1. Introduction

The July 2017 decisions of the Supreme Court of Canada in two duty to consult cases involving the National Energy Board, Chippewas of the Thames and Hamlet of Clyde River,¹ marked in some ways a restatement of a maturing jurisprudence on the duty to consult Indigenous communities developed by Canadian courts over the last dozen years.² In others, they have complex implications for Canadian energy regulators in various sectors, reaffirming aspects of the operations of some and calling for meaningful changes in others. This article endeavours to unpack these two decisions and some of these wider-ranging implications.

In terms of their specific determinations, although restating many aspects of the duty to consult doctrine, the decisions reshape aspects of the role of the National Energy Board (NEB) in relation to consultation, notably in overturning certain prior precedents on the application of the duty to consult doctrine to a situation where there is no Crown party to a decision by an administrative tribunal and, more broadly, in affirming the significant roles that administrative boards and tribunals may play in relation to the duty to consult.

In doing so, the decisions have broader implications for administrative boards and tribunals other than the National Energy Board. This article will use two energy regulatory bodies to show some of the range of implications, which vary significantly depending on the prior approach in that context. Notably, the article will suggest significant implications for bodies like the Alberta Utilities Commission (AUC)—whose required role on consultation would appear to be altered significantly from that discussed recently in this journal³—and much lesser implications for bodies like the Canadian Nuclear Safety Commission (CNSC), which had already adapted its practices in relation to consultation.

In some respects, the decisions are practically oriented. They more explicitly permit Crown reliance on a regulatory process to meet the requirements of the duty to consult doctrine. They also carry a general tone of approaching issues on the duty to consult reasonably. A later section of the article will raise the possibility that these two decisions express a position on the law inconsistent with the 2014 Federal Court of Appeal decision quashing the Northern Gateway project, thus highlighting the degree to which case law based on the duty to consult has sometimes resulted in random results that may not be grounded in the broader jurisprudence.

The wide array of varying implications flowing from the Chippewas of the Thames and Clyde River decisions is nowhere explicitly contemplated in the decisions themselves. Though they are in many respects sound decisions, their soundness in legal terms may have generated practically sound results by accident as much as anything else. The last section of the article will thus suggest that they may well ultimately be just part of an ongoing phenomenon of judicial actors implementing the duty to consult intervening into the energy sector without any particular understanding of the broader consequences of their decisions. Judicial decisions that bear on the energy sector often have extraordinarily polycentric implications, and that reality may raise broader questions about the appropriate sectoral engagement with the related cases.

2. Background and the Decisions

By way of background, it is essential to understand the specialized context in which both of the Chippewas of the Thames and Clyde River decisions arose and how they have reformulated the legal requirements coming from the duty to consult in a certain type of context. To understand the particular issues on duty to consult in that type of context, it is important to commence with the duty to consult in more general terms and then to turn to the application of the duty in the specialized sort of context involved in Chippewas of the Thames and Clyde River.

In general terms, the duty to consult has a particular meaning under Canadian domestic law, where this duty is rooted in the honour of the Crown and the constitutional purposes of section 35 of the Constitution Act, 1982 in terms of reconciliation between Indigenous and non-Indigenous Canadians.⁴ It is a proactive duty owed by the federal or provincial Crown when a government administrative decision is under contemplation that has the potential to have an adverse impact on an asserted Aboriginal or treaty right of which the government has actual or constructive knowledge.⁵ As specifically decided by the Supreme Court of Canada in the 2004 Haida Nation decision that inaugurated the modern, proactive form of this duty, the duty to consult does not apply to third parties, such as industry proponents—it is a duty owed by the Crown as a result of potential impacts of a contemplated government decision.⁶

From the early years in the application of the duty to consult doctrine, the implications of such a duty for administrative boards and tribunals generated a variety of questions. The Supreme Court of Canada engaged with these questions in 2010 in its Rio Tinto v Carrier Sekani decision.⁷ There, the Court effectively established that the role of a particular administrative board or tribunal in relation to the duty to consult would be that set out in its enabling statute. Some tribunals could be set up to carry out consultation, others to assess consultation carried out by others, and others to have no role in respect of consultation at all. In the latter case, of course, the duty to consult would not disappear but would simply need to be carried out in other ways. Thus, the way in which the duty to consult was to be fulfilled was left to a determination by government as to in what ways it would organize itself to meet the duty.⁸

