Author: Gavin Fitch, Q.C.
The Supreme Court of Canada (the “SCC”) recently provided welcomed
guidance on the role of a tribunal in fulfilling the duty to consult with
Indigenous peoples when their rights are potentially impacted by Crown
action. In the companion cases Clyde River (Hamlet) v. Petroleum
Geo-Services Inc. (“Clyde River”) and Chippewas of the Thames First Nation v. Enbridge
Pipelines Inc. (“Chippewas of the Thames”) the
SCC stated clearly that the Crown’s duty must be fulfilled prior to project
approval.
Where the duty remains unfulfilled, the final decision maker must
withhold the approval.
The Clyde River case
Clyde
River concerned an application to the NEB under the
Canadian Oil and Gas Operations Act (“COGOA”) for approval to conduct seismic testing off Baffin Island
in Baffin Bay and Davis Strait. The
Hamlet of Clyde River (“Clyde River”) opposed the application.
Clyde River is in Nunavut, which was
established as part of the settlement of the comprehensive land claim of the
Inuit of the eastern Arctic.
Accordingly, the residents of Clyde River have established treaty rights
that would potentially be affected by approval of the application.
Further, according to the SCC, there was
no dispute that the seismic testing could impact those established treaty
rights (for example, by increasing the mortality risk of marine mammals). Therefore, the duty to consult owed by the
Crown fell at the highest end of the spectrum (i.e., “deep consultation”).
After the application was filed, the NEB
undertook an environmental assessment of the proposed project and a series of
public meetings were held in various communities in Baffin Island, including
Clyde River. According to the SCC,
community members asked “basic questions” about the effects of the seismic
testing on marine mammals, which the proponent was unable to answer. Instead, the proponent said the issue would
be addressed in an environmental assessment (“EA”) report it was preparing and
that would be filed with the NEB.
Several months later, with no additional
consultation having occurred, a 3,926 page EA report was filed by the
proponent. It was posted on the NEB’s
website and delivered to Clyde River’s offices.
The “vast majority” of the EA report was not translated into Inuktitut
and:
“[n]o further efforts were made to
determine whether this document was accessible to the communities, and whether
there questions were answered.”
The NEB approved the application. Clyde River sought judicial review of the
approval before the Federal Court of Appeal (“FCA”) on the basis of inadequate
consultation. The FCA found that the
Crown’s duty to consult had been satisfied and dismissed the judicial
review. Clyde River appealed to the SCC. In Clyde
River, the SCC allowed the appeal, holding that the consultation carried
out by the NEB on behalf of the Crown was not adequate.
Chippewas of the Thames
Chippewas
of the Thames concerned Enbridge’s Line 9
applications to the NEB. The applications
were for approval of a modification of an existing pipeline that would reverse
the flow of part of the pipeline, increase its capacity, and enable it to
transport heavy crude oil. The Chippewas
of the Thames requested Crown consultation before the NEB approved the project;
the Crown advised that it would be relying on the NEB’s public hearing process
to address its duty to consult.
The Chippewas of the Thames participated
in the NEB hearing process. They applied
for and received participant funding, submitted evidence (including expert
evidence) and delivered oral argument at the conclusion of the hearing. In this way, the Chippewas of the Thames
communicated to the NEB their position that the project would increase the risk
of pipeline ruptures and spills along Line 9 which could adversely impact their
use of the land and the Thames River for traditional purposes.
The NEB approved the Line 9
application. The Chippewas of the Thames
appealed the approval to the FCA on the basis of inadequate consultation by the
Crown. The majority of the court
dismissed the appeal. The Chippewas of
the Thames further appealed to the SCC.
The SCC dismissed the appeal, holding that the NEB’s hearing process,
which the Chippewas of the Thames participated in fully, constituted effective
consultation which discharged the Crown’s duty to consult.
Can
an NEB approval process trigger the duty to consult?
In Clyde
River, the SCC stated clearly that yes, the NEB’s approval process
triggered the duty to consult.
Notwithstanding that the NEB is not, strictly speaking, “the Crown” nor
an agent of the Crown, the NEB “acts on behalf of the Crown when making a final
decision on a project application.”
Interestingly, the SCC went on to find
that it “does not matter whether the final decision maker on a resource project
is Cabinet or the NEB. In either case,
the decision constitutes Crown action that may trigger the duty to
consult.” Thus, the Crown may delegate
the duty to consult both to regulatory agencies that have the power to make
final decisions on resource projects and those that merely make recommendations
to a Minister or Cabinet.
Can
the Crown rely on the NEB’s process to fulfill the duty to consult?
This question had already been considered
by the SCC in Rio Tinto. What Clyde
River and Chippewas of the Thames
make clearer is that the duty to consult may be delegated by the Crown to a
regulatory agency in whole or in part.
Further, the Crown may delegate the assessment of whether the duty to
consult has, in the circumstances of the case, been fulfilled.
In Chippewas
of the Thames, the majority of the FCA expressed the concern that a
tribunal like the NEB might be charged with both carrying out consultation
on behalf of the Crown and then adjudicating on the adequacy of those
consultations. The SCC dismissed these
concerns, writing:
In our view, these concerns are
answered by recalling that while it is the Crown
that owes a constitutional obligation to consult with potentially affected
Indigenous peoples, the NEB is tasked with making legal decisions that comply
with the Constitution. When the NEB
is called on to assess the adequacy of Crown consultation … its obligation to
remain a neutral arbitrator does not change. A tribunal is not compromised when it carries
out functions Parliament has assigned to it under its Act and issues decisions
that conform to the law and the Constitution.
Regulatory agencies often carry out different, overlapping functions
without giving rise to a reasonable apprehension of bias. [emphasis added]
While it is hard to disagree with the
general proposition that a regulatory agency may carry out different,
overlapping functions without giving rise to a reasonable apprehension of bias,
where one of those functions is to assess and adjudicate on the agency’s
carrying out of another function, it is far less obvious that no apprehension
of bias might occur. The Court’s
judgment will likely give rise to future cases where the ground of judicial
review is that the regulatory agency’s assessment of the adequacy of
consultation (as opposed to, or in addition to, the adequacy of the
consultation itself) was inadequate or flawed.
What
is the NEB’s role in considering Crown consultation before approval?
The SCC in Clyde River and Chippewas of
the Thames was very clear: where the
Crown has delegated to a regulatory tribunal like the NEB duty to consult, the project
being assessed may only be approved if Crown consultation has been adequate;
otherwise, approval must be withheld or it will be quashed on judicial review.
This means that where the regulatory
tribunal is the decision-maker, it must adequately consult with the
relevant Indigenous peoples as part of the regulatory process before making a
decision on the project.
What about where the regulatory tribunal
is not the decision-maker (i.e., the decision-maker is the Minister or
Cabinet)?
In
Clyde River, the SCC noted that while the Crown may rely on steps
undertaken by a regulatory agency to fulfill its duty to consult, the Crown
“always holds ultimate responsibility for ensuring consultation is adequate.” Therefore:
Where the regulatory process being
relied upon does not achieve adequate consultation or accommodation, the Crown
must take further measures to meet its duty.
This might entail filling any gaps on a case-by-case basis or more
systematically through legislative or regulatory amendments…. Or, it might require 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.”
While “filling” gaps on a case-by-case
basis might appear to be a recipe for still more regulatory delay, by adding
another step in the process before approval is finally issued, in fact it is
not that different from the situation today.
For example, review panels under the Canadian
Environmental Assessment Act 2012 are typically used by the federal Crown
to collect information on aboriginal claims and potential project impacts on
those rights, but this is followed by additional consultation by the Crown on
the review panel’s report before a decision is made by the Minister.
Conclusion
The outcomes in Clyde River and Chippewas of
the Thames were different because the facts of the cases were
different. In Clyde River, there was no public hearing and minimal efforts made
by the NEB to assess the impact of the seismic project on the rights of the
Inuit (as opposed to considering the environmental effects of the project more
generally). By contrast, in Chippewas of the Thames, there was a
major public hearing which the Chippewas participated in fully, in part because
they were the recipient of participant funding.
This suggests that, all else being equal,
the NEB’s normal public hearing processes can effectively discharge the Crown’s
duty to consult. It is interesting to
note that since the SCC rendered judgment in Clyde River and Chippewas of
the Thames, the FCA has dismissed applications for leave to appeal by First
Nations participants alleging inadequate consultation in two cases involving
approval by the NEB of pipelines following public hearings.