Canada: SCC Confirms The Role Of Regulatory Tribunals In Aboriginal Consultation

On July 26, 2017, the Supreme Court of Canada (SCC) released two decisions on the role of the National Energy Board (NEB) and other regulatory tribunals in aboriginal consultation: Clyde River (Hamlet) v. Petroleum Geo Services Inc. (Clyde River) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (Chippewas). The decisions are significant in clarifying the law in relation to the interaction of regulatory processes with the Crown's duty to consult Aboriginal Peoples.

For background on the decisions, see our March 2016 Blakes Bulletin: Supreme Court to Hear Appeals on Role of Tribunals in Duty to Consult.

BACKGROUND

In its 2004 decision in Haida Nation v. British Columbia (Minister of Forests), the SCC confirmed that the Crown has a duty to consult and, where appropriate, accommodate Aboriginal Peoples where the Crown has knowledge, real or constructive, of the potential existence of an aboriginal right or title and contemplates conduct that might adversely affect it.

The law regarding the Crown's duty to consult has been further defined in subsequent decisions of the SCC and lower courts, such that many of the principles are well settled. However, an area of considerable uncertainty has persisted with respect to the role of regulatory tribunals in consultation. In its 2010 decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the SCC considered the role of a tribunal in determining an application for approval by a Crown agent. The court in that case left open, however, numerous questions regarding tribunals' role where the applicant is a private entity and the Crown is not otherwise involved in the regulatory process.

Since then, regulatory tribunals and courts have taken inconsistent approaches. This key issue was resolved by the SCC in the Clyde River and Chippewas decisions.

PROPER ROLE OF REGULATORY TRIBUNALS IN CONSULTATION

In Clyde River and Chippewas, the SCC confirmed that the decision of a regulatory tribunal itself may constitute "Crown conduct", triggering the Crown's duty to consult. While a regulatory tribunal like the NEB is not, strictly speaking, the "Crown", regulatory tribunals may act on behalf of the Crown in making decisions.

The question then becomes whether the procedural and remedial powers of the regulatory tribunal are sufficient such that its processes can be relied upon to satisfy the constitutional requirements of consultation triggered by its decision. Where the process is insufficient, additional steps may be required to discharge the Crown's duty. Such steps could include the Crown making submissions to the regulatory body, requesting reconsideration of a decision, or seeking a postponement in order to carry out further consultation in a separate process before the decision is rendered. Some argue that such separate steps are inefficient and contrary to the principle that aboriginal interests should be identified and addressed in the course of overall project assessment. They further argue that, if a tribunal has decision-making authority over projects, the legislature should grant the tribunal sufficient powers to address consultation.

In confirming the proper role of regulatory tribunals, the SCC dismissed the concern raised by commentators that consultation obligations could compromise the independence of quasi-judicial bodies like the NEB or conflict with their mandate to consider the "public interest". Rather, the SCC noted that "[a] project authorization that breaches the constitutionally protected rights of Indigenous people cannot serve the public interest."

With respect to the NEB, the SCC determined that it does have sufficient powers for its process to satisfy the duty to consult. In the Chippewas case, the SCC found that the NEB applied its powers appropriately, satisfying the Crown's consultation obligations. By contrast, in Clyde River, the SCC held otherwise.

CLYDE RIVER

In Clyde River, the Inuit of Clyde River (Inuit) sought judicial review of an offshore seismic authorization granted by the NEB to three companies under the Canadian Oil and Gas Operations Act. The Federal Court of Appeal (FCA) dismissed the Inuit's application, finding that the NEB's regulatory process had discharged the Crown's duty to consult and that an appropriate level of accommodation was undertaken in response to Inuit concerns about potential impacts of seismic testing on marine mammals.

The SCC allowed the Inuit appeal and set aside the NEB decision. The SCC held that the NEB's regulatory process can fulfil the Crown's duty to consult and that deep consultation was required in this case, given the Inuit's established treaty rights to hunt and harvest marine mammals.

The SCC considered that the NEB's assessment was limited to environmental effects and that the assessment did not expressly consider the Inuit's treaty rights to hunt or the impact of the proposed testing on those rights. The SCC therefore concluded that the assessment was insufficient.

Procedurally, the SCC noted that the Crown failed to advise the Inuit in advance of its intention to rely on the NEB's process as constituting consultation. The SCC also found that the Inuit were granted limited opportunities for participation in the NEB's process, which did not involve an oral hearing (with the associated procedural protections) or participant funding, notwithstanding that these weren't requested during the process.

Finally, the SCC found that the Inuit's key concerns were inadequately addressed. Some responses were in a lengthy document that the SCC found was not readily accessible given the technical nature of the information, limited Internet bandwidth in Nunavut and the fact that the document was only partially translated into Inuktitut.

CHIPPEWAS

In Chippewas, Enbridge Pipelines Inc. (Enbridge) applied to the NEB for approval to modify its Line 9 pipeline to increase its capacity, allow for the transportation of heavy crude oil and reverse the flow such that oil would flow eastward. Most work would be conducted within Enbridge's existing right of way and on previously disturbed land. No additional Crown land was required.

The NEB held a public hearing on Enbridge's application and the Chippewas of the Thames First Nation (Chippewas) were granted intervenor status. Prior to the hearing, the Chippewas wrote to the prime minister and several ministers, requesting a consultation process. The government did not reply until the NEB's hearing process was complete and did not participate in the NEB hearing.

The NEB approved Enbridge's proposed modification. The Chippewas appealed that decision, arguing that the NEB had no jurisdiction to approve the Line 9 modification in the absence of separate Crown consultation. The FCA dismissed the Chippewas' appeal, holding that Crown consultation was not required because there was no Crown participant in the NEB process.

The SCC dismissed the Chippewas' appeal, although for different reasons than the FCA. The SCC held that consultation occurred through the NEB process and was "manifestly adequate" given the limited potential impacts of the project on Chippewas interests. While the Crown did not provide the Chippewas with express notice of its intention to rely on the NEB's process, correspondence from the NEB prior to the hearing made clear that the NEB process was consultation.

As for the process itself, the SCC held that the Chippewas had an adequate opportunity to participate, including through the provision of funding. The NEB sufficiently assessed the potential impacts on the rights of First Nations and found that the risk of negative consequences was minimal and could be mitigated. The NEB also provided appropriate accommodation through the imposition of conditions on Enbridge, requiring ongoing consultation.

ADDITIONAL PRINCIPLES

The SCC decisions further reinforced numerous important principles regarding aboriginal consultation. The SCC confirmed that:

  • Consultation is not intended to address historic grievances, but rather the incremental impact of specific Crown decisions on aboriginal and treaty rights. Nevertheless, cumulative effects are relevant (according to the SCC in Chippewas).
  • The duty to consult does not provide a "veto" for Indigenous people over Crown decisions. Balance and compromise are inherent in the consultation process and are key elements of reconciliation (according to the SCC in Chippewas).
  • A formulaic analysis is inappropriate. Courts focus on the substance of consultation and whether the Crown seriously and fairly considered and responded to aboriginal and treaty rights. Perceived deficiencies related to the Crown's failure to complete a strength of claim assessment or formally identify the depth of consultation are not determinative (according to the SCC in Chippewas).
  • The provision of capacity funding, the holding of oral hearings and the opportunity to present evidence and make final arguments are not always necessary, but are important safeguards for meeting the standard of "deep" consultation (according to the SCC in Clyde River).

IMPLICATIONS

The Clyde River and Chippewas decisions provide critical clarification of the role of regulatory tribunals in aboriginal consultation. The SCC framework offers better guidance to project proponents, tribunals and the Crown in designing and navigating regulatory processes that meet the duty to consult. It is hoped that these principles will be considered as part of the current work initiated by the federal government in reviewing key regulatory approval processes in Canada, such as the NEB and environmental assessment more broadly.

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
Events from this Firm
12 Sep 2017, Seminar, Toronto, Canada

Please join us as we take an in-depth look at the legislation and the impact on the industry.

14 Sep 2017, Seminar, Toronto, Canada

Change, stress and uncertainty are ever]present factors in todayfs legal environment, and specific aspects about the practice of law make it difficult to thrive in the profession long term. Luckily, there are specific research]based strategies that have been shown to help lawyers thrive and lead to more effective ways to manage stress and pressure.

5 Oct 2017, Seminar, Toronto, Canada

Blakes is proud to host our New to In-House Series, designed to bring together junior and mid-level in-house counsel for a candid exchange of insights to highlight and address some of the challenges and opportunities facing in-house lawyers in their roles today.

 
In association with
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.