As the Supreme Court of Canada (SCC) explained in Haida1 and Carrier Sekani2, it is open to legislatures to empower regulatory bodies to play a role in fulfilling the Crown’s duty to consult Aboriginal peoples. Carrier Sekani further clarified that, whether the Crown may rely, in whole or in part, on a regulator to fulfill the duty to consult depends on whether the regulator’s statutory duties and powers enable it to do what the duty requires in the particular circumstances.3
After Haida and Carrier Sekani, it has been less clear – to the bar, resource project proponents, Indigenous groups and governments alike – how that controlling law is to be applied by tribunals and by courts of justice.
The SCC issued two landmark Crown consultation decisions on July 26, 2017, in Clyde River (Hamlet)4 and Chippewas of the Thames First Nation.5 In these companion appeals, the SCC affirmed the governing law from Haida and Carrier Sekani, applied it to two different legislative and factual contexts, and gave stakeholders meaningful guidance on when and how the Crown may rely on regulatory processes to fulfill the duty to consult.
Clyde River and Chippewas addressed the practical implications of Aboriginal consultation for modern governments. Both appeals concerned National Energy Board (NEB or Board) decisions approving activities in furtherance of developing Canada’s natural resources. Both NEB decisions were upheld by the Federal Court of Appeal (FCA). The SCC heard the appeals consecutively and issued judgments concurrently delivered by Karakatsanis and Brown JJ. on behalf of an unanimous Court (9:0).
This article briefly summarizes the SCC’s findings in Clyde River and Chippewas and considers implications of the legal framework on promoting reconciliation between the Crown and Indigenous peoples in cases going forward.