In Clyde River, an Inuit community sought judicial review of a
National Energy Board (NEB) offshore seismic authorization,
alleging inadequate consultation. The respondents (the project
proponents) submitted that the duty to consult had been fulfilled
by their own efforts, as well as the NEB process.
The Federal Court of Appeal agreed with the respondents and
dismissed the application. The court held that, at the time of the
application, the NEB was statutorily mandated to undertake
consultation activities and to assess the sufficiency of the
consultation with First Nations. As a result, the Crown could rely
on the NEB's regulatory process to help satisfy its duty to
consult affected First Nations. The court found that the
Crown's duty was discharged, that the Inuit community was
meaningfully consulted on its rights, and that an appropriate level
of accommodation was undertaken in response to its concerns.
In Chippewas, a First Nation community sought judicial
review of an NEB pipeline reversal and capacity expansion
authorization, alleging that the NEB did not have jurisdiction to
issue the request because the Crown had not undertaken any
consultation and had not appeared before the NEB.
After reviewing the Standing Buffalo and Rio
Tinto decisions, the court in Chippewas confirmed that
Standing Buffalo continued to apply. The court noted that
in Rio Tinto, the SCC 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 (as was the case
In granting leave, the SCC will again consider the role of
administrative and regulatory tribunals in the duty to consult and
accommodate. In both Haida Nation v. British Columbia
(Minister of Forests) and Taku River Tlingit First Nation v.
British Columbia (Project Assessment Director),
and in the court's subsequent decision in Rio Tinto, the SCC
confirmed that the regulatory process can be used to satisfy the
Crown's obligations to First Nations. In granting leave in
Chippewas and Clyde River, it appears the court
will ultimately provide guidance on how far the regulatory process
can go in satisfying these obligations when other manifestations of
the Crown are not active participants in the proceedings. The court
will likely not release its decisions in these cases until
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