Rulings to show the way
In two companion rulings, the Supreme Court of Canada recently clarified in a very concrete and helpful manner how the National Energy Board regulatory process, Indigenous consultation by the federal Crown and companies seeking permits must work when Indigenous rights are at stake.
In Chippewas of t he Thames First Nation v. Enbridge Pipelines Inc., the court found that the consultation during the NEB’s assessment process of an application by Enbridge for a modification to its Line 9 pipeline was “manifestly adequate.” The court acknowledged that the NEB had reviewed the written and oral evidence of numerous Indigenous groups and identified, in writing, the rights and interests at stake. The court also reaffirmed points of great significance, including the fact that the duty to consult is not the vehicle to address historical grievances, and that it does not provide Indigenous groups with a veto over Crown decisions.
In Clyde River v. Petroleum Geo- Services Inc., the court looked at how seismic tests offshore Baffin Island being proposed by PGS, some within sight of the Clyde River shoreline, could affect the rights of Inuit, notably the right to harvest marine mammals, and how the NEB and Crown consultation processes dealt with the potential impacts.
The court reconfirmed that the NEB is not, strictly speaking, “the Crown.” However, it provided much needed additional clarity, indicating that the NEB, as the body exercising executive authority, was a vehicle through which the Crown acted. As a result, an NEB decision to approve or deny an application can be considered to be “Crown conduct,” triggering the duty to consult and accommodate.
The court also reiterated past principles that consultations during the regulatory process can be relied on, in whole or in part, to fulfil the Crown’s duty to consult and accommodate. This reliance is appropriate even if there is no separate government body ( other than the regulatory decision- maker) participating in that process, and even if that regulatory body is the f i nal decision- maker. In addition, when Indigenous groups have squarely raised concerns about Crown consultation, the NEB must address those concerns in the written reasons for its decision. Where the Crown’s duty to consult remains unfulfilled, the NEB must withhold project approval.
These cases, both ruled on July 26th, should remove any doubt that the consultations that occur during a regulatory process may be considered when assessing the adequacy of Crown consultation, and assist in clarifying the role of regulatory agencies exercising delegated executive authority.
On the facts before the court in Clyde River, the court found that the NEB did not inquire explicitly into the impact of the proposed seismic tests on Indigenous treaty rights themselves. No consideration was expressed in the NEB’s decision on the source of the Inuit’s treaty rights, or on the impact of the proposed t esti ng on t hose rights, other than indirectly through the NEB’s environmental assessment. The court found this approach inadequate. This flaw was compounded by the f act that, although the Crown relied on the NEB process to fulfil its duty to consult, the intention to rely on the NEB’s process was not made clear to the Inuit.
The court also had harsh words about the NEB’s way of consulting in the review process for Clyde River. It indicated that “there were no oral hearings and there was no participant funding. While these procedural safeguards are not always neces- sary, their absence in this case significantly impaired the quality of consultation.” One should bear in mind that the legislation under which the NEB reviewed the PGS application ( the Canada Oil and Gas Operations Act) was entirely different from the legislation under which the Enbridge Line 9 pipeline application was assessed ( the National Energy Board Act).
The COGO act did not provide for formal public hearings or for participant funding for seismic testing applications in 2011 — these changes were made after this application was decided through the enactment of Bill C- 22 in February 2015. While it did not have formal “oral public hearings,” the NEB held public meetings to hear comments from all interested parties, including meetings in the spring of 2013 in Iqaluit, Qikiqtajuak, Pond Inlet and Clyde River. In the media release that came out with the decision in June 2016, the NEB indicated that “never before has there been this level of public participation in the Board’s Environmental Assessment process for a Geophysical Operations Authorization.”
Through these rulings, the Supreme Court of Canada has reiterated that the NEB continues to be vitally engaged in the proper functioning of our advanced democracy.