In meeting the duty to consult First Nations, "the appropriate place to deal with project-related matters is before the NEB and not in a collateral discussion with either the [Governor in Council] or some arguably relevant Ministry."

The Federal Court has again waded into the murky waters surrounding the Crown's duty to consult Aboriginal peoples and, in particular, the extent to which the Crown can rely upon administrative tribunals and regulatory processes to discharge that duty.

In Brokenhead , the court denied an application by Manitoba's Treaty One First Nations to quash decisions of the Governor in Council (GIC) approving the issuance by the National Energy Board (NEB) of Certificates of Public Convenience and Necessity (CPCN) for the construction of several pipeline projects in southern Manitoba. The Treaty One First Nations had challenged the decisions on the ground that the Crown had failed to meet its constitutional duty to consult and accommodate A boriginal peoples when the Crown proposes action that might negatively impact upon an asserted Aboriginal claim or interest.

While that duty finds its origins in earlier caselaw, its scope and content were set out in the leading cases of Haida Nation, Taku River and Mikisew Cree.

One of the thornier issues that has arisen in the caselaw since Haida Nation is the role of administrative tribunals and regulatory bodies in grappling with the duty to consult.

A threshold issue in this regard appears to have been laid to rest: the courts have found that, generally, regulatory bodies have both the authority and indeed the obligation to address Aboriginal rights matters even in the absence of specific language in their enabling legislation to this effect. See: Paul v. British Columbia (Forest Appeals Commission) [2003] 2 S.C.R, Carrier Sekani Tribal Council v. British Columbia Utilities Commission, (2009) BCCA 67.

Where the courts have struggled is whether the role of an administrative tribunal is to discharge the Crown's duty of consultation through its regulatory process, or to use that process to assess whether the Crown has discharged this duty. The approach taken in this regard helps to answer the questions as to when consultation must occur, how it must occur, and by whom.

In Brokenhead, the Federal Court adopted the former approach. The court expressly found that the First Nations' diligent attempts to directly engage the federal Crown in consultation and accommodation concerning the pipeline projects had been "ignored." Letters to the Prime Minister and other ministers "were never answered even to the extent of a simple acknowledgement."

Despite this, the court found that the duty to consult was met, through the subsequent NEB process. In the absence of any distinct consultation by the Crown, both the NEB and the court assessed the adequacy of consultation largely by examining the extent to which the NEB's own process had provided opportunities for consultation and accommodation. In this sense, the NEB's approach appears to have been, as the court alluded to, as acting as a "surrogate of the Crown" in regard to consultation.

The court was explicit in rejecting the idea that there existed a requirement for a distinct and discrete consultation outside the NEB process, finding that this would be a "repetitive and essentially pointless exercise." The court ruled that "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."

The idea that the NEB may effectively discharge the Crown's duty of consultation is arguably difficult to reconcile with the pronouncement by the Supreme Court that quasi-judicial administrative bodies (and specifically the National Energy Board) do not themselves owe a duty to consult Aboriginal groups. In Quebec (A.G.) v. Canada (National Energy Board), the Supreme Court found that the NEB did not carry the Crown's fiduciary obligations toward Aboriginal people and that, indeed, to impose such a duty would compromise its independence.

This latter approach was followed in the Carrier Sekani and Kwikwetlem decisions of the B.C. Court of Appeal, which found that the B.C. Utilities Commission, like a court of law, could and indeed must determine whether the Crown's duty of consultation had been met, but did not itself owe such a duty.

The court in Brokenhead followed a distinctly different path. In so doing, the court relied upon the proposition that "the Crown may fairly consider the opportunities for Aboriginal consultation that are available within the existing processes for regulatory or environmental review… Those processes may be sufficient to address Aboriginal concerns, subject always to the Crown's overriding duty to consider their adequacy in any particular situation." This, the court stated, "is not a delegation of the Crown's duty to consult but only one means by which the Crown may be satisfied that Aboriginal concerns have been heard and, where appropriate, accommodated."

This rationale is consistent with a judicial trend by which the Crown is entitled to take into consideration and rely upon statutory processes to satisfy the Crown's duty to consult. In Taku River, the Supreme Court of Canada had found the statutory consultation process pursuant to the B.C. Environmental Assessment Act, which required the participation of the affected First Nation, was adequate to meet the Crown's duty in that case.

The court's approach in Brokenhead is arguably to assess the performance the Crown's duty at the level of the decision that is being challenged – in this case, the approval by the Governor in Council (GIC) of the issuance by the NEB of Certificates of Public Convenience and Necessity (CPCN). Viewed this way, the issue becomes whether prior to the GIC giving its approval, there has been adequate consultation and accommodation. The court found that there had been, through the NEB process, and that as a result the decision to approve the CPCNs was justified. In light of the Quebec v. Canada case, such an approach may be more defensible than one which regards the NEB as a "surrogate" for the Crown in matters of consultation.

Nevertheless, this approach differs from that in several other cases in which the argument that consultation could be managed at the regulatory stage has been rejected. In matters of Aboriginal consultation, the courts have generally declined to follow the administrative law approach by which a breach of procedural fairness at one stage of a decision-making process can be "cured" by extending procedural rights at a subsequent stage of that process. Thus, in Dene Tha' First Nation v. Canada, the Federal Court ruled that the Crown had failed in its duty to consult by excluding the First Nation from the process of designing the regulatory and environmental review process relating to the Mackenzie Gas Project. The Court dismissed the argument that the regulatory process itself would permit the Crown to discharge its duty of consultation, on the ground that the design of that process could in itself impact upon the rights of the Dene Tha'.

Likewise, in Kwikwetlem First Nation v. B.C. (Utilities Commission), the B.C. Court of Appeal ruled that the sufficiency of the Crown's consultation must be assessed at the initial stage of decision-making, even where a subsequent hearing specifically provides for a process of Aboriginal consultation and accommodation.

The approach in Brokenhead appears to buck this trend. The court does not focus so much on the Crown's conduct and whether it had directly discharged its duty of consultation at any stage, but rather on whether adequate consultation and accommodation had in fact occurred, by the NEB and, arguably, by the project proponents themselves.

If confirmed and followed, this decision will provide comfort to both the Crown and project proponents that regulatory approvals may survive despite a lack of initial consultation, where the regulatory process provides for an opportunity for consultation and accommodation. Meaningful advance engagement with Aboriginal groups by the project proponents themselves also appears to have been quite influential, despite the clear pronouncement by the Supreme Court that the Crown's substantive duty is not owed by, and cannot be delegated to, third-parties.

For Aboriginal groups, the court's clear message in this case is that they must engage in and fully avail themselves of consultation opportunities at the regulatory stage.

However, it is not clear that Brokenhead will constitute a new benchmark in the law of consultation. As noted, the approach arguably differs from other judicial trends. Furthermore, the court underscored that although the duty to consult was engaged, the evidence of potential harm to Aboriginal claims and interests was lacking. Accordingly, the level of consultation and accommodation required was at the low end of the spectrum. It may be that Crown reliance on the NEB process will not suffice in relation to projects involving greater potential impacts on Aboriginal claims and interests.

Other noteworthy guidance that can be drawn from the decision (bearing in mind the possibility of an appeal), includes the following :

  • The conduct of project proponents matters: Despite the fact that they do not owe a duty to consult, project proponents can help themselves enormously by engaging meaningfully with potentially-affected First Nations prior to seeking NEB or other regulatory approval. Both the NEB and the Federal Court decisions were replete with references to the extensive efforts of the corporate project proponents to consult and accommodate, and it would appear that these were instrumental in securing this result;
  • Aboriginal groups need clear, specific and cogent evidence of potential adverse impacts to challenge regulatory approvals: General allegations of negative impacts on asserted Aboriginal claims or interests will not suffice to engage a requirement for so-called "deep consultation" and accommodation and, accordingly, will impair the ability to challenge a project approval;
  • The level of required consultation and accommodation will be lower in relation to privately-owned and previously-disturbed land: The fact that the land in issue was largely in private hands and therefore land "not now nor likely in the future to be available for land claims settlement" was regarded as relevant in supporting a conclusion that the impact on the asserted claims would be "negligible." Accordingly, the level of consultation and accommodation required was at the lower end of the spectrum.