Two recent decisions of the Federal Court of Appeal, Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179 and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222, raise questions regarding the role of the National Energy Board (“NEB”) and other tribunals with respect to the duty to consult. Both cases have recently been granted leave to appeal by the Supreme Court of Canada (“SCC”).

Hamlet of Clyde River

The NEB granted TGS-NOPEC Geophysical Company (TSG) an authorization under the Canada Oil and Gas Operations Act to conduct an offshore seismic survey program in Baffin Bay and the Davis Straight. Prior to issuing the authorization, the NEB conducted an environmental assessment of the project as required under the former Canadian Environmental Assessment Act(“CEAA 1992”). 

Hamlet of Clyde River applied for judicial review of the NEB’s decision to grant the authorization, alleging the Crown had failed to discharge its duty to consult. The Crown argued it had fulfilled the duty by relying on the efforts of the project proponent and the administrative process of the NEB. The other issues raised in the proceeding (such as standing of Hamlet of Clyde River) are not discussed in this bulletin.

The Federal Court of Appeal unanimously decided the consultative process provided by the NEB was sufficient to satisfy the Crown’s duty to consult. The Court equated the implementation of this regulatory process as a “mandate [on the NEB] to engage in a consultation process such that the Crown may rely on that process to meet, at least in part, its duty to consult with Aboriginal peoples” (para. 65).  The Court’s reasoning for this decision was largely based on the obligations of the NEB under the CEAA 1992and the National Energy Board Act (“NEB Act”) which included:

  • assessing any change to the environment caused by a project that could result in changes to current land use by Aboriginal persons;
  • gathering sufficient evidence about the impact on the project upon Aboriginal people;
  • discretion to allow public participation and provide participation funding to affected Aboriginal groups; and
  • a “full mandate to decide questions of law” (para. 64).

Chippewas of the Thames First Nation

The NEB approved an application by Enbridge, under section 58 of the NEB Act, to reverse the direction of the flow of oil in a pipeline located between North Westover and Montréal. Chippewas of the Thames First Nation (“Chippewas”) opposed the approval and appeared as an intervener at the public hearing held by the NEB. After the approval was issued, Chippewas launched this appeal, arguing that the Crown had failed to fulfill its duty to consult.

In a split decision, the Federal Court of Appeal dismissed Chippewas’ appeal. The main issue and the point of disagreement between the majority and the minority judgments related to the mandate of the NEB to assess whether the Crown had engaged in adequate consultation and accommodation.

Majority  

Ryer JA cited his earlier decision in Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc, 2009 FCA 308, in support of his finding that the NEB did not have a mandate to determine whether the Crown had a duty to consult and if so, whether the Crown had discharged that duty. Ryer JA found the SCC’s decision in Rio Tinto, issued in 2010, did not overrule the principles established in Standing Buffalo.

The majority found Rio Tinto did not require a tribunal to decide whether the Crown had a duty to consult and whether the Crown had fulfilled that duty when the Crown does not participate in the proceedings before the tribunal. Ryer JA held that if a tribunal had to determine the existence and fulfillment of the duty to consult without evidence or argument from the Crown, and determined that the duty had not been fulfilled, the only recourse would be to effectively deny the applicant’s application because of a failure on the part of the Crown. The limited remedial powers of the NEB made it unsuitable for making “Haida determinations”.

The majority further found that the NEB had not been delegated the power to undertake the fulfillment of any of the duty to consult in relation to Enbridge’s project, by the National Energy Board Act or any other source.

Dissent  

Rennie JA disagreed with the majority’s analysis of the effect of Rio Tinto observing that the SCC’s finding in Rio Tinto, that the jurisdiction of a tribunal to assess the adequacy of consultation or to carry out consultation, was dependent upon the mandate conferred by the legislation that establishes the tribunal (as opposed to on the parties before the tribunal).

Rennie JA concluded that, as a final decision maker, the NEB was required to ask whether the duty to consult was triggered and whether adequate consultation had taken place. Rennie JA also diverged from the majority with respect to Ryer JA’s concern regarding the possible impacts on proponents who may be denied authorizations on the basis of a failure by the Crown to fulfill its duty to consult, observing that public policy interests were better served if consultation moves in parallel with established regulatory processes.

Conclusion

In Hamlet of Clyde River, the Federal Court of Appeal found that the NEB has a legislative mandate to engage in a consultative process on the basis of the principles in Rio Tinto and Taku River. The Federal Court of Appeal found that the consultative process by the NEB was, in that case, sufficient to fulfill the Crown’s duty to consult.

In Chippewas of the Thames First Nation, a majority of the Federal Court relied on Standing Buffalo and found that the NEB had no mandate to assess whether the duty to consult was triggered and whether it had been discharged prior to considering an application with respect to a project relying on the fact the Crown was not a party to the NEB hearing. The dissent disagreed, finding the law set out in Rio Tinto required the NEB to determine whether adequate consultation had occurred prior to issuing an approval. The Court unanimously disagreed with the finding in Hamlet of Clyde River, that the NEB did not have the duty or power to perform the consultation.

We will have to wait for a decision of the SCC to resolve the conflict between and within these two decisions and hopefully clarify the role of the NEB and tribunals generally with respect to the duty to consult.