Considering the Role of Regulatory Bodies in Satisfying the Crown’s Duty to Consult: Chippewas of the Thames v Enbridge; Clyde River v Petroleum Geo-Services.

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On July 26, 2017, the Supreme Court of Canada (“SCC”) released two decisions, Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 [Clyde River] and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41 [Chippewas], that provided much needed clarification on the role of the National Energy Board (“NEB”) and other similar independent regulatory bodies on the Crown’s duty to consult and accommodate Indigenous peoples.

In this article, I will provide a brief overview of the cases, explaining what the SCC said about the role of independent regulatory bodies in satisfying the Crown’s duty to consult, before explaining why I believe the two decisions are underwhelming, erecting further practical and procedural barriers that undermine the reconciliatory purpose of the duty to consult.

The SCC on Duty to Consult and Accommodate

In both cases, the SCC reaffirmed existing jurisprudence, recognizing that consultation and accommodation are required by the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution], whenever the Crown has knowledge, real or constructive, of the potential existence of an Indigenous or treaty right and contemplates that the action in dispute might adversely affect the Indigenous or treaty right in question. The duty to consult is a constitutional and legal obligation grounded in the honour of the Crown and enshrined in section 35(1) of the Constitution. However, the content of the duty will vary from limited to deep consultation based on the strength of the Indigenous claim and the seriousness of the potential impact on the right.

The Role of Independent Regulatory Bodies

The primary issue in Clyde River and Chippewas was the role of the NEB in the consultation process. More specifically, can the Crown delegate its duty to consult and accommodate to the NEB or is the Crown required to participate in the consultation?

In Clyde River, the NEB granted authorization allowing the offshore seismic testing for oil and gas in Nunavut, while, in Chippewas, the NEB approved Enbridge Pipelines Inc.’s application for a modification to an existing pipeline which would reverse the flow of part of the pipeline and increase its capacity. In both cases, the Crown sought to rely on the NEB’s approval process to satisfy its consultation obligations towards the Indigenous groups. Based on a case-specific analysis, the SCC quashed the NEB’s approval of offshore seismic testing for oil and gas in Clyde River but reached the opposite conclusion in Chippewas, determining that the NEB’s approval process was sufficient to satisfy the Crown’s consultation duties.

In both cases, the SCC found that while the Crown always has a duty to consult, the Crown can rely on a regulatory process to partially or completely fulfill its duty to consult. The Crown can rely on steps taken by an administrative body to fulfill its consultation duties as long as: (1) the administrative body possesses the statutory powers to do what the duty to consult would require in the particular circumstances; and (2) it is made clear to the affected Indigenous groups that the Crown is relying on the processes and procedures of the administrative body. Importantly however, if the regulatory process relied upon does not achieve adequate consultation and accommodation, then the Crown must provide further avenues for meaningful consultation and accommodation prior to project approval. Reliance on a regulatory agency does not change the substance of the duty; the regulatory agency is simply acting as the “vehicle” through which the Crown acts. The regulatory agency is still required to meet the constitutional standard of the duty to consult. Further, the duty to consult and accommodate is not triggered only by Crown conduct. If the NEB makes a final decision about a project that could have an adverse impact on asserted or proven Indigenous and/or treaty rights, then its decision would trigger the Crown’s duty to consult.

In the case of the NEB, the SCC found that the NEB’s approval process triggered the Crown’s duty to consult. However, because the NEB has procedural powers to implement consultation and remedial powers that where necessary, could accommodate affected Indigenous and treaty rights, the Crown could rely completely on the NEB’s approval process to discharge its duty to consult. Theoretically, the NEB could discharge the Crown’s duty to consult satisfactorily without the government having to participate at all in its approval process.

Implications of Clyde River and Chippewas

In both Clyde River and Chippewas, the SCC is clear in stating that the role of the duty to consult is to foster reconciliation between Indigenous peoples and the Crown. Reconciliation is the lens through which the SCC rightly interprets and frames the duty to consult. Yet, the decisions are underwhelming in their ignorance of the practical implications of the decisions on the Crown’s duty to consult.

