On May 12, 2009, Mr. Justice Barnes of the Federal Court released his Reasons in Brokenhead Ojibway Nation v. Canada, 2009 FC 484. The court upheld the Governor in Council’s approval of the National Energy Board’s (“NEB”) issuance of Certificates of Public Convenience and Necessity (“CPCN”) for the construction of three pipeline projects. The projects are the Keystone Pipeline Project (“Keystone”), the Southern Lights Pipeline Project (“Southern Lights Project”) and the Alberta Clipper Pipeline Expansion Project (“Alberta Clipper Project”) (collectively the “Projects”). The First Nation applicants unsuccessfully challenged the CPCNs on the grounds that the Crown did not fulfill its consultation obligations.

The seven First Nation applicants were the successors of the Ojibway First Nation signatories to Treaty One (the “Treaty One First Nations”). They asserted treaty rights, as well as several outstanding land claims to southern Manitoba. Although several other First Nations participated in the NEB proceedings, they were not involved in the judicial review.

The Treaty One First Nations’ application was based on the position that the federal Crown failed to fulfill its legal obligations of consultation and accommodation before granting the CPCNs for the Projects in issue. They did not make submissions in the NEB proceedings, but instead attempted, unsuccessfully, to directly engage the federal Crown in meaningful consultation and accommodation regarding the Projects.

The court dismissed the application, finding that there was no evidence that the Projects would have an adverse impact on the asserted treaty and aboriginal rights, and to the extent that the duty to consult was engaged it was “fulfilled in the context of the NEB proceedings and by the opportunities that were afforded there for consultation and accommodation.”1

NEB Decisions

Keystone

Keystone was an application by TransCanada Keystone Pipeline GP Ltd. involving 1235 km of pipeline running from Hardisty, Alberta to a point near Haskett, Manitoba, along the Canadian border. All new rights-of-way required for pipeline construction in Manitoba would be on privately owned land, in addition to the 258 km existing rights-of-way, which included 6 km of Crown land.

The NEB considered the opportunities Keystone had provided to aboriginal groups to express their concerns, as well as modifications Keystone made to the Project as a result. The NEB found the participating aboriginal groups “were provided with an opportunity to participate fully in its process and to bring to the Board’s attention all their concerns.” With respect to land claim issues that were raised by some of the aboriginal groups, as opposed to the effects of the Project, the NEB found this was outside its jurisdiction. An important factor in the NEB’s decision was the fact that almost all the lands required for the Project were previously disturbed, and were generally private. The NEB therefore found the Project impacts would be minimal.

Southern Lights and Alberta Clipper Projects

Enbridge Pipelines Inc. was the proponent for both the Southern Lights Project and Alberta Clipper Project, which are both located within or are contiguous to existing pipeline rights-of-way that are almost entirely over private and previously disturbed land. Enbridge had consulted widely with interested aboriginal communities, including those located within an 80 km radius of the pipeline right of way, as well as communities from further away that expressed an interest. In addition, Enbridge provided funding to the Treaty One First Nations to facilitate the consultation process.

On the issue of consultation with respect to the Alberta Clipper Project, the NEB considered Enbridge’s Aboriginal engagement program to be appropriate to the nature and scope of the Project, and that it fulfilled the consultation requirements for the Alberta Clipper Project.

The NEB’s findings with respect to the impact of the Southern Lights Project were similar. Aboriginal groups with an interest in the Southern Lights were provided with details of the Project and the opportunity to present their concerns to the NEB so that they could be considered in the decision-making process. In addition, Enbridge’s consultation program was appropriate and the NEB found the Southern Lights also had minimal impacts on aboriginal interests.

The Court’s Reasons

The Treaty One First Nations acknowledged that the corporate Respondents and the NEB engaged in consultations with respect to the Projects and accommodated some of their concerns; however their position was that these consultations and accommodations could not be a substitute for the Crown’s obligation. Of particular concern to the Treaty One First Nations was their outstanding land claims in southern Manitoba, which the proponents and the NEB could not address.

In considering the application before it, the court accepted “for the sake of argument” that an approval by the Governor in Council under s. 52 of the National Energy Board Act, R.S.C. 1985, c. N-7 may be open for review on the basis of a failure to consult.2

After considering the law regarding the duty to consult, Mr. Justice Barnes proceeded to review the Treaty One First Nations’ claim, and the impact of the Projects on their interests and claims. The key issue in this case was the impact of the Projects and the extent to which concerns were adequately addressed through the NEB regulatory processes. With respect to the NEB regulatory process, the court held as follows:

[25] In determining whether and to what extent the Crown has a duty to consult with Aboriginal peoples about projects or transactions that may affect their interests, the Crown may fairly consider the opportunities for Aboriginal consultation that are available within the existing processes for regulatory or environmental review: Hupacasath First Nation v. British Columbia, 2005 BCSC 1712, 51 B.C.L.R. (4th) 133 at para. 272. Those review processes may be sufficient to address Aboriginal concerns, subject always to the Crown’s overriding duty to consider their adequacy any particular situation. This is not a delegation of the Crown’s duty to consult but only one by which the Crown may be satisfied that Aboriginal concerns have been heard and, where appropriate, accommodated: see Haida, above, at para. 53 and Taku, above, at para. 40.  

[emphasis added]

The court found that although the NEB process was “well-suited to address mitigation, avoidance and environmental issues that are site or project specific”3, it could not address the unresolved land claims issues. However, the court found the evidence with respect to those claims was general and “fail[ed] to identify any interference with a specific or tangible interest that was not capable of being resolved within the regulatory process”.4 In particular, the aboriginal representatives consulted by Enbridge indicated the lands that would be impacted by the Southern Lights and Alberta Clipper Projects were not the subject of any land claim or the site of any traditional activity, with the exception of one section that ran through a reserve and for which consent was given. This was an important fact in the court’s decision to dismiss the application.

The Treaty One First Nations did not participate in the process before the NEB and were arguing for a duty to consult outside of the regulatory process. The court held that there is no at-large duty to consult that exists without some unresolved impact related to the Crown conduct being contemplated.

[37] The Treaty One First Nations maintain that there must always be an overarching consultation regardless of the validity of the mitigation measures that emerge from a relevant regulatory review. This duty is said to exist notwithstanding the fact that Aboriginal communities have been given an unfettered opportunity to be heard. This assertion seems to me to represent an impoverished view of the consultation obligation because it would involve a repetitive and essentially pointless exercise. Except to the extent that Aboriginal concerns cannot be dealt with, the appropriate place to deal with project-related matters is before the NEB and not in a collateral discussion with either the GIC or some arguably relevant Ministry.  

[emphasis added]

The court went on to find that the NEB process of consultation and accommodation through its regulatory procedure was sufficient to address the aboriginal concerns raised in the context of these Projects. The Treaty One First Nations’ failure to participate in that process prevented them from demonstrating a failure to consult:

[42] … The fact that the Treaty One First Nations may not have availed themselves fully of the opportunity to be heard before the NEB does not justify the demand for a separate or discrete consultation with the Crown. To the extent that regulatory procedures are readily accessible to Aboriginal communities to address their concerns about development projects like these, there is a responsibility to use them. First Nations cannot complain about a failure by the Crown to consult where they have failed to avail themselves of reasonable avenues for seeking relief. That is so because the consultation process is reciprocal and cannot be frustrated by the refusal of either party to meet or participate: see Ahousaht v. Canada, 2008 FCA 212, [2008] F.C.J. No. 946 at paras. 52-53. This presupposes, of course, that available regulatory processes are accessible, adequate and provide First Nations an opportunity to participate in a meaningful way.

[emphasis added]

Analysis

Key to both the NEB and the court’s decisions were the fact that very little, if any, impact would be realized from the Projects at issue both because of their location on previously disturbed land, whether over existing right of ways or private land.

This decision also places a strong emphasis on the regulatory process of the NEB proceedings and the fact that they afford aboriginal groups the ability to raise their concerns with respect to a particular project, and have them mitigated. Although such regulatory processes are not a replacement for the duty to consult, if the Crown is satisfied that they are adequate to address the concerns raised by the aboriginal groups that are involved, then the regulatory process may fulfill the duty to consult and accommodate. This provides support for the use of regulatory processes to carry out consultation and accommodation in appropriate circumstances.

The court’s reliance on the NEB proceedings is especially important when, as in this case, the Treaty One First Nations did not fully participate in the NEB proceedings and could not therefore complain that they had no opportunity to have their concerns addressed. This decision may therefore require First Nations to participate in a regulatory process to the full extent possible if they later want the ability to claim a lack of consultation.

Although the court refers to the project proponents and the NEB engaging in consultation and accommodation, a review of the decision shows that it was the proponents that consulted, and that the NEB considered those consultations, as well as the submissions made by several First Nations. The NEB also addressed a concern with respect to heritage and archaeological resources, but otherwise found the consultation that had been carried out was sufficient. This is consistent with the B.C. Court of Appeal’s decision in Kwikwetlem Nation v. British Columbia (Utilities Commission)5 decision, which required the BC Utilities Commission to consider whether or not the duty to consult arose and whether consultation, and where appropriate accommodation, was sufficient prior to issuing a CPCN.

A somewhat perplexing part of the decision are the obiter dicta (not binding) remarks of Mr. Justice Barnes in paragraph 44:

[44] I have no doubt, however, that had any of the Pipeline Projects crossed or significantly impacted areas of unallocated Crown land which formed a part of an outstanding land claim a much deeper duty to consult would have been triggered. Because this is also the type of issue that the NEB process is not designed to address, the Crown would almost certainly have had an independent obligation to consult in such a context.

The court’s comments with respect to the Crown needing to have an independent obligation to consult outside the regulatory process seem inconsistent with the court’s earlier statement about the Crown being able to fairly consider the consultation that occurs through a regulatory process. It appears Mr. Justice Barnes’ comment was intended to mean that a deeper duty to consult might require the Crown’s full participation, as opposed to being able to rely solely on the consultation by proponents. In addition, the obiter dicta remarks are contrary to two recent BC Court of Appeal’s decisions6 holding that the BC Utilities Commission process was the appropriate process within which to consider the duty to consult in the context of unresolved land claims relating to a project being considered by the Commission.