The Supreme Court of Canada just released two important decisions respecting the Crown’s duty to consult with Indigenous peoples prior to an independent regulatory agency’s approval of a project that could impact their rights, 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”).
In these companion cases, the Supreme Court held that the Crown may rely on the regulatory processes to partially or completely fulfill its duty to consult on potential impacts to Aboriginal and Treaty rights (Chippewas, para. 1, and Clyde River at para. 1 and 21), so long as the agency’s statutory duties and powers enable it to do what the duty requires in the particular circumstances (Chippewas at para. 32; Clyde River at para. 30). However, the Crown is ultimately responsible for ensuring that consultation is adequate (Clyde River at para. 22). This may require the Crown to provide further avenues for meaningful consultation and accommodation prior to project approval (Chippewas at para. 32).
The Supreme Court also held that the NEB approval process itself can trigger the duty to consult, and once the duty to consult has been triggered, a decision maker can only proceed to approve a project if Crown consultation is adequate (Clyde River at para. 27, and Chippewas at para. 36).
Further, since the duty to consult must be met prior to project approval, the NEB is obligated to consider whether the Crown’s consultation respecting a project has been adequate if the concern is raised before it (Chippewas at para. 37; Clyde River at para. 36). In this respect, the Supreme Court held that a decision to authorize a project “cannot be in the public interest if the Crown’s duty to consult has not been met” (Clyde River at para. 40; Chippewas at para. 59).
Above all, the Supreme Court said that any decision affecting Aboriginal or treaty rights made on the basis of inadequate consultation will not be in compliance with the duty to consult – which is a constitutional imperative that must be met prior to granting project approvals (Clyde River at paras. 22, 24 and 36; see also Chippewas at para. 32). As such, where the duty to consult remains unfulfilled, the NEB must withhold project approval, or its approval is subject to being quashed on appeal or judicial review (Clyde River at para. 39; Chippewas at para. 32).
In Clyde River, the Supreme Court allowed the appeal and quashed the NEB’s approval of offshore seismic testing for oil and gas because it determined that the NEB’s process failed to provide adequate consultation and accommodation respecting the impacts on the Inuit of Clyde River’s Treaty rights to harvest marine mammals. In particular, the Court found that the NEB failed to properly assess the potential adverse impacts on the Inuit’s rights – and misdirected the consultative inquiry at evaluating environmental effects (Clyde River at para. 45). Although it is possible for the NEB regulatory process to uphold the duty to consult, in this case, the Court found that the consultation and accommodation actually afforded by the NEB in the EA process to the Inuit was wholly inadequate in relation to the deep consultation required on impacts of the seismic testing on the Inuit’s marine harvesting rights (Clyde River at paras. 32 and 45).
In Chippewas, the Supreme Court of Canada determined that the NEB’s pipeline regulatory process was sufficient to satisfy the Crown’s duty to consult and accommodate adverse impacts from an increase in pipeline capacity, reversal of flow, and change to heavy crude. The consultation was found to be adequate, given the low risk of adverse impacts to Aboriginal and treaty rights from construction, a spill, or a leak, and in light of the participation opportunities in the NEB process and project mitigation conditions, which the Court considered to be adequate accommodation. As such, the Supreme Court dismissed the appeal (Chippewas at para. 56).
Regulatory decision making as Crown Conduct that can trigger the duty to consult
The Supreme Court confirmed that in regulatory proceedings, the NEB acts on behalf of the Crown and where a decision by a regulatory tribunal may adversely affect an Aboriginal or Treaty right, the approval process itself can constitute Crown conduct that triggers the duty to consult (Clyde River at para. 27; Chippewas at para. 29). The Court ruled that the NEB’s ability to make final decisions is itself Crown conduct which triggers the duty to consult, and the NEB’s contemplated decisions, whether on project approvals or exemptions, can trigger consultation (Clyde River at para. 39; emphasis in original; and Chippewas at para. 31, respectively).
In broadening the scope of what can be considered Crown conduct that triggers the duty to consult, and extending it to the NEB’s approval process, the Supreme Court held that: “The concern is for adverse impacts, however made, upon Aboriginal and treaty rights…” and confirmed that Crown conduct is not restricted to the exercise of statutory powers by or on behalf of the Crown, nor is it limited to decisions having an immediate impact on lands and resources (Clyde River at para. 25; emphasis added).
