In this case, a majority of the Federal Court of Appeal
confirmed that the National Energy Board is not required, as a
condition of undertaking its mandate, to determine whether the
Crown's duty to consult has been discharged in a proceeding
where the Crown itself is not a participant.
The First Nation appealed a decision of the National Energy
Board approving an application by Enbridge Pipelines for a pipeline
reversal and capacity expansion project. The First Nation asked the
Court to quash the Board's approval on the basis that the Board
did not have jurisdiction to issue exemptions and authorizations
prior to the Crown fulfilling its constitutional duty to consult
and accommodate the First Nation. The Court of Appeal had already
decided the question in the negative in Standing Buffalo Dakato
First Nation v. Enbridge Pipelines Inc., 2009 FCA 308, but the
First Nation argued that the Standing Buffalo decision had
been overtaken by the Supreme Court of Canada's decision in
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,
2010 SCC 43.
The Crown had not undertaken any consultations and had not
appeared before the Board.
After reviewing the Standing Buffalo and Rio
Tinto decisions, the Court confirmed that Standing
Buffalo continued to apply. Of particular relevance for the
Court was the fact that in Rio Tinto, the Supreme Court of
Canada did not address the issue of whether a tribunal is obligated
to make duty to consult determinations in proceedings where the
Crown is not a participant. The Court also determined that the
Crown had not given the Board the power to undertake or discharge
any applicable duty to consult on the Crown's behalf as part of
its regulatory oversight jurisdiction.
The Crown is seeking leave to appeal this decision to the
Supreme Court of Canada.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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