Canada: Supreme Court Releases Much-Anticipated Chippewas And Clyde River Decisions

The Supreme Court of Canada's much-anticipated decisions in Hamlet of Clyde River (Hamlet) v Petroleum Geo-Services Inc. (Clyde River) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc. (Chippewas) are significant in that they confirm the ability of governments to rely on regulatory processes to fulfill the Crown's duty to consult with Aboriginal groups, including in cases where the Crown itself is not involved in the process. While the decisions largely confirm previously established legal principles, they also provide clear guidance on what practices will and will not be sufficient to meet Aboriginal consultation requirements when navigating the regulatory approval process.

Background

On July 26, 2017, the Supreme Court of Canada (SCC) released unanimous judgments in the companion appeals of Hamlet of Clyde River (Hamlet) v Petroleum Geo-Services Inc. and Chippewas of the Thames First Nation v Enbridge Pipelines Inc. Both cases concerned the Crown's duty to consult with Aboriginal groups for projects where the National Energy Board (NEB) was the sole decision-maker.

In Clyde River, the proponents sought NEB approval to conduct offshore seismic surveys in Baffin Bay and Davis Strait. These surveys had the potential to affect migration patterns of marine mammals traditionally harvested by the Inuit at Clyde River (Clyde River). On that basis, Clyde River petitioned the NEB in opposition to the proposed surveys. In efforts to address Clyde River's concerns, the proponents engaged in bilateral meetings with Clyde River and filed written materials with the NEB. The NEB ultimately granted the approval without any formal hearing process, finding that the proponents' mitigation efforts were sufficient.

In Chippewas, the proponent (Enbridge) applied to the NEB for approval to modify its existing Line 9 pipeline to enable it to carry heavy crude, reverse flow in certain sections and increase pipeline capacity by 60,000 barrels per year. Following a formal public hearing process including the appellant Chippewas of the Thames (Chippewas), the NEB approved the Enbridge application, imposing conditions on the project to address the concerns of the Indigenous communities (Chippewas, at para. 24).

In both cases, the NEB was the final decision-maker for the application and the Crown (i.e., the relevant government minister or department) did not participate in the NEB's regulatory review process. Clyde River and Chippewas challenged the decisions on the basis that the NEB had no legal authority to approve the projects because the Crown's duty to consult with Aboriginal groups had not been adequately discharged.

SCC decisions

General legal principles

The SCC ultimately determined that the duty to consult had been discharged in Chippewas, but not in Clyde River. The reasoning behind the SCC's decisions in both cases was based on the following legal principles, many of which had been previously established:

  • The Crown may rely on steps taken by an administrative body to fulfill the duty to consult, in part or in full, so long as the agency possesses the statutory powers to do what the duty to consult requires in the particular circumstances (Clyde River, at para. 30; Chippewas, at para. 32). However, if the agency's statutory powers are insufficient in the circumstances or if the agency does not provide adequate consultation and accommodation, the Crown must provide further avenues for meaningful consultation and accommodation in order to fulfill the duty prior to project approval (Chippewas, at para. 32). This may include the Crown making submissions on its own behalf to the regulatory body, seeking postponement or reconsideration of the decision, or enacting legislative and regulatory amendments (Clyde River, at para. 22). Similarly, while the Crown always holds ultimate responsibility for ensuring consultation is adequate, the Crown does not need to actively monitor or participate in the regulatory process for consultation to be adequate (Clyde River, at para. 22).
  • Where the Crown intends to rely on a regulatory process to discharge the duty to consult, it should be made clear to the affected Indigenous group that the Crown is relying on the regulatory body's processes to fulfill its duty (Chippewas, at para. 44; Clyde River, at para. 23).
  • The duty to consult is not triggered by historical impacts and consultation on a specific project is not the vehicle to address historical grievances (Chippewas, at para. 41). However, the SCC also endorsed the conclusion in West Moberly First Nations v. British Columbia (Chief Inspector of Mines) (2011 BCCA 247) that cumulative effects of an ongoing project, and historical context, may inform the scope of the duty to consult (Chippewas, at para. 42).
  • Where Aboriginal and treaty rights are asserted, the provision of reasons by the decision-maker denotes respect and encourages proper decision-making (Chippewas, at para. 62). However, this requirement does not necessitate a formulaic "Haida analysis" regarding the scope of the Aboriginal groups' rights and the level of consultation and accommodation required in the circumstances. Instead, where deep consultation is required and the issue of Crown consultation is raised with the decision-maker, the decision-maker is obliged to "explain how it considered and addressed" Indigenous concerns. What is necessary is an indication that the decision-maker took the asserted Aboriginal and treaty rights into consideration and accommodated them where appropriate (Chippewas, at para. 63; Clyde River, para. 42).
  • Conditions attached to regulatory approvals may constitute accommodation measures. Further, in developing such accommodation measures the decision-maker must balance competing societal interests with Aboriginal and treaty rights (Chippewas, at para. 59).

The SCC found that the NEB has (1) considerable institutional expertise and is well suited to oversee consultations and assess risks where the effects of a proposed project on Aboriginal or treaty rights substantially overlaps with the project's environmental impacts; (2) the procedural powers necessary to implement consultation; and (3) the remedial powers to, where necessary, accommodate affected Aboriginal claims, or Aboriginal and treaty rights. As a result, the NEB's process can be relied on by the Crown to completely or partially fulfill the Crown's duty to consult (Clyde River, at para. 34). In addition, while the NEB is not strictly speaking "the Crown," it acts on behalf of the Crown when making a final decision on a project application. NEB decisions consequently represent Crown actions that may trigger the duty to consult (Clyde River, at para. 29). The substance of the duty to consult is not affected by whether the NEB or the Crown ultimately holds final decision-making authority over the project (Clyde River, at para. 1).

Application to Chippewas and Clyde River

As stated above, when the SCC applied the above legal principles to the facts of Chippewas and Clyde River it reached different conclusions on whether the Crown's duty to consult had been discharged in the circumstances. In Chippewas, consultation was found to be adequate. In Clyde River, it was not. The key factual differences between the two cases are the following:

  • Severity of potential impacts: The SCC agreed with the NEB that the potential impacts of the Line 9 application on the Chippewas were "minimal" (Chippewas, at para. 51). In contrast, the SCC concluded that the impacts of the proposed activities in Clyde River on Clyde River's rights were "significant" and that they had the potential to "impair" Clyde River's treaty rights (Clyde River, paras. 44 and 51). As a result, a deeper level of consultation was likely required in Clyde River.
  • Adequacy of engagement by the proponents: In Chippewas, the SCC acknowledged the adequacy of information provided to the Indigenous groups by Enbridge (Chippewas, at para. 57). In contrast, in Clyde River, the Court cited detailed evidence of the proponents being unable to answer questions from community members (Clyde River, paras. 10-11). In addition, when the responses to questions were ultimately provided by the proponents, they were filed as part of a roughly 4,000-page document that was difficult to access and was largely untranslated. The SCC commented that this did not constitute "true consultation" (Clyde River, para. 49).
  • Notice of how the Crown intended to rely on the NEB process: In Chippewas, the NEB had sent out a notification to all potentially affected Aboriginal groups in advance of the formal hearing explaining its regulatory process. It was also evident from the Chippewas' submissions during the regulatory process that they understood that the NEB was the final decision-maker on the application. The SCC concluded that even though there was no direct communication from the Crown to the Chippewas regarding its reliance on the NEB (and even though the Chippewas had written to the Crown asking for clarification and the Crown did not respond until after the hearing process had concluded), "the circumstances of this case made it sufficiently clear to the Chippewas of the Thames that the NEB process was intended to constitute Crown consultation and accommodation" (Chippewas, at para. 46). In contrast, in Clyde River, the SCC found that it was not made clear to the Aboriginal group that the Crown intended to rely on the processes of the NEB as fulfilling its duty to consult (Clyde River, para. 46).
  • Opportunities to participate in the NEB process: In Chippewas, the NEB provided the Chippewas with (i) participant funding, (ii) the opportunity to pose formal information requests to Enbridge, to which they received written responses, (iii) the opportunity to tender evidence (using the participant funding) and (iv) the opportunity to make closing oral submissions to the NEB. Based on these process steps, the SCC concluded that the Chippewas were given a sufficient opportunity to make submissions to the NEB as part of its decision-making process (Chippewas, at para. 52). In contrast, in Clyde River, there was no participant funding and no formal hearing process. The SCC commented that while formal hearings are characteristic of an adversarial process, they may be required for meaningful consultation (Clyde River, para. 47). The SCC further noted that if Clyde River had been provided with the resources to submit their own scientific evidence in that case, and the opportunity to test the evidence of the proponents, the result of the environmental assessment could have been very different (Clyde River, para. 52).
  • Sufficiency of the NEB's reasons: In its reasons on the Line 9 application, the NEB expressly recognized the Aboriginal rights of the Chippewas and considered the potential for negative impacts on these rights (Chippewas, at paras. 53-54). In contrast, in Clyde River, the NEB only considered environmental effects and no consideration was given to the source of Clyde River's rights to harvest marine mammals, nor to the impact of the proposed activities on those rights (Clyde River, para. 45).
  • Accommodation measures: In Chippewas, the SCC concluded that the NEB imposed a number of accommodation measures that were designed to minimize risks and respond directly to the concerns posed by affected Indigenous groups, namely an Environmental Protection Plan for the project, ongoing engagement with the affected Aboriginal groups, and further consultation on "emergency preparedness and response" (Chippewas, at para. 57). In contrast, while the NEB in Clyde River did impose conditions designed in part to address Clyde River's concerns (including a requirement for an Inuit traditional knowledge study), the SCC concluded that none of these conditions or the NEB's reasons "gave the Inuit any reasonable assurance that their constitutionally protected treaty rights were considered as rights, rather than as an afterthought to the assessment of environmental concerns" (Clyde River, para. 51).

Implications

Overall, Chippewas and Clyde River provide useful clarity to all parties regarding the ability for governments to rely on regulatory processes to fulfill the duty to consult and, if required, accommodate. While the decisions largely confirm previously established legal principles, they also provide additional clarity for regulatory processes that do not involve direct Crown action and establish helpful goalposts for processes that satisfy the Crown's consultation obligations (Chippewas) and those that fall short (Clyde River). Project proponents and regulators alike should review the factual differences between these cases to guide their actions on future projects.

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
 
In association with
Related Topics
 
Related Articles
 
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
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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