On March 10, 2016 a panel of the Supreme Court of Canada comprising Chief Justice McLachlin, and Justices Moldaver and Gascon granted leave (with costs in the cause) in Chippewas of the Thames First Nation v Enbridge Pipelines Inc1 (hereafter COTTFN or the Line 9/9B case) and (without costs) in Hamlet of Clyde River v Petroleum Geo-Services Inc (PGS)2 (hereafter Clyde River). Both are appeals from decisions of the Federal Court of Appeal, both involve the jurisdiction of the National Energy Board (NEB or Board) and both engage the Crown’s duty to consult. They will be heard together.
There are at least three distinct questions to be answered in cases dealing with the role of a regulatory tribunal in satisfying the Crown’s duty to consult accommodate Aboriginal Peoples. First, does the tribunal itself have the duty to consult? Second, even if the tribunal does not have a duty to consult, can the tribunal’s procedures for public engagement etc (perhaps as implemented by the proponent) satisfy the Crown’s duty to consult? And third, and in any event, does the tribunal have the duty to satisfy itself that the Crown has fulfilled its duty to consult prior to exercising any statutory power that the tribunal may have? There has been considerable litigation on all three questions.3 Currently the leading Supreme Court of Canada cases are Rio Tinto Alcan Inc v Carrier Sekani Tribal Council4 and Taku River Tlingit First Nation v British Columbia (Project Assessment Director).5
This comment examines the decisions in COTTFN and Clyde River and offers some brief concluding remarks.
A. COTTFN: Enbridge Line 9B
Line 9 connects Sarnia and Montreal. It was originally constructed by Interprovincial Pipeline Inc (now Enbridge) in the mid-1970s as part of the Government of Canada’s response to the OPEC crisis so as to permit the delivery of Canadian oil to refineries in Montreal. In 1997, IPL obtained and implemented the NEB’s approval to reverse Line 9 to permit shipment of oil from Montreal to refineries in Ontario. There, matters stood until 2011 when Enbridge applied to reverse (i.e. reinstate an easterly flow) from Sarnia to North Westover (west of Toronto). This (Line 9 Reversal Phase I) took effect in 2013, but prior to that, Enbridge made the further 9B application under s 58 of the National Energy Board Act6 (NEBA) to reverse the balance of Line 9 into Montreal and to increase the capacity of the entire line from 240,000bpd to 333,333bpd. It is important to emphasise that this application was considered under s 58 of the NEBA and not under s 52 of the NEBA. Section 52 deals with the construction of new pipelines and requires the Board to make a recommendation to the Governor in Council with respect to the issuance of a certificate of public convenience and necessity. The Board’s report under s 52 is not a final decision. Section 58 authorizes the Board to exempt an applicant from otherwise applicable provisions of Part II of the NEBA (construction and operation of pipelines). A section 58 decision is a final decision (subject to appeal, with leave, as here on a point of law or jurisdiction (NEBA, s 22)).
The Board issued its reasons for decision recommending the approval of this application in March 2014.7 The Board’s proceedings in this matter have been the subject of an earlier judicial review application commenced by Forest Ethics Advocacy Association and Donna Sinclair and dealing principally with the scope of the Board’s review of the project. The Federal Court of Appeal provided a reasoned decision on this application in December 2014.8
COTTFN conceded that Enbridge had discussed its project with the First Nation but concluded that these discussions had not addressed its concerns. Indeed, in September 2013 COTTFN wrote to a number of federal ministers, including the Minister of Natural Resources, requesting that the Crown consult with them as to the impact of the project on their Aboriginal and treaty rights. COTTFN argued that the Crown needed to consult directly because the Board was not in a position to discharge the Crown’s obligations – both because the Board lacked the statutory mandate to do so and because the issues that the COTTFN wanted to address included cumulative impacts which fell outside the remit of the Board. COTTFN did not receive a reply from the Minister until the end of January 2014 by which time the Board had concluded its hearing. The federal Crown did not participate in the hearing. COTTFN did participate, and led evidence as to its use of the land including its spiritual connection to the land. The Minister’s January letter stated, inter alia, that “the Government relies on Board processes to address potential impacts to Aboriginal and treaty rights stemming from projects under the Board’s mandate.”9 In light of the Board’s assessment of the prospects for the safe operation of the line and contingency plans, the Board concluded that any impact on COTTFN’s rights would be “minimal and appropriately mitigated.”10
On the appeal, Justice Ryer for the majority stated the issues as follows:11
- Whether the Board itself has been delegated the power to undertake the fulfilment of the Haida duty on behalf of the Crown in relation to the Project; and
- Whether the Board was required to determine, as a condition of undertaking its mandate with respect to Enbridge’s application for approval of the Project, if the Crown, which was not a party to the application, was under a Haida duty and, if so, whether the Crown had discharged that duty.