Crown’s Ability to Rely on Regulatory Processes to Fulfill the Duty to Consult
The Supreme Court, following Carrier Sekani, held that the Crown may rely on regulatory processes to partially or completely fulfill its duty to consult on potential impacts to Aboriginal and Treaty rights (Clyde River at para. 1; Chippewas at para.1). However, the Crown is ultimately responsible for ensuring that consultation is adequate (Clyde River at para. 22). Therefore, whether the Crown is able to rely on steps undertaken by the regulatory agency to fulfill its duty to consult, in whole or in part, depends on whether the agency’s statutory duties and powers enable it to do what the duty requires in the particular circumstances (Chippewas at para. 32; Clyde River at para. 30).
This means that where the regulatory process being relied on does not achieve adequate consultation or accommodation, “the Crown must take further measures to meet its duty” which could include filling any gaps, through legislative or regulatory amendments, making submissions, requesting reconsideration or seeking postponement to allow for a separate process for further consultation before the decision is rendered (Clyde River at para. 22.).
This also means that if the regulatory agency does not provide adequate consultation and accommodation, or its statutory powers are insufficient in the circumstances, “the Crown must provide further avenues for meaningful consultation and accommodation in order to fulfill the duty prior to project approval. Otherwise, the regulatory decision will not satisfy constitutional standards and should be quashed on judicial review or appeal” (Chippewas at para. 32).
In addition, the Supreme Court made it clear that where the Crown intends to rely on a regulatory process to fulfill its duty, this should be made clear to the affected Indigenous groups so that Indigenous peoples know how consultation will be carried out and are able to raise concerns with the proposed form of consultation in a timely manner (Chippewas at para. 44; Clyde River at para. 23).
Indicators Respecting When Consultation may be Inadequate
In its decisions, the Supreme Court identified a number of circumstances that may indicate whether consultation has been adequate in a regulatory proceeding. Factors which may indicate inadequacy, depending on the scope of consultation required, include: (Clyde River at paras. 45 and 66)
- lack of participant funding
- unresponsiveness of the proponent to answer basic questions about the impact of the project
- limited opportunities for participation
- lack of oral hearing
- information that is inaccessible to the Indigenous group, including because of limited resources to obtain and review that information, or because the information is not provided in an accessible way (i.e. large files and slow internet; lack of Indigenous language translation)
- Crown failure to communicate its intention to rely on a regulatory process to fulfill consultation
- consultative inquiry misdirected at assessing environmental effects rather than impacts to rights.
By contrast, factors that may indicate the sufficiency of a regulatory consultation process, include: (Chippewas at paras. 52 and 57; Clyde River at paras. 41, 42 and 45)
- an oral hearing
- early notice of the hearing process – inviting formal participation
- an opportunity to make formal submissions
- ability to pose formal information requests and receive written responses
- provision of funding that allows a First Nation to participate, and prepare and tender evidence – including an expertly prepared traditional land use study
- an assessment of impacts to rights – not just an assessment of environmental effects
- ability to make closing oral submissions
- accommodation measures that are designed to minimize risks and respond directly to the concerns raised by affected Indigenous groups, and
- written reasons that describe how the rights and interests of Indigenous people were considered and addressed.
What is required in terms of the content of consultation will continue to depend on the strength of the claim and seriousness of the potential impact on the right (Clyde River at para. 20, Haida Nation). As such, when evaluating the adequacy of consultation during the regulatory review, the NEB itself will also be required to oversee consultations which seek to address the impacts of proposed projects on Aboriginal and Treaty rights, and to use its technical expertise to assess what forms of accommodation might be available (Clyde River at para. 33).
While a regulatory agency like the NEB has the procedural powers necessary to implement consultation, and the remedial powers to accommodate, whether or not it does so adequately, in accordance with the level of consultation required in the circumstances – remains a question for the Crown in assessing what is required to uphold Crown honour, and for the courts, if the inadequacy of the consultation process is challenged on judicial review or appeal (Clyde River at paras. 22, 24 and 34; Chippewas at para. 32).
Requirement to Assess Impacts to Rights – Not Just Environmental Effects
In Clyde River, the Supreme Court found that the NEB’s process was flawed in regard to consultation, as there was no assessment of the impact to the Inuit’s marine harvesting rights, nor to the impact of the proposed testing on those rights (para. 45), which environmental assessment report did not even mention their Treaty right to harvest or that deep consultation was required (para. 52).
An important element of this finding is the Court’s observation that the NEB’s analysis was “misdirected” by presuming that since there were no significant adverse environmental effects, that any effects on traditional resource use could be addressed by mitigation measures (para. 45). This is an important point as regulatory agencies (not just the NEB) routinely rely on an assessment of environmental effects as substitute for assessing the impact of a project on Aboriginal or Treaty rights.
On behalf of our clients we continually reject this approach – simply because a project’s effects on a particular biophysical feature (e.g. marine mammals) may not be significant does not mean that the right to harvest won’t be affected. As put by the Supreme Court – “the consultative inquiry is not properly into environmental effects per se. Rather, it inquires into the impact on the right” (para 45).
As a result of this decision, the Crown (and now regulatory agencies acting on behalf of the Crown, and conducting processes the Crown relies upon) must directly address impacts on rights, not just environmental effects, or risk having their decisions quashed.
The Duty to Consult Must be Met Prior to Project Approval
The Supreme Court held that – “If the Crown’s duty to consult has been triggered, a decision maker may only proceed to approve a project if Crown consultation is adequate” (Chippewas at para. 36). This ruling is in line with Supreme Court’s decision Tsilhqot’in, which said that consultation must be discharged before proceeding with the approval of a project that could adversely affect Aboriginal or Treaty rights (Ibid.). As such, when a regulatory agency like the NEB is the final decision maker, the key question is whether the duty to consult is fulfilled prior to project approval (Chippewas at para 36, and Clyde River at para. 39).
This also means that where further avenues for meaningful consultation and accommodation are required to provide adequate consultation, beyond what the regulatory agency is able to provide, the Crown must provide these opportunities prior the project approval to fulfill the duty to consult (Chippewas at para. 32).
Assessing the Adequacy of Crown Consultation Before Project Approval
Given that the Crown’s duty to consult must be adequately discharged prior to project approval, the Supreme Court held that the NEB is obligated to consider whether the Crown’s consultation respecting a project has been adequate if the concern is raised before it (Chippewas at para. 37; Clyde River at para. 36). Following Carrier Sekani, the Court held that regulatory agencies empowered to consider questions of law must determine whether consultation was adequate if the issue is properly raised before it, absent a clear legislative intention to exclude this from its jurisdiction (Clyde River at para. 36).
Further, in ruling that the NEB can determine whether the Crown’s duty to consult has been adequately fulfilled, the Supreme Court declined to follow Standing Buffalo which would not have required evaluating whether the duty to consult was triggered or satisfied before granting a project approval unless the Crown was a party to the application (Chippewas at paras. 36 – 37; see also Clyde River at paras 37 and 39).
Project Approvals that Breach the Duty to Consult are not in the Public Interest
The Supreme Court held that a decision to authorize a project “cannot be in the public interest if the Crown’s duty to consult has not been met” (Clyde River at para. 40; Chippewas at para. 59).
Furthermore, where the duty to consult remains unfulfilled, the final decisions on project approvals by regulatory agencies cannot proceed since – “[a] project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest” (Clyde River at paras. 39 and 40). In making this ruling, the Court confirmed that the public interest and the duty to consult do not operate in conflict (Ibid. at para. 40).
In addition, in Clyde River, the Court said that “the duty to consult, being a constitutional imperative, gives rise to a special public interest that supersedes other concerns typically considered by tribunals tasked with assessing the public interest” (Ibid.). In Chippewas, the Supreme Court also confirmed Carrier Sekani, that the constitutional dimension of the duty to consult gives rise to a special public interest that surpasses economic concerns (Ibid. at para. 59). The purpose of accommodation is to balance these interests with a view toward reconciliation (Ibid. at paras. 59 and 60).
Reasons showing how Concerns were Considered and Addressed
When Indigenous groups have squarely raised concerns about Crown consultation with the NEB, the Court held that NEB must usually address those concerns in reasons, especially for projects requiring deep consultation (Clyde River at para. 41). While reasons won’t be required in every case, as what is required depends on the degree of consultation and the circumstances, where deep consultation is required, the honour of the Crown will usually require the NEB to explain how it considered and addressed the concerns of Indigenous people when the approval process triggers the duty to consult (Ibid. at para. 42). While this will not require a Haida-style analysis of assessing impacts in all circumstances – it will require that the NEB take the asserted Aboriginal and treaty rights into consideration and accommodate them, where appropriate (Chippewas at para. 63, emphasis added).
What happens next?
In the decade since the Supreme Court issued its decisions in Haida Nation and Mikisew Cree, meaningful consultation has been frustrated by boards and the Crown playing a version of “hot potato” with consultation, such that real consideration of impacts to indigenous rights has fallen through the cracks. These cases, along with last year’s Federal Court of Appeal decision striking down the approval of the Northern Gateway project, should make it clear to boards and the Crown that this practice, intentional or not, must change and that a greater level of transparency and candour is required. At the same time, the cases should bring conversations about indigenous rights more squarely into decision-making, as the Supreme Court has helpfully clarified that decision-makers need to look beyond the environment and to the people whose constitutionally protected rights are at stake in a decision.