In an article published in May 2012¹, we ventured the optimistic opinion that the then recent Supreme Court of Canada decisions in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council² (“RTA”) and Beckman v Little Salmon Carmacks First Nation³(“Beckman”) could lead to a broadly accepted understanding of the source, trigger, purpose and limits of the Crown’s duty to consult Aboriginal peoples.  Perhaps not surprisingly, the path to understanding has not turned out to be as smooth as we might have hoped.

RTA was significant in two primary respects.  First, it broke down the test for determining whether the duty to consult that was first identified in Haida Nation v British Columbia (Ministry of Forests)⁴ (“Haida Nation”) exists into 3 constituent elements.  Second, it described how the courts should ascertain the role(s) a statutory decision maker is required to play when the three elements giving rise to a duty to consult are all present.

In our view, these two aspects of RTA must be kept distinct. That is, the existence of a duty to consult tells us nothing about whether a particular regulator has any role to play in fulfilling it. The role of the regulator is to be determined by its legislative mandate and the regulator and the courts are to discern that role through conventional means of statutory interpretation.

Conversely, the powers provided to a tribunal tell us nothing about whether a duty to consult arises in any particular situation.  The fact that a tribunal has the express duty to assess the adequacy of consultation or to consult itself, tells us nothing about whether the three elements necessary for the Haida Nation test are present.  That determination must be based on evidence that demonstrates the presence of all three elements in any particular case.

We think post RTA cases have tended to conflate these two distinct aspects of RTA.⁵ The result has been inconsistent treatment of the responsibilities of statutory decision makers in circumstances where the conduct which is alleged to have a potential adverse impacts on Aboriginal claims or rights is being contemplated by private actors. In this article, we propose to focus on those situations and outline the manner in which regulators and the courts reviewing their decisions ought to analyse whether consultation is required before a decision affecting a private sector activity can properly be made.

We begin by observing that private activities affecting land use are distinct from the situations in Haida Nation and RTA.  In both those cases, the contemplated Crown’s conduct was active and direct. In Haida Nation, the province of British Columbia contemplated issuing a licence to cut Crown timber in return for the payment of stumpage to the Crown.  In RTA, the Crown, through its agent, BC Hydro contemplated the purchase of power.  These cases involved the Crown or its agents contemplating conduct that was alleged to have a potential physical impact on resources or land subject to Aboriginal claims or rights.  These facts are distinct from cases in which a private actor contemplates activities that are subject to some form of regulation but involve no other active or direct Crown participation and do not involve a disposition of Crown resources.  In those cases, the question that arises is whether government regulation of these private activities is “contemplated Crown conduct” that can attract the consultation obligation of the Crown.

This is a complex question that in our view raises distinct issues that require further analysis of the duty established in Haida Nation and elaborated in RTA.  RTA tells us that the obligation to consult arises when the following three elements are present:

1. The Crown’s knowledge, actual or constructive of a potential claim or right;
2. Contemplated Crown conduct; and
3. the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.⁶

In this article, we will use the term “Trigger” to denote the presence of all three of these elements because when they are present in a given situation, the obligation to consult the potentially affected Aboriginal peoples is triggered.

In RTA the parties accepted the Crown had the requisite knowledge and contemplated conduct. The issue was whether that conduct met the third element of the Trigger. That is, was there a potential “adverse effect” on an Aboriginal claim or right tied directly to the Crown conduct.  When a private proponent is involved and a statutory decision-maker has only a regulatory role to play, it becomes less obvious whether the requirement for “contemplated Crown conduct” in the second element of the Trigger is present.  An opportunity to illuminate this question  recently arose in two cases heard by the Supreme Court of Canada.⁷  In those cases, the second element of the Trigger is directly at issue.

We submit below that consideration of the second element of the Trigger requires the rigorous use of the same tools employed by the Court in RTA when analysing the third element. In order for the second element of the Trigger to be present, we believe (1) there must be contemplated conduct, and (2) the actor contemplating the conduct must be the Crown or its delegatee.  Accordingly, where a private actor is proposing conduct that requires some sort of regulatory approval but no other Crown conduct, the second element of the Trigger will only be present if the act of approval itself can properly be considered conduct of the Crown or its delegatee.  It is that question that will be the primary focus of what follows.

We have analysed this question because in our respectful view, some court decisions⁸ addressing private sector developments have failed to critically consider the content of the second element of the Trigger.  Instead, the tendency has been to avoid it entirely or to address the issue of “ contemplated Crown conduct” superficially, to find the Trigger to be met and to move immediately to the  RTA analysis regarding what roles, if any, the regulator has been statutorily delegated to play in consultation. With few exceptions, even those cases that address the issue⁹ tend to limit their focus on whether the decision-maker is the “Crown” instead of asking whether there is “contemplated Crown conduct” involved.  In our view, this limited treatment is not adequate to the task because it wrongly focuses on the characteristics of the decision-maker as opposed to the particular decision that it contemplates making.

One partial exception may be the decision of the Yukon Court of Appeal in Ross River. There, the Court expressly considered the second element of the Trigger and concluded the decision of the Mining Recorder to register a claim under the Quartz Mining Act¹⁰ was “contemplated Crown conduct”.  The Court determined that even if the enabling legislation conferred no jurisdiction on the Mining Recorder to reject the claim, the Yukon Government could not grant mineral rights without first engaging in consultation.

In our respectful view, it is not possible to reconcile the reasoning in Ross River with the decision in RTA.  In dicta¹¹, the Court of Appeal in Ross River rejected the argument that the Crown had conferred no discretion on the Mining Recorder absolved him from the need to consult with the blanket statement that:

“Statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist.”¹²

On that basis, the Court concluded that, notwithstanding the statute, the Mining Recorder could not register claims without prior consultation because the enabling legislation was deficient.  As we discuss further below, in so doing the Court either read into the Quartz Mining Act obligations on the Mining Recorder that were manifestly not intended by the legislature or crossed the bridge that the Supreme Court declined to cross in RTA¹³ and presumed to place limitations on the statutory regime the legislature may enact.

We think the former step is inconsistent with the express guidance provided in RTA.  RTA firmly established that:

• it is up to the Crown, not the Court, to determine how to meet the obligation;
• The obligation must be met and where the statutory scheme does not succeed in doing so, the courts will provide a remedy, ranging from injunction to damages to mandamus requiring consultation¹⁴; and
• The focus of any remedy needs to be on the contemplated conduct, not on future conduct which is not itself the cause of the potential infringement of the Aboriginal claim or rights in issue.

We think that in requiring the Mining Recorder to take steps the legislature had not, the Court fashioned a remedy that imposed inappropriate preconditions on the future conduct of the Mining Recorder instead of designing a remedy to compensate for the Crown’s past decision to allow free miners to stake claims as of right without consultation.

To the extent the Court took the latter step by purporting to declare legislation invalid because a particular regulator had not been not provided with the responsibility to consult, it went further than RTA contemplated and indeed is inconsistent with that decision. We know of no authority to support the conclusion that the legislation “cannot be allowed to subsist”¹⁵ because it failed to provide for the role that the Court wished to see assigned to the Mining Recorder. If, as the Court concludes, “the failure of the Crown to provide for discretion in the recording of mineral claims under the Quartz Mining Act regime can be said to be the source of the problem”¹⁶, then the remedy is not to read things into or out of the Mining Recorders powers but rather to fashion a remedy against the Crown while being mindful of the potential limitations constraining Crown legislative sovereignty. The Court’s reluctance to take on the question of whether the Crown can be obliged to consult with particular First Nations before presuming to enact specific legislation that may affect then is understandable in a case that did not directly raise the issue¹⁷ given the enormously broad implications of declaring invalid historical legislation that does not provide for consultation.  There is much legislation in Canada that has alienated Crown control of its land and resources to the private sector with no consultation and if all of it is to be held deficient, the consequences for Canadian tenure and ownership systems could be enormous.  However, that difficulty is not a justification for reading into legislation things it clearly was not intended by its drafters to include.

We hope to show that where the Crown’s only role in connection with a proposed activity is regulatory oversight, the second element of the Trigger requires determining whether a specific decision required in connection with that activity comprises “contemplated Crown conduct”.  The rest of the analysis undertaken in RTA regarding the role of the regulator in consultation and its adjudication is only required once it has been determined that all elements of the Trigger including “contemplated Crown conduct” are met. Thus, before the inquiries mandated under RTA in respect of the roles of tribunals in consultation are necessary, the Court must inquire as to whether there is sufficient “contemplated Crown conduct” to permit the duty to be triggered in the first place. That said, the Court’s affirmation of administrative law and statutory interpretation principles and their role in determining the allocation of roles in relation to the Crown’s duties under section 35 of the Constitution Act¹⁸ provided in RTA does give valuable guidance that can be employed when assessing whether the second element of the Trigger is met.

We think the struggle the courts have had in assessing consultation obligations associated with private sector development is the product of the challenges inherent in coming to grips with the intersection between principals of statutory interpretation evolved during the development of administrative law in Canada and constitutional principles developed particularly in the context of section 35 of the Constitution Act. The notion that a government created process could allow a private proponent to take actions that could potentially affect an Aboriginal claim or right in the absence of Crown consultation regarding those actions is uncomfortable. This discomfort was central to the Court’s concerns in Ross River. However, in our view RTA tells us that the solution is not to assume the result and assign duties accordingly, but rather, to return to the principles of administrative law and statutory interpretation and to determine the true nature of the regulator’s role in a particular case to assess whether its actions constitute “contemplated Crown conduct”. In cases where the legislature has in the absence of adequate consultation, designed the scheme in such a way that permits potential impacts on Aboriginal claims and rights without further consultation, then RTA tells us that Aboriginal people are not without remedies and could pursue damages against the Crown.¹⁹

In this regard, we rely in particular on the language of the Chief Justice in Canada in RTA where she said:

“The decisions below and the arguments before us at times appear to merge the different duties of consultation and its review. In particular, it is suggested that every tribunal with jurisdiction to consider questions of law has a constitutional duty to consider whether adequate consultation has taken place and, if not to itself fulfil the requirement regardless whether its constituent statute so provides.”²⁰

