SCC Confirms Regulatory Bodies may Fulfil Crown Duty to Consult

On July 26, the Supreme Court of Canada (SCC) released its decisions in Clyde River (Hamlet) v. Petroleum Geo-Services Inc.¹ and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.² These appeals from the Federal Court of Appeal were brought by the Inuit of Clyde River in Nunavut, and the Chippewas of the Thames First Nation in Ontario, in respect of the National Energy Board's (NEB) decisions to permit offshore seismic testing in connection with oil and gas exploration in Nunavut, and to modify an existing pipeline in Ontario, respectively. The appellant Indigenous groups alleged that the NEB process failed to fulfil the Crown's duty to consult and accommodate their concerns.

What You Need To Know

• The SCC unanimously quashed the NEB's authorization for seismic testing in Nunavut, and upheld the NEB's authorization to modify an existing pipeline in Ontario.
• The SCC confirmed that regulatory bodies may play a role in fulfilling the Crown's duty to consult in whole or in part, where the Crown's decision-making power is properly delegated to that body.
• Where the regulatory process relied upon does not achieve adequate consultation or accommodation, the Crown must take further measures to meet its duty to consult and accommodate.
• The SCC reiterated that the duty to consult is not a "veto" given to Indigenous groups, nor is it a "vehicle to address historical grievances." Consultation occurs in respect of the current decision under consideration, not other prior decisions. Cumulative effects of an ongoing project, and historical context may inform the scope of the duty to consult, but this is not "to attempt the redress of past wrongs."

Other Key Points

• Where the Crown relies on consultation conducted by a regulatory body, this should be made clear to potentially affected Indigenous groups from the outset in order to permit those groups to participate in the consultation.
• While the Crown may rely on steps undertaken by a regulatory body to fulfill its duty to consult and accommodate, the Crown always holds ultimate responsibility for ensuring the adequacy of consultation. Where the regulatory process relied upon does not achieve adequate consultation or accommodation, the Crown must take further measures to meet its duty to consult and accommodate.
• The context may require the Crown to directly engage with Indigenous groups, make submissions to the regulatory body, request reconsideration of a decision, or seek postponement of a decision pending further consultations.
• The SCC also confirmed that Indigenous groups are required to raise their concerns of deficient consultation in a timely manner.
• The opposite outcomes of the two cases result from the different Indigenous consultation processes adopted by the NEB, as well as the different applicable duties to consult and accommodate (owing to the circumstances in each case).
• In the Clyde River case, the Crown owed a duty of deep consultation because of the Indigenous treaty rights at issue, and the significant potential impact on those rights of new oil and gas exploration. However, the SCC found that the NEB did not explicitly review the Inuit's treaty rights or analyze the potential impacts of proposed seismic testing on those rights, and provided only limited opportunities for Inuit input and participation in the NEB process. The Crown also did not notify the Inuit that it was relying on the NEB's process to fulfill its duty. The process undertaken by the NEB did not meet the Crown's duty for deep consultation in this case.
• In contrast, in the Chippewas case, the SCC found the consultation undertaken to be adequate regardless of what degree of consultation was required. The project at issue involved reversing the flow of an existing pipeline, increasing its capacity, and allowing transportation of heavy crude. Most work would take place within the existing facilities and right of way. At the outset, the NEB issued notices to the Chippewas informing them of the project, the NEB's role in consultation and the hearing process. The Chippewas received funding to enable their participation, and they filed evidence and delivered oral argument. The NEB's reasons demonstrate that it considered that evidence and found that potential impacts on Indigenous rights would likely be minimal and would be appropriately mitigated. The NEB also imposed binding conditions on the proponent (such as, to continue to consult with Indigenous groups and provide on-going engagement reports to the NEB), which constituted the "appropriate accommodation measures."

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¹ 2017 SCC 40.

² 2017 SCC 41.