New FCA decision creates dangerous loophole to the duty to consult and accommodate

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A recent decision of the Federal Court of Appeal (“FCA”) has muddied the waters regarding the role of the administrative tribunals in Crown-Aboriginal consultation and effectively diminished the duty of tribunals to assess the adequacy of Crown consultation in respect of project applications before them. The decision, Chippewas of the Thames First Nation v Enbridge Pipelines Inc, creates a dangerous loophole to the duty to consult and accommodate and allows the Crown to dodge its constitutional duty by delegating decision-making to arms-length tribunals and ensuring the proponent is a private party.

The duty to consult is a constitutional duty that is grounded in the Honour of the Crown. The duty is triggered when government decisions have the potential to adversely affect Aboriginal interests, and as the Supreme Court has said, “It must be met.” (For a general overview on the duty to consult, you can read our “primer” that we attached to a previous blog post).  The duty to consult protects Aboriginal rights and interests from unilateral Crown action, even before those rights or interests are proven in court. It is the legal mechanism through which reconciliation is to be effected and must be meaningful, in good faith, and intended to substantially address concerns.

This appeal arose from the decision of the National Energy Board (“NEB”) to approve an application by Enbridge for the Line 9B Reversal and Line 9 Capacity Expansions Project (“Project”). Line 9 is located in the traditional territory of Chippewas of the Thames First Nation (“COTFN”) and crosses the Thames River. COTFN has Aboriginal and treaty rights in the Thames watershed, and asserts a claim of Aboriginal title over the bed of the Thames River and its resources, a claim that has yet to be heard by a court.

After the NEB approved the Project, COTFN brought an appeal of this decision by way of judicial review to the FCA and requested that the NEB’s decision be set aside. COTFN argued that the NEB was without jurisdiction to issue exemptions and authorizations to Enbridge before the Crown fulfilled its duty to consult with and accommodate the COTFN.

The FCA was split 2-1 in its decision. The majority of the FCA concluded that tribunals are not required to determine the adequacy of Crown consultation where the Crown is not the proponent or a party to the proceedings before the tribunal. The dissent, on the other hand, concluded the opposite and found that tribunals should consider adequacy of consultation, regardless of whether the Crown is a proponent or  a party to the tribunal proceedings. The FCA thus denied COTFN’s appeal. In denying the appeal, the FCA not only has diminished the role of tribunals in Crown-Aboriginal consultation, but has also set a dangerous precedent that allows for the approval of projects which may adversely affect Aboriginal and treaty rights without the Crown ever consulting with the Aboriginal groups in question. This decision will have serious practical implications for Aboriginal groups seeking to be consulted on projects which may adversely affect their rights.

Background

Enbridge engaged in discussions with the COTFN, but there was no consultation with the federal Crown (“Crown”). On September 27, 2013 COTFN wrote to several ministers of the Crown, including the Minister of Natural Resources, and noted its concerns with respect to the effect of the Project upon its Aboriginal and treaty rights and requested the Crown to immediately initiate a consultation process. No response to the letter was made by the Crown until three months after the conclusion of the NEB hearing process, when the Crown wrote and stated that it was committed to meeting its legal duty to consult and to that end relied on the NEB process to address potential impacts to Aboriginal and treaty rights stemming from the Project, which it felt provided for an  open, comprehensive and participatory venue to express concerns and interests.

In October 2013, the NEB hearing process, which COTFN was a part of, was completed. The Crown did not participate in the hearing. At the hearing, COTFN described its Aboriginal and treaty rights, and the potential threats to these rights, through written evidence and oral representations. In final argument, COTFN asserted that the NEB was required to decline to grant the Project approvals requested by Enbridge until Crown consultation occurred.

The NEB acknowledged the potential threat that the Project could pose to the traditional land use of COTFN, but was satisfied by Enbridge’s representation as to the safe operation of Line 9 and felt that any impacts on COTFN rights would be minimal and appropriately mitigated. The NEB approved the Project, from which the COTFN appealed.

The issues on appeal were: whether the NEB was required to determine the adequacy of Crown consultation and whether the NEB itself had been delegated the power to undertake the fulfillment of the duty to consult on behalf of the Crown in relation to the Project.

The Majority View on the Duty to Review the Adequacy of Crown Consultation

In determining whether the NEB had the duty to review the adequacy of Crown consultation, the FCA reviewed both Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc., 2009 FCA 38 [“Standing Buffalo”] and Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [“Carrier Sekani”].

Standing Buffalo stipulated that tribunals have no obligation to review the adequacy of Crown consultation in respect of project applications and are also under no obligation to discharge the duty themselves. Carrier Sekani, a decision which followed Standing Buffalo, clarified the role of tribunals in Crown-Aboriginal consultations. Carrier Sekani had practical significance for Aboriginal people with questions of who is required to consult and which approval bodies are required to consider the adequacy of such consultation. The case stated that a tribunal may have a duty to consult and a duty to determine adequacy of Crown consultation depending on the mandate given to it by the legislation.

Despite Carrier Sekani being the leading case on this issue, the FCA decided to distinguish it and instead apply Standing Buffalo. The majority placed significant weight on the participation of the Crown in the proceeding before the tribunal. In Carrier Sekani the Crown was a party to the proceeding and was seeking approval for a project, whereas in Standing Buffalo the party in the proceeding was a private proponent. The SCC in Carrier Sekani did not explicitly address whether a tribunal is obligated to make determinations on the duty to consult in a proceeding in which the Crown is not a party. The majority of the FCA felt that as a result of this silence, Carrier Sekani does not establish that a tribunal must make a determination on the adequacy of consultation regardless of the participation of the Crown and does not overrule Standing Buffalo. In the opinion of the majority of the FCA, to decide otherwise would mean that a proponent’s approval could be denied because of a failure of the Crown, which in the view of the FCA, would not promote reconciliation of interests. Thus, in the absence of the Crown as a participant, tribunals are not required to determine whether the Crown is under a duty to consult and whether the duty is discharged. In other words, projects can be approved without ever considering the duty to consult. The Crown can sit on the sidelines and avoid its constitutional duty by delegating project decisions to tribunals and ensuring proponents are private parties and not the Crown itself.

The Duty to Consult

The FCA was unable to find any provision of the NEB Act that could be interpreted to delegate the duty to consult to the NEB and concluded that requiring the NEB to consult with the First Nations on behalf of the Crown would make it very difficult, if not impossible, to then adjudicate in its capacity as a quasi-judicial tribunal upon the issue of the adequacy of those consultations. The FCA, however, left open the question of whether some formal type of disposition other than legislation could be employed by the Crown to produce an effective delegation of the duty to consult.

The Dissent

The dissenting opinion provided a much more logical and practical approach that is in tune with developing case law.

Justice Rennie, writing for the dissent, felt that the foundation on which Standing Buffalo was based was altered by Carrier Sekani, such that it should no longer be followed. In Carrier Sekani there is a clear distinction between the duty to consult and the duty to assess adequacy of consultation. Justice Rennie concluded that the power to decide questions of law implies a power to decide constitutional issues that are properly before it, unless there is a clear intention to exclude this power. Carrier Sekani changed the question from being whether the Crown is seeking relief or permission from the NEB, to one that focuses on the legislative mandate given to the NEB by Parliament so that the Crown’s participation in proceedings cannot alter responsibilities with respect to the duty to consult. According to Justice Rennie, Carrier Sekani is clear that the NEB is required to consider adequacy of consultation, regardless of the project proponent.

Justice Rennie felt that the NEB must have the power to review adequacy and the power to refuse an approval if there is an unfulfilled duty, or risk the outcome that a proponent could go through the hearing and have their application approved while the Crown remains silent on the sidelines. This would allow infringing projects to be approved without consultation of Aboriginal communities. This is particularly so where the tribunal is the final decision maker and the Crown lacks statutory authority to prevent an application from being approved. In the opinion of Justice Rennie, the inconvenience that would be experienced by a private proponent as a result a tribunal’s power to review adequacy of the duty to consult and refuse an approval would  be of little significance given that the duty to consult is a constitutional duty.

The Result

As is stated by Justice Rennie in the dissent, the consultation as envisioned by the majority will essentially allow the Crown to make the duty to consult disappear merely by delegating decision-making to arms-length tribunals and ensuring the proponent is a private party. If the proponent is a private party and the Crown has no role in the decision-making, the Crown can avoid consultation. The majority’s decision will also leave consultation as an after-thought, leaving the Aboriginal group with no recourse to vindicate the right to be consulted but through litigation. Enforcing the duty to consult is expensive enough and many Aboriginal groups are inadequately resourced to bring legal challenges to enforce their right. Neither of these results are practical or in the spirit of reconciliation.

Whether or not the Crown’s duty to consult is fulfilled should not depend on whether the proponent is a Crown party or a private party. The Crown’s presence in a proceeding also should not alter the responsibilities of the tribunal with respect to the Crown’s duty of consultation.  In both cases it is the Crown that has the duty to the Aboriginal groups and they are obliged to consult as early and as often as necessary.

We here at OKT will be watching closely to see if COTFN appeals this decision as it sets a dangerous precedent that must be clarified by the SCC. In the meantime, it will be interesting to see how this decision factors into the upcoming NEB hearing process for the Energy East Pipeline. The Crown has already made clear that the NEB will not be assessing the adequacy of the duty to consult and that it intends to rely on the NEB review process, to the extent possible, to meet the Crown’s duty of consultation. This is contrary to the declaration of the FCA in this case that the NEB is incapable of fulfilling the duty to consult.

By Gillian Paul