Canada: Heavy Lies The Head That Wears The Crown: SCC Delivers Clyde River And Chippewas Judgments

On July 26, 2017, the Supreme Court of Canada released its unanimous decisions in Clyde River (Hamlet) v Petroleum Geo-Services Inc.1 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc.2 The Court clarifies that while the duty to consult rests with the Crown, the decisions of administrative tribunals can constitute "Crown conduct" that triggers the duty to consult.

For a review of the Federal Court of Appeal (FCA) decisions in each of these cases, please click here. At issue in both of these cases are the obligations of the National Energy Board (NEB) in assessing and discharging the duty to consult when the Crown is not a party to the proceedings.

Overview of Cases

Clyde River (Hamlet) v Petroleum Geo-Services Inc.

In May 2011, TGS-NOPEC Geophysical Company ASA, Petroleum Geoservices Inc. and Multi Klient Invest (together, the Proponent) applied to the NEB for authorization to conduct offshore seismic testing associated with oil exploration off the east coast of Baffin Island (the Project). The Hamlet of Clyde River and the Nammautaq Hunters and Trappers Organization (HTO) – Clyde River (Clyde River Inuit) raised concerns about the Project's impact on marine life and Inuit harvesting. HTOs are mandated by the Nunavut Land Claim Agreement to regulate the rights of their members relating to wildlife harvesting. Clyde River Inuit depend on marine mammals including bowhead whales, narwhals, seals and polar bears for food security as well as economic, cultural, and spiritual well-being.

The NEB held meetings in communities in the area affected by the Project. Clyde River Inuit attended the meetings and asked several "basic" questions about the Project process that the Proponent was unable to answer. The NEB suspended the review process and waited until the Proponent filed a 3,926 page document in response to the questions. The document was mostly in English (not Inuktitut) and due to the limited internet bandwidth available to northern communities was functionally unavailable to the communities.3 No oral hearing took place and no funding was provided to Clyde River Inuit to review the documents, or participate in the NEB process.

The Supreme Court allowed the appeal of the FCA decision and quashed the NEB approval. The Court found that although "the NEB is not, strictly speaking, 'the Crown'... as a statutory body holding responsibility under s. 5(1)(b) of COGOA... the NEB acts on behalf of the Crown when making a final decision on a project application". Since the NEB is the "vehicle through which the Crown acts", the approval process triggers the Crown's duty to consult.4

The Court found that when assessing harms arising from the project the NEB inappropriately focused on harm to the environment (which the NEB assessed as low) instead of assessing the harm to the Clyde River Inuit's section 35 constitutional rights. The NEB's proposed mitigation measures were not sufficient to address significant concerns about the impact of the Project on Inuit rights, particularly the right to harvest marine mammals.

The Court found that the circumstances of the case required deep consultation, as Clyde River Inuit's rights to harvest marine mammals are established under a modern land claim and the potential for harm to those rights is high. The Court found that although the Crown is entitled to rely on administrative processes, that Clyde River Inuit should have been given notice at the outset of the government's intention to rely on the NEB process to fulfill the duty to consult. And, despite the NEB's broad powers under COGOA to allow for significant opportunities for the Clyde River Inuit to participate in the hearing process, they were not accorded those opportunities (including the failure to hold oral hearings) that would have allowed for meaningful consultation in this context.5 In addition, the information provided by the proponent was found to be inaccessible due to lack of translation into Inuktitut and, in any case, simply providing a 3,926 page document was insufficient on its own to meet the standard of deep consultation.

...only a fraction of this enormous document was translated into Inuktitut. To put it mildly, furnishing answers to questions that went to the heart of the treaty rights at stake in the form of a practically inaccessible document dump months after the questions were initially asked in person is not true consultation...

...Had the appellants had the resources to submit their own scientific evidence, and the opportunity to test the evidence of the proponents, the result of the environmental assessment could have been very different.6

In the end, the Court criticized the NEB's failure in its reasons to address the source of Clyde River Inuit's rights, the required scope of deep consultation, and Clyde River Inuit's concerns about the inadequate consultation process.

Chippewas of the Thames First Nation v Enbridge Pipelines Inc.

In 2012, Enbridge Pipelines Inc. (Enbridge) applied for approval under the National Energy Board Act to reverse the flow of Line 9, a pipeline used to transport oil, and to increase Line 9's capacity to transport heavy oil (Pipeline Project). Line 9 traverses the traditional territory of the Chippewas of the Thames First Nation and crosses the Thames River where the Chippewas assert Aboriginal and Treaty rights and carry out activities central to their identity and way of life.

The Chippewas participated in the NEB hearings as an intervenor. The NEB acknowledged the potential impacts of Line 9 on Aboriginal rights. However, based on Enbridge's representations, the NEB was satisfied that any impacts would be minimal and appropriately mitigated.

