Canada: Clarifying The Role Of Regulatory Tribunals In Consultation – Canada's Highest Court Releases Two Key Aboriginal Consultation Decisions

On July 26, 2017, the Supreme Court of Canada (SCC) released its decisions in Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al. These appeals, which were heard on November 30, 2016 and previously discussed here, relate to the permissible scope of Crown reliance on regulatory processes and proponents to discharge the duty to consult and the role of the National Energy Board (NEB) and other regulatory tribunals in Aboriginal consultation and accommodation.

In both decisions, the SCC affirmed that the Crown can rely in whole or in part on regulatory processes to fulfill the duty to consult but that the Crown must take further measures to meet its duty to consult if the regulatory process being relied upon does not achieve adequate consultation or accommodation. The SCC also clarified that decisions of regulatory tribunals and agencies can constitute "Crown conduct" for the purposes of triggering the duty to consult if they are in effect acting on behalf of the Crown when making a final decision through delegated authority, even if they are not strictly speaking the "Crown" or an agent of the Crown at law.

While both cases relied upon NEB processes, the SCC reached very different conclusions regarding the adequacy of consultation for each decision based on the particular facts. In Clyde River, the Court found that the duty to consult had not been met and quashed the NEB approval at issue for a seismic testing program in Nunavut. In contrast, it concluded in Chippewas of the Thames that there had been adequate consultation for the proposed pipeline reversal and capacity expansion project and dismissed the appeal.

The following short summary of both decisions will be followed by a more detailed analysis of these decisions on our blog in the next several days.

Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS)

The first appeal, Clyde River, arises from an alleged failure to adequately consult before the NEB granted a Geophysical Operations Authorization to conduct a two-dimensional seismic survey program in Baffin Bay and the Davis Strait during the open water season for up to five years. The program had the potential to impact the Inuit of Clyde River's treaty rights to harvest marine mammals under the Nunavut Land Claims Agreement (1993).

The Hamlet of Clyde River (Kanngiqtugaapik) brought an application for judicial review of the NEB's decision before the Federal Court of Appeal (FCA) on the basis, among other things, that the Crown had failed to fulfill its duty to consult with the Inuit of Clyde River and other Baffin Island communities. The Crown did not undertake any consultation outside the NEB process and the appellants argued that the NEB process was not a substitute for formal consultation and that the proponents' consultation efforts were inadequate, among other things. The FCA agreed with Clyde River that the Crown's duty to consult was at the deep end of the spectrum, but held that it had been discharged by the NEB's environmental assessment and regulatory process. Clyde River appealed the FCA's decision to the SCC.

The SCC overturned the decision of the FCA, quashing the NEB's Authorization. The SCC held that the NEB's decision-making process constituted Crown conduct that triggered the duty to consult. As the final decision-maker, the NEB was responsible for ensuring that consultation had been adequately fulfilled, before reaching its decision. In this case, consultation was inadequate and the decision must therefore be quashed.

In reaching its decision, the Court made the following notable findings:

  • The SCC provided some long-anticipated clarity since Rio Tinto on the questions of what constitutes the Crown and Crown action for the purposes of fulfilling the duty to consult in the context of regulatory tribunals. The Court held that the "Crown" for the purposes of the duty to consult refers to the exercise of executive power. Although the NEB is not strictly the "Crown" or an agent of the Crown, it does exercise executive power on behalf of the Crown pursuant to its statutory authority, and "is the vehicle through which the Crown acts". Therefore, the action of the NEB to make final decisions clearly constitutes Crown conduct. It does not matter whether the final decision maker on a resource project is Cabinet or the NEB. (paras. 28-29)
  • Given the flexible nature of the duty to consult, a process that was originally designed for a different purpose may be relied on by the Crown to carry out the duty, so long as it affords an appropriate level of consultation. The Court held that the NEB has a significant array of procedural and remedial powers as well as institutional expertise that permit extensive consultation and accommodation. Accordingly, the Crown may rely on the NEB to partially or completely fulfill the duty to consult, including to determine whether the duty to consult has been fulfilled. (paras. 31-37)
  • If the regulatory process being relied upon does not achieve adequate consultation or accommodation, the Crown must take further measures to meet its duty. This may involve filling any gaps on a case-by-case basis or through legislative or regulatory amendments, or through other measures such as making submissions to the regulatory body, requesting reconsideration of a decision, or seeking a postponement to allow for further consultation in a separate process before the decision is reached. (para. 22)
  • Where the NEB is the final decision maker, it must withhold project approval if the duty to consult remains unfulfilled. Any decision affecting Aboriginal or treaty rights made on the basis of inadequate consultation will not be in compliance with the duty to consult, and if challenged, should be quashed on judicial review. (para. 24)
  • In this case, deep consultation was required, considering the Inuit's established treaty rights to hunt and harvest marine mammals and the potentially high risk of the seismic testing affecting such rights. (para. 43) Consultation fell short in the following ways:
    • The focus of the NEB's assessment was on adverse environmental impacts and mitigation measures, rather than on the specific effects of the activities on the appellants' traditional resource use.
    • It was not made clear to the Inuit that the Crown was relying on the NEB's process for fulfilling the duty to consult. The Crown should make it clear to affected Indigenous groups if it is relying on the processes of a regulatory body to fulfill its duty, whether in whole or in part, including providing guidance on the form of the consultation process to allow for their participation and to raise concerns.
    • Lastly, the Inuit had insufficient opportunities to participate in the consultation process, which lacked oral hearings and did not provide participant funding. (paras. 23, 45-47)

Chippewas of the Thames v. Enbridge Pipelines Inc.

The second appeal, Chippewas of the Thames, stems from the NEB's approval of an application to reverse the flow and increase the capacity of part of an existing pipeline in Ontario pursuant to s. s. 58 of the National Energy Board Act. The NEB granted the approval after concluding that any impact on the Appellants' asserted or established Aboriginal or treaty rights would be minimal and mitigated, and that the approval of the Project was in the public interest. The NEB also indicated that it was satisfied with the level of Aboriginal engagement that the proponent conducted for the project.

The Chippewas of the Thames First Nation (the COTFN) brought an application for judicial review before the FCA, arguing that these it had not been consulted by the Crown (the NEB was the final decision-maker) and that the NEB erred by, among other things, failing to specifically determine whether the Crown had fulfilled the duty to consult. The majority of the Federal Court of Appeal dismissed the appeal, holding that the NEB was not required to discharge the duty to consult for the Crown and was not required to determine whether the Crown fulfilled the duty to consult prior to rendering a decision.

Unlike Clyde River, the approval at issue was dealing with a change to an existing project with virtually all of the required construction taking place on previously disturbed lands owed by the proponent or on the proponent's existing right-of-way. The rights at issue were also asserted Aboriginal rights versus established treaty rights.

In dismissing the appeal, the SCC disagreed with the majority of the Federal Court of Appeal and found that the duty to consult had been triggered by the NEB decision even though there was no separate Crown decision or Crown involvement in the process. Similar to Clyde River, the SCC concluded that "the Crown's constitutional obligation does not disappear when the Crown acts to approve a project through a regulatory body such as the NEB" (para. 36). However, the SCC went on to determine that the Aboriginal consultation and accommodation undertaken for this project through the NEB process was sufficient to meet the duty to consult. In dismissing the appeal, the SCC made a number of notable findings some of which reaffirmed existing law including:

  • In the context of existing projects, the subject of consultation is the impact of the current decision at issue on asserted or established rights. The duty to consult is not triggered by historical impacts and is not the vehicle to address historical grievances but the historical context and cumulative effects of an ongoing project may inform the scope of the duty to consult. (paras. 41-42)
  • Given its expertise in supervising and approving federally regulated pipeline projects, the NEB is "particularly well-positioned to assess the risks posed by such projects to Indigenous groups" and its existing statutory powers which afford it broad jurisdiction to impose conditions and oversee compliance were capable of satisfying the duty to consult in this particular case. (para. 48)
  • The process undertaken by the NEB was sufficient because the COTFN were provided an adequate opportunity to participate in the decision-making process (including as an intervener in oral hearing with capacity funding and an opportunity to tender evidence, pose information requests to the proponent, and make closing oral submissions), the NEB sufficiently assessed the potential impacts on the rights of Indigenous groups, and provided appropriate accommodation through the imposition of conditions on the proponent (paras. 51-57)
  • The NEB's reasons on the Aboriginal consultation undertaken in this case were sufficient, which unlike Clyde River were not subsumed within the environmental assessment and specific to impacts on asserted and established rights. The NEB was not required in this case to engage "in a formulaic Haida analysis" in its reasons regarding the depth of consultation required. Instead, the NEB was required to show in its reasons that it "took the asserted Aboriginal and treaty rights into consideration and accommodated them where appropriate," which it did. (para. 63-64)
  • A decision to approve a project "cannot be in the public interest if the Crown's duty to consult has not been met" but "this does not mean that the interests of Indigenous groups cannot be balanced with other interests at the accommodation stage. Indeed, it is for this reason that the duty to consult does not provide Indigenous groups with a 'veto' over final Crown decisions." (para. 59)

As noted above, stay tuned to our ERA blog for a more detailed analysis of these decisions and their implications which will be posted in the next several days.

To view the original article click here

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

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

In association with
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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