Canada: Aboriginal Consultation And Administrative Proceedings: Two Cases Heard By The SCC In November

For Indigenous law watchers, November 30, 2016 was a notable day. The Supreme Court of Canada (SCC) in a day long sitting heard Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA (TGS) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc.1

Both cases are on appeal from the Federal Court of Appeal (FCA) and should clarify the role of administrative tribunals in satisfying the Crown's duty to consult and accommodate. The SCC will consider whether administrative boards may discharge the Crown's duty or simply have an obligation to assist in the consultation process conducted by the Crown.

Hamlet of Clyde River

In May 2011, TGS-NOPEC Geophysical Company ASA (TGS), Petroleum Geoservices Inc. (PGS) and Multi Klient Invest (MKI) (the Proponents) applied to the National Energy Board (NEB) for authorization to conduct offshore seismic testing associated with oil drilling off the east coast of Baffin Island. The Hamlet of Clyde River and the Nammautaq Hunters and Trappers Organization – Clyde River (the HTO) raised concerns about the project's impact on marine life and Inuit harvesting. HTOs are, mandated by the Nunavut Land Claim Agreement to protect and regulate the rights of their members relating to wildlife harvesting. The Inuit of Clyde River depend on marine mammals including bowhead whales, narwhals, seals and polar bears for food security and economic, cultural, and spiritual well-being.

In June 2014, following an environmental assessment under the Canadian Environmental Assessment Act, 1992, the NEB issued authorization for the proponents to proceed with seismic testing. 2 In the environmental assessment, the NEB acknowledged the project's potential adverse environmental effects but concluded that:

"with the implementation of [the project operator's] commitments, environmental protection procedures and mitigation measures, and compliance with the Board's regulatory requirements and conditions included in this [Environmental Assessment] Report, the Project is not likely to result in significant adverse environmental effects." [emphasis added]

Following the NEB decision, the Hamlet of Clyde River and the HTO applied to the FCA for judicial review of the NEB's decision asserting that the Crown failed to discharge its duty to consult. The appellants asserted that given the project's potential impacts on Inuit treaty rights, the Crown's duty to consult was at the high end of the spectrum.

The Crown relied entirely on the NEB process to fulfill its consultation requirements, and did not take any independent or additional steps to consult the Inuit appellants. The FCA found that the Crown "properly and adequately" discharged its duty to consult through the NEB-led environmental assessment process.3

The FCA concluded that the Crown may rely, at least in part, on the NEB's mandated consultation process to satisfy the duty to consult. However, while relying on the NEB's process the Crown retains the obligation to consider whether further consultation or accommodation may be necessary.

Chippewas of the Thames First Nation

In 2012, Enbridge Pipelines Inc. (Enbridge) applied for approval under the National Energy Board Act (NEB Act) to reverse the flow of Line 9, a pipeline used to transport oil, and to increase Line 9's capacity to transport heavy oil. Line 9 traverses the traditional territory of the Chippewas of the Thames First Nation and crosses the Thames River. The Chippewas have Aboriginal and treaty rights along the Thames watershed.

The NEB acknowledged the potential impacts of Line 9 on Aboriginal rights. However, based on Enbridge's representations, the NEB was satisfied that any impacts would be minimal and appropriately mitigated. The Chippewas appealed the NEB decision to the FCA.

The FCA considered whether the NEB had an obligation to consider the Crown's consultation activity and whether the duty to consult had been discharged. The majority found that the NEB did not have an obligation to assess the Crown's consultation.

The FCA majority decision followed the decision in Standing Buffalo, a case concerning an NEB decision made under s. 52 of the NEB Act. 4 Section 52 provides for an extra level of review by the Governor in Council of the NEB's recommendations, and the Chippewas of Thames First Nation argued that this distinguished Standing Buffalo from decisions under s. 58 of the NEB Act, which is a final decision made by the NEB. The FCA majority found that this factor was insufficient to distinguish the cases, and that the NEB could not make a determination about consultation when the Crown (for reasons unknown) was not a party to the proceedings before it.

The dissent in Chippewas disagreed with the assertion that the NEB was not required to determine whether consultation took place because the Crown was not present. The dissent agreed with the Appellant that Standing Buffalo was distinguishable because the NEB was the final decision-maker under s 58. Without an assessment of consultation, there is a loophole in the process. The dissent found that the NEB had the power to assess whether a duty to consult had been triggered, and if so, whether it had been discharged.

Arguments before the SCC

The Inuit of Clyde River and the Chippewas of the Thames appeared jointly before the Supreme Court to argue that the Crown's duty to consult was not met through the NEB hearing process.

These cases touch once again on an area in our jurisprudence which has been actively developed over the last decade. The Crown itself owes the duty to consult and can only delegate procedural aspects of consultation. However, the courts have never explained what can be included in the "procedural aspects" of the consultation process conducted by administrative tribunal nor have they ruled on what is beyond "procedure" and the limits of the Crown's delegation. Generally, the Crown must identify which Aboriginal groups to consult, can delegate components of consultation to tribunals and proponents, and then assesses whether consultation was adequate before making its decision. In these cases, the NEB determined whether consultation was met.

Clyde River and the Chippewas argue that the NEB is not the "Crown", did not sign treaties with Indigenous people, and could not be delegated the full duty to consult.

The Crown side-stepped this argument and argued that the ultimate arbitrator of whether the duty is met is the court and is available to Indigenous people regardless if it is the NEB or Cabinet making a decision.

This would require Aboriginal rights-holders to use scarce resources to bring a separate proceeding before the courts every time they felt that the duty to consult had not been met following an NEB (or tribunal) decision.

The SCC's decision in Hamlet of Clyde River and Chippewas of the Thames First Nation should clarify the role of the NEB and other regulatory tribunals in meeting the Crown's duty to consult. We suggest, however, rather than leaving Aboriginal peoples to wage battle in the courts, following this SCC decision, Parliament should (as part of its review of the role and mandate of the NEB) clarify the role of federal regulators in light of the duty to consult while ensuring the Honour of the Crown is upheld in regulatory proceedings.

We will review the Supreme Court's decision once it is released.

Footnotes

1 2015 FCA 179 ["Hamlet"]; 2015 FCA 222 ["Chippewas"].

2 Canadian Environmental Assessment Act (SC 1992, c 37) [CEAA 1992]. 

3 Hamlet, supra note Error! Bookmark not defined. at para 70.

4 Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc, 2009 FCA 308, [2010] 4 FCR 500 [Standing Buffalo]. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Julie Abouchar
Charles Birchall
John J.P. Donihee
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.