Canada: The Role Of A Tribunal In Fulfilling The Duty To Consult

Last Updated: October 17 2017
Article by 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 Act3 ("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.


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


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).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions