The Supreme Court of Canada (SCC) has granted leave to appeal in two cases concerning the ability of a regulatory tribunal to discharge the Crown’s duty to consult.

In Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS) (Clyde River), the Federal Court of Appeal held that where a board is mandated to engage in consultation, the Crown can rely on that board’s regulatory process to discharge the Crown’s duty to consult. In Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (Chippewas), the Federal Court of Appeal held that where a board has not been mandated to engage in consultation, it is not required to assess the duty to consult if the Crown is not a party to an application.

Both cases will be heard together.

BACKGROUND

Clyde River

In Clyde River, an Inuit community sought judicial review of a National Energy Board (NEB) offshore seismic authorization, alleging inadequate consultation. The respondents (the project proponents) submitted that the duty to consult had been fulfilled by their own efforts, as well as the NEB process.

The Federal Court of Appeal agreed with the respondents and dismissed the application. The court held that, at the time of the application, the NEB was statutorily mandated to undertake consultation activities and to assess the sufficiency of the consultation with First Nations. As a result, the Crown could rely on the NEB’s regulatory process to help satisfy its duty to consult affected First Nations. The court found that the Crown’s duty was discharged, that the Inuit community was meaningfully consulted on its rights, and that an appropriate level of accommodation was undertaken in response to its concerns.

Chippewas

In Chippewas, a First Nation community sought judicial review of an NEB pipeline reversal and capacity expansion authorization, alleging that the NEB did not have jurisdiction to issue the request because the Crown had not undertaken any consultation and had not appeared before the NEB.

The Federal Court of Appeal (by a 2:1 majority) dismissed the appeal, holding that the NEB is not required to determine whether the Crown’s duty to consult has been discharged in a proceeding where the Crown is not a participant. The Court relied on its 2009 decision to the same effect in Standing Buffalo Dakato First Nation v. Enbridge Pipelines Inc.(Standing Buffalo). The Chippewas argued that the Standing Buffalo decision had been overtaken by the SCC’s 2010 decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (Rio Tinto).

After reviewing the Standing Buffalo and Rio Tinto decisions, the court in Chippewas confirmed that Standing Buffalocontinued to apply. The court noted that in Rio Tinto, the SCC did not address the issue of whether a tribunal is obligated to make duty to consult determinations in proceedings where the Crown is not a participant (as was the case in Chippewas).

IMPLICATIONS

In granting leave, the SCC will again consider the role of administrative and regulatory tribunals in the duty to consult and accommodate. In both Haida Nation v. British Columbia (Minister of Forests) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), and in the court’s subsequent decision in Rio Tinto, the SCC confirmed that the regulatory process can be used to satisfy the Crown’s obligations to First Nations. In granting leave inChippewas and Clyde River, it appears the court will ultimately provide guidance on how far the regulatory process can go in satisfying these obligations when other manifestations of the Crown are not active participants in the proceedings. The court will likely not release its decisions in these cases until 2017.