Prior to the Supreme Court of Canada’s Rio Tinto decision, the Federal Court of Appeal ruled in 2009 on how to handle a particular sort of situation where the Crown was not a party to proceedings before the National Energy Board. In Standing Buffalo, that Court held that the duty to consult is not triggered in the context of those applications where the Crown is not a party because the National Energy Board is the final decision-maker.⁹

There are such situations under a different provision of the National Energy Board Act,¹⁰ separate from those provisions where the Board makes a recommendation to the Governor-in-Council—for, in practical terms, a decision by the federal Cabinet—as has been more prominent in the media in the context of larger pipeline applications. These different provisions situate the National Energy Board differently, which had been behind the very different conclusion that resulted for this specialized situation.

That 2009 decision in Standing Buffalo, it bears noting, was known to the Supreme Court of Canada at the time of the Rio Tinto case. A particular timeline is worth noting: an application for leave in Standing Buffalo was filed on 23 October 2009, Rio Tinto was decided on 28 October 2010 without any reference to Standing Buffalo, and leave to appeal was denied in Standing Buffalo on 2 December 2010.¹¹ The thirteen-month time for the leave determination in Standing Buffalo thus ran through the period when the Court was deciding Rio Tinto. Nonetheless, the relationship of Standing Buffalo to Rio Tinto was not clarified, and the Supreme Court of Canada left everyone to guess at the legal effect of its decision on the Federal Court of Appeal precedent until the recent cases.

Both of the recent cases relate to specialized circumstances analogous to those in Standing Buffalo. Both pertain principally to treaty rights issues potentially impacted by a National Energy Board decision.¹² In both, the National Energy Board was the final decision-maker, and the doctrine embodied in Standing Buffalo would imply that there was no separate duty to consult by the federal executive required outside of the National Energy Board process. This was precisely the case in Chippewas of the Thames under section 58 of the National Energy Board Act.¹³ It was also arguably the case in Clyde River due to the special rules under the Canada Oil and Gas Operations Act (COGOA),¹⁴ although the National Energy Board’s position in that context accepted by the Federal Court of Appeal was that the NEB provided a process that the Crown could rely upon for purposes of the duty to consult rather than that the duty to consult was not triggered.¹⁵

Given the Supreme Court of Canada’s failure to be clear in 2010 on the ongoing status of the Standing Buffalo rule, there was a plausible doctrinal position that it continued to apply so as to suggest that the duty to consult is not triggered when the Crown is not a party to an application. However, the Chippewas of the Thames case saw the Federal Court of Appeal panel split, with Rennie J.A. writing a dissent suggesting that Standing Buffalo had been overturned by the 2010 Rio Tinto decision.

At the Supreme Court of Canada, there was a position taken by all parties that the Standing Buffalo rule no longer applied, with the respondents themselves arguing for an approach to the cases based on the duty to consult being fulfilled through the National Energy Board regulatory process. This was the position that the Court adopted. It stated clearly that the Standing Buffalo rule no longer applies.¹⁶ And it ultimately articulated a complex role for the National Energy Board. Because the NEB is making a final decision on behalf of the Crown, its decision-making triggers the duty to consult; at the same time, the NEB’s regulatory process can fulfill the duty to consult, and it can and must make a decision on whether the duty to consult has been fulfilled.¹⁷

There is thus an important conclusion from these cases that Crown consultation can be fulfilled entirely through the regulatory process where a regulatory body is appropriately empowered.¹⁸ The making of a final decision in the public interest seems apt to mark out a significant role in relation to the duty to consult. As the Court states, “[a] decision to authorize a project cannot be in the public interest if the Crown’s duty to consult has not been met.”¹⁹ That statement does not turn the duty to consult into a trump over other elements of the public interest. The Court adds that:

“[n]evertheless, this does not mean that the interests of Indigenous groups cannot be balanced with other interests at the accommodation stage. Indeed, it is for this reason that the duty to consult does not provide Indigenous groups with a ‘veto’ over final Crown decisions.”²⁰ The Court thus integrates the duty to consult into the regulatory process in circumstances where it can.

The specific facts of the two cases led to different results, albeit consistently with the same underlying principles. In Clyde River, the Court identified several problems with the way in which consultation had occurred, some of them distinctive issues arising from the Nunavut context. The circumstances required deep consultation because of an agreed significant impact on marine mammals over which there were harvesting rights under a modern treaty.²¹ However, there were relatively limited opportunities to participate, no oral hearings, and no participant funding. There was also evidence of information that needed to be presented to communities not being available in the local language and being practically unavailable altogether because it was delivered in electronic files of a size that it was effectively impossible to download at the bandwidth available in Nunavut. Between a number of flaws, the Court concluded that the duty to consult had not been met.²²

In Chippewas of the Thames, the duty to consult was met. The process would have met the requirements of even relatively deep consultation, even if that was not required in the circumstances of the case. There were hearings held, with clarity to Indigenous communities that these fulfilled consultation and would lead to a decision, and there were good opportunities to participate. Ultimately, there was accommodation in so far as conditions imposed on the pipeline reversal responded to issues raised. Based on different circumstances and different facts, the Court said consultation requirements were met.²³

Even if some tried to comment on the alleged inconsistency of the Court rendering two different results, the reality that different factual circumstances could lead to different results should be no surprise. At a principled level, both cases reaffirm and nuance duty to consult elements in parallel ways. Both affirm that a regulatory process can fulfill the duty to consult.²⁴ Both emphasize that a legal duty to consult process must be attentive to impacts on Aboriginal and treaty rights.²⁵ Both develop the idea of the provision of written reasons being an important element of consultation, with significant discussion of such reasons showing respect to the Aboriginal participants in consultation and establishing attentiveness to the rights issues raised.²⁶ Both emphasize the need for adequate opportunities to participate in consultation, including through the availability of participant funding, when deeper consultation is at issue.²⁷

While the requirements of the duty to consult in a particular case continue to depend on the spectrum analysis for the required depth of consultation, there is the option available simply of meeting the requirements of deep consultation where that is what a regulatory process provides. That said, project proponents may need to be ready to take action to ensure that certain aspects are met. Both cases evidence the National Energy Board’s practices having developed to take significant account of Aboriginal and treaty rights even in cases where it might legally have shirked that element in light of past case law. Without being under direct legal instructions to do so, the NEB itself effectively developed an approach that largely met the duty to consult, although it had to operate within its statutory mandate. In the COGOA context in Clyde River, its statutory mandate did not empower it to take some of the steps that now led to the determination that it had not met the duty to consult. It may be that the presently contemplated adjustments to the NEB will ensure that it has the necessary mandate in future, but it may also remain the case that project proponents need to be ready to step into some roles. For example, a project proponent that wants to get its project done may need to factor in the cost of itself providing participant funding—even if that ought in principle to be something provided by the Crown—where providing it is the difference in the requirements of the duty to consult being met.

There is more that one might say about these specific decisions. They are obviously packed with much important content. But they mark a reaffirmation and nuancing of duty to consult elements more than any transformation of the doctrine. They do, though, have significant novel elements in how the duty to consult bears on energy regulatory bodies in casting them in potentially complex roles where they bear a fulsome responsibility for all aspects of the duty to consult. How that plays out in contexts going beyond the NEB warrants further attention.

3. Implications for Other Energy Regulators: Examples of the Alberta Utilities Commission and the Canadian Nuclear Safety Commission

The National Energy Board, although probably not anticipating over the years the role ultimately identified for it in these decisions, had nonetheless been developing a significant role for consideration of Aboriginal issues as part of its decision-making. The Chippewas of the Thames decision, in particular, affirms that the right NEB processes have already been meeting the requirements of the duty to consult. However, other energy regulators must now contemplate how their processes line up with the new realities ushered in by these decisions. For some, these decisions will imply changes and may imply some temporary challenges. For others, their proactive developments of a role for Aboriginal issues may situate them well. Two brief examples serve to flesh out this contrast.

First, the Alberta Utilities Commission (AUC) stands as an example of an energy regulator that may face some issues as a result of these decisions. Notably, an October 2016 AUC decision had relied upon the Standing Buffalo rule in holding that the AUC had no role in considering or assessing consultation with an Aboriginal community in the context of a decision on an application where the Crown is not present—with this case being the subject of recent discussion in this journal.²⁸ That conclusion can simply no longer stand. The Standing Buffalo rule has now been rejected, so it cannot serve as the basis for such a decision. And to the extent that the AUC makes a decision in the public interest, the present cases now suggest that its consideration must actually extend to whether the duty to consult was met, in so far as a decision cannot be in the public interest if the duty to consult has been violated.

The recent commentary in this journal on the October 2016 AUC decision had highlighted the practical advantages resulting from it. The authors of that commentary wrote as follows:

For the AUC, issues regarding Crown consultation and impacts on Aboriginal groups are most likely to arise in the context of facilities applications, such as transmission lines and power (including wind, hydro and gas) plants. The ruling provides some assurance to proponents of these projects that, going forward, the Commisison [sic] will no longer need to postpone regulatory proceedings to consider this question. It also confirms that the AUC’s focus will continue to be on the proponent’s consultation with stakeholders, including Aboriginal groups, pursuant to AUC requirements and guidelines. This may help to limit the scope of matters addressed within AUC proceedings where Aboriginal groups are intervening.²⁹

Each of these practical advantages in the AUC context is now arguably put into question. There is no longer an assurance to proponents that regulatory proceedings will not be slowed by consideration of consultation issues. On the contrary, there is an argument that consultation issues must now become part of proceedings. AUC requirements and guidelines may well need to be adapted in light of the reality of a final determination based on the public interest needing to take account of duty to consult. And the scope of matters at issue may well be expanded.

There was no intervention at the Supreme Court of Canada in Chippewas of the Thames and Clyde River by the AUC, or even by the Attorney General of Alberta—only the Attorneys General for Ontario and Saskatchewan sought to inject perspectives into the proceedings. There may thus have been no particular attention by the Court to the potential impacts for Alberta’s particular system of energy regulatory bodies. But there likely now are some significant results for some of these bodies. That presents meaningful issues for a province where the energy sector and energy regulation play profound roles. There will need to be attention now to analyzing all of the specific impacts of the Supreme Court’s decisions, what adjustments may be necessary in response, and how to deal with various temporary issues that may arise in terms of changes to process that may be immediately mandated in light of the Supreme Court of Canada undermining precedents that bodies like the AUC relied upon as recently as late 2016.

Second, by contrast, some energy regulatory contexts may face less dramatic issues arising from the decisions. One example might be the Canadian Nuclear Safety Commission (CNSC) context. While engaging proponents significantly in the process, the CNSC has nonetheless proactively developed its role in relation to duty to consult such that it has effectively sought to make duty to consult determinations part of its normal course of operations for a number of years now.³⁰ Licensees have very specific requirements on them in terms of Aboriginal engagement, developed through specific regulation by the CNSC,³¹ and the record of that engagement specifically becomes part of the consultation record.³² Although there may be particular details to review, the processed embodied in the CNSC approach would appear to be compliant with the various aspects of the duty to consult reaffirmed in the present decisions. Careful past work to implement relatively fully the deeper duty to consult elements unfolded in past cases would seem now to position the CNSC to face relatively fewer implications arising from the new decisions.

The point that arises is that there may well be a range of different consequences from the present decision in different energy regulatory contexts. There is no single straightforward statement to be made. Those energy regulators that continued to rely on the Standing Buffalo rule, even if it was an entirely plausible doctrinal position, may have thereby missed implementing some of the purposive dimensions of the duty to consult in a way that now renders their regulatory processes subject to more implications and more vulnerabilities in light of the present decisions. Those energy regulators that took more proactive steps in relation to deeper duty to consult initiatives may face fewer immediate consequences.

These various effects may well be relatively random. There is little in the record in the cases to suggest that the Court had awareness of the practical consequences of its decisions for the range of specific scenarios that they do affect. Indeed, the entire way the law is developing in this area has some relatively unpredictable dimensions, a point that can be reinforced by considering how the present decisions fit with a prominent recent decision of great consequence.

4. An Alternative Northern Gateway History

In the context of the $8 billion Northern Gateway pipeline project pursued by Enbridge from early in this century up to last year, the Federal Court of Appeal decision in Gitxaala Nation v Canada casts a long shadow in terms of the potential unexpected implications of the duty to consult.³³ The present decisions may highlight just how much of a random shock the decision was.

After massive efforts by the proponent, the Northern Gateway Project saw a successful recommendation of the project by a National Energy Board Joint Review Panel in December 2013 and approval of the project by the Governor in Council in June 2014. However, after argument in early October 2015, in a decision of June 2016, a majority of a divided panel in the Federal Court of Appeal in Gitxaala held that there had been imperfections in the last phase of consultation—that occurring between the Joint Review Panel recommendation and the Governor in Council decision. The result was that the Court would quash the approval of the project while sending it back for further consultation and reconsideration by the Governor in Council. In September 2016, both the Attorney General of Canada and the proponent announced that they would not appeal from that decision. Presumably, more consultations were to follow, but in November 2016 there was an announcement simply that the government would not proceed with further steps on the project and was thus effectively rejecting the pipeline, having been permitted to do so by the June 2016 decision.

