The Role of a Tribunal in Fulfilling the Duty to Consult

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.[1] (“Clyde River”) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.[2] (“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[3] (“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.”[4]

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.[5]  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.[6]  [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.”[7]  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.”[8]

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.[9]

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[1] 2017 SCC 40.
[2] 2017 SCC 41.
[3] R.S.C. 1985, c. O-7.
[4] Clyde River, at para. 11.
[5] Chippewas of the Thames, at para. 33.
[6] Ibid, at para. 34.
[7] Clyde River, at para. 22.
[8] Ibid.
[9] Blueberry River First Nations v. A.G. of Canada and NOVA Gas Transmission Ltd., 2015 FCA (36676) and Saulteau First Nations v. A.G. of Canada, NOVA Gas Transmission and National Energy Board, 2015 FCA (36677).