SCC clarifies role of National Energy Board in consultation process

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“No one benefits – not project proponents, not Indigenous Peoples,
and not non-Indigenous members of affected communities –
when projects are prematurely approved only to be subjected to litigation.” (Clyde River, para 24)

Two new Supreme Court of Canada (SCC) cases were released today, clarifying the Crown’s duty to consult and accommodate Indigenous Peoples, and the role of the National Energy Board in decisions that affect Aboriginal lands and rights.

This morning, the SCC released its long-awaited decisions in Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA (TGS) et al and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc..

The cases provide important guidance on the scope of consultation required when the duty to consult falls at the “high” end of the spectrum.  They also clarify that the National Energy Board (NEB) can both undertake consultation that satisfies the Crown’s duty to consult, and assess whether consultation was adequate.

What did the SCC say about consultation generally?

The cases are very clear that consultation and accommodation are required by the constitution with respect to every Crown decision that can affect Aboriginal and Treaty rights.

They are also clear that the courts expect the Crown to be transparent about the process it has set up to consult and accommodate Indigenous peoples. What the process is shouldn’t be obscured in a bureaucratic cloud. Settler governments need to tell Indigenous peoples what the process is, and where they are in the process.

The cases also discuss what is required to satisfy a duty of “deep consultation”- that is, the consultation required when an Indigenous group has a strong claim to an Aboriginal or treaty right and where the potential impacts of a proposed project on that right are significant.

The Court said that deep consultation may require:

• the opportunity to make submissions;
• formal participation in the hearing process;
• written reasons showing how Indigenous communities’ concerns were considered and addressed (focusing on the impact of the project on the asserted right and not just environmental impacts more generally);
• participation opportunities for affected Indigenous groups, and funding to support their participation;
• an oral hearing to present evidence;
• funding to allow the Indigenous community to submit its own scientific evidence;
• the opportunity to present evidence, test the evidence of the proponent and make final arguments;
• consideration of barriers created by limited technology access (for example, lack of easy access to the internet); and,
• participation as panel members in an environmental assessment panel.

But the Court is also careful to say that assessing whether consultation was adequate calls for a “case by case” analysis.  An important question in assessing whether consultation is sufficient in any given case will be whether the consultation process enabled the parties to come to a “mutual understanding on the core issues” — the potential impact on rights, and possible accommodations.   This emphasis on “mutual understanding” means that funding and processes to enable Indigenous groups to present their own evidence and views, and meaningful and accessible information from project proponents are key parts of deep consultation.

What did the SCC say about the role of the NEB?

The role of the NEB in consultation processes was a big issue in both cases. Who is supposed to be talking with Indigenous communities about these projects? Who is supposed to decide, at the end of the day, if an Indigenous community has been properly consulted and — more importantly — if the concerns they’ve raised have actually been addressed?  Can the NEB play these roles on its own, or is a Minister of the Crown required either to participate in consultation or to assess whether the duty to consult is fulfilled?

It turns out the NEB can both consult and decide whether consultation was adequate.

Because the NEB can hold hearings, elicit further information and order studies, order funding to support the participation of Indigenous groups in the hearing process, and order accommodation, the Supreme Court said the NEB has the right powers to enable it to fulfill the Crown’s duty to consult.  Ministers of the Crown do not necessarily need to participate directly in the consultation process before the NEB.   However, Indigenous groups have a right to know if the Crown intends to rely on a regulatory process like the NEB process to satisfy its duty to consult. And, if an Indigenous group is a party to a modern treaty, and perceives the consultation process to be deficient, it should request direct Crown engagement in a timely manner. 

The NEB is also charged with assessing whether the consultation process was adequate to satisfy the Crown’s duty to consult.  The Court says the NEB must not approve a project where the Crown has not fulfilled its duty to consult and accommodate.   If it does, the decision will be quashed on judicial review.  If an Indigenous group thinks the NEB’s consultation process was inadequate, it should raise the issue before the NEB. 

What kind of reasons does the NEB have to give?

When Indigenous groups have “squarely raised concerns about Crown consultation” before the NEB, the NEB will usually have to address those concerns in its reasons.  It is not enough for the NEB to address environmental impacts generally – the focus has to be on the impact of the project on the rights asserted by the Indigenous group.  The Court says this is important for two reasons:  first, because written reasons foster reconciliation by showing that asserted rights were actually considered and addressed; and second, because reasons promote better decision-making.

However, the NEB does not need to undertake a formal Haida Nation analysis where it assesses the strength of the claim to the asserted right and the depth of the impact of the project before it determines whether consultation was adequate. All that is required is that the NEB “explain how it considered and addressed” Indigenous concerns [Clyde River, para 42], 

What about the role of other tribunals?

It all depends on the statute that gives the tribunal its powers. 

Generally, if a tribunal has the power to decide questions of law, it will be required to assess whether the Crown has satisfied its duty to consult before it issues any project approvals. 

The court seems to expect the Crown to clearly lay out powers for tribunals to listen to Indigenous peoples. Tribunals should also have clear powers to minimize the impact on Aboriginal and Treaty rights. Absent those powers, it’s hard to see how the tribunal can consult and accommodate at all. In that case, someone else within the Crown must do the consultation and accommodation instead.

Whether the Crown may rely on a tribunal to do the actual consultation depends on whether the tribunal’s statute gives it the power to provide meaningful consultation and accommodation.  For example, does it have the power to order that Indigenous groups be funded to participate?  Can it hear evidence?  Hold hearings? Order that Indigenous groups be accommodated?   All of these questions will be important to determining whether the Crown can rely on a tribunal to conduct consultation. 

Where the Crown wants to rely on a tribunal to satisfy the consultation process, it has to let the affected Indigenous groups know that.  However, in Chippewas of the Thames, the Court held that the notice the Chippewas of the Thames received was good enough, even though the Crown did not alert them it intended to rely on the NEB’s process directly until after the NEB hearing.  It was enough that the Chippewas of the Thames had notice of the NEB hearing, participated in it, and knew the Crown was not planning to participate.

Is the duty to consult and accommodate triggered by the NEB process even if the Crown does not participate?

One of the live issues before the Federal Court of Appeal was whether the duty to consult and accommodate could even be triggered if a Minister of the Crown did not participate in the NEB process.  Is the NEB really the Crown?

The Supreme Court confirmed that even though the NEB isn’t strictly speaking “the Crown,” it acts for the Crown in the NEB regulatory approvals process.  Where the NEB makes a final decision about a project that could impact asserted or proven aboriginal rights, its decision will trigger the duty to consult and accommodate.

Cumulative Impacts Matter

Another issue in Chippewas of the Thames was how cumulative impacts figure into the duty to consult analysis.  At issue in the case was a modification to the Line 9 pipeline that ran through the Chippewas of the Thames’ territory.  The modification itself posed real risks to the Chippewas’ rights.  However, to fully understand the scope of the impact would be impossible without attention to the cumulative impact of pipeline work in the area. 

The Court said that these cumulative impacts are part of the picture.  Even though the focus of the duty to consult is not on “historical grievances,” it may be impossible to understand the seriousness of the impact of a project without considering this larger context of ongoing and cumulative effects.  These effects can properly inform the scope of the duty to consult.   For Indigenous groups whose territories have been traversed by pipelines for many years, this offers some foothold for broader recognition of the serious cumulative effects that typically arise.

The big picture

There have been many calls for, and many commitments to, the need for reconciliation between Canada and Indigenous Peoples. Justice Binnie began the SCC decision in Mikisew twelve years ago by noting that, “[t]he fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.”  Since then, Canada has adopted the UN Declaration on the Rights of Indigenous Peoples and committed to implementing its principles. The Liberal Party campaigned on a promise of a ‘renewed, nation-to-nation relationship with Indigenous Peoples based on recognition, rights, respect, cooperation and partnership.” More recently, the Truth and Reconciliation Commission delivered its final report, including the 92nd call to action calling on Canada to commit to ‘meaningful consultation, building respectful relationships and obtaining free, prior and informed consent before proceeding with economic development projects.”

In these cases, the Court emphasized that “True reconciliation is rarely, if ever, achieved in courtrooms” [Clyde River, at para 24].   And in fact, the contribution of these decisions to larger process of reconciliation is modest.   The Court helpfully clarified the NEB’s role in the consultation process.  Now, the Crown has to let Indigenous groups know if they plan to rely on the NEB to satisfy its consultation obligations. And the Court also emphasized that the goal of consultation is “mutual understanding of the core issues” — the potential impact on treaty rights, and possible accommodations.  This signals that factors like the (funded) participation of Indigenous groups in the process; and meaningful and timely information will be relevant to whether “mutual understanding” is achieved.

But the decisions also sidestep an important practical aspect of reconciliation: the decision in the Chippewas of the Thames case minimizes the very real modern and ongoing consequences of existing development (where proper consultation did not occur) on the ability to achieve reconciliation when dealing with new projects. While the Court signals that cumulative impacts are part of the larger context to be considered when determining the potential impact of a project, it stops short of giving these impacts the central role they often deserve. This is an issue particularly for historic treaty communities like Chippewas of the Thames.  The Supreme Court of Canada continues to have difficulty getting a handle on the rights of historic treaty communities to continue their relationship with their traditional lands and resources, particularly as compared to the rights of Indigenous signatories to modern treaty agreements, like the Inuit of Clyde River.

The decisions also fall short of endorsing the principles in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and especially the principles of Free, Prior, Informed Consent (FPIC), as the hallmarks of “deep consultation.”  This is unfortunate, since FPIC and UNDRIP represent the product of decades of work by Indigenous groups and governments to establish practical principles for consultation that work for everyone.

OKT has produced a set of FAQs about what these cases mean for Indigenous Peoples seeking to hold the Crown to its duty to consult and accommodate and we will be sharing a more detailed analysis in coming days.

By Krista Nerland, Matt McPherson and Lorraine Land