The NEB approved a marine seismic survey program in the vicinity
of Patricia Bay, Nunavut. Patricia Bay is located on the northeast
coast of Baffin Island near the Inuit hamlet of Clyde River. The
residents of Clyde River rely upon the harvest of marine mammals
(i.e. bowhead whale, narwhal and seals) as an important source of
As part of the regulatory process, an environmental assessment
report was prepared. The report found the project was unlikely to
result in significant adverse environmental effects. The report
also outlined the consultation steps undertaken both by the NEB and
the project proponent.
The residents of Clyde River applied for judicial review of the
NEB's decision. Among other grounds, the residents argued that
consultation with them was inadequate.
The Federal Court of Appeal disagreed. The Court found that the
NEB was, in the circumstance, mandated to undertake aboriginal
consultation and to assess the sufficiency of same. Further, the
Crown was entitled to rely upon the NEB's process in helping to
satisfy the duty to consult.
The Chippewas of the Thames First Nation applied to quash the
NEB's approval of an Enbridge pipeline project. The Chippewas
argued the NEB could not approve the project in the absence of
consultation with the Nation. In effect, the Chippewas argued that
consultation was a pre-condition to any approval.
The Federal Court of Appeal dismissed the application. The Court
of Appeal noted the Crown was not a participant in the original
application. In the absence of the Crown being a participant in the
original application, the Court of Appeal held that the NEB was not
required to determine if the Crown was under a duty to consult, and
if so, whether the duty had been discharged. In dissent, Rennie,
JA, would have allowed the appeal, having concluded consultation
with the Chippewas was a precondition to approval of the
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