The Supreme Court of Canada has unanimously clarified several features of the Crown’s duty to consult with and accommodate indigenous populations prior to project approvals being granted. The companion decisions of Canada’s top court in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 (Clyde River) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (Chippewas) clarify when the duty to consult is triggered; confirmed that the Crown can discharge its duty to consult through the project approval process undertaken by the regulatory body (including the National Energy Board (NEB), which for the most part had declined to assess how a project affected Aboriginal or treaty rights); and also illustrated how to, and how not to, discharge the duty.

In our view, these decisions set out benchmarks for discharging the duty to consult, and while the duty to consult is the Crown’s obligation, it is project proponents who are often left to carry out or bolster the consultation process. Without the duty being discharged, a project approval process cannot proceed, and therefore it is essential that the project proponent ensure the Crown’s duty is discharged. This can mean paying for participation in the process by affected Aboriginal parties, for example, or providing the requisite information about the project to the affected parties so that consultation can be robust.

Therefore, while the Court was clear that each situation should be viewed independently, the Court provides an illustrative roadmap for discharging the duty to consult, and in doing so has reduced some of the uncertainty plaguing Canadian project approvals. We expect these decisions to be parsed closely by project proponents, to ensure that they have discharged the duty, as if it can be shown later that the Crown’s duty to consult was not discharged, any project approval would be quashed on judicial review. Therefore the stakes in ensuring the Crown has discharged its duty consult are extremely high.

Background

Both the federal and provincial Crown owes a duty to consult indigenous populations whose Aboriginal or treaty rights are likely to be affected by a project approval. The duty arises from the Crown’s assumption of sovereignty over lands and resources formerly held by indigenous peoples. The scope of the duty is measured on a continuum, from minor or shallow consultation, to deep consultation. The scope depends on the strength of the Aboriginal rights claim of the affected indigenous population, and the seriousness of the potential impact of the exercise of those rights. Each duty to consult is unique, as it is based on a particular set of rights and impacts.

One way to ensure the duty to consult is satisfied is through the project’s regulatory approval process itself. By ensuring meaningful Aboriginal participation in a process, and issuing a decision that is responsive to issues raised by affected Aboriginal populations, the Crown may well have discharged the duty to consult, depending on the breadth and depth of the scope of the duty.

These two cases were likely chosen by the Court for their stark contrast, in order to illustrate how to, and how not to, discharge the duty.

Process for Satisfying Duty to Consult

In these two decisions, the Supreme Court lays out an illustrative road map for satisfying the duty to consult. We have set it out below.

  1. Determine when the duty to consult is triggered – if the regulatory body has the power to make a final decision on a regulatory application, and that decision affects treaty or Aboriginal rights, then the duty is triggered when the regulatory process commences.
  2. Assess whether the regulatory tribunal has the power to satisfy the Crown’s duty to consult – i.e. can the tribunal compel witnesses and issue decisions commensurate with the scope of the duty. If it does, and the Crown is relying on the regulatory process to satisfy the duty, it must be made clear to the affected indigenous parties that the Crown is so relying. We note that the NEB had not generally assessed how a project had assessed Aboriginal or treaty rights in its project approval process, and the Court shows here that in these circumstances it was well equipped to do so.
  3. Attempt to determine the scope of the duty by assessing the Aboriginal rights claim and the seriousness of the impact of the project on those rights. Proponents would be well-advised to assume that discharging the duty will require substantial effort and funds.
  4. Ensure that the Crown’s obligation to consult is upheld in the specific tribunal process, through notification and active participation by affected Aboriginal parties in the regulatory process, provision of a written decision, and attachment of appropriate conditions to protect Aboriginal rights.

A. Duty Not Discharged and Approval Quashed: Clyde River

In Clyde River, Petroleum Geo-Services Inc. (PGS) and others applied under the Canada Oil and Gas Operations Act, the legislation governing offshore exploration in the Arctic, to the NEB to conduct offshore seismic testing off the northeast coast of Nunavut as required. The proposed project contemplated towing airguns through a project area, to produce underwater sound waves, annually between July and November for five years.

It was clear that the testing could negatively affect the marine mammal harvesting rights of the local indigenous population, the Inuit. Under the Nunavut Land Claims Agreement (1993), the Inuit of Clyde River ceded all Aboriginal claims, rights, title and interests in the Nunavut Settlement Area, including Clyde River, in exchange for defined treaty rights, including the right to harvest marine mammals.

The NEB launched an environmental assessment of the seismic testing, and the Inuit of Clyde River and others filed a petition against the project with the NEB. The NEB held meetings in various surrounding communities to collect public comment, and representatives of the project proponents attended these meetings. Community members asked basic questions about the effects of the seismic survey on marine mammals, but the project proponents were unable to answer many of them, including which marine mammals would be affected by the testing. The proponents answered “That’s a very difficult question to answer because we’re not the core experts.” Oral hearings were not held by the NEB, and through the process the affected Inuit population filed letters of comment with the NEB, expressing concerns about the inadequacy of the consultation and about the testing generally.

The proponents ultimately attempted to satisfy the Inuit’s questions about the seismic testing by filing a 3,926 page document with the NEB, and having that delivered to the Clyde River offices. No further efforts were made to ensure the questions were answered, the document was not translated into Inuktitut (the Inuit language), and due to limited bandwidth on Baffin Island the document could not be downloaded.

Subsequently the Inuit wrote to the Minister of Aboriginal Affairs and Northern Development stating that the duty had not been fulfilled, but could be fulfilled by a strategic environmental assessment. The Minister responded, disagreeing with the view that seismic testing should be put on hold pending completion of a strategic environmental assessment, and an NEB approval soon followed. The approval noted that marine mammals could be affected, but that the testing was unlikely to cause significant environmental effects, given the mitigation measures undertaken by the proponents.

