On July 26, 2017, the Supreme Court of Canada (SCC) released two decisions on the role of the National Energy Board (NEB) and other regulatory tribunals in aboriginal consultation: Clyde River (Hamlet) v. Petroleum GeoServices Inc. (Clyde River) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (Chippewas). The decisions are significant in clarifying the law in relation to the interaction of regulatory processes with the Crown’s duty to consult Aboriginal Peoples.

For background on the decisions, see our March 2016 Blakes Bulletin: Supreme Court to Hear Appeals on Role of Tribunals in Duty to Consult.

BACKGROUND

In its 2004 decision in Haida Nation v. British Columbia (Minister of Forests), the SCC confirmed that the Crown has a duty to consult and, where appropriate, accommodate Aboriginal Peoples where the Crown has knowledge, real or constructive, of the potential existence of an aboriginal right or title and contemplates conduct that might adversely affect it.

The law regarding the Crown’s duty to consult has been further defined in subsequent decisions of the SCC and lower courts, such that many of the principles are well settled. However, an area of considerable uncertainty has persisted with respect to the role of regulatory tribunals in consultation. In its 2010 decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the SCC considered the role of a tribunal in determining an application for approval by a Crown agent. The court in that case left open, however, numerous questions regarding tribunals’ role where the applicant is a private entity and the Crown is not otherwise involved in the regulatory process.

Since then, regulatory tribunals and courts have taken inconsistent approaches. This key issue was resolved by the SCC in the Clyde River and Chippewas decisions.

PROPER ROLE OF REGULATORY TRIBUNALS IN CONSULTATION

In Clyde River and Chippewas, the SCC confirmed that the decision of a regulatory tribunal itself may constitute “Crown conduct”, triggering the Crown’s duty to consult. While a regulatory tribunal like the NEB is not, strictly speaking, the “Crown”, regulatory tribunals may act on behalf of the Crown in making decisions.

The question then becomes whether the procedural and remedial powers of the regulatory tribunal are sufficient such that its processes can be relied upon to satisfy the constitutional requirements of consultation triggered by its decision. Where the process is insufficient, additional steps may be required to discharge the Crown’s duty. Such steps could include the Crown making submissions to the regulatory body, requesting reconsideration of a decision, or seeking a postponement in order to carry out further consultation in a separate process before the decision is rendered. Some argue that such separate steps are inefficient and contrary to the principle that aboriginal interests should be identified and addressed in the course of overall project assessment. They further argue that, if a tribunal has decision-making authority over projects, the legislature should grant the tribunal sufficient powers to address consultation.

In confirming the proper role of regulatory tribunals, the SCC dismissed the concern raised by commentators that consultation obligations could compromise the independence of quasi-judicial bodies like the NEB or conflict with their mandate to consider the “public interest”. Rather, the SCC noted that “[a] project authorization that breaches the constitutionally protected rights of Indigenous people cannot serve the public interest.”

With respect to the NEB, the SCC determined that it does have sufficient powers for its process to satisfy the duty to consult. In the Chippewas case, the SCC found that the NEB applied its powers appropriately, satisfying the Crown’s consultation obligations. By contrast, in Clyde River, the SCC held otherwise.

CLYDE RIVER

In Clyde River, the Inuit of Clyde River (Inuit) sought judicial review of an offshore seismic authorization granted by the NEB to three companies under the Canadian Oil and Gas Operations Act. The Federal Court of Appeal (FCA) dismissed the Inuit’s application, finding that the NEB’s regulatory process had discharged the Crown’s duty to consult and that an appropriate level of accommodation was undertaken in response to Inuit concerns about potential impacts of seismic testing on marine mammals.

The SCC allowed the Inuit appeal and set aside the NEB decision. The SCC held that the NEB’s regulatory process can fulfil the Crown’s duty to consult and that deep consultation was required in this case, given the Inuit’s established treaty rights to hunt and harvest marine mammals.

The SCC considered that the NEB’s assessment was limited to environmental effects and that the assessment did not expressly consider the Inuit’s treaty rights to hunt or the impact of the proposed testing on those rights. The SCC therefore concluded that the assessment was insufficient.

Procedurally, the SCC noted that the Crown failed to advise the Inuit in advance of its intention to rely on the NEB’s process as constituting consultation. The SCC also found that the Inuit were granted limited opportunities for participation in the NEB’s process, which did not involve an oral hearing (with the associated procedural protections) or participant funding, notwithstanding that these weren’t requested during the process.

Finally, the SCC found that the Inuit’s key concerns were inadequately addressed. Some responses were in a lengthy document that the SCC found was not readily accessible given the technical nature of the information, limited Internet bandwidth in Nunavut and the fact that the document was only partially translated into Inuktitut.

CHIPPEWAS

In Chippewas, Enbridge Pipelines Inc. (Enbridge) applied to the NEB for approval to modify its Line 9 pipeline to increase its capacity, allow for the transportation of heavy crude oil and reverse the flow such that oil would flow eastward. Most work would be conducted within Enbridge’s existing right of way and on previously disturbed land. No additional Crown land was required.

The NEB held a public hearing on Enbridge’s application and the Chippewas of the Thames First Nation (Chippewas) were granted intervenor status. Prior to the hearing, the Chippewas wrote to the prime minister and several ministers, requesting a consultation process. The government did not reply until the NEB’s hearing process was complete and did not participate in the NEB hearing.

The NEB approved Enbridge’s proposed modification. The Chippewas appealed that decision, arguing that the NEB had no jurisdiction to approve the Line 9 modification in the absence of separate Crown consultation. The FCA dismissed the Chippewas’ appeal, holding that Crown consultation was not required because there was no Crown participant in the NEB process.

The SCC dismissed the Chippewas’ appeal, although for different reasons than the FCA. The SCC held that consultation occurred through the NEB process and was “manifestly adequate” given the limited potential impacts of the project on Chippewas interests. While the Crown did not provide the Chippewas with express notice of its intention to rely on the NEB’s process, correspondence from the NEB prior to the hearing made clear that the NEB process was consultation.

As for the process itself, the SCC held that the Chippewas had an adequate opportunity to participate, including through the provision of funding. The NEB sufficiently assessed the potential impacts on the rights of First Nations and found that the risk of negative consequences was minimal and could be mitigated. The NEB also provided appropriate accommodation through the imposition of conditions on Enbridge, requiring ongoing consultation.

ADDITIONAL PRINCIPLES

The SCC decisions further reinforced numerous important principles regarding aboriginal consultation. The SCC confirmed that:

  • Consultation is not intended to address historic grievances, but rather the incremental impact of specific Crown decisions on aboriginal and treaty rights. Nevertheless, cumulative effects are relevant (according to the SCC in Chippewas).
  • The duty to consult does not provide a “veto” for Indigenous people over Crown decisions. Balance and compromise are inherent in the consultation process and are key elements of reconciliation (according to the SCC in Chippewas).
  • A formulaic analysis is inappropriate. Courts focus on the substance of consultation and whether the Crown seriously and fairly considered and responded to aboriginal and treaty rights. Perceived deficiencies related to the Crown’s failure to complete a strength of claim assessment or formally identify the depth of consultation are not determinative (according to the SCC in Chippewas).
  • The provision of capacity funding, the holding of oral hearings and the opportunity to present evidence and make final arguments are not always necessary, but are important safeguards for meeting the standard of “deep” consultation (according to the SCC in Clyde River).

IMPLICATIONS

The Clyde River and Chippewas decisions provide critical clarification of the role of regulatory tribunals in aboriginal consultation. The SCC framework offers better guidance to project proponents, tribunals and the Crown in designing and navigating regulatory processes that meet the duty to consult. It is hoped that these principles will be considered as part of the current work initiated by the federal government in reviewing key regulatory approval processes in Canada, such as the NEB and environmental assessment more broadly.