Justice Ryer dealt with the issues in the reverse order. In his view the Federal Court of Appeal had already decided the second question in the negative some years previously in his own decision in Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc.12 Since there had been no relevant amendments to the NEBA since then, the principal issue for the Court was whether the Supreme Court’s decision in Carrier Sekani13 had undermined the authority of Standing Buffalo. The Carrier Sekani court concluded that where a tribunal had the authority to decide questions of law, then by necessary implication, such a tribunal had the authority to determine whether the Crown had discharged its duty to consult, and presumably might be required to make that determination prior to making its decision on the merits of an application which had potential adverse impacts on Aboriginal or treaty rights (just as an administrative decision-maker must observe applicable rules of natural justice and procedural fairness rules prior to making its decision since otherwise any resulting decision will be void.14)
Justice Ryer distinguished Carrier Sekani principally on the grounds that the applicant for approval from the tribunal (the BC Utilities Commission, BCUC) in Carrier Sekani was BC Hydro which was an agent of the provincial Crown. That was not the case in either Standing Buffalo or this application from Enbridge. Since the Crown did not appear before the Board, the Board had no evidence on which to make a Haida determination as to the level of consultation required and thus the matter was not “properly before” the Board.15
In addition to the general proposition that Carrier Sekani is distinguishable on the basis that the applicant in Carrier Sekani was the Crown (whereas the applicant here is Enbridge), Justice Ryer also emphasises the remedial implications that might flow from the differing legal status of the two applicants. His point here is that in Carrier Sekani the Crown was a party to the application and there was therefore no difficulty in the tribunal, the BCUC in that case, issuing an order against the Crown (albeit a very distinct emanation of the Crown i.e. BC Hydro). In Standing Buffalo, as in COTTFN, the Board has no remedial authority against the Crown since the Crown is not before the Board. This is all true; but as I understand it COTTFN is not seeking an order against the Crown. Instead, it is seeking something in the nature of a declaration that the NEB has failed to fulfil its duty to determine if the Crown has fulfilled its obligations and consequential relief quashing the Board’s approval.16 Justice Ryer evidently consider this to be an inappropriate “sort of leverage over the Crown, so as to force it become a participant,”17 and not only inappropriate but also something that will not pursue “the reconciliation of interests”18 as between the Crown and First Nations.
As for the first-listed issue above, the principal question was whether the Crown had delegated its duty to consult to the Board. There was and is nothing in NEBA that had that effect19 and Justice Ryer concluded that the Minister’s letter (quoted in part above) could not serve as an effective delegation.20
Justice Rennie agreed that the Board had no duty to consult21 but dissented on the question of the Board’ duty to assess whether the Crown had fulfilled its duty to consult. In his view:
The Board’s jurisdiction to assess consultation does not vary according to project proponent. This conclusion makes sense because at a practical level, the section 58 process culminates with a final decision, and any Aboriginal or treaty rights that might be affected by the proposed project are affected in the same way, regardless of the project proponent. 22
* * * *
As a final decision maker, Carrier Sekani requires the Board to ask, in light of its understanding of the project and Aboriginal title and treaty interests, whether the duty to consult was trigged. If so, it was required to ask whether the consultations had taken place. The answers to those two questions, on the facts of this case were respectively affirmative and negative. Given its understanding that there was an outstanding unfulfilled duty to consult, it ought not to have rendered its approval.
Justice Rennie dismissed the majority’s concerns that a Board decision to reject an application for the Crown’s failure to consult would be somehow unfair to the applicant. Justice Rennie gave five reasons for this: (1) inconvenience to the proponent pales in significance when compared with the constitutional values underlying COTTFN’s position,23 (2) the courts are always able to assess whether the duty to consult has been discharged,24 (3) the Crown is required to engage in the reciprocal process of consultation which neither party can frustrate by refusing to engage,25 (4) meaningful consultation requires early engagement in the process,26 and (5) consultation should evolve in parallel with the regulatory process.27
For Justice Rennie that left the question of the appropriate remedy. Justice Rennie was clearly of the view that a declaration that the Board’s order was of no effect would be an appropriate remedy but there was a problem with this since the applicant had apparently not sought that relief and it would therefore be “inappropriate” to make a declaration in these circumstances. But, said Justice Rennie, the NEB has the legislative mandate to ensure that the duty to consult is discharged before a final decision is made.28 I think that it must follow from this observation that if the decision had already been made (and I thought that it had here29), then the Board must have the duty under s 21 of the NEBA to review its own decision either of its own motion or on the application of COTTFN. Justice Rennie also considered whether the matter might have been more appropriately dealt with by way of an application for judicial review of the decision embedded in the Minister’s letter. Both counsel for the Crown and Justice Rennie seemed to be of the view that this might have been a possible way of proceeding, but in the circumstances, Justice Rennie was clear that it would have been “an empty remedy” since the Board’s decision was final.30
The appellants in COTTFN have stated the issues for consideration by the Supreme Court as follows:
- What is the role and jurisdiction of an administrative tribunal, where it is the final decision maker, to ensure that the Crown’s duty to consult is fulfilled?
