Introduction
In Canada, the Crown owes a constitutional duty to consult Indigenous peoples before approving projects that might affect Aboriginal and treaty rights.1 On July 26, 2017, the Supreme Court of Canada (SCC) released two important decisions dealing with the duty to consult. These cases confirm that governments may rely on regulatory processes to fulfill the Crown's duty, so long as the administrative agency in question possesses the "necessary statutory powers to do what the duty to consult requires in the particular circumstances".2 The two cases involved appeals of decisions of the National Energy Board (NEB), an administrative agency that the SCC concluded holds the necessary powers to allow the Government to rely on the NEB process to fulfill the duty to consult.
In both cases, the NEB was the final decision maker and had approved the projects despite the concerns of Aboriginal groups. In Clyde River (Hamlet) v Petroleum Geo-Services Inc,3 the SCC decided that the NEB had failed to fulfill the Crown's duty to consult. The SCC came to the opposite conclusion in the companion case, Chippewas of the Thames First Nation v Enbridge Pipelines Inc.4
In Clyde River, the proponent sought approval to conduct offshore seismic testing in Baffin Bay and Davis Strait. The Inuit of Clyde River alleged that such testing would have significant impacts on the marine mammals that the Inuit had harvested for generations. Despite the Inuit having raised significant concerns about the proposed activities, the NEB ultimately approved the seismic program without a formal hearing process, concluding that the mitigation measures proposed by the proponent were t in the circumstances.
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