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Posted in: Facilities | Practice & Procedure | Canada (Federal)

Aug 9, 2017

Supreme Court of Canada Rules That NEB Can Fulfill the Duty to Consult

By Stephanie D’Amico and David Stevens

Introduction

On July 26, 2017, the Supreme Court of Canada (SCC) released companion decisions that address the extent and manner in which regulatory agencies can participate in the Crown’s duty to consult Aboriginal groups. Clyde River (Hamlet) v. Petroleum Geo‑Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. both originated in the Federal Court of Appeal (FCA) and involve contested regulatory approvals granted by the National Energy Board (NEB).

In an earlier post here, we discussed the two FCA decisions and their differing opinions on the role of the NEB in the duty to consult. Although the two cases were decided differently at the SCC, both decisions apply the same principles to describe how regulatory processes intersect with the Crown’s duty of consultation. Specifically, the SCC decisions confirm that regulatory agencies can discharge the duty to consult on behalf of the Crown, provided the agency has the requisite statutory powers to conduct the consultation to the degree that the circumstances require.

The Cases

In Clyde River, the NEB issued a Geophysical Operations Authorization for a seismic survey program in Baffin Bay and the Davis Strait. The survey activities posed a significant threat to the marine life which the Clyde River population relied upon for food and jobs. The community applied to the FCA for judicial review of the NEB authorization. While the FCA found that the duty to consult had been triggered, it held that the Crown could rely on the NEB to undertake such consultation and, moreover, that the NEB’s process was sufficient to discharge the duty.

The SCC disagreed with the FCA on the adequacy of the consultation process that occurred in Clyde River. According to the SCC, the NEB process did not allow sufficient participation from the Inuit community, did not address concerns that the community raised, and failed to adequately consider the effects of the activities on the appellants’ treaty-protected resource use.

However, the SCC did agree that NEB approvals can trigger the duty to consult, and that the NEB has the capacity to act as a vehicle for the Crown in discharging all or part of the consultation duty. In fact, the Court clarified that a regulatory agency making final decisions such as approvals or authorizations can qualify as “Crown conduct.”

In Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., the respondent received NEB approval to reverse the flow and increase the capacity of part of an existing pipeline. On appeal to the FCA, the Court held that the NEB was neither required to discharge the duty to consult on behalf of the Crown, nor to determine whether the Crown had discharged the duty prior to granting the approval.

The SCC dismissed the appeal, holding instead that the duty to consult had been triggered by the NEB decision despite the absence of a separate Crown decision or Crown involvement in the process. The Court again affirmed that the Crown can rely on the processes of an administrative body or regulatory agency to discharge the duty to consult. In cases where the limited powers of a regulatory agency prevent the consultation process from being carried out to the extent required, the obligation remains with the Crown to complete the consultation before authorizations can be issued.

Notably, and in contrast to Clyde River, the SCC in Chippewas held that the process undertaken by the NEB was sufficient to fulfill the duty of consultation. The Court found that the community’s participation in the decision-making process was supported through funding and facilitation, and the potential impacts on the rights of the community were thoroughly evaluated by the NEB.

Implications

For the most part, these cases restate the existing legal principles that inform the duty to consult. The cases confirm that the decisions of regulatory agencies can constitute “Crown conduct” for the purposes of triggering the duty to consult if the regulatory agencies are in effect acting on behalf of the Crown. This can apply to regulatory agencies that make final decisions through delegated authority, even if they are not strictly speaking the “Crown” or an agent thereof.

In terms of application, Clyde River and Chippewas demonstrate how the same principles can yield very different results. The SCC’s disapproval of the consultation process in Clyde River is useful as a yardstick against which the adequacy of consultation activities can be measured, particularly when compared with the SCC-approved consultation process in Chippewas. Read together, the cases suggest that factors such as responsiveness, ease of participation, accessibility of information and proper calibration of the consultation process will be critical metrics in assessing whether the duty to consult has been fulfilled, particularly when a regulatory agency acts as a vehicle for the Crown. 

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