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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. February 14, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Tired arguments against human rights I t was sad last week to see advocacy groups coming out with tired ar- guments against human rights leg- islation designed to protect transgen- dered people. As the Toronto Star noted, critics of NDP MP Bill Siksay's private mem- ber's bill to amend the Canadian Hu- man Rights Act were raising the pros- pect of sexual predators dressing up like women in order to peep on ladies' rooms. "Imagine a young girl — your daughter or granddaughter — goes into a washroom and finds a man there," the paper quoted Campaign Life Coalition president Jim Hughes as saying. "How is the young girl to determine whether or not the man in the bathroom is a 'peeping Tom,' a rapist or a pedophile?" The group REAL Women of Can- ada chimed in with another offensive line: "What about women who don't wish to share the restroom with a dis- turbed male?" Certainly, people are entitled to their beliefs and to express them, but it's too bad such groups go so far with such insulting rhetoric every time equity- seeking advocates try to bring about change in society. If someone is a rapist or a pedophile, we have criminal laws to deal with such behaviour that no human rights provisions will sanction. What Siksay is trying to do is protect people who have long faced discrimina- tion and who, beyond being able to use the appropriate bathroom, deserve to live their lives free of prejudice. Whatever one's opinion on Siksay's proposal, it's clear that if groups like the Campaign Life Coalition and REAL Women had their way, so many of the changes that have come about in recent years — gay marriage being the most obvious example — wouldn't have be- come reality. So far, society has func- tioned well with it, so why should we listen to these groups' veiled attempts at justifying continued discrimination? Other commentators, such as Paul Tuns, who wrote about Siksay's bill in Catholic Insight this month, at least take a more cerebral and reasoned approach to the issue. Instead of raising offensive rhetoric, he spoke of the bill as an ex- ample of using the law "to force others to accept" the beliefs of transgendered people. In his view, the proposal would hinder religious rights by introducing "a forced kind of baptism, a gender reassignment surgery imposed, not on the body, but on the legal code." Tuns' proposition is debatable. Rather than forcing beliefs on people, it's argu- able that Siksay's bill amounts more to al- lowing them to live and let live given that one group's freedoms don't necessarily impinge on the rights of others. Tuns, at least, uses logic, something that was lack- ing in the comments of the Campaign Life Coalition and REAL Women. — Glenn Kauth M Put duty to consult aboriginals in your repertoire The ost readers of this col- umn appreciate that in Canada, the Crown and all of its agencies have a duty, when making decisions that may adversely affect lands subject to the claims of Aboriginal Peoples, to first consult with them and then to reasonably accommodate their legitimate concerns. This duty is now statutory but has its genesis in the royal proclamation of 1763 wherein the British Crown "pledged its honour to the protection of ab- original peoples from exploita- tion." Being constitutional in character, the jurisprudence considering the duty would ap- pear to most real estate lawyers as truly sui generis because its nature and the remedy for its breach seem to vary so greatly from situation to situation. The duty to consult arises when the Crown has knowledge, real or constructive, of potential aboriginal rights or title and is proposing some course of ac- tion that might adversely affect such claims. These claims are quite varied in nature, includ- ing, without limitation, tradi- tional rights to use land, inter- ests in burial grounds and other cultural sites, treaty rights, land claim agreements, unresolved land claims, and reserves. Furthermore, the duty isn't limited to specific projects or initiatives and can, under cer- tain circumstances, extend to strategic higher-level decisions that may have an indirect or downstream impact on aborigi- nal claims so long as such gov- ernment conduct is a true causa causans of such adverse effects. Although the duty to con- sult doesn't actually require the Crown and the affected First Na- tions to reach consensus, the con- sultation must be substantive and conducted in good faith. The jurisprudence shaping the scope of the duty is very thick. Chief Justice Beverley McLachlin's decision in Haida Nation v. British Columbia (Minister of Forests) frequently comes up as the seminal case on the interpretation of the duty, although there have been many appellate decisions both before and after Haida Nation. At the end of last year, the Su- preme Court of Canada released two more decisions into this jur- isprudential cornucopia. In the first case, Rio Tinto Alcan Inc. v. Dirt By Jeffrey W. Lem Carrier Sekani Tribal Council, the top court analyzed an ap- plication of the so-called Haida duty in the context of non- treaty First Nations. Although a modern case, the true govern- ment action giving rise to the current situation actually took place in the 1950s when the Kenney Dam was constructed across the Nechako River to provide electricity for Alcan. As part of the arrangements for the dam, Alcan was allowed to sell excess electricity to other indus- trial clients and BC Hydro for the provincial grid. In 2007, BC Hydro entered into a long- term bulk-purchase agreement with Alcan for future electric- ity. Eight separate First Nations led by the Carrier Sekani Tribal Council challenged BC Hydro's right to contract with Alcan for future electricity without first consulting those who, for de- cades leading up to the 2007 www.lawtimesnews.com contract, had suffered because of the damming of the river. The Rio Tinto Alcan decision itself was actually an administra- tive law case considering whether or not the British Columbia Util- ities Commission was ultra vires in taking it upon itself to pass judgment on the duty to consult. But in deciding this narrow is- sue, the top court also provided a significant narrowing of the duty to consult. Greatly paraphrased, it held that the duty to consult doesn't apply to past wrongs, in- cluding previous breaches of it; and where the resource has long since been altered and the current government action doesn't have any further marginal impact on potential aboriginal claims, the current activity doesn't require consultation. In its unanimous decision, the top court held that the dam- ming of the river was a past event and that continuing contracts for electricity didn't exacerbate the harm that such actions may have already wrought on the First Na- tions along it. As such, BC Hydro had no duty to consult the First Nations before contracting for electricity from Rio Tinto Alcan. In light of Rio Tinto Alcan and other decisions, lawyers not yet persuaded of the impor- tance of the duty to consult or the relevance of such obligations to their practices should think again. While the duty rests solely with the Crown and its various agencies, it often arises in transac- tions involving private-sector par- ties. While the government can't download the duty itself to the pri- vate sector, procedural compliance aspects may ultimately rest with it as part of the overall allocation of responsibilities in the deal. In any event, litigation over the failure to discharge such a duty to consult can only bring delays and additional costs to any given proj- ect even if the responsibility rested at all times with the government. If any part of your client base deals with infrastructure related to public-private partnerships, al- ternative energy, mining or even real estate development anywhere on or near lands affected by or subject to aboriginal claims, the duty to consult needs to be part of your legal repertoire. LT Jeffrey W. Lem is a partner in the real estate group at Davies Ward Phillips & Vineberg LLP. His e-mail address is jlem@dwpv.com.