She went on to say:

“This argument cannot be accepted, in my view. A tribunal has only those powers that are expressly or implicitly conferred on it by statute. In order for a tribunal to have the power to enter into interim resource consultations with the First Nations, pending the final settlement of claims, the tribunal must be expressly or impliedly authorized to do so. The power to engage in consultation itself, as distinct from the jurisdiction to determine whether a duty to consult exists, cannot be inferred for the mere power to consider questions of law.”²¹

We believe the intent of these passages in RTA was to contain arguments that the duty to consult flowing from the honour of the Crown and enshrined through s 35 confers powers or imposes duties on statutory decision-makers where a statute does not. We believe that the same limitations apply to determining whether a statutory decision-maker’s actions constitute “contemplated Crown conduct”. RTA reminds us that whether or not the powers being exercised by a decision-maker in a given case amount to “contemplated Crown conduct” turns on the statutory scheme conferring jurisdiction with respect to that specific decision.  In our view, the Chief Justice’s admonition that legislative intent, as traditionally understood as a matter of administrative law, remains paramount and should not be compromised.²² Put another way, the temptation to confer jurisdiction and obligations on decision-makers in circumstances where there is little evidence of legislative intent to do so, should be resisted notwithstanding the constitutional significance of the consultation issue.

In this article, we suggest approaching the issue of what constitutes “contemplated Crown conduct” by focusing on the nature of the decision as indicated by the language of the statute. As the Court directed in RTA, we suggest looking at each component of a decision-maker’s characteristics in the context of the specific decision that is contemplated to determine if, having regard to its mandate, structure and function, the Crown has delegated to that decision-maker the obligation to determine whether it is honourable to permit the incursions on Aboriginal claims or rights that might result from the proposed private activity. We conclude that if the enabling legislation charges the decision-maker with this onerous responsibility, it must have the benefit of adequate consultation on the Haida Nation spectrum before making its decision.  If the legislation does not charge the decision-maker with that responsibility in making that decision, then its decision is not “contemplated Crown conduct” within the meaning of the second element of the Trigger and unless there is some other Crown conduct, the duty to consult does not arise.

1. The Administrative Law Backbone to RTA

In RTA, the Court first elaborated the principles governing the three elements of the Trigger and then moved on to consider the potential roles of a regulator in the context of the duty to consult. The first step required the Court to elaborate Aboriginal law principles still in the process of development.  The second step simply required it to apply well established principles of administrative law.

The Court determined that the principles of administrative law were key to determining the role the Commission was required to play in ensuring adequate consultation had occurred before Crown conduct was undertaken.  To determine the Commission’s role, the Chief Justice’s analysis at paragraph 58 of RTA relied on the Court’s decision in Conway²³, a Charter case that did not involve Aboriginal law issues. In Conway, the Court held that “relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal’s statutory mandate, structure and function”.²⁴

Applying the logic of Conway, RTA confirmed that when Crown activity is subject to regulatory oversight, the role of any particular regulator can be whatever its enabling statute provides. The regulator may be required to engage in the consultation required by the contemplated activity, it may be required to determine whether the crown actor has itself complied with the duty, or it may be required to do both or neither of those things.²⁵ Its role will be defined by its statute. Discerning a regulator’s role through application of the rules of statutory interpretation applies no differently in an administrative context involving Aboriginal law issues than it does in other administrative contexts.

We believe the analytical approach based on administrative law principles used by the Court in RTA points the way to an appropriate analysis for the quite distinct issue we are considering in this paper.  That is: When is the decision of a statutory regulator capable of being “contemplated Crown conduct” for the purposes of the second element of the Trigger?

The Administrative Law Tools to Determine Whether a Decision is “Contemplated Crown Conduct”

Where a private as opposed to Crown actor seeks regulatory approval to undertake and activity potentially harmful to Aboriginal claims or rights, it is clear that the private activity itself is not “contemplated Crown conduct”. Assuming no other Crown involvement then, the only candidate conduct is the regulator’s decision to permit the activity.  We think that RTA tells us that to determine whether that decision can be Crown conduct within the meaning of the second element of the Trigger, the regulator’s enabling legislation must be examined.  The focus of that analysis must be to determine whether the legislature intended the regulator to balance the constitutionally protected Aboriginal rights or claims that may be adversely affected against whatever other considerations are relevant to its statutory mandate when making the particular decision in issue.

In this regard, the focus of the analysis should be on the regulator’s responsibilities with respect to the issue before it, as opposed to whether the regulator itself is the Crown or a Crown delegate. As we elaborate below, a particular decision-maker may have a variety of duties only some of which may permit it to potentially affect constitutionally protected Aboriginal rights. An analysis that focuses solely on the Crown or non-Crown status of the decision-maker would fail to appreciate what role the decision-maker is playing in a given context. Where that role anticipates the use of delegated decision-making powers to authorize activities that may adversely affect constitutionally protected Aboriginal rights, the exercise of those powers should necessarily attract the same constitutional duties as if that power was exercised by the Crown.  Conversely, where constitutionally protected Aboriginal interests have already been compromised by Crown conduct that expressly or implicitly authorized private activities subject only to demonstrating that other public interests were being served, those same duties may not be present because the decision to abrogate Aboriginal rights has already been made.

