The messages from the Federal Court of Canada in two decisions over the past month are:

  • Consultation generally gives voice rather than a veto to aboriginal communities in natural resources development;
  • Accommodation of aboriginal concerns may be addressed through a vigorous monitoring and reporting program embedded in the licensing phase of the project;
  • Objections to projects raised for the first time on judicial review and failure to participate in the consultation process will severely weaken applications for judicial review;
  • The U.N. Declaration on the Rights of Indigenous Peoples has not as yet displaced current Canadian law on the parameters of the duty to consult or its content;

In the following briefing note each of these points is discussed in greater depth.

Federal Court Cases

On August 17, 2015 the Federal Court of Appeal in Clyde River (Hamlet) v. TGS-NOPEC Geophysical Co. ASA (2015) FCA 179 upheld the dismissal of a judicial review application brought by the Inuit against a Geophysical Operations Authorization issued by the National Energy Board (NEB) which permitted an offshore seismic survey program in Baffin Bay and Davis Strait. The Approval, with specific terms and conditions and accompanying environmental assessment, was issued pursuant to Canada’s Oil and Gas Operations Act R.S.C., c.0-7. The Canadian Environmental Assessment Act (CEAA) S.C.1992 c. 37 was in force when project authorization was sought and the Board continued with the assessment process under CEAA 1992 notwithstanding its repeal and replacement with CEAA S.C. 2012, c.19, s.52. (pars. 53-56).

On August 18, 2015 the Federal Court of Canada in Nunatukavut Community Council Inc. (NCC) v Canada (Attorney General) 2015 FC 981 dismissed a judicial review application brought by the NCC, a self-governing body representing the interests of Inuit-Metis of central and southern Labrador against the Department of Fisheries and Oceans (DFO) authorization issued under ss.32(2)c and 35 (2)b of the Fisheries Act R.S.C. 1985, c.F-14 permitting impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station for the Lower Churchill River. The project has a combined capacity of 3047 megawatts of electricity. It includes dams, reservoirs, transmission lines, access roads, temporary bridges, construction camps, borrow pits and quarry sites, diversion facilities and spoil areas.

The Contours of the Duty to Consult When "Deep" Consultation is Warranted

Common to both cases is the following statement of principle:

“the duty to consult and accommodate does not mean that aboriginal groups possess a veto over government decision-making. The Crown may proceed to make decisions even if an aboriginal group opposes them as long as the consultation process and accommodations are fair, reasonable and consistent with the honour of the Crown...” (NCC at par. 309) (a similar quote appears in Clyde River at par. 47)

In Clyde River, the oil and gas case, the Inuit possessed a treaty right to continue hunting, fishing and harvesting in the settlement area pursuant to the Nunavut Land Claims Agreement . The NEB found that migratory marine animals harvested by the Inuit moved through the project area. Potential adverse environmental effects of the project included alteration of migration areas through sensory and physical disturbance and adverse changes to marine life due to spills or accidents releasing hydrocarbons into the marine environment. The Court of Appeal concluded that these potential impacts warranted deep consultation involving an opportunity to make submissions, formal participation in the decision-making process and the provision of reasons showing that the aboriginal concerns were considered and how those concerns impacted the ultimate decision (pars. 42 and 74). A similar minimum profile for consultation was imposed by the same Court of Appeal three days earlier in their decision on August 14, 2015 in Canada v. Long Plains First Nation, 2015 FCA 177. In that case the Court overturned Canada's decision to sell a former armed forces base to a non-agent Crown corporation. The Court in Clyde River, unlike the Court in Long Plains, found that this minimum consultation profile had been met.

It must be remembered that last year in the Supreme Court of Canada's case of Tsilhqot'inNation v. British Columbia (2014) SCC 44, the Court held that where Aboriginal title was established the aboriginal right protected in s.35 of the constitution only permitted incursions on that title with the consent of the aboriginal group establishing title or proof of a compelling and substantial public purpose not inconsistent with the Crown's fiduciary duty to that aboriginal group. Clyde River therefore represents an insight into the Court's approach where consultation has moved along on the intensity spectrum short of where it would be for an established land claim.

Defining Adequate Accommodation

The Court of Appeal in Clyde River went on to say that accommodation of Aboriginal concerns wasn't necessarily unqualified.

“….accommodation requires that aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns with competing societal concerns. Compromise is inherent to the reconciliation process....” (at par. 79)

In accepting the consultation and accommodation as sufficient, the Court was influenced by the NEB Approval’s terms and conditions which required annual, ongoing monitoring and reporting to aboriginal communities.

“These forward looking conditions ameliorate any scientific uncertainty by allowing future input as scientific knowledge may be acquired and as impacts of the project are observed.” (at par. 82)

Similarly, in the NCC case, accommodation was found by the Court to be adequate from the developer’s modelling and data gathering, together with further baseline sampling and monitoring required under the Fisheries Authorization Environmental Effects Monitoring Program (par. 315)

In the Clyde River case, while the majority of responses to questions raised were not translated into Inukitut, the documents that were translated were the responses to the unanswered questions identified by the Board and viewed as of the greatest interest to the communities involved in the consultation. (at par.90)

Early Expression of Dissatisfaction; Reciprocity of Consultation Process

A lesson learned from both cases is that complaints about the consultation process on judicial review are likely to be regarded as hollow when unaccompanied by evidence that such complaints were voiced while consultation was underway, or that aboriginal groups cooperated in good faith during the process. For example, in the Clyde River case, no one complained that information wasn’t available on the internet, or requested additional copies of responses to questions. Complaints on judicial review about a “data dump" of almost 4000 pages of information were not supported by any requests for further extensions. (par.90) In the NCC case,the NCC alleged on judicial review, that the Minister had ignored available science and knowingly adopted a fish habitat compensation plan that was unlikely to be effective, rendering her decision unreasonable. The Court rejected this submission, in part because the NCC failed to raise this as a concern at any point in the consultation process. (par. 316)

Consultation is therefore viewed in these two decisions as a two-way street. In Clyde River the applicants complained that there was no attempt to integrate the Inuit Traditional Knowledge Study into the design of the Project. The Court wasn’t impressed with this submission because

“it was not helpful or consistent with good faith consultation, that the Applicants refused to participate in the Study.” (at par. 91)

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) GA Res 61/295 UNGAOR, 61st Sess.,Supp no.49 Vol.III UN Doc. A/61/49 (2007)

The NCC case raised the additional question of the application of the U.N. Declaration known as UNDRIP. Article 19 of UNDRIP states the following:

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them."

The applicants contended that UNDRIP applied not only for purposes of statutory interpretation but to interpreting Canada’s constitutional obligations to aboriginal peoples. The Federal Court refused to accept this proposition having been provided with no authority or analysis to support it. Relying on Hupacasath First Nation v. Canada (Foreign Affairs) 2013 FC 900, the Court stated at par. 104:

“UNDRIP cannot be used to displace Canadian Jurisprudence or laws regarding the duty to consult, which would include whether the duty is owed, and the content of that duty.”

While Canadian law may not reflect all of the rights recognized in UNDRIP, politicians may choose to give the Declaration a more pronounced status. On July 7th 2015, the newly installed Premier of Alberta, Rachel Notley, committed her government to implementing UNDRIP.