On July 26, 2017, the Supreme Court of Canada released two landmark decisions in the companion cases of Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al. and Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al.
These cases were heard by the Supreme Court on November 30, 2016. Together, they raise the important question of the proper role of administrative boards and tribunals in ensuring the Crown's duty to consult and accommodate Indigenous people is fulfilled prior to the issuance of decisions with the potential to affect Indigenous rights.
The Court dismissed the appeal in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al., holding that the National Energy Board (the "Board") adequately consulted the Chippewas of the Thames First Nation (the "Chippewas") and that the potential impacts of the approved project were minimal. The Court found that the Board adequately consulted prior to approving the proposed project by taking actions, such as issuing notice to the Chippewas with regards to the Board's process and role, and granting funding to ensure that the Chippewas did, in fact, participate by filing written submissions and making oral submissions at the hearing.
In the companion case of Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al., the Supreme Court held that the consultation process had been inadequate and ordered a quashing of the Board's decision to allow for seismic testing off the coast of Baffin Island. Specifically, the Supreme Court held that the Board's process failed to properly assess the potential impacts of the project on the asserted Inuit rights. The Court further held that it was not made clear to the Inuit that the Crown would be relying on the regulatory process to discharge its duty to consult. The Court was also critical of the lack of participation funding provided to the Appellants and the lack of meaningful opportunities for their participation in the process. Finally, the Court held that the changes made to the project as a result of the concerns raised by the Inuit were insignificant in light of the potential severity of the impacts.
The detailed facts of each case, together with an analysis of the decisions, are set out below.
Chippewas of the Thames First Nations v. Enbridge Pipelines Inc.
In March, 2014, the National Energy Board approved a certificate allowing for the reversal of the flow of heavy crude oil in an existing pipeline between North Westover, Ontario and Montréal, Quebec. The Board's decision also exempted Line 9 from certain regulatory requirements and procedures ordinarily required to expand the capacity of a pipeline transporting heavy crude oil (the "Project").
At the Board hearing, the Chippewas asserted that neither the Crown nor the Board engaged in meaningful consultation with it regarding the nature of its asserted Aboriginal rights and interests or the potential impact of the Board's decision on those rights and interests. The Crown was not a party to and did not participate in the Board's proceeding despite repeated requests by the Chippewas for the Crown to engage in consultation regarding the Project.
Without identifying or addressing the Chippewas' asserted Aboriginal and treaty rights or assessing whether the Crown had satisfied its constitutional duty to consult and accommodate regarding the potential impact of the Project, the Board approved the application and concluded that it was "satisfied with the level of Aboriginal engagement Enbridge conducted for the Project given the nature and scope of its application."
The Chippewas appealed the decision of the Board to the Federal Court of Appeal.
On appeal, the Chippewas asserted that inadequate consultation occurred in relation to their Aboriginal, treaty and title rights in respect of lands and waterbeds affected by the Project.
Relying on Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., the Federal Court of Appeal dismissed the appeal, finding that, in the absence of the Crown as a participant in the original application, the Board was not required to determine whether the Crown was under a duty to consult and, if so, whether the duty had been discharged. More specifically, in the absence of the Crown's participation in Enbridge's application, the Board was not required to determine whether the Crown was under a Haida duty and whether the Crown had discharged that duty. The Court found that there had been no delegation to the Board of the Crown's duty to consult in relation to the Project.
In his dissent, Rennie J.A. disagreed with the majority regarding the application of Standing Buffalo, holding that it should no longer be followed given the Carrier Sekani decision. Rennie J.A. also noted that the Federal Court of Appeal erred in relying on Standing Buffalo, where there had been many years of unproductive discussions between the First Nation and the Crown, whereas there have been none in this case.
Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA
TGS-NOPEC Geophysical Company ASA ("TGS") applied to the National Energy Board for authorization to embark on a five-year long marine seismic survey program in the waters of Baffin Bay and Davis Strait, off the coast of Baffin Island, Nunavut. Traditionally, nearby Inuit groups relied upon the harvest of marine mammals in Baffin Bay and the adjoining Davis Strait for food and economic security. The Appellant argued that the harm to the Hamlet of Clyde River and other communities would be irreparable and that inadequate consultation had occurred. No additional consultation beyond what the Board conducted was carried out by the Crown. Despite the concerns raised by the Appellant and the lack of consultation by the Crown, the Board approved the project.
The Inuit of Clyde River brought an application for judicial review of the Board's approval arguing, among other things, that the Crown did not discharge its duty to consult and that the public participation process through the Board was not a sufficient substitute for formal consultation with Indigenous groups. The Federal Court of Appeal dismissed the application for judicial review, holding that the Crown had discharged its duty to consult, that the Inuit were meaningfully consulted on their rights and that an appropriate level of accommodation was undertaken in response to their concerns.
The Court held that the Board had a mandate to engage in a consultative process and the Crown could rely on the Board's regulatory process to meet its duty to consult.
Supreme Court Decisions
Both decisions were appealed to the Supreme Court of Canada.
Issues Brought to the Supreme Court of Canada
The decisions of the Supreme Court in the companion cases of Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al