SUMMARY OF FEDERAL COURT DECISION

In a recent ruling,1 the Federal Court of Canada dismissed the application by a group of First Nations bands known collectively as the Treaty One First Nations, which sought to obtain the reversal of federal orders-in-council approving the issuance by the National Energy Board of Certificates of Public Convenience and Necessity for the construction and operation of certain pipeline projects. Parts of the corridors for the projects are to run through lands located in southern Manitoba that lie within the territory covered by Treaty One, signed in 1871.

The First Nation plaintiffs submitted that the federal Crown had not met its duty to consult them with a view to addressing and accommodating their concerns in relation to their outstanding claims over the lands affected by the pipeline projects. They argued that the consultations that took place in the context of the NEB’s review process were not a substitute for the larger obligations of consultation and accommodation owed to them by the Crown.2

The Federal Court noted that the issues to be decided consisted in determining whether a duty on the part of the federal Crown to consult the Treaty One First Nations was engaged in relation to the pipeline projects, and whether and to what extent the consultations that took place under the auspices of the NEB, with the active participation of the project proponents, were adequate in the circumstances.

A factor that was particularly influential in the Court’s decision had to do with the fact that the proposed pipeline facilities were to be constructed within or contiguous to existing pipeline rights-of-way, on land that was under private ownership and/or had already been exploited, and that the pipelines would be located below ground. Accordingly, in the Court’s view, the real impact on the First Nations’ treaty rights was negligible.

The Federal Court found that the Crown could avail itself of existing processes for regulatory or environmental review, such as the NEB’s, in order to discharge its duty to consult the First Nations, subject to the requirement that it undertake more in-depth consultations of its own if warranted by the circumstances. The Court noted that resorting to the NEB’s review process was not a delegation of the Crown’s duty to consult, but only one means by which the Crown could ensure that the First Nations’ concerns had been heard, and, if necessary, accommodated.

The Federal Court considered the NEB’s review process to be adequate in the circumstances to settle the specific questions submitted to it for approval concerning the pipeline projects, and cited as an example the concrete steps designed to mitigate project impacts on the environment and on First Nations’ treaty rights. However, since the process had not been designed to resolve questions relating to First Nations land claims, it was possible that it might not replace the federal Crown’s duty to consult where a project stood to have a direct effect on unoccupied or unutilized land that was subject to land claims or was used by aboriginal groups for traditional purposes.

In this case, the Federal Court was of the view that the First Nations’ claims were general and not linked to the potential impact of the pipeline projects on their rights. It explained that the plaintiffs had not been able to identify any real difficulties stemming from the projects concerned that could not be resolved by the NEB process.

Accordingly, the Court held that the NEB process had provided a sufficient framework for addressing the First Nations’ concerns regarding their rights that could potentially be affected by the project. The First Nations could not complain that the Crown had failed to discharge its duty when they had not fully participated in that process.

CONCLUSION

The Federal Court has thus affirmed that consultations held in the context of the NEB’s review process will suffice in certain circumstances to allow the federal Crown to discharge its duty to consult and, where appropriate, accommodate the concerns of First Nations groups. The Court nevertheless raises a significant doubt as to the adequacy of such consultations where a project could be prejudicial to unresolved land claims or to traditional aboriginal activities and practices. In that context, and until such time as the courts clarify the role of quasi-judicial tribunals such as the NEB in connection with the Crown’s duty to consult and accommodate, proponents of natural resource development projects would do well to encourage Canadian Government representatives to take part in the consultation process.