Canada: Supreme Court Of Canada: Regulatory Processes May Be Used To Satisfy The Duty To Consult

On July 27 the Supreme Court of Canada released two important decisions that provide guidance about how the duty to consult with Indigenous groups is discharged by the Crown in heavily regulated industries such as oil and gas exploration and energy transportation: Chippewas of the Thames First Nation v Enbridge Pipelines Inc. (Chippewas of the Thames) and Hamlet of Clyde River et al. v Petroleum Geo-Services Inc. (PGS) et al. (Hamlet of Clyde River).

Chippewas of the Thames First Nation


Enbridge Pipelines Inc. applied to the National Energy Board (NEB) for authorization to reverse the flow of a portion of the Line 9 pipeline, expand that pipeline's capacity, and enable the transportation of heavy oil. Enbridge's application was made under section 58 of the NEB Act pursuant to which the NEB is the final decision-maker, instead of the Governor-in-Council which is tasked with approving major pipeline projects.

The NEB approved the project, subject to conditions, despite opposition from various environmental advocacy groups, First Nations and others. The Chippewas of the Thames First Nation filed an appeal based on alleged breaches of the duty to consult. That appeal was dismissed by the Federal Court of Appeal, Rennie JA dissenting. The majority of the Federal Court of Appeal held that the NEB was not required to assess whether the Crown discharged the duty to consult because federal departments did not participate in the NEB process and the NEB had not been delegated that duty.

Supreme Court of Canada

The Supreme Court of Canada unanimously dismissed the appeal by the Chippewas of the Thames First Nation, although it did not adopt the reasoning of the majority from the Federal Court of Appeal.

The NEB process was accepted by the Supreme Court of Canada as "Crown conduct" that could trigger the duty to consult. That duty was triggered by the NEB process and the project's potential to affect Indigenous rights irrespective of any lack of participation by federal departments in the regulatory process.

The NEB was recognized by the Supreme Court of Canada as empowered by legislation to establish regulatory processes that facilitate meaningful consultation and, if justified, accommodation, which could then be relied upon by the Crown. Indeed, the NEB process that applied to Enbridge's application was accepted as robust enough to satisfy the duty owed by the Crown to the Chippewas of the Thames First Nation, even if that First Nation's assertions of impacts were taken at their highest, because:

  • Indigenous groups were given early notice of the NEB process and were invited to participate meaningfully through information requests, oral final argument and participant funding;

  • it was sufficiently clear from the circumstances that the NEB process was intended to constitute Crown consultation, even though that was not explicitly communicated by the Crown until after the oral hearing;

  • the NEB assessed the risks posed by the project to Indigenous rights and concluded that any impacts would be minimal and could be mitigated;

  • the NEB satisfied itself as to the adequacy of consultation;

  • the NEB imposed conditions on the approval that accommodated impacts on asserted Indigenous rights; and

  • the NEB provided written reasons that demonstrated its consideration and accommodation of the appellants' Indigenous rights even though it did not engage in a traditional "Haida analysis."

The Supreme Court of Canada dismissed the appeal by the Chippewas of the Thames First Nation because the Crown had discharged the duty to consult by relying on a robust NEB process.

Hamlet of Clyde River


The proponents applied to the NEB for authorization to conduct a two-dimensional offshore seismic survey program in Baffin Bay and the Davis Strait. That program was opposed by Inuit groups largely because of potential adverse impacts on their treaty-protected harvesting of marine mammals.

The offshore seismic survey program was approved by the NEB subject to conditions. An application to judicially review the NEB approval was filed, alleging breaches of the duty to consult. That application was dismissed unanimously by a three-member panel of the Federal Court of Appeal, which held that consultation was achieved by meaningful opportunities to participate in the regulatory process.

Supreme Court of Canada

The Supreme Court of Canada unanimously allowed the appeal and quashed the NEB approval.

The Supreme Court held that the Crown can rely on the regulatory processes of broadly empowered regulators to satisfy the duty to consult, wholly or partially. Where a regulatory process is inadequate to wholly discharge a duty to consult, supplemental measures must be taken by the Crown. The Supreme Court of Canada recognized a Crown obligation to advise Indigenous groups of any intention to rely on a regulatory process as satisfying the duty to consult.

The NEB approval of the proponents' offshore seismic survey program was recognized by the Supreme Court of Canada as "Crown conduct" that could trigger a duty to consult because the NEB was exercising executive power for the Crown.

The NEB was empowered by legislation to provide an appropriate level of consultation and, if justified, accommodation. The Crown could then satisfy the duty to consult by relying on a sufficiently robust NEB process; however, the NEB process for the proponents' application failed to satisfy that duty, which was at the highest end of the spectrum, because:

  • the NEB process focussed unduly on environmental impacts without considering the source of the appellants' Indigenous rights and the project's potential to affect those rights;

  • the significance of the NEB process was not explained adequately to the appellants;

  • the appellants did not have meaningful opportunities to participate in the NEB process, in part, because there was no oral hearing, the proponents' evidence could not be tested effectively, and participant funding was not provided;

  • the proponents did not respond promptly to important questions from the appellants about potential impacts and, when the proponents eventually responded, they did so without translation and in a way that was inaccessible due to bandwidth constraints in the appellants' northern communities;

  • only "insignificant concessions" resulted from the consultation process; and

  • the NEB's written reasons gave no reasonable assurance to the appellants that their treaty rights were considered other than as an afterthought.

While the Supreme Court of Canada agreed the Crown can satisfy the duty to consult by relying on robust NEB processes, it allowed the appeal and quashed the NEB approval because effective consultation was not achieved in the process that applied to the proponents' application.

Implications of these rulings

The Supreme Court of Canada recognized the NEB as an expert regulator that is well positioned, at least in certain circumstances, to facilitate meaningful consultation and accommodation. The perception that the NEB is adept at facilitating consultation is not shared universally. Indeed, a perceived lack of public confidence in the NEB is one motivation for the federal government's initiative to modernize the NEB. Only time will tell how this seeming vote of confidence from the Supreme Court of Canada – together with that court's guidance – will influence the NEB modernization initiative.

The interplay between regulatory processes and the duty to consult is a long-standing issue of legal uncertainty. These two new Supreme Court of Canada rulings have gone a long way toward resolving that uncertainty. They provide guidance to the Crown about when and how it can rely on regulatory processes. They provide guidance to regulators like the NEB about how to establish processes that are effective at facilitating consultation and accommodation. They also provide proponents with guidance about how to participate in regulatory processes in ways that reduce the risk of post-approval legal challenges. These two new Supreme Court of Canada decisions may promote reconciliation in the energy sector by clarifying the role of regulators and encouraging the resolution of disputes through dialogue and regulatory participation, rather than litigation.

Written by Aaron Stephenson

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see

Law around the world

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions