In Clyde River (Hamlet) v. Petroleum Geo-Services Inc. and its companion case Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., released this week, the Supreme Court of Canada addressed questions about the practical dimensions of the duty to consult. The Court held that the approval of a project by an independent regulatory agency can trigger the duty to consult, and held that the Crown may rely on regulatory processes to satisfy its duty to consult Indigenous communities. If the duty to consult has been triggered, a regulatory agency may only approve a project if consultation is adequate. If approval has been given absent satisfactory consultation, the decision will be overturned on judicial review.

A decision of a regulatory agency is “Crown conduct” and can trigger the duty to consult

In Clyde River and Chippewas of the Thames, the Supreme Court of Canada adopted a pragmatic approach to identifying Crown conduct, and held that the decisions of independent regulatory agencies can constitute Crown conduct and trigger the duty to consult if they impact Aboriginal or treaty rights. The Court explained that “…once it is accepted that a regulatory agency exists to exercise executive power as authorized by legislatures, any distinction between its actions and the Crown quickly falls away.” Prior to Clyde River and Chippewas of the Thames, it was unclear whether Crown conduct was limited to that of a minister of the Crown and its agents or whether it extended to independent regulatory agencies.

A regulatory process can fulfill the duty to consult

In Clyde River and Chippewas of the Thames, the Supreme Court of Canada clarified that the Crown may rely on regulatory processes to fulfill the duty to consult. The Court explained that whether “the Crown is capable of doing so, in whole or in part, depends on whether the agency’s statutory duties and powers enable it to do what the duty requires in the particular circumstances.” The content of the duty to consult depends on the strength of the Aboriginal or treaty rights in question and the severity of the impact on those rights. At the low end of the spectrum, consultation might take the form of giving notice of the contemplated Crown activity to the impacted Indigenous community. At the high end of the spectrum, consultation might require providing opportunities for the Indigenous community to actively participate in the decision making process.

If the duty to consult requires a regulatory agency to engage in conduct that it is not empowered to do by its enabling statute, then “the Crown must provide further avenues for meaningful consultation and accommodation in order to fulfill the duty prior to project approval.” A regulatory agency cannot approve a project absent adequate consultation.

The scope of consultation is limited to the impacts of the project

The Supreme Court of Canada echoed previous case law in clarifying that consultation is limited to addressing the impacts of a proposed project and is not a mechanism to solve broader claims that transcend the scope of the project (i.e. past failures to consult). However, meaningful dialogue about potential impacts of a proposed project on Aboriginal and treaty rights is required.

Proponent conduct affects the adequacy of consultation

Clyde River and Chippewas of the Thames First serve as a reminder that proponent conduct during and after consultation plays a significant role in ensuring that the duty to consult has been fulfilled. In Clyde River, the Court found that the potential impact of the contemplated project on the treaty rights of the Inuit of the Clyde River was significant. During the regulatory process, the project proponents were unable to respond to questions at public meetings. As a follow up to questions raised in the meetings, the proponents provided the National Energy Board with a 3,926 page document, which was posted on the Board’ website. Given the slow internet speed in the affected community, many community members were unable to download the document and only a fraction of the document was translated into Inuktitut. In addition, the proponents made no significant concessions in light of anticipated impacts on treaty rights. Accordingly, the Court held that consultation was not adequate.

In Chippewas of the Thames, the Court found that the potential impacts of the Aboriginal and treaty rights of the Chippewas of the Thames to be minimal. Nonetheless, the National Energy Board required the project proponent to adopt accommodation measures to minimize the risk to Aboriginal and treaty rights and ensure ongoing consultation between the proponent and affected Indigenous communities. In that case, the Court found consultation to be adequate.

A proponent can take steps to ensure that consultation is sufficient

Inadequate consultation can jeopardize the future of a project and result in costly litigation. Clyde River and Chippewas of the Thames offer practical guidance to proponents on how to avoid subsequent litigation. As the Supreme Court of Canada prudently observed, “No one benefits – not project proponents, not Indigenous peoples, and not non-Indigenous members of affected communities – when projects are prematurely approved only to be subjected to litigation.”

The Supreme Court of Canada signaled that project proponents need not surrender the fate of projects to regulatory processes. Rather, proponents can take proactive role in ensuring that Crown consultation with Indigenous communities satisfies the duty to consult. Based on the proponents’ conduct in Clyde River and Chippewas of the Thames, proponents can take the following steps to ensure that consultation meets the standards required in the situation:

  • Be prepared to answer questions about the impacts of a proposed project at public meetings;
  • Make informational materials available to the public in an accessible format, taking into consideration access to high-speed internet, language barriers, and community capacity to process informational documents;
  • Incorporate community concerns into project plans;
  • Make funding available to Indigenous communities to participate in the consultation process, whether or not similar government funding is available; and
  • Commit to ongoing meetings with Indigenous communities.