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Nelligan O’Brien Payne gratefully acknowledges the contribution of Victoria Craine, Student-at-Law in writing this blog post.

A 2015 decision by the Federal Court of Appeal in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. has once again raised questions about the role of tribunals in the consultation process, as set out by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests). With the case scheduled to be heard by the Supreme Court of Canada today, now is a good time to look at the decision under appeal and consider what is at stake.

Enbridge owns and operates a pipeline known as “Line 9”, which runs through the traditional territory of the Chippewas of the Thames First Nation (COTTFN). This pipeline has existed since 1975. In 2012, Enbridge applied to the National Energy Board (the NEB) for authorization to reverse the flow of hydrocarbons, increase the capacity of Line 9 and transport heavy oil.

While Enbridge had engaged in discussion with the COTTFN, the First Nation was concerned about the project’s potential impacts on their Aboriginal and treaty rights. Its leaders wrote to various federal ministers requesting government consultation on the project in accordance with the consultation principles set out in Haida. However, the Crown did not reply to this letter until after the NEB had concluded its hearings, nor did the Crown participate in the hearing.

The NEB acknowledged the potential threats that the project posed to the COTTFN’s traditional land use, but concluded that any impacts would be minimal and appropriately mitigated. Accordingly, it approved Enbridge’s proposal.

The COTTFN asked the Federal Court of Appeal to quash this decision on the basis that the NEB could not approve Enbridge’s application until it was satisfied that the Crown had fulfilled any existing duty to consult and accommodate affected Indigenous groups.

A majority of the Federal Court of Appeal determined that, where the Crown does not participate in a proceeding, the NEB’s mandate does not require it to determine whether the Crown’s duty to consult has been discharged.

For the Court, the fact that the Crown was not a party to the application was significant. To begin with, the Court did not think the NEB could render a fair decision on the consultation question if it heard evidence only from the COTTFN and not also from the Crown. Second, while the NEB has the power to decide constitutional questions that are properly before it, the Court was not convinced that the question of consultation was “properly before” the NEB if the Crown was not directly involved in the project. Third, the Court reasoned that it would not be appropriate to deny Enbridge’s application on the basis of the Crown’s failure to consult, thereby inconveniencing the company and using the approval process as “leverage” to force Crown participation in the process.

The Court also noted that the NEB does not have the power to consult on the Crown’s behalf, because it had not been delegated such power by the Crown.

Justice Rennie wrote a dissenting opinion, arguing that the Crown cannot avoid its Constitutional duty to consult merely by delegating the final decision-making to a tribunal or refusing to engage in the decision-making process.

Under the circumstances of this case, he reasoned, the NEB must have, and exercise, the power to assess whether the duty to consult has arisen, and to refuse the application if there is an unfulfilled duty to consult. Otherwise, the regulatory regime would allow for the approval of projects that may adversely affect Aboriginal and treaty rights, without the Crown ever consulting the Indigenous group in question.

Under the applicable provision of the National Energy Board Act, the Crown did not have the power to block the NEB’s approval. Therefore, the NEB was effectively the ultimate decision-making authority on this issue (subject to a review of its decision by the courts). The Board therefore had the responsibility to ensure that the duty to consult had been discharged before it approved an action that could infringe an Aboriginal or treaty right.

The dissenting decision added that the honour of the Crown and the Constitutional rights of Indigenous peoples outweigh the inconvenience to the proponent.

This case raises some important questions about the duty to consult and the responsibility to make sure that consultation happens. Administrative tribunals like the NEB wield enormous power over land use and other activities that affect the rights of Indigenous peoples. It is a system that the federal and provincial governments created in order to promote efficiency, but if the Crown’s Constitutional duties to Indigenous peoples are to be respected, the system must provide effective and practical solutions for potential infringements on Aboriginal and treaty rights.

In our view, the dissenting opinion was the right decision. It is noteworthy that the construction of the pipeline on COTTFN territory in 1975 was undertaken without consultation having ever taken place, notwithstanding its significant impacts on Aboriginal or treaty rights. More importantly, the end result of the majority decision would be that many projects having significant impacts on Aboriginal rights and title would evade the duty to consult and accommodate simply because the Crown is not a party to the project. This would be inconsistent with the purpose of consultation and accommodation, which is to seek reconciliation between Aboriginal peoples’ interests and rights and those of the broader society.

Do a tribunal’s responsibilities with respect to the duty to consult depend on the Crown’s presence (or absence) in a proceeding? The Supreme Court of Canada’s answer to this question will have widespread impacts.

If you have more questions about this case or the duty to consult, contact our Indigenous Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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