Thus, we submit that the determination that must be made in the context of any regulatory decision is whether the decision to countenance private activity that has potentially adverse impacts on Aboriginal claims or rights has already been made, will subsequently be made or was left to the regulator²⁶. For instance, if the decision to allow some sort of private use of public resources (land, minerals, etc.) has already been made, then the Crown conduct giving rise to potential impact on Aboriginal claims or rights may have been too.  By contrast, if the regulator has been asked to determine if undertaking a private activity can be reconciled with respect for potentially affected Aboriginal rights, then the Crown has in essence delegated its decision and the regulator’s decision can constitute “contemplated Crown conduct”.

It may sometimes be intuitively straightforward to determine whether a regulator is charged with considering the impacts of its decision on constitutionally protected Aboriginal claims or rights. For instance, a statutory body empowered to allow the removal of land from an agricultural land reserve would likely not be charged with this duty if the Crown activity adversely affecting Aboriginal claims or rights was the decision to convert the use of the land to non-Aboriginal agricultural purposes in the first place.  Given the horse was already out of the barn, it would be surprising to find a statute requiring the decision maker consult before preferring one non-Aboriginal use over another.  Thus, given its mandate, and absent express language to the contrary, its decisions would likely not be seen as “contemplated Crown conduct” within the meaning of the second element in the Trigger therefore requiring consultation.

Often the role of the regulator will not be so clear from the circumstances and thus, the language of its enabling statute must be scrutinized to determine if it has the responsibility to consider whether a proposed private activity has the potential to adversely affect constitutionally protected Aboriginal claims or rights.  The principles of statutory interpretation developed in administrative law and discussed in Conway and RTA to facilitate that examination require consideration of the mandate, structure and function of the decision-maker in the particular case to guide the interpretive exercise we have described.²⁷ Below we discuss how a consideration of each of these attributes assists in determining the precise nature of the role of the regulator in a given case.

Mandate

The statutory mandate of any decision-maker as expressed in its enabling legislation is clearly the first place to look to see if it confers any responsibility on the decision-maker to determine whether the proposed activity could give rise to adverse impacts on Aboriginal claims or rights.  At its simplest, the decision of a regulator pursuant to a statute that said it was to issue a permit for specified activities only if there was no unacceptable adverse impact on Aboriginal claims or rights, would likely be “contemplated Crown conduct” because the Crown would expressly not have previously authorized unacceptable interference with the potentially affected Aboriginal claims or rights.  The mandate of the decision-maker to consider precisely that issue would be compelling evidence that the legislature intended to defer consideration of that issue, and therefore the obligation to consult, to that process. If the tools to consult adequately were not given to the decision-maker or some other manifestation of the Crown, then the Crown would have failed in its obligation to establish a process that facilitated consultation, for the obligation to consult cannot be shirked – it must be met.²⁸

Structure

Where the mandate of the regulator is less clear, regard can be had to its structure to obtain further evidence of legislative intent.  Has the decision-maker been provided the tools to determine the nature of Aboriginal interests through consultation it conducts itself or through its command of other Crown actors?  Are the statutory requirements for the qualifications required of members of the regulator likely to result in individuals knowledgeable about Aboriginal claims and rights? Similarly are they likely to be in a good position to appreciate and assess impacts on Aboriginal interests? Can the normal conduct of the regulator’s business be expected to bring it into contact with conflicts between Aboriginal and non-Aboriginal rights so that it will develop a particular familiarity with the issues required to be resolved?  Do the powers of the decision-maker reflect a focus on the type of assessment required to determine whether it is honourable for the Crown to permit specific non-Aboriginal uses of land or resources or are they more compatible with other types of assessment? The answer to any one of these questions is unlikely to be definitive but the way in which the decision-maker is structured when considered as a whole may provide a valuable clue as to legislative intent.

Function

The function of a decision-maker may give the clearest indication of whether it was intended to make the final decision to permit private activities adversely affecting Aboriginal claims or rights. Typically, government or Crown functions are broadly divided into three categories: legislative, executive and judicial.  Existing case law makes clear that where the Crown is acting in an executive capacity, it will be required to consult before taking decisions that adversely affect Aboriginal claims or rights.²⁹  Existing case law is also clear that it remains to be determined whether the Crown can be required to consult before passing legislation.³⁰ Finally, we know of no case suggesting the judicial arm of the Crown can attract an obligation to consult to maintain the honour of the Crown.  Courts are expected to carry out their decision making functions in an impartial and independent manner and treat all participants equally.  That approach is difficult to reconcile with assuming responsibility for direct consultation with some participants but not others.  The same logic can be applied to quasi-judicial decisions of regulators and accordingly, we do not think such decisions will normally attract a consultation obligation.   Thus, characterizing the function of a decision-maker might shed considerable light on whether the decision it makes can attract a duty to consult or not.

We believe that the mandate of most decision-makers could, but usually is not, expressed in a sufficiently clear manner to make consideration of its mandate determinative of the duty of the decision-maker and thus of whether its decision can be a trigger for the consultation requirement.  We also believe that while the structure of the decision-maker may give clues as to legislative intent, it will rarely be determinative. Accordingly, we think function will often be the best indicator of legislative intent in this regard and it is an elaboration of that indicator to which we now turn.

While neither Haida nor RTA required the Court to explore the relationship between the regulator and the Crown, the need to characterize the function of a regulator has often and long been the subject of judicial inquiry. At its core, determining the role of a regulator based on the powers conferred upon it and its relationship to the Crown is a question of statutory interpretation, not a question of Aboriginal law. Thus, the tools the courts have used to resolve questions of the nature we have identified can be found in the tenets of constitutional and administrative law developed over the last several hundred years as first formalized in the work of A.V. Dicey over 100 years ago.  Determining the extent of the decision-maker’s authority lies at the heart of administrative law and indeed, the rule of law.³¹  Relating the role of regulators to the intent of the legislation that created them remains critical to the rule of law. As stated by Halsbury’s Laws of Canada³², judicial interference on judicial review is generally justified in relation to one of the three principles underlying the rule of law:

“…that political action should be exercised according to law and no one should suffer but for a breach of a clear law; that the same laws should apply in the same way to everyone, including the state; and that the law should not be applied whimsically or arbitrarily.”³³

The threshold issue in determining the intended powers of a statutory decision-maker is whether it has “exercise[d] power in a manner contrary to its delegated mandate, thereby offending the principle that administrative action must be authorized by elected representatives of the people.”³⁴ In such cases, the result is often a finding that the administrator has lost or exceeded its jurisdiction.

It is true that many recent decisions have explored which institutions should ensure that these principles are honoured. This finds expression in the ongoing debate about the extent to which tribunals should be able to assess the extent of their jurisdiction themselves, provided they act reasonably, or whether the courts have a role to play in ensuring they do so correctly. However, that debate should not be permitted to obscure the issue the regulator or reviewing court is charged with resolving, which is whether the regulator is charged with determining whether a potential intrusion on Aboriginal claims or rights should be permitted or not .

The characterization and distinction between these functions and their relationship to the rule of law was traditionally a central preoccupation of administrative law.  The availability of judicial review often turned on arcane rules designed to distinguish between legislative, executive (or administrative), and quasi–judicial functions.  While this effort at characterization is not as central to administrative law as it once was, it remains useful in specific contexts.³⁵ In particular, we believe it remains useful in discerning legislative intent with respect to the responsibilities of a statutory decision-maker in connection with Aboriginal claims or rights. Below we consider the three distinct function of government discussed in administrative law.

Legislative Powers

Legislative powers almost always must be directly conferred.  That is, the power to make legally enforceable rules must be expressly granted as opposed to implicitly conferred.³⁶  As well, legislative powers are usually only part of the picture – most statutory bodies have functions other than simply passing regulations or making other subordinate legislation generally applicable to persons engaged in the activities being addressed.  If the purpose of the analysis is to ascertain the nature of the particular powers being exercised in a given regulatory context, the mere fact that a statutory decision-maker has legislative powers is not dispositive of the issue. The question is whether or not the regulatory role that it is playing in a given case is grounded in those powers.

If the function being exercised in a given case is in fact grounded in a regulator’s legislative powers, then there is legal uncertainty as to whether the regulator’s decision constitutes “contemplated Crown conduct”. The Court in RTA left the question of whether government conduct attracting the duty to consult includes legislative action for another day.³⁷ We will do the same. If the answer is ultimately in the affirmative, then it likely follows that sub-delegated legislation could also amount to conduct under the second element of the Trigger where the legislative power is being used to potentially interfere with Aboriginal claims or rights that would otherwise not occur.

Quasi-Judicial vs. Executive Powers

We have considered quasi-judicial and executive powers together because the debate in the cases often seeks to categorize between those two functions as opposed to discussing the characteristics of either on its own.  There are several aspects of a statutory decision-maker’s mandate that are telling when determining whether its role is intended to be executive or quasi-judicial.  Perhaps most prominent amongst these aspects is whether the decision-maker is empowered to decide questions of law in connection with the decision it is contemplating.  If it is, then its mandate and structure would tend heavily towards quasi-judicial on the premise that the executive ought not to be presumed to have the power to determine its own authority by deciding questions of law.  Conversely, in the absence of that authority, it may be easier to classify the power being exercised by tribunal as executive in nature.