The Supreme Court’s Analysis

The Supreme Court analyzed the process undertaken by the NEB, found that the duty to consult had not been discharged and quashed the approval. The analysis proceeded in four clear steps.

First, the Court found that the NEB approval process triggered the duty to consult.

Next, the Court found that the NEB had broad procedural powers to implement consultation, and the remedial powers to accommodate affected Aboriginal claims where necessary. Therefore the NEB’s process could be relied by the Crown to completely or partially fulfill the Crown’s duty – in our view, the NEB has historically not addressed aboriginal or treaty rights in its approval process. This is a bold statement by the Court, and it confirms that the NEB’s robust process itself, if used appropriately, can be used to wholly or partially discharge the Crown’s duty to consult.

Third, the Court had no difficulty characterizing the required level of consultation as “deep”, at the highest end of the continuum. In accordance with its previous jurisprudence, deep consultation requires “a strong prima facie case for the claim is established, the right and potential infringement is of high significance and the risk of non-compensable damages is high”. Here, there were established treaty rights that were at stake, as well as deep cultural attachment to marine mammals, and a significant risk that non-compensable damages would result.

Fourth, the Court determined that the NEB’s process did not discharge the duty to consult. The NEB could have required oral hearings and formal participation in the process, but instead only limited opportunities for participation were made available. There was no participant funding. The proponents did not answer basic questions going to the heart of the treaty right, and in the words of the Court, “to put it mildly, furnishing answers to questions that went to the heart of the treaty rights at stake in the form of a practically inaccessible document dump months after the questions were initially asked in person is not true consultation.”

We question whether the outcome of this matter would have been different had the report been provided sooner and in an accessible format, along with capacity funding for expert review along with sufficient time for that review to occur. The proponents’ failure to do so indicates their critical role in ensuring the Crown’s duty to consult is met.

B. Duty Discharged: Chippewas

Enbridge Pipelines applied to the NEB to modify its Line 9 oil pipeline, reversing the flow of part of the pipeline, increasing its capacity and widening its specifications so it could carry heavy crude oil. The NEB held a public hearing, and 19 Aboriginal groups, including the Chippewas of the Thames First Nation, were informed of the proposed project and the NEB hearing process. The Chippewas of the Thames participated in the NEB process, and after their participation was complete, wrote a letter to the Crown, asserting Aboriginal and treaty rights, outlining the project’s potential impact, and stating that no Crown consultation had taken place. The Minister of Natural Resources responded after the NEB process was complete, stating that he would be relying on the NEB’s process to fulfil the duty to consult.

The NEB approved the project subject to conditions, some of which related to indigenous communities. It assessed the potential impact on Aboriginal rights as being limited, given that no new land would be acquired as a result of the project. Therefore, the NEB was satisfied that potentially affected Aboriginal groups had the opportunity to share their views through the NEB. The conditions required Enbridge to file an Environmental Protection Plan, an Ongoing Engagement Report and required Enbridge to include Aboriginal groups in Enbridge’s continuing education plan.

The Chippewas of the Thames appealed, stating that the approval could not be issued without the duty to consult and accommodate being met; the Crown and Enbridge argued that the duty could be met through a regulatory hearing, and that the duty to accommodate was met through the conditions that were imposed.

The Supreme Court’s Analysis

The Supreme Court went through a remarkably similar process as it did in Clyde River when analyzing the Crown’s duty to consult the Chippewas of the Thames River.

First, it held that the commencement of the NEB process triggered the duty to consult.

Second, it held that the duty to consult can be fulfilled by a regulatory agency, provided the agency possesses the statutory power to do what the duty to consult requires in the circumstances. If the agency does not have the power or if it does not provide the adequate consultation and accommodation, the Crown must do so independently. As the NEB was the final decision-maker on this project, it was required to consider whether the Crown’s consultation was adequate, and was therefore capable of satisfying the Crown’s duty to consult.

Third, while it did not specifically address where on the continuum of consultation this matter fell, it found that the Crown’s duty to consult was discharged by the NEB process. In doing so, the Court held that the opportunity to participate in the hearings was provided and taken, a written decision was issued recognizing the treaty rights, and suitable conditions were imposed. It also found that any potential impacts on the rights of the Chippewas of the Thames were minimal and could reasonably be mitigated, thus implying that the duty to consult was somewhat less onerous than in Clyde River. Finally, it found that the NEB had successfully balanced the treaty rights of the First Nation and the economic interests of Enbridge at the accommodation stage.

Though the Crown failed to notify the Chippewas of the Thames that it intended to rely on the NEB hearing to discharge the duty to consult, and while the Chippewas argued that was fatal to the application, the Supreme Court found that they were provided with opportunities to participate, and did participate, in the process. Nevertheless, if project proponents wish to rely on the regulatory process to discharge the duty to consult, they would be well-advised to advise affected parties in advance.

Conclusions and Implications

These decisions confirm and clarify the process that project proponents and regulators should follow to satisfy the duty to consult and accommodate. Parties may try to copy what Enbridge did in on Line 9, and will avoid the Clyde River process undertaken by PGS and its partners. Provided the duty is assessed, and robustly discharged, applications to quash coming up after the approval is issued seem to have less chance of success. These decisions are very clearly and concisely written, and effectively show what to do, and what not to do. They therefore inject additional certainty into how the approval process should deal with the duty to consult –certainty which is more than welcome.