- The question of whether the administrative exercise of final decision-making authority amounts to “government conduct” triggering the Crown’s duty to consult and accommodate ….
- Whether an administrative tribunal’s regulatory process can rectify the absence or inadequacy of Crown consultation …
B. Clyde River: The facts
TGS-NOPEC Geophysical Company ASA (TGS), Petroleum Geo-Services Inc (PGS) and Multi Klient Invest AS (MKI) (the proponents) applied to the Board for a Geophysical Operations Authorization (GOA) under the terms of paragraph 5(1)(b) of the Canada Oil and Gas Operations Act31, (COGOA). The proponents proposed to undertake a 2-D offshore seismic survey program in Baffin Bay and the Davis Strait (the Project) over a period of five years. The Board granted the GOA subject to terms and conditions. As part of its decision-making on the GOA, the Board also had responsibilities under the Canadian Environmental Assessment Act32, and in fulfillment of its responsibilities under that statute the Board conducted an environmental assessment (EA) before concluding that:
[…] with the implementation of [the project operator’s] commitments, environmental protection procedures and mitigation measures, and compliance with the Board’s regulatory requirements and conditions included in this [Environmental Assessment] Report, the Project is not likely to result in significant adverse environmental effects.33
The applicants, Hamlet of Clyde River, Nammautaq Hunters and Trappers Organization (HTO) – Clyde River and Jerry Natanine (a resident and the Mayor of Clyde River) brought this application for judicial review.34 Justice Dawson for the unanimous panel summarized the issues as follows:35
- Do the applicants have standing to bring this application?
- Was the Crown’s duty to consult with the Inuit in regard to the Project adequately fulfilled?
- Did the Board err in issuing the GOA? Specifically:
- Were the Board’s reasons adequate?
- Did the Board reasonably conclude that the Project is not likely to result in significant adverse ronmental effects?
- Did the Board fail to consider Aboriginal and Treaty rights?
- Was the Crown obliged to seek the advice of the Nunavut Wildlife Management Board?
This comment focuses on the consultation issues.36
Justice Dawson began by considering the applicable standard of review with respect to the duty to consult and accommodate. She concluded that “[q]uestions as to the existence of the duty to consult and the extent or content of the duty are legal questions, reviewable on the standard of correctness. The consultation process and the adequacy of consultation is a question of mixed fact and law, reviewable on the standard of reasonableness.…”37
Parliament may structure the way in which the Crown discharges its duty to consult and in doing so may impose consultation obligations on regulatory tribunals such as the NEB. Whether it has done so is ultimately a matter of statutory interpretation.38 Parliament may also authorize a tribunal such as the NEB to make determinations as to whether or not the Crown has fulfilled the duty to consult and accommodate. Parliament may do this explicitly or implicitly (by authorizing a tribunal to decide questions of law).39 Section 12(2) of the NEBA confers on the NEB the jurisdiction to determine all matters before it “whether of fact or law.40 “When the Crown relies on a regulatory or environmental assessment process to fulfil the duty to consult, such reliance is not delegation of the Crown’s duty. Rather, it is a means by which the Crown can be satisfied that Aboriginal concerns have been heard and, where appropriate, accommodated .…”41
In this case, the Board had both the power and the duty to discharge the Crown’s obligation to consult and accommodate. The Court reached this conclusion by pointing to an amendment to CEAA, 1992 which redefined the term “environmental effect” of a project so as to include the effect of any change in the environment caused by the project which might in turn affect the “current use of lands and resources for traditional purposes by aboriginal persons.”42 Justice Dawson framed her conclusion this way:
I conclude that the Board has a mandate to engage in a consultation process such that the Crown may rely on that process to meet, at least in part, its duty to consult with Aboriginal peoples. Of course, when the Crown relies on the Board’s process, in every case it will be necessary for the Crown to assess if additional consultation activities or accommodation is required in order to satisfy the honour of the Crown.43
In this case the Crown apparently conceded that it did not engage in any additional activities of consultation and accommodation.44 Thus Justice Dawson concludes that the Board had a duty to consult but that it was then for the Crown to assess whether that was sufficient to discharge the duty. In the absence of any specific Crown conclusion on this point the Court itself moved directly to assess “whether […] the Crown’s duty to consult was properly discharged through the Board’s process.”45
The Court held that the consultation required was at the deep end of the Haida spectrum.46 The right was treaty based (the Nunavut Land Claim Agreement) and the potential impacts on those rights were serious. These impacts were summarized by Justice Dawson referring to the Board’s EIA report:47
As to the potential effect of the Project upon this right, migratory marine mammals harvested by the Inuit move through the Project area. Potential adverse environmental effects found by the Board include:
- Sensory and physical disturbance to marine mammals causing: temporary reduction in hearing sensitivity; permanent hearing impairment; masked communication; and, changes in behaviour and distribution including avoidance of the seismic ship and alteration of migration routes.
- Potential disturbance to traditional and commercial resource use if the survey changes the migration routes of marine mammals or fish.
- Adverse changes to marine life presence due to spills or accidents releasing hydrocarbons into the marine environment.
Justice Dawson concluded that the Crown, through the Board, had discharged its obligations. In reaching that conclusion Justice Dawson rejected the applicants’ contention that the Board or some other entity should only have considered the GOA application following a strategic environmental assessment.48 More generally, Justice Dawson held that the Board’s consultation activities were adequate because: “the process provided timely notice[…]”;49 “[t]he proponents were required to provide […] [adequate] information[…] and to [respond] to [their] questions”;50 “[t]he Board held meetings at which community members could address concerns to the Board”;51 “[t]he proponents changed aspects of the Project’s design” in response to articulated concerns;52 “[t]he Board’s regulatory process was designed to facilitate […] [Aboriginal] participation”;53 the CEAA assessment addressed concerns raised by Aboriginal participants;54 and the terms and conditions to which the GOA was subject were responsive to the concerns that had been raised.55
But that still left outstanding some more specific questions with respect to: (1) the adequacy of the reasons offered in support of the Board’s decision, (2) the Board’s conclusions with respect to the significance of the adverse environmental effects of the project, and (3) the Board’s consideration of Aboriginal and treaty rights. Justice Dawson was of the view that the standard of review in relation to these questions was reasonableness.56
On the reasons issue, the principal difficulty for the Attorney General and the NEB was that in a purely formal sense there were no reasons accompanying the issuance of the GOA.57 Instead there was simply a cover letter (1.5 pages) and the actual GOA itself (three pages in length and consisting of some 15 conditions). But Justice Dawson was evidently not prepared to consider the GOA in isolation given the Board’s detailed consultation exercise and the principal deliverable of that exercise which was the Board’s 30 plus page EIA Report (referred to above). That broader context provided the necessary reasons:58
I see no merit in this submission. The Board’s reasoning is found in the environmental assessment and the terms and conditions imposed on the GOA. These reasons deal with the real controversy: what are the potential impacts of the Project on the section 35 Aboriginal right to harvest wildlife.
When the GOA is read in the light of the environmental assessment, the terms and conditions imposed upon the GOA and the entirety of the Board’s record, this Court is well able to understand why the GOA was issued.
While the EIA report did not deal with all of the issues that the Board needed to consider under COGOA, Justice Dawson seems to have been of the view that these other issues were either not of core significance or were such that the reasons could be inferred from the terms and conditions that had been attached.
As for the remaining issues (significance of the environmental effects and Aboriginal and Treaty rights) Justice Dawson had little difficulty dismissing the applicants’ claims. It will always be a challenge to raise any assessment of “significance” to the level of a reviewable error and, given all of the background here, the failure of the EIA report to mention Aboriginal and treaty rights and the Crown’s duty to consult was not material:59
I see no merit in this submission. As explained above, the Board engaged in lengthy consideration about the extent of Aboriginal consultation and the potential impacts to traditional harvesting. The Board knew the Inuit had section 35 protected harvesting rights that had to be taken into account.
There is a remarkable degree of deference embedded in this summary dismissal of this aspect of the applicants’ argument, especially in a case where the Crown is trying to discharge the duty to consult through a Board-led EIA process. When put together with the complete delegation of all consultation obligations to the Board, the absence of any assessment by the Board itself as to where the case lay along the Haida spectrum, and the Board’s failure to provide reasons that spoke to an assessment of the Crown’s duties, Justice Dawson’s conclusion suggests that a decision-maker can meet its constitutional obligations without articulating the normative quality of the interests at stake. I am not convinced that the Crown or a delegated authority of the Crown can discharge its obligations in such a non-reflective manner.
That said, Clyde River, along with Taku River, is authority for the proposition that in the appropriate circumstances the Crown can discharge its obligation to consult and accommodate entirely through a regulatory board such as the NEB. Justice Dawson concedes that this will not always be the case,60 but she gives little if any guidance as to when something more might be required.61
The appellants in Clyde River have stated that “require clarification” by the Supreme Court as follows:
- the substantive aspects of accommodation that are engaged in a case where deep consultation is required;
- the relationship between the common law duty of procedural fairness and the constitutionally-entrenched duty to consult.
- whether, and to what extent, the Crown may rely on a tribunal’s regulatory process to discharge the duty to consult and accommodate;
- the proper role of the reviewing court where a tribunal has (or ought to have) considered Aboriginal rights and/or the duty to consult in discharging its mandate; and
- the proper standard of review of a tribunal’s decision on the duty to consult;
Conclusions
These two appeals will give the Court the opportunity to clarify the application of Carrier Sekani and the duty to consult in the context of energy regulatory tribunals. While both cases engage the National Energy Board, the outcome of the appeals will be relevant for energy tribunals across the country. The Court will have to decide whether Carrier Sekani only applies where the Crown, or an agent of the Crown, is the applicant for an authorization. This is the principal issue in COTTFN although not specifically referred to in COTTFN’s statement of the issues. It is hard to imagine that the Court will countenance confining Carrier Sekani in this way. Second, the Court will have to decide when (if ever) a tribunal’s processes can satisfy the Crown’s duty to consult. This the principal issue in Clyde River.
Both cases deal with decisions in which the tribunal is the final decision-maker. It will be interesting to see if the Court’s decision confines itself to these scenarios or whether it will also address those statutory scenarios in which the tribunal makes a recommendation to a minister or to the Governor General (or Lieutenant Governor) in Council who in turn makes the final decision. This is a matter of considerable significance not only for applications under the NEBA for a certificate of public convenience and necessity under s 52 (including the Northern Gateway Project62) but also for a variety of other resource project approvals (including oil sands projects63).
On March 10, 2016 a panel of the Supreme Court of Canada comprising Chief Justice McLachlin, and Justices Moldaver and Gascon granted leave (with costs in the cause) in Chippewas of the Thames First Nation v Enbridge Pipelines Inc1 (hereafter COTTFN or the Line 9/9B case) and (without costs) in Hamlet of Clyde River v Petroleum Geo-Services Inc (PGS)2 (hereafter Clyde River). Both are appeals from decisions of the Federal Court of Appeal, both involve the jurisdiction of the National Energy Board (NEB or Board) and both engage the Crown’s duty to consult. They will be heard together.
There are at least three distinct questions to be answered in cases dealing with the role of a regulatory tribunal in satisfying the Crown’s duty to consult accommodate Aboriginal Peoples. First, does the tribunal itself have the duty to consult? Second, even if the tribunal does not have a duty to consult, can the tribunal’s procedures for public engagement etc (perhaps as implemented by the proponent) satisfy the Crown’s duty to consult? And third, and in any event, does the tribunal have the duty to satisfy itself that the Crown has fulfilled its duty to consult prior to exercising any statutory power that the tribunal may have? There has been considerable litigation on all three questions.3 Currently the leading Supreme Court of Canada cases are Rio Tinto Alcan Inc v Carrier Sekani Tribal Council4 and Taku River Tlingit First Nation v British Columbia (Project Assessment Director).5
This comment examines the decisions in COTTFN and Clyde River and offers some brief concluding remarks.
A. COTTFN: Enbridge Line 9B
Line 9 connects Sarnia and Montreal. It was originally constructed by Interprovincial Pipeline Inc (now Enbridge) in the mid-1970s as part of the Government of Canada’s response to the OPEC crisis so as to permit the delivery of Canadian oil to refineries in Montreal. In 1997, IPL obtained and implemented the NEB’s approval to reverse Line 9 to permit shipment of oil from Montreal to refineries in Ontario. There, matters stood until 2011 when Enbridge applied to reverse (i.e. reinstate an easterly flow) from Sarnia to North Westover (west of Toronto). This (Line 9 Reversal Phase I) took effect in 2013, but prior to that, Enbridge made the further 9B application under s 58 of the National Energy Board Act6 (NEBA) to reverse the balance of Line 9 into Montreal and to increase the capacity of the entire line from 240,000bpd to 333,333bpd. It is important to emphasise that this application was considered under s 58 of the NEBA and not under s 52 of the NEBA. Section 52 deals with the construction of new pipelines and requires the Board to make a recommendation to the Governor in Council with respect to the issuance of a certificate of public convenience and necessity. The Board’s report under s 52 is not a final decision. Section 58 authorizes the Board to exempt an applicant from otherwise applicable provisions of Part II of the NEBA (construction and operation of pipelines). A section 58 decision is a final decision (subject to appeal, with leave, as here on a point of law or jurisdiction (NEBA, s 22)).
The Board issued its reasons for decision recommending the approval of this application in March 2014.7 The Board’s proceedings in this matter have been the subject of an earlier judicial review application commenced by Forest Ethics Advocacy Association and Donna Sinclair and dealing principally with the scope of the Board’s review of the project. The Federal Court of Appeal provided a reasoned decision on this application in December 2014.8
COTTFN conceded that Enbridge had discussed its project with the First Nation but concluded that these discussions had not addressed its concerns. Indeed, in September 2013 COTTFN wrote to a number of federal ministers, including the Minister of Natural Resources, requesting that the Crown consult with them as to the impact of the project on their Aboriginal and treaty rights. COTTFN argued that the Crown needed to consult directly because the Board was not in a position to discharge the Crown’s obligations – both because the Board lacked the statutory mandate to do so and because the issues that the COTTFN wanted to address included cumulative impacts which fell outside the remit of the Board. COTTFN did not receive a reply from the Minister until the end of January 2014 by which time the Board had concluded its hearing. The federal Crown did not participate in the hearing. COTTFN did participate, and led evidence as to its use of the land including its spiritual connection to the land. The Minister’s January letter stated, inter alia, that “the Government relies on Board processes to address potential impacts to Aboriginal and treaty rights stemming from projects under the Board’s mandate.”9 In light of the Board’s assessment of the prospects for the safe operation of the line and contingency plans, the Board concluded that any impact on COTTFN’s rights would be “minimal and appropriately mitigated.”10
On the appeal, Justice Ryer for the majority stated the issues as follows:11
Justice Ryer dealt with the issues in the reverse order. In his view the Federal Court of Appeal had already decided the second question in the negative some years previously in his own decision in Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc.12 Since there had been no relevant amendments to the NEBA since then, the principal issue for the Court was whether the Supreme Court’s decision in Carrier Sekani13 had undermined the authority of Standing Buffalo. The Carrier Sekani court concluded that where a tribunal had the authority to decide questions of law, then by necessary implication, such a tribunal had the authority to determine whether the Crown had discharged its duty to consult, and presumably might be required to make that determination prior to making its decision on the merits of an application which had potential adverse impacts on Aboriginal or treaty rights (just as an administrative decision-maker must observe applicable rules of natural justice and procedural fairness rules prior to making its decision since otherwise any resulting decision will be void.14)
Justice Ryer distinguished Carrier Sekani principally on the grounds that the applicant for approval from the tribunal (the BC Utilities Commission, BCUC) in Carrier Sekani was BC Hydro which was an agent of the provincial Crown. That was not the case in either Standing Buffalo or this application from Enbridge. Since the Crown did not appear before the Board, the Board had no evidence on which to make a Haida determination as to the level of consultation required and thus the matter was not “properly before” the Board.15
In addition to the general proposition that Carrier Sekani is distinguishable on the basis that the applicant in Carrier Sekani was the Crown (whereas the applicant here is Enbridge), Justice Ryer also emphasises the remedial implications that might flow from the differing legal status of the two applicants. His point here is that in Carrier Sekani the Crown was a party to the application and there was therefore no difficulty in the tribunal, the BCUC in that case, issuing an order against the Crown (albeit a very distinct emanation of the Crown i.e. BC Hydro). In Standing Buffalo, as in COTTFN, the Board has no remedial authority against the Crown since the Crown is not before the Board. This is all true; but as I understand it COTTFN is not seeking an order against the Crown. Instead, it is seeking something in the nature of a declaration that the NEB has failed to fulfil its duty to determine if the Crown has fulfilled its obligations and consequential relief quashing the Board’s approval.16 Justice Ryer evidently consider this to be an inappropriate “sort of leverage over the Crown, so as to force it become a participant,”17 and not only inappropriate but also something that will not pursue “the reconciliation of interests”18 as between the Crown and First Nations.
As for the first-listed issue above, the principal question was whether the Crown had delegated its duty to consult to the Board. There was and is nothing in NEBA that had that effect19 and Justice Ryer concluded that the Minister’s letter (quoted in part above) could not serve as an effective delegation.20
Justice Rennie agreed that the Board had no duty to consult21 but dissented on the question of the Board’ duty to assess whether the Crown had fulfilled its duty to consult. In his view:
The Board’s jurisdiction to assess consultation does not vary according to project proponent. This conclusion makes sense because at a practical level, the section 58 process culminates with a final decision, and any Aboriginal or treaty rights that might be affected by the proposed project are affected in the same way, regardless of the project proponent. 22
* * * *
As a final decision maker, Carrier Sekani requires the Board to ask, in light of its understanding of the project and Aboriginal title and treaty interests, whether the duty to consult was trigged. If so, it was required to ask whether the consultations had taken place. The answers to those two questions, on the facts of this case were respectively affirmative and negative. Given its understanding that there was an outstanding unfulfilled duty to consult, it ought not to have rendered its approval.
Justice Rennie dismissed the majority’s concerns that a Board decision to reject an application for the Crown’s failure to consult would be somehow unfair to the applicant. Justice Rennie gave five reasons for this: (1) inconvenience to the proponent pales in significance when compared with the constitutional values underlying COTTFN’s position,23 (2) the courts are always able to assess whether the duty to consult has been discharged,24 (3) the Crown is required to engage in the reciprocal process of consultation which neither party can frustrate by refusing to engage,25 (4) meaningful consultation requires early engagement in the process,26 and (5) consultation should evolve in parallel with the regulatory process.27
For Justice Rennie that left the question of the appropriate remedy. Justice Rennie was clearly of the view that a declaration that the Board’s order was of no effect would be an appropriate remedy but there was a problem with this since the applicant had apparently not sought that relief and it would therefore be “inappropriate” to make a declaration in these circumstances. But, said Justice Rennie, the NEB has the legislative mandate to ensure that the duty to consult is discharged before a final decision is made.28 I think that it must follow from this observation that if the decision had already been made (and I thought that it had here29), then the Board must have the duty under s 21 of the NEBA to review its own decision either of its own motion or on the application of COTTFN. Justice Rennie also considered whether the matter might have been more appropriately dealt with by way of an application for judicial review of the decision embedded in the Minister’s letter. Both counsel for the Crown and Justice Rennie seemed to be of the view that this might have been a possible way of proceeding, but in the circumstances, Justice Rennie was clear that it would have been “an empty remedy” since the Board’s decision was final.30
The appellants in COTTFN have stated the issues for consideration by the Supreme Court as follows:
B. Clyde River: The facts
TGS-NOPEC Geophysical Company ASA (TGS), Petroleum Geo-Services Inc (PGS) and Multi Klient Invest AS (MKI) (the proponents) applied to the Board for a Geophysical Operations Authorization (GOA) under the terms of paragraph 5(1)(b) of the Canada Oil and Gas Operations Act31, (COGOA). The proponents proposed to undertake a 2-D offshore seismic survey program in Baffin Bay and the Davis Strait (the Project) over a period of five years. The Board granted the GOA subject to terms and conditions. As part of its decision-making on the GOA, the Board also had responsibilities under the Canadian Environmental Assessment Act32, and in fulfillment of its responsibilities under that statute the Board conducted an environmental assessment (EA) before concluding that:
[…] with the implementation of [the project operator’s] commitments, environmental protection procedures and mitigation measures, and compliance with the Board’s regulatory requirements and conditions included in this [Environmental Assessment] Report, the Project is not likely to result in significant adverse environmental effects.33
The applicants, Hamlet of Clyde River, Nammautaq Hunters and Trappers Organization (HTO) – Clyde River and Jerry Natanine (a resident and the Mayor of Clyde River) brought this application for judicial review.34 Justice Dawson for the unanimous panel summarized the issues as follows:35
This comment focuses on the consultation issues.36
Justice Dawson began by considering the applicable standard of review with respect to the duty to consult and accommodate. She concluded that “[q]uestions as to the existence of the duty to consult and the extent or content of the duty are legal questions, reviewable on the standard of correctness. The consultation process and the adequacy of consultation is a question of mixed fact and law, reviewable on the standard of reasonableness.…”37
Parliament may structure the way in which the Crown discharges its duty to consult and in doing so may impose consultation obligations on regulatory tribunals such as the NEB. Whether it has done so is ultimately a matter of statutory interpretation.38 Parliament may also authorize a tribunal such as the NEB to make determinations as to whether or not the Crown has fulfilled the duty to consult and accommodate. Parliament may do this explicitly or implicitly (by authorizing a tribunal to decide questions of law).39 Section 12(2) of the NEBA confers on the NEB the jurisdiction to determine all matters before it “whether of fact or law.40 “When the Crown relies on a regulatory or environmental assessment process to fulfil the duty to consult, such reliance is not delegation of the Crown’s duty. Rather, it is a means by which the Crown can be satisfied that Aboriginal concerns have been heard and, where appropriate, accommodated .…”41
In this case, the Board had both the power and the duty to discharge the Crown’s obligation to consult and accommodate. The Court reached this conclusion by pointing to an amendment to CEAA, 1992 which redefined the term “environmental effect” of a project so as to include the effect of any change in the environment caused by the project which might in turn affect the “current use of lands and resources for traditional purposes by aboriginal persons.”42 Justice Dawson framed her conclusion this way:
I conclude that the Board has a mandate to engage in a consultation process such that the Crown may rely on that process to meet, at least in part, its duty to consult with Aboriginal peoples. Of course, when the Crown relies on the Board’s process, in every case it will be necessary for the Crown to assess if additional consultation activities or accommodation is required in order to satisfy the honour of the Crown.43
In this case the Crown apparently conceded that it did not engage in any additional activities of consultation and accommodation.44 Thus Justice Dawson concludes that the Board had a duty to consult but that it was then for the Crown to assess whether that was sufficient to discharge the duty. In the absence of any specific Crown conclusion on this point the Court itself moved directly to assess “whether […] the Crown’s duty to consult was properly discharged through the Board’s process.”45
The Court held that the consultation required was at the deep end of the Haida spectrum.46 The right was treaty based (the Nunavut Land Claim Agreement) and the potential impacts on those rights were serious. These impacts were summarized by Justice Dawson referring to the Board’s EIA report:47
As to the potential effect of the Project upon this right, migratory marine mammals harvested by the Inuit move through the Project area. Potential adverse environmental effects found by the Board include:
Justice Dawson concluded that the Crown, through the Board, had discharged its obligations. In reaching that conclusion Justice Dawson rejected the applicants’ contention that the Board or some other entity should only have considered the GOA application following a strategic environmental assessment.48 More generally, Justice Dawson held that the Board’s consultation activities were adequate because: “the process provided timely notice[…]”;49 “[t]he proponents were required to provide […] [adequate] information[…] and to [respond] to [their] questions”;50 “[t]he Board held meetings at which community members could address concerns to the Board”;51 “[t]he proponents changed aspects of the Project’s design” in response to articulated concerns;52 “[t]he Board’s regulatory process was designed to facilitate […] [Aboriginal] participation”;53 the CEAA assessment addressed concerns raised by Aboriginal participants;54 and the terms and conditions to which the GOA was subject were responsive to the concerns that had been raised.55
But that still left outstanding some more specific questions with respect to: (1) the adequacy of the reasons offered in support of the Board’s decision, (2) the Board’s conclusions with respect to the significance of the adverse environmental effects of the project, and (3) the Board’s consideration of Aboriginal and treaty rights. Justice Dawson was of the view that the standard of review in relation to these questions was reasonableness.56
On the reasons issue, the principal difficulty for the Attorney General and the NEB was that in a purely formal sense there were no reasons accompanying the issuance of the GOA.57 Instead there was simply a cover letter (1.5 pages) and the actual GOA itself (three pages in length and consisting of some 15 conditions). But Justice Dawson was evidently not prepared to consider the GOA in isolation given the Board’s detailed consultation exercise and the principal deliverable of that exercise which was the Board’s 30 plus page EIA Report (referred to above). That broader context provided the necessary reasons:58
I see no merit in this submission. The Board’s reasoning is found in the environmental assessment and the terms and conditions imposed on the GOA. These reasons deal with the real controversy: what are the potential impacts of the Project on the section 35 Aboriginal right to harvest wildlife.
When the GOA is read in the light of the environmental assessment, the terms and conditions imposed upon the GOA and the entirety of the Board’s record, this Court is well able to understand why the GOA was issued.
While the EIA report did not deal with all of the issues that the Board needed to consider under COGOA, Justice Dawson seems to have been of the view that these other issues were either not of core significance or were such that the reasons could be inferred from the terms and conditions that had been attached.
As for the remaining issues (significance of the environmental effects and Aboriginal and Treaty rights) Justice Dawson had little difficulty dismissing the applicants’ claims. It will always be a challenge to raise any assessment of “significance” to the level of a reviewable error and, given all of the background here, the failure of the EIA report to mention Aboriginal and treaty rights and the Crown’s duty to consult was not material:59
I see no merit in this submission. As explained above, the Board engaged in lengthy consideration about the extent of Aboriginal consultation and the potential impacts to traditional harvesting. The Board knew the Inuit had section 35 protected harvesting rights that had to be taken into account.
There is a remarkable degree of deference embedded in this summary dismissal of this aspect of the applicants’ argument, especially in a case where the Crown is trying to discharge the duty to consult through a Board-led EIA process. When put together with the complete delegation of all consultation obligations to the Board, the absence of any assessment by the Board itself as to where the case lay along the Haida spectrum, and the Board’s failure to provide reasons that spoke to an assessment of the Crown’s duties, Justice Dawson’s conclusion suggests that a decision-maker can meet its constitutional obligations without articulating the normative quality of the interests at stake. I am not convinced that the Crown or a delegated authority of the Crown can discharge its obligations in such a non-reflective manner.
That said, Clyde River, along with Taku River, is authority for the proposition that in the appropriate circumstances the Crown can discharge its obligation to consult and accommodate entirely through a regulatory board such as the NEB. Justice Dawson concedes that this will not always be the case,60 but she gives little if any guidance as to when something more might be required.61
The appellants in Clyde River have stated that “require clarification” by the Supreme Court as follows:
Conclusions
These two appeals will give the Court the opportunity to clarify the application of Carrier Sekani and the duty to consult in the context of energy regulatory tribunals. While both cases engage the National Energy Board, the outcome of the appeals will be relevant for energy tribunals across the country. The Court will have to decide whether Carrier Sekani only applies where the Crown, or an agent of the Crown, is the applicant for an authorization. This is the principal issue in COTTFN although not specifically referred to in COTTFN’s statement of the issues. It is hard to imagine that the Court will countenance confining Carrier Sekani in this way. Second, the Court will have to decide when (if ever) a tribunal’s processes can satisfy the Crown’s duty to consult. This the principal issue in Clyde River.
Both cases deal with decisions in which the tribunal is the final decision-maker. It will be interesting to see if the Court’s decision confines itself to these scenarios or whether it will also address those statutory scenarios in which the tribunal makes a recommendation to a minister or to the Governor General (or Lieutenant Governor) in Council who in turn makes the final decision. This is a matter of considerable significance not only for applications under the NEBA for a certificate of public convenience and necessity under s 52 (including the Northern Gateway Project62) but also for a variety of other resource project approvals (including oil sands projects63).
*Nigel Bankes, Professor of Law, the University of Calgary and Adjunct Professor, the University of Tromsø.