In Chippewas, one of the questions the Court considered was whether the Chippewas of the Thames First Nation (“Chippewas”) were provided with adequate notice that the Crown was relying on the NEB’s process to satisfy its consultation duty. This, as mentioned earlier, is one of the actions the Crown must undertake if it intends to rely on the regulatory body’s process to fulfill its duty. In this case, the Chippewas did not receive explicit notice from the Crown that it intended to rely on the NEB’s process to satisfy its duty. It was only after the NEB hearing process was complete that the Minister of Natural Resources informed the Chippewas that the Crown relied on the NEB’s process. The SCC found that three aspects of the surrounding circumstances made it sufficiently clear that the Chippewas must have known that the NEB process was intended to constitute the Crown’s consultation duty: (1) the NEB informed the Indigenous groups of the hearing process and the NEB’s role in relation to the project approval; (2) the Chippewas accepted and participated as an intervenor in the NEB process; and (3) the Indigenous groups understood that the NEB was the final decision-maker.

One wonders, though: if Indigenous groups do not know that “consultations” are occurring and that these consultations have been deemed “sufficient” to satisfy the Crown’s duty to consult, how can they be expected to participate and engage in these consultations and defend their claims? Participating as an intervenor may have allowed the Chippewas to voice their concerns, but it is certainly possible that they were not prepared to the level that they would have been if they knew that the NEB was carrying out the Crown’s consultation duty, especially when they were awaiting a response from the Ministers of the Crown. Indigenous groups cannot engage in a consultation process which, as far as they are concerned, has not been initiated. This frustrates the principle of good faith that is required on both sides. The duty to consult is not a one-sided process, but a meaningful process of consultation in which both parties equally engage, even if they do not agree.

Another issue the SCC considered in Chippewas was determining the scope of “adverse impacts” of a project. As the degree of consultation required is contingent on the strength of the Indigenous claim and the seriousness of the potential impact on the Indigenous right, defining the scope of the project can have a material impact on the content of the consultation and accommodation duty. Recall in Chippewas the NEB was considering a modification to an existing pipeline. While the modification itself posed real risks to the Chippewas’ rights, the Chippewas argued that the scope of the adverse impacts of the modification could not be determined without considering the “cumulative and serious” impacts of the project that could be catastrophic in the event of a pipeline spill. While the SCC acknowledged that to understand the seriousness of the impact of a project on Indigenous rights, considering the larger context may be appropriate, it reaffirmed its position in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [Carrier Sekani] in which it found that the Crown is required to consult on “adverse impacts flowing from the specific Crown proposal at issue – not [on] larger adverse impacts of the project of which it is a part. The subject of the consultation is the impact on the claimed rights of the current decision under consideration…” (Carrier Sekani, para 53).

There are two concerns with the SCC’s conclusion. First, while the SCC recognizes that cumulative impacts can inform the scope of the duty to consult, it provides no guidance on how to treat cumulative impacts for ongoing development projects. Realistically, reconciliation is meaningless without considering the real impacts of past decisions on ongoing development projects. While understandably the duty to consult is not a vehicle to address historical grievances, the SCC falls short of recognizing the central role cumulative effects may have in determining the potential adverse impact of a project. Second, the decision fails to recognize the ongoing consequences of existing development, where proper consultation did not occur, on the ability to achieve reconciliation when dealing with new development projects. This section of the SCC’s decision is at odds with reconciliation.

One of the further consequences of the SCC’s decision is that it erects an added procedural impediment which undermines the purpose of consultation. In Clyde River, the SCC stated that as a matter of practicality, where the SCC is relying on the steps of a regulatory agency, it does not need to assess every case to determine whether the duty has been satisfied. It can fill any gaps on a case-by-case basis, through legislative and regulatory amendments, or, if the affected Indigenous group perceives the process to be deficient, the Indigenous group can request direct Crown engagement on a timely manner.

The SCC’s findings present practical problems. If the only way the Crown will directly engage in the consultation process is if the affected Indigenous group brings it to the Crown’s attention (even on the case-by-case basis), then a double burden is placed on the Indigenous group, from a financial and emotional perspective, in an already disruptive and time-consuming process. The Indigenous group has to first engage with the regulatory agency and then, following that, request direct engagement from the Crown, effectively going through the same process twice. When Indigenous groups are caught in the crossfire between executive bodies, the reconciliatory purpose of the Crown’s duty to consult is missed.

Final Thoughts

In making legal determinations, the SCC is mindful of the context, implications, and policy, balancing many competing interests. While every decision will have shortcomings, contingent on how different people balance different policy interests, the Chippewas and Clyde River decisions are still laudable for engaging in discussions about Indigenous rights and viewing the consultation and accommodation duty from the lens of reconciliation. As the SCC recognizes in Clyde River, “No one benefits – not project proponents, not Indigenous Peoples, and not non-Indigenous members of affected communities – when projects are prematurely approved only to be subjected to litigation.”

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