The Supreme Court dismissed the appeal of the FCA decision and upheld the NEB approval. As with the Clyde River decision, the Court found that the NEB's approval constituted Crown action that triggered the Crown's duty to consult.

However, unlike the Clyde River case, the Court held that the NEB process had provided procedural protections that included early notice from the NEB to the Chippewas, oral hearings, submissions, final argument and participant funding. The Court found that the Pipeline Project would take place largely on lands that were already being used for the pipeline, and so the impacts to the Chippewas would not be extensive. Further, the NEB imposed conditions on the Pipeline Project that the Court judged were appropriate mitigation for the concerns raised by the Chippewas during the hearing process.

Impacts on the NEB & Other Tribunals/Boards

"Crown conduct" that can trigger the duty to consult goes beyond the direct exercise of executive power or actions of an agent of the Crown. The Supreme Court in Chippewas and Clyde River extends the definition of "Crown conduct" to include power to exercise decision-making that has been statutorily delegated to an independent tribunal:

...Put plainly, once it is accepted that a regulatory agency exists to exercise executive power as authorized by legislatures, any distinction between its actions and Crown action quickly falls away. ... It therefore 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. As Rennie J.A. said in dissent at the Federal Court of Appeal in Chippewas of the Thames, "[t]he duty, like the honour of the Crown, does not evaporate simply because a final decision has been made by a tribunal established by Parliament, as opposed to Cabinet" (para. 105)....7

The judgments provide greater clarity about the roles and responsibilities of regulatory tribunals and agencies in relation to Crown consultation. The Supreme Court in both judgments maps out a process for Crown reliance on tribunals to fulfill its obligations, including early notice of the Crown's intent to rely on the administrative process, and clear communications about the form of the consultation process.8 The Crown can rely on the administrative process to the extent that the administrative body has the statutory authority to "do what the duty to consult requires in the particular circumstances".9 In considering the public interest, affected tribunals will need to satisfy themselves that project authorisations do not breach constitutionally protected rights of Indigenous peoples. Where the administrative process falls short, additional consultation from the Crown will be required.

The Court also places responsibility on the administrative tribunal to delay issuing an approval until it assesses that the duty to consult has been discharged. If tribunals issue approvals before the duty has been discharged, then the courts may quash that tribunal's decision. Accordingly the Court finds, "where the Crown's duty to consult... remains unfulfilled, the NEB must withhold project approval".10

It is important to note, however, that the requirements for Crown consultation set out in Clyde River for the NEB could also be construed as procedural fairness requirements that are not unique to Crown consultation per se. Further, it should be remembered that the implications underlying these decisions need to be analysed in the distinct legislative context of the many administrative bodies across Canada.

With respect to the NEB, it bears noting that the federal government is in the midst of considering ways to "modernize" the tribunal. An expert panel issued a report on May 15, 2017 addressing this very issue. The government followed up by releasing a Discussion Paper on June 29, 2017 seeking views of the public on various regulatory reforms, including those relating to the NEB. In light of these Supreme Court decisions, it will be interesting to see how the government ultimately addresses Indigenous consultation processes conducted by the NEB going forward.

In Ontario, the Ontario Energy Board (OEB) has powers to make decisions independently of the Crown. The OEB will need to assess the extent to which the OEB may be required to assess and discharge the provincial Crown's Indigenous consultation duties, when making final decisions about resource projects.

In the north, co-management boards have independent decision-making responsibilities within the framework of land claims. Each of these bodies will need to carefully analyze the decisions to assess the implications for them going forward. At a minimum, they will require resources and training to respond to this new judicial understanding of their responsibilities regarding Indigenous consultation.

With respect to review processes that are currently underway, it may be prudent for government(s) and the relevant administrative tribunals to consider how each will meet their respective duties to engage in the Crown's duty to consult. Independent of these Crown obligations, project proponents will still need to ensure early engagement with Indigenous groups in advance of submitting an application for an approval.

Finally, if the issue of Crown consultation is squarely raised before an administrative tribunal, the tribunal will need to ensure that the matter of consultation is addressed in its reasons. While a full Haida analysis will not always be necessary, demonstrating how concerns have been heard and addressed is a requirement, particularly in cases of deep consultation.11

While the Supreme Court of Canada has offered a good measure of clarification on the Crown's duty to consult, it is obvious that more needs to be done by governments, tribunals and boards to clearly spell out their respective duties for meeting Indigenous or Aboriginal consultation requirements.

Footnotes

1. 2017 SCC 40. [Clyde River]

2. 2017 SCC 41. [Chippewas]

3. Clyde River at 11.

4. Clyde River at 29.

5. Clyde River at 47.

6. Clyde River at 49 and 52.

7. Clyde River at 29.

8. Clyde River at 23.

9. Chippewas at 32.

10. Clyde River at 39.

11. Clyde River at 42.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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