The leading case that considers this issue is Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch) (“Ocean Port”).³⁸ In Ocean Port, the Court set aside a decision of the British Columbia Court of Appeal that determined the Liquor Licensing Board lacked the necessary guarantee of independence required of administrative decision-makers where their decisions had a significant impact on personal rights.  The Supreme Court held that determining the degree of independence required by statutory decision-makers was a matter of statutory interpretation and the legislature was free to provide for as much or as little independence as it wished.  The Court held that there is a fundamental distinction between administrative tribunals and courts in that the latter are constitutionally required to be independent whereas the former have whatever degree of independence their enabling statute provides them.  Those that would view a tribunal as part of the executive branch of government find support in Ocean Port’s observation that tribunals are often created precisely for the purpose of implementing government policy.³⁹  However, they place less emphasis on the judgment’s recognition that “that policy may require tribunals to make quasi-judicial decisions”.⁴⁰

Thus, as Smith points out⁴¹ a specific tribunal may be empowered to perform both executive and quasi-judicial tasks and even specific tasks may include both executive and judicial components.  Indeed, the courts have considered the distinction between executive (and to this we would add administrative) functions and judicial ones as a spectrum.⁴²  The goal of the analysis is not to put a particular function squarely into one category or the other, but rather to ascertain where along the spectrum the function fits. Functions that are more executive in nature are more likely to be “contemplated Crown conduct” than those which are more judicial in character.

Another important indicator of the role that the legislature intended a regulator to play is the extent to which legislation provides procedural protections normally associated with judicial functions.  While it has been clear for some time that a general duty of fairness attach to executive and quasi-judicial decisions,⁴³ the latter attract significantly more process obligations.  Thus, where a statute confers a right to be heard, requires impartiality and perhaps independence, or otherwise enshrines procedural protections for participants, the activities of the decision-maker acquire a more judicial appearance and can be characterized as quasi-judicial.  Indeed, where a decision-maker is affecting individual rights (as opposed to imposing general policies), the courts would be quick to infer a quasi-judicial aspect and thus quasi-judicial burdens on the decision-maker.  This was illustrated in Ocean Point where individual rights were in issue and the Court held that:

“Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with principles of natural justice…”⁴⁴

Where a statutory decision-maker is called upon to determine individual rights to undertake particular behaviour or to impose sanctions on individuals, absent express language to the contrary, the courts will infer that the decision-maker is exercising a power towards the judicial end of the spectrum and will afford the parties the procedural safeguards and rights that are compatible with that function. In turn this inference would tend to suggest the decision being made is not “contemplated Crown conduct” for the purposes being discussed here.

In the context of the consultation obligation, we believe this tendency was evident in the Supreme Court of Canada’s rejection of arguments that the National Energy Board owed distinctive duties to First Nation interests in its Hydro Quebec decision.⁴⁵ The Court could not infer a legislative intent to require the National Energy Board to treat all parties fairly on the one hand while also requiring it to confer  unique procedural and substantive rights on a few parties.⁴⁶ This is not to say that Aboriginal parties before the Board did not have unique procedural and substantive rights – only that the National Board had not been chosen by Parliament as the vehicle to determine the extent to which those rights should be protected.  We do not believe anything in Haida or RTA casts doubt on the correctness of the reasoning in Hydro Quebec.⁴⁷

In summary on this point, we think that the more a statute requires a decision maker to play the role of a hands off  adjudicator based on evidence brought to it as opposed to developed by it, the less likely that its decision would be a trigger for the duty to consult.  As always, the legislature can provide otherwise, but where it does not, a legislative mandate that requires a decision maker to adjudicate disputes brought before it by third parties is much less likely to attract the duty to consult than is a mandate that allows the decision maker to self-initiate policy or otherwise assume a proactive as opposed to reactive role in connection with an activity proposed by a private actor.

Application of Administrative Law Tools to Decisions Affecting Private Activity

The observations above allow the formulation of some general conclusions on the question of whether the regulation of private activities by a statutory decision-maker constitutes “contemplated Crown conduct” that could trigger a duty to consult. Firstly, the existence of the Trigger will turn on the role of the decision-maker which can only be determined by ascertaining the legislature’s intent.  That intent will be manifest in the mandate, structure and function of the decision-maker.

A mandate clearly set out in legislation can be determinative of the significance of a decision made under the statute. The legislature is free to expressly set out the extent to which the decision-maker is charged with determining whether private activity should be permitted to adversely affect Aboriginal claims or rights and what limitations should be placed on that activity if it does.⁴⁸ The greater the express discretion conferred on the decision-maker to consider these issues, the more likely that its pending decision represents the Crown’s determination that non- Aboriginal activity that has the potential to adversely affect Aboriginal claims or rights can be permitted honourably.  If that is the case, a strong argument will exist that the decision can only be taken after consultation by some manifestation of the Crown.

