract was made in breach of the duty to consult, it would be jurisdictional error for the Commission to accept the power sale contract. The Commission investigated the issue and concluded that it was not at risk of jurisdictional error because, on the facts, the duty to consult was not triggered. 4. The Court of Appeal for British Columbia allowed the Tribal Council’s appeal. The court hinged its analysis on the creation of a novel constitutional principle for cases in which a First Nation wishes to raise before a tribunal an issue about whether the Crown has discharged its duty to consult aboriginal peoples. The honour of the Crown, the Court of Appeal said, requires that a regulatory tribunal “decide any consultation dispute which arises within the scheme of its 1 All tab references are to Rio Tinto Alcan Inc.’s book of authorities. 2 At the time the contract was formed, the appellant was known as Alcan Inc. On November 8, 2007, all of the common shares in Alcan Inc. were acquired by Rio Tinto Holding Canada Inc. The two companies then amalgamated, creating the new entity Rio Tinto Alcan Inc. 2 regulation” (para. 54). No case had said that until this one. Applying that principle to the circumstances of this case, the court below concluded that the issue of whether the Crown owed a duty to consult was an issue that arose within the Commission’s regulatory responsibility, and therefore had to be adjudicated by the Commission. Since the Court of Appeal took the view that the Commission resolved the issue as a “preliminary” matter rather than on a “hearing of the merits” (see paras. 61 and 65), the court set aside two interconnected decisions of the Commission, and remitted the case. 5. The Commission’s decisions should be restored. There is a principled way in which the duty to consult can fit together with the work of independent, quasi-judicial tribunals. Once this principled approach is appreciated, it becomes clear that there is no reason to set the Commission’s decisions aside. This is so even if the contract required consultation. That is the first and main submission that this factum will develop. 6. In short, the reasons are these. The honour of the Crown does not require tribunals to decide consultation disputes, ever. The “duty to decide” propounded by the Court of Appeal is without support in the jurisprudence or in principle. Instead, this Court’s cases say that tribunals are only obliged to decide the questions that Parliament and the legislatures have obliged them to decide. 7. Nor can it be said that the Commission’s decision itself required consultation. A careful review of the facts of this case and the nature of the Commission’s decision makes it apparent that any infringement of the rights claimed by the Tribal Council’s members was brought about by BC Hydro’s decision to enter into the contract, not the Commission’s decision to accept the contract. 8. Finally, it was perfectly reasonable for the Commission, an expert and specialized tribunal, to conclude that the consultation issue raised by the Tribal Council was of limited relevance to its evaluation of the contract. The Legislature expressly gave the Commission the discretion to decide what it considers to be relevant to its inquiry. In the same subsection, the Legislature required the Commission to consider the price of the energy and the reliability of supply, suggesting that the Commission’s inquiry was intended to ensure that public utilities do not form contracts
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