On May 12, 2009 the Federal Court rendered its decision in Brokenhead Ojibway Nation et al v. Attorney General of Canada (National Energy Board) et al. The court determined that the Crown had fulfilled its duty to consult the Treaty One First Nations of Manitoba concerning the construction of three major pipeline projects under the jurisdiction of the National Energy Board. This decision affirms the direction from the courts in previous decisions that regulatory processes may satisfy the Crown’s duty to consult and, where appropriate, accommodate the interests of Aboriginal groups.

In Brokenhead Ojibway Nation et al v. Attorney General of Canada (National Energy Board) et al., 2009 FC 484 (Brokenhead Decision), the Federal Court denied three applications for judicial review of decisions made by the Governor in Council (GIC) to approve National Energy Board (NEB) authorizations for the construction of the Keystone Pipeline Project, Southern Lights Pipeline Project and Alberta Clipper Pipeline Expansion Project (Pipeline Projects). The Treaty One First Nations of Manitoba (TOFN) brought the judicial review applications, alleging that the federal Crown had failed to fulfill its constitutional obligation of consultation and accommodation prior to granting the approvals for the construction of the Pipeline Projects in their traditional territory. Although the project-specific concerns of the TOFN were largely resolved through consultation with the proponents of the Pipeline Projects, the TOFN claimed that the regulatory process was not designed to address the larger issue of unresolved land claims. TOFN alleged that issues surrounding TOFN’s unresolved land claims and cumulative impacts required separate consultation with the Crown.

In its decision, the court noted that pursuant to Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (Haida Decision), Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 (Taku Decision) and Ka’a’Gee Tu First Nation v. The Attorney General of Canada and Paramount Resources Ltd., 2007 FC 763 (Ka’a’Gee Tu), the Crown owes a duty to consult with Aboriginal communities when their interests may be impacted. The content of this duty is proportionate to the potential strength of the claim or right asserted and the anticipated impact of a project on those asserted interests.

The evidence before the court showed that the Pipeline Projects were constructed on land that was almost entirely privately owned and had been previously exploited. The cultural, environmental and traditional land use issues raised by the TOFN were not linked specifically to the Pipeline Projects themselves. The court concluded that if the Crown had any duty to consult with the TOFN with respect to the impact of the Pipeline Projects on their unresolved land claims, it was at the extreme low end of the spectrum attracting no more than an obligation to give notice, and that in this case the duty owed by the Crown had been met.

The Regulatory Process and the Duty to Consult

In coming to its decision, the court confirmed that when determining whether and to what extent the Crown has a duty to consult with Aboriginal communities about projects or transactions that may affect their interests, the Crown may consider the opportunities for Aboriginal consultation that are available within environmental and regulatory review processes. In addition to citing the Haida, Taku and Ka’a’Gee Tu Decisions, the court also cited the British Columbia Supreme Court’s decision in Hupacasath First Nation v. British Columbia, 2005 BCSC 1712, as authority for this proposition. The court was careful to point out that this is not a delegation of the Crown’s duty to consult; rather, this is only one means by which the Crown may be satisfied that Aboriginal concerns have been heard and, where appropriate, accommodated.

Importantly, the court stated that, except to the extent that Aboriginal concerns cannot be dealt with, the appropriate place to deal with project-related matters in the circumstances of the Pipeline Projects was before the NEB and not in some collateral discussion with either the GIC or some arguably relevant ministry. The court also confirmed that the regulatory process is not designed to address the larger issue of unresolved land claims. In this case, the court noted that the pipeline companies had consulted with the TOFN and held that the record from the regulatory proceedings established that the project-specific concerns of the TOFN were well-received by the pipeline companies and the NEB and were largely resolved.

Evidence to Show Potential Impacts

The court’s comments on the evidence presented by the TOFN during the regulatory proceeding is instructive regarding the evidence required to be shown by Aboriginal groups claiming rights. In particular, the court noted that the evidence submitted by the TOFN was expressed in generalities and largely failed to identify any interference with a specific or tangible interest that was not capable of being resolved through the regulatory process. As the court explained, there is a need for Aboriginal claimants to provide evidence that establishes an adverse impact on a credible claim to land or Aboriginal rights accompanied by a failure to adequately consult. The court similarly stated that the Aboriginal claimants were incorrect in arguing that the duty to consult is engaged simply whenever the Government of Canada makes any decision related to their traditional territory inside treaty lands.

The rigour applied by the court with respect to evidentiary requirements on the part of Aboriginal claimants is similar to the position taken by administrative tribunals in Canada such as the Alberta Energy Resources Conservation Board (ERCB). The ERCB has denied participatory rights to Aboriginal groups in regulatory proceedings on the basis that insufficient information has been provided to establish the requisite “directly affected” status of these groups under the applicable legislation (See Dene Tha’ First Nation v. Alberta (Energy and Utilities Board), 2005 ABCA 68 and ERCB Decision 2008-024).

Do Administrative Tribunals Owe the Duty to Consult?

As arm’s length, independent, quasi-judicial decision-making bodies, administrative tribunals do not owe the Crown’s constitutional duty to consult with Aboriginal groups. This was confirmed by the Supreme Court of Canada in Québec (Attorney General) v. Canada (National Energy Board), [1994] 1 SCR 159. In this decision, the Supreme Court of Canada held that the NEB did not have a fiduciary obligation to Aboriginal groups and warned that courts must be careful not to compromise the independence of administrative tribunals by imposing upon them fiduciary obligations. Similarly, the Haida Decision recognized that although the Crown may delegate procedural aspects of consultation to industry proponents (as is often done in environmental assessments), the ultimate legal responsibility for consultation and accommodation rests with the Crown.

This perspective was most recently reinforced in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 and Kwikwetlem First Nation, et al v. British Columbia (Utilities Commission), 2009 BCCA 68. (For a discussion of these two decisions, see the Osler Update of February 26, 2009.) In these decisions, the court determined that the British Columbia Utilities Commission (Commission) was the appropriate forum to decide whether the Crown’s duty of consultation had been triggered and discharged. However, the court also noted that this did not suggest that the Commission itself owed a duty to consult.

In the Brokenhead Decision, some of the court’s language could be interpreted to suggest that the NEB actually owes the duty to consult. For example, the court stated that the NEB “may not” be a substitute for the Crown’s duty to consult (para. 29). Similarly, the court also suggested that the NEB may be a “surrogate” for the Crown (para. 16) and that the NEB had “employed” a “process of consultation and accommodation” (para. 42). However, when read in the context of the entirety of the Brokenhead Decision, it is clear that the court did not intend such an interpretation and that its ruling is consistent with earlier jurisprudence that administrative tribunals do not owe the duty to consult.

Implications for Proponents

The Brokenhead Decision has confirmed that the Crown may, at least to some degree, rely on the process of an independent regulatory tribunal and not necessarily in the context of an environmental assessment. A degree of caution must be observed, however, since the process chosen must reflect the strength of the Aboriginal or treaty rights claimed and must be adequate for the circumstances. In every case, the strength of the asserted claim and the potential impact on the rights of the affected Aboriginal group must be assessed to determine whether the process will be sufficient to satisfy the content of the duty to consult.

Proponents can minimize the risk of the Crown failing in its obligations to Aboriginal groups by working to address, mitigate and accommodate the project-specific concerns of Aboriginal groups, and by compiling a solid consultation record for presentation and consideration during the regulatory process. An extensive and thorough consultation record will aid the administrative tribunal in addressing Aboriginal consultation and may ultimately assist the Crown in fulfilling its duty to consult. (For example, see the Osler Update of October 7, 2008 on the Bruce to Milton proceeding (EB2007-0050) before the Ontario Energy Board.)