Federal Court Of Appeal Defines 'Speculative' In Test For Duty To Consult

In the recent case of Hupacasath First Nation v. The Minister of Foreign Affairs Canada and the Attorney General of Canada1 the Federal Court of Appeal enunciated a test to determine when the effect of governmental action on a right claimed by Aboriginal people is "speculative", with the result that no duty to consult is triggered. The test may be seen by some as an unexpected limitation on the duty to consult.

The applicant, the Hupacasath First Nation, sought judicial review in respect of the Government of Canada's proposed ratification of a treaty between China and Canada dealing with investments in each country by investors from the other country. The First Nation claimed that the treaty, if brought into force, had the potential to infringe on its Aboriginal rights. As the Supreme Court of Canada has held, in Rio Tinto Alcan Inc. v. Carrier Sekami Tribal Council,2 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),3 and Haida Nation v. British Columbia (Minister of Forests),4 where proposed governmental action has the potential to infringe on rights claimed by Indigenous peoples, a duty to consult the Indigenous people arises. That duty arises when the Crown has real or constructive knowledge of the Aboriginal claim, and there is a "possibility that the Crown conduct may affect the Aboriginal right". As the Supreme Court held in Rio Tinto, the potential for that effect must be one of "appreciable adverse effect" – "possible" effects qualify; "mere speculative impacts, however, will not suffice".5

The issue as framed by the Federal Court of Appeal was whether the potential impacts on Aboriginal rights asserted by the First Nation were of sufficient probability that they were more than merely speculative. Stratas J.A., writing for the Court, held that the impacts were merely speculative and, as a result, no duty to consult was triggered. He wrote:

The appellant defines "speculative" as situations where "there is no reasonable basis to conclude that an impact might occur." Applying that definition in this case, the appellant says that there is a reasonable basis for concluding that an impact caused by the Agreement might occur.

What is missing from the appellant's definition of "speculative" is the idea of assumption, conjecture or guesswork...