In the Gitxaala decision, the majority had reasoned as if sending the matter back for consultation and further consideration by the Governor in Council was a simple remedy that had no inherent effect against the project.³⁴ The unreality of that approach in light of the time lags involved, though, came to fruition. The Cabinet deliberations would be led not by Prime Minister Harper but by Prime Minister Trudeau, with the latter having had a track record of statements against the specific project. The remedy had definitive effects against the project in light of the late October 2015 election and change in government.

That decision possibly highlights more than any other some of the ongoing potential unpredictability of the duty to consult doctrine, its requirements, and its consequences. The Gitxaala decision affirmed the appropriateness of all phases of consultation leading up to the recommendation of the Joint Review Panel, which recommended approval of the project subject to over two hundred conditions. The panel split two-to-one over imperfections in the phase of consultation after that recommendation and preceding the final decision of the Governor in Council. Given that the Harper government was generally supportive of the project, one logically has to assume that the efforts made during that stage were what the government thought was legally necessary—it would not have deliberately done less consultation than necessary so as to sink the project. So, making the best possible legal determinations on what was needed, the Government of Canada was not able to determine that in light of the jurisprudence and its uncertainties, and the result was the quashing of the decision by a majority decision in the Federal Court of Appeal. The split decision there simply emphasizes that not even a judicial panel could agree on what was required.

The Chippewas of the Thames and Clyde River decisions now show the Supreme Court of Canada taking a relatively practical approach to the duty to consult doctrine and affirming that a regulatory process may fully meet the requirements of the duty to consult. Although these decisions are from the specialized context in which the National Energy Board is the final decision-maker, one might reasonably ask if a different context in which the Governor in Council is the final decision-maker might nonetheless fully rely on the regulatory process in relation to consultation. Where extensive efforts at consultation precede a National Energy Board recommendation, there may frankly be little to be gained by additional, decontextualized consultation between that recommendation and a final Governor in Council decision.

In a context like the Northern Gateway decision, there would be an argument to be made that consultation leading up to the recommendation might be all that is needed. The present Supreme Court of Canada decisions might well imply that the Gitxaala case was wrongly decided in fundamental ways when it resulted in the quashing of a massive energy infrastructure project by two judges focusing on certain imperfections in consultation at a stage that may not have been necessary anyway. The present decisions may well imply that there was actually a legal entitlement to build Northern Gateway that was effectively snatched away in acts of what was effectively lawlessness.

Frankly, many uncertainties remain in the duty to consult, and that represents a massive problem in terms of resource development projects that depend upon a predictable legal environment. The present decisions, without saying so, arguably undermine a leading case that epitomizes uncertainty in this context. But they do not solve all issues of uncertainty. Far from it. And there are steps that a variety of stakeholders ought to be considering in response.

5. The Supreme Court of Canada and the Energy Sector: Tackling Polycentricity

Earlier parts of this paper have highlighted that the Chippewas of the Thames and Clyde River decisions have implications not just for the National Energy Board but for a range of other energy regulatory bodies. They have also highlighted that although in some ways these decisions seek simply to reaffirm many dimensions of the duty to consult, they have a more profound significance in stating where the duty to consult doctrine stands. What is apparent in all of this is that these decisions had effects that would be well described by the concept of polycentricity.

To say that is to say in a pricey word that these decisions involved many interacting considerations and had many interacting effects. At the same time, one wonders if the Court was actually aware of the extent of these potential considerations and effects. As highlighted earlier, there was no intervention at the Court concerning the potential impacts on energy regulation bodies in Alberta, which of course always stands to be significantly affected by decisions bearing on energy regulation in Canada.

Many Indigenous rights cases share this characteristic of polycentricity. At the same time, many are receiving far fewer intervenors than one might expect in light of this characteristic, at least in terms of interventions from the energy sector. When the Supreme Court of Canada hears the appeal in the Mikisew Cree First Nation decision in early 2018 concerning whether legislative action triggers the duty to consult, for instance, there are a number of Indigenous groups and organizations that have sought and gained intervenor status, but only one non-government group (Advocates for the Rule of Law) sought and obtained intervenor status to defend the parliamentary process from the imposition of new duty to consult requirements.

The duty to consult, and other Indigenous rights issues, are continuing to develop in case law that may have profound effects for energy regulation. Those involved in the sector obviously watch these developments, but there may well be good reason to do something other than merely watch judges potentially continue away at rendering economic activity in Canada more challenging. Every case in this context deserves more attention than it is receiving.

*Dwight Newman is a Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan.

1. Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41[Chippewas of the Thames]; Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 [Clyde River].
2. This commenced in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 [Haida Nation]. For discussion, see Dwight G Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (Saskatoon: Purich, 2009); Dwight G Newman, Revisiting the Duty to Consult Aboriginal Peoples (Saskatoon: Purich, 2014; Dwight Newman, “The Section 35 Duty to Consult”, in Patrick Macklem, Peter Oliver & Nathalie des Rosiers, The Oxford Handbook of Canadian Constitutional Law (Oxford: Oxford University Press, 2017).
3. See Martin Ignasiak, Jessica Kennedy & Justin Fontaine, “Alberta Utilities Commission Confirms It Has No Jurisdiction to Assess Crown Consultation” (2016) 4:4 Energy Regulation Quarterly 71, discussing Fort McMurray West 500-kV Transmission Project, Ruling on jurisdiction to determine the questions stated in the Notices of Questions of Constitutional Law, AUC Proceeding 21030.
4. See Haida Nation, supra note 2 at paras 16, 26.
5. Haida Nation, ibid at para 35; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650, at para 31 [Rio Tinto].
6. Haida Nation, supra note 2 at para 53.
7. Rio Tinto, supra note 5 at para 55.
8. See discussion in Newman, Revisiting the Duty to Consult, supra note 2 at 19-21.
9. Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc, 2009 FCA 308, leave to appeal to SCC denied (2 December 2010, SCC File No 33480) [Standing Buffalo].
10. National Energy Board Act, RSC 1985, c N-7. See sections 51-58 for the sections bearing on the present discussion.
11. SCC File No 33480 (2 December 2010).
12. Clyde River pertained to modern treaty rights in relation to harvesting of marine mammals potentially impacted by permission for marine seismic testing. Chippewas of the Thames pertained mainly to historic treaty rights potentially impacted in the course of a pipeline reversal, although the community also asserted Aboriginal title claims to “the bed of the Thames River, its airspace, and other lands throughout their traditional territories” (Chippewas of the Thames, supra note 1 at para 7)—parts of this statement raise profound issues concerning the scope of Aboriginal title, but the present paper cannot deal with every issue that arises.
13. National Energy Board Act, supra note 10, s 58.
14. Canada Oil and Gas Operations Act, RSC 1985, c O-7.
15. The Federal Court of Appeal decision was 2015 FCA 179.
16. Clyde River, supra note 1 at paras 27, 38-39; Chippewas of the Thames, supra note 1 at paras 35-37.
17. Chippewas of the Thames, supra note 1 at para 34; Clyde River, supra note 1 at paras 27-37.
18. Chippewas of the Thames, supra note 1 at paras 32ff.
19. Ibid at para 59.
20. Ibid.
21. Clyde River, supra note 1 at 43-44.
22. Clyde River, ibid.
23. Chippewas of the Thames, supra note 1.
24. Chippewas of the Thames, supra note 1 at paras 44-48; Clyde River, supra note 1 at 46.
25. Clyde River, supra note 1 at 45; Chippewas of the Thames, supra note 1 at 64.
26. Chippewas of the Thames, supra note 1 at 62-63; Clyde River, supra note 1 at 41.
27. Chippewas of the Thames, supra note 1 at 51; Clyde River, supra note 1 at 47-49.
28. See Ignasiak, Kennedy & Fontaine, supra note 3.
29. Ignasiak, Kennedy & Fontaine, ibid.
30. See Canadian Nuclear Safety Commission, Codification of Current Practice: Canadian Nuclear Safety Commission (CNSC) Commitment to Aboriginal Consultation (August 2011).
31. See Canadian Nuclear Safety Commission (CNSC), REGDOC-3.2.2, Aboriginal Engagement.
32. See Canadian Nuclear Safety Commission, supra note 30.
33. Gitxaala Nation v Canada, 2016 FCA 187 [Gitxaala].
34. Ibid at paras 333-341 (partly commenting at para 335 on how the further process “need not take long”, thus suggesting that the majority judges thought the remedy of no particular long-term consequence against the project).