Chippewas Of The Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222
In this case, a majority of the Federal Court of Appeal confirmed that the National Energy Board is not required, as a condition of undertaking its mandate, to determine whether the Crown's duty to consult has been discharged in a proceeding where the Crown itself is not a participant.
The First Nation appealed a decision of the National Energy Board approving an application by Enbridge Pipelines for a pipeline reversal and capacity expansion project. The First Nation asked the Court to quash the Board's approval on the basis that the Board did not have jurisdiction to issue exemptions and authorizations prior to the Crown fulfilling its constitutional duty to consult and accommodate the First Nation. The Court of Appeal had already decided the question in the negative in Standing Buffalo Dakato First Nation v. Enbridge Pipelines Inc., 2009 FCA 308, but the First Nation argued that the Standing Buffalo decision had been overtaken by the Supreme Court of Canada's decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43.
The Crown had not undertaken any consultations and had not appeared before the Board.
After reviewing the Standing Buffalo and Rio Tinto decisions, the Court confirmed that Standing Buffalo continued to apply. Of particular relevance for the Court was the fact that in Rio Tinto, the Supreme Court of Canada did not address the issue of whether a tribunal is obligated to make duty to consult determinations in proceedings where the Crown is not a participant. The Court also determined that the Crown had not given the Board the power to undertake or discharge any applicable duty to consult on the Crown's behalf as part of its regulatory oversight jurisdiction.
The Crown is seeking leave to appeal this decision to the Supreme Court of Canada.
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