It is important to note that there is no constitutionally mandated role for the decision-maker.  It is true that the Crown has a constitutionally protected obligation to consult before undertaking an activity that has the potential to adversely affect Aboriginal claims or rights.  However, it can meet that obligation by comprehensively consulting before permitting any potential adverse impact on Aboriginal claims or rights (in which case later decisions adjudicating disputes between competing non-Aboriginal issues would not trigger a duty to consult) or leave consultation to be conducted on a case by case basis as individual decisions are made (in which case each decision might represent contemplated Crown conduct capable of triggering the duty). Again, as stated in Haida Nation and upheld in RTA, the method of consultation is to be determined by the Crown but the obligation must be met.⁴⁹

Because most legislation does not confer an explicit mandate on decision-makers in the context of consultation much less explain the significance of decisions they make, it will usually be necessary to consider the structure and function of the decision-maker to assess the significance of its decisions.  As set out above, the structure of a decision-maker may give valuable clues concerning the role of its decisions but will rarely be determinative. Accordingly, we believe a functional analysis of the decision-maker often will be the most important tool for assessing whether its decisions relating to private activity trigger the obligation to consult. We think that the authorities are consistent in seeking to maintain the basic principles that underpin the rule of law by recognizing the unique role of each of the legislature, the executive and the judiciary, while ensuring that in sum, the obligations of the Crown to Aboriginal people are met.  The result is that where a tribunal is developing, determining or implementing government policy, it is exercising an executive function that may attract the duty to consult.  Where it is interpreting existing policy that has already been developed and implemented through the establishment of a tribunal with specific and limited jurisdiction, it is performing a judicial like function that will not normally attract the duty to consult.  As stated by the Supreme Court of Canada in Dunsmuir, courts play a critical role in supervising administrative decision-makers to ensure they do not exceed the bounds of their legal authority:

“Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.”⁵⁰

We also note that legislation conferring broad discretion on a regulator does not necessarily imply the regulator’s decision will itself be “contemplated Crown conduct”.  A regulator may be required to consider a broad range of issues before authorizing particular behaviour. Those issues may even include consideration of impacts on First Nation communities or on environmental values important to those communities.  They may also be conferred with general language requiring consideration of “the public interest” of “the public convenience and necessity”.  However, in our view the question of whether the resulting decision is “contemplated Crown conduct” will still require the interpretative exercise we have described because the conferral of a broad discretion by itself does not resolve whether the tribunal is charged with the onerous duty of resolving whether permitting a proposed activity by a private actor is consistent with the honour of the Crown.⁵¹

We acknowledge that a specific decision-maker may have multifaceted functions and some of its activities may be seen as executive acts of government while others may be viewed as more closely akin to traditional judicial functions.⁵²  Nevertheless, sorting out which is which and what the consequences or different categorizations may be in connection with each action of the decision-maker is what administrative law is all about.  We believe that administrative law is central to determining the extent to which any particular tribunal is making a decision that could attract the duty to consult.

We are hopeful that at least some of the issues discussed in this article may soon be resolved.  In our view, the Supreme Court of Canada has been provided the opportunity to do so by focusing on the second requirement in Haida Nation in the three cases it has just  heard.  Clyde River and Chippewas both involve decisions of the National Energy Board but under different statutory regimes.  Although there is an obvious Crown in Ktunaxa (i.e. the Minister), the case  nonetheless provides an opportunity for the Court to clarify whether the focus of the “contemplated Crown conduct” requirement in the second criteria of the RTA test is the identity of the decision-maker (i.e. Crown vs. non-Crown) or whether it is the function it is performing (i.e. “Crown conduct”).  By analyzing the enabling legislation for each decision with the aid of the tools we have discussed above, we believe the Court could introduce the same level of clarity to the “contemplated Crown conduct” component of the Trigger as RTA introduced to the third while maintaining the administrative law principles that are so central to the rule of law. We hope it takes advantage of that opportunity.

* Chris W. Sanderson, Q.C. and Michelle S. Jones practice with Lawson Lundell LLP. The views expressed in this article are exclusively theirs and do not necessarily represent the views of others in that firm or its clients. However, the authors have benefited from the research of Jason Harman, a summer student with the firm in 2016 and from the critical comments of Keith B. Bergner and John Olynyk with whom they shared drafts of this paper. They also benefited from useful exchanges with David J. Mullan. The errors that remain notwithstanding these helpful comments are the exclusive responsibility of the authors
1.   Chris W. Sanderson et al, “The Crown’s Duty to Consult Aboriginal Peoples: Towards an Understanding of the Source, Payers and Limits of the Duty” (2012) 490: 4 Alberta Law Review 821.
2.   Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [RTA].
3.   Beckman v Little Salmon Carmacks First Nation, 2010 SCC 53 [Beckman].
4.   Haida Nation v British Columbia (Ministry of Forests), 2004 SCC 73 [Haida Nation].
5.   See for instance, the contextual circumstances that arose in Ross River Dena Council v Government of Yukon, 2012 YKCA 14, 358 DLR (4^th) 100 leave to appeal denied in 2013 [Ross River], Neskonlith Indian Band v Salmon Arm (City), and 2012 BCCA 379 [Neskonlith].
6.   RTA, supra note 2 at para 31.
7.   Hamlet of Clyde River, et al v Petroleum Geo-Services Inc (PGS), et al, Supreme Court Case Number #36692 [Clyde River] and Chippewas of the Thames First Nation v Enbridge Pipelines Inc, et al, Supreme Court Case #36776 [Chippewas] was heard by the Supreme Court of Canada on November 30, 2016. A third case, Ktunaxa Nation Council v Minister of Forests, Lands and Natural Resource Operations, et al, Supreme Court Case #36664 [Ktunaxa] which also involved adequacy of the Crown’s duty to consult was  heard the following day.
8.   For instance in Neskonlith, the Court of Appeal did not engage in a meaningful way in whether or not the City of Salmon Arm’s issuance of a development permit constituted “contemplated Crown conduct”. Instead, the Court focused on whether the City was empowered by statute to engage in and/or adjudicate consultation. Having found that the City was not delegated the authority to engage in or adjudicate consultation, it dismissed the appeal. However, in doing so, it did not seriously consider the preliminary question of whether or not a duty to consult was in fact triggered by the decisionbeing contemplated.
9.   For instance in Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc, 2009 FCA 308, the Federal Court of Appeal considered whether or not the National Energy Board’s regulation of private activities required it to adjudicate the adequacy of consultation prior to issuing the requested permits. In considering the issue the Court noted that the scenario in Carrier Sekani Tribal Council v British Columbia (Utilities Commission), 2009 BCCA 67 was distinguishable on the basis that the applicant in that case was the Crown. The Court further stated “Finally, I would add that the NEB itself is not under a Haida duty and, indeed, the appellants made no argument that it was. The NEB is a quasi-judicial body […] and, in my view, when it functions as such, the NEB is not the Crown or its agent” (para 34).
10.   Quartz Mining Act, SY 2003, c 14.
11.   The Court did not accept that the Mining Recorder lacked discretion to refuse to register a claim under the relevant legislation. Thus, its discussion of the deficiency in the legislation was premised on an assumption that it did not find to be substantiated in the case before it. See Ross River, supra note 5 at paras 36, 52-53. 
12.   Ibid at para 32.
13.   RTA, supra note 2 at para 44.
14.    Ibid at para 37.
15.   Ibid.
16.   Ibid at para 38.
17.   Supra note 11.
18.   Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
19.   RTA, supra note 2 at para 37.
20.   Ibid at para 59.
21.   Ibid at para 60.
22.   Ibid at para 49.
23.   R v Conway, 2010 SCC 22 [Conway].
24.   Ibid at para 82 referencing Dunedin.
25.   RTA, supra note 2 at para 58.
26.   For a very complete discussion of when the duty to consult may not arise in the context of an early Crown decision, see Buffalo River Dene Nation v Saskatchewan (Energy and Resources), 2015 SKCA 31.
27.   Conway, supra note 23 at para 82.
28.   RTA, supra note 2 at para 63.
29.   Ibid at para 44.
30.   Ibid.
31.   See Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 8^th edition (London: Macmillan,1915) at e.g. Introduction, para 43; Part II, Chapter  IV and particularly Chapter 11 where Dicey concludes as follows:
    “it is now well-established law that the Crown can act only through Ministers and according to certain prescribed forms which absolutely require the co-operation of some Minister, such as a Secretary of State or the Lord Chancellor, who thereby becomes not only morally but legally responsible for the legality of the act in which he takes part. Hence, indirectly but surely, the action of every servant of the Crown, and therefore in effect of the Crown itself, is brought under the supremacy of the law of the land. Behind Parliamentary responsibility lies legal liability, and the acts of Ministers no less than the acts of subordinate officials are made subject to the rule of law”.
32.   Halsbury’s Laws of Canada, Administrative Law (2013 Reissue), “Standards of Review: General: Judicial Intervention” (V.1.(3)) at HAD 105. [Halsbury]
33.   Ibid.
34.   Ibid.
35.   See David Phillip Jones and Anne De Villars, Principle of Administrative Law, 6^th ed (Toronto: Carswell, 2014) at p 97 for a discussion of the current status of the need to characterize functions as legislative, judicial or executive.
36.   Robert W. Macaulay & James L.H. Sprague, Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters, 2016), at c 6.8, para 7.
37.   RTA, supra note 2 at para 44.
38.   Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 [Ocean Port].
39.   Ibid at para 24.
40.   Ibid.
41.   Honourable Madam Justice Lynn Smith, “Administrative Tribunals as Constitutional Decision-Makers” (2004), 17:2 Can J of Administrative Law and Practice 113, at 16.
42.   See Idziak v Canada (Minister of Justice), [1992] 3 SCR 631, 97 DLR (4^th) 577.
43.   Nicholson v Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311, 88 DLR (3d) 671 at 324.
44.   Ocean Port, supra note 38 at para 21.
45.   Quebec (Attorney General) v Canada (National Energy Board), [1994] 1 SCR 159, 112 DLR (4^th) 129 [Hydro Quebec].
46.   Ibid at 182-185.
47.   For further discussion see Sanderson et al, supra note 1 at 850-851.
48.   See for instance Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3.
49.   RTA, supra note 2 at para 63.
50.   Dunsmuir v New Brunswick, 2008 SCC 9 at para 28.
51.   We acknowledge the comments of Donald, J.A  cited by the Chief Justice at para 70 of RTA, supra note 2 regarding consideration of the public interest in connection with Crown activities but believe those remarks were directed at the Commission’s assessment of the conduct being undertaken by BC Hydro, not the decision being made by the Commission itself.
52.   Smith, supra note 41 at 16.