The recent decision of the Federal Court of Appeal in Bigstone Cree Nation v. NOVA[1] affirmed the Governor in Council’s decision to approve the NOVA Gas Transmission Ltd. (NGTL) System Expansion Project (the Project), in spite of concerns raised by Bigstone Cree Nation (BCN) regarding the adequacy of Crown consultation. The Court also provided clarification on the role of the National Energy Board (NEB) processes in discharging the Crown’s duty to consult and accommodate First Nations.

Background

NGTL sought approval from the NEB for the Project, which would transport sweet natural gas in northern Alberta through 230 kilometres of new pipeline. For approval, the Project required a Certificate of Public Convenience and Necessity (CPCN), as well as an Environmental Assessment. It was subject to Canada’s Major Project Management Office (MPMO) Initiative, and as a result, the MPMO coordinated Indigenous consultation.

BCN is a party to Treaty 8 and occupies lands in north-central Alberta, where the Project is located. Prior to and throughout the regulatory process, NGTL engaged and consulted with BCN and other Indigenous groups. This included meetings, telephone calls and email correspondence. In the NEB proceeding, BCN submitted written evidence, presented oral traditional evidence, posed information requests regarding NGTL’s and other interveners’ evidence, submitted and responded to motions, and presented final argument. BCN also received funding to participate in the proceeding.

Following the NEB proceeding, the NEB recommended that the Governor in Council approve the Project, subject to 36 conditions. Following an analysis of the available information, the Crown concluded there would be minimal impact to BCN’s Indigenous rights under section 35 of the Constitution Act, 1982 as a result of the Project, and determined that it had satisfied its duty to consult with BCN. Accordingly, on October 28, 2016, the Governor in Council issued an Order directing the NEB to issue a CPCN to NGTL in respect of the Project, subject to the conditions identified by the NEB.

BCN filed an application for judicial review of the Order in Council. The substantive issue raised in that application was whether the Crown had adequately discharged its duty to consult and, if necessary, accommodate BCN.

Decision

At the judicial review, the Crown did not dispute that it owed BCN a duty to consult and that the potential impacts of the Project to BCN would be moderate to high, requiring deep consultation. However, BCN raised a number of issues with the consultation process conducted by the Crown, including that consultation was left too late, that the funding provided was inadequate, that the consultations were inadequate, and that the reasons provided by the Crown for its decision were insufficient.

The Court sided unanimously with the Crown and NGTL and dismissed BCN’s application. Consultation timelines were modified to accommodate BCN and significant funding was provided, including the maximum amount to participate in post-hearing consultations ($8,500) and additional funding from the NEB ($27,000) and NGTL ($225,000) for BCN to engage in the proceeding itself. Further, it was reasonable for the Crown to rely on the NEB process in its consultation efforts as it was apparent that, from the numerous accommodation measures imposed on NGTL, the NEB seriously considered BCN’s rights and concerns. Finally, the reasons provided were sufficient, as they gave an explanation demonstrating that BCN’s concerns were considered and revealing the impact that those concerns had on the Governor in Council’s decision. When viewed as a whole, the consultation process resulted in reasonable efforts to inform, consult, and accommodate, in line with the Crown’s fiduciary obligations.

This decision provides additional clarity on at least three important issues:

First, the Court stated that the Crown is not obligated to provide funding to Indigenous groups as part of its duty to consult. However, the provision of funding may be used as a positive factor in the determination of whether consultations were meaningful. As noted above, the Court found that arguments made by BCN that inadequate funding was provided had no merit. BCN was awarded substantial funds by NGTL and the NEB to engage in the proceeding, and had not even attempted to show how the purported lack of funding impacted its participation in the consultation process.

Second, this decision reinforces that accommodation to Indigenous groups may be in the form of project conditions, and is not necessarily tied to compensation. The MPMO described in its report that the conditions on the Project proposed by the NEB were responsive to and appropriately accommodated concerns raised by Indigenous groups, including BCN. The Court agreed. The conditions imposed on NGTL demonstrated that the NEB seriously considered and sufficiently accommodated BCN’s rights and concerns.

Finally, BCN alleged that, following the NEB’s recommendation that the Governor in Council approve the Project, consultations were rushed and left too late. However, the Court confirmed that consultation is a two-way street. The Court examined the sequence of events and concluded that BCN could not seriously complain that it was not meaningfully consulted. Both sides had approximately four months to consult, but the first three months were lost as a result of BCN’s lack of engagement.