Two decisions were released by the Federal Court of Appeal in
the latter half of 2015 that came to seemingly opposite conclusions
regarding the role of the National Energy Board (NEB) in
considering the Crown's duty to consult First Nations peoples
who could be impacted by project development applications before
the NEB. Both cases received leave to appeal to the Supreme Court
of Canada, and on March 10, 2016, the Supreme Court
held that the two appeals will be heard together, meaning that
any discrepancies between the two decisions will have to be
clarified by the country's highest court.
of Cyde River v TGS-NOPEC Geophysical Company ASA (TGS),
the Applicants were Inuit residents of a hamlet seeking judicial
review of the NEB's approval of a five-year offshore seismic
surveying project, arguing that the Crown's duty to consult the
Inuit was not properly fulfilled. The Applicants' argument
relied on two points: firstly, the nature of the project resulted
in the Crown's duty to consult being triggered and, secondly,
the Crown had done "virtually nothing" to discharge this
duty. Notably, the Crown was neither a party to the NEB proceedings
nor the application for review.
The Federal Court of Appeal dismissed the application for
judicial review, finding that although the duty on the part of the
Crown to consult the Inuit did arise, the mandate of the NEB was
broad enough to allow it to engage in the consultation process and
the Crown could rely on that process in satisfying itself the duty
In support of this conclusion, the Court pointed to the
environmental assessment under the Canadian
Environmental Assessment Act being considered as part of
the proceedings. In considering the environmental assessment and
approving the project, the NEB had to give specific regard to any
change or effect on "the current use of lands and resources
for traditional purposes by aboriginal persons." The process
was also open to public participation.
As such, the Crown was able to rely on the NEB's process, at
least in part, in meeting its duty to consult. Ultimately, the NEB
proceeding was found sufficient to discharge the duty.
of the Thames First Nation v Enbridge Pipelines Inc. was
an appeal of an NEB decision to authorize a pipeline expansion
project. The Appellants, a First Nations people, argued that the
NEB had not discharged the Crown's duty to consult. Similar to
Hamlet of Clyde River, the Crown was not party to the NEB
proceedings nor the appeal. The issues, as iterated by the Court of
Appeal, were (i) whether the NEB was required to determine whether
the Crown's duty to consult was engaged (and, if so, whether it
was properly discharged) and (ii) whether the NEB had been
delegated the power to fulfill the Crown's duty to consult.
In a split decision, the majority answered both questions in the
negative. Considering itself bound by a precedent decision
answering the same question, the majority concluded that there was
no requirement on the part of the NEB to consider the existence of
the Crown's duty to consult. Secondly, the majority could not
find an explicit basis to conclude that the duty to consult had
been delegated to the NEB. Most importantly, no express or inferred
delegation could be found in the parent statute to the NEB, which had originally
been enacted 40 years prior to the landmark decision recognizing
the Crown's duty to consult.
The two cases leave uncertainty in the NEB's role in
carrying out the Crown's duty to consult in considering energy
projects. Both Hamlet of Clyde River and Chippewas have been appealed to the
Supreme Court, and will be heard together. The date of the appeal
has not been set. In its eventual decision, the Supreme Court will
hopefully clarify some or all of the following three points:
whether the NEB can or should determine whether the Crown's
duty to consult has arisen;
whether the NEB can or should engage in the consultation
process in place of the Crown; and
whether the NEB is required to determine whether the
Crown's duty to consult has been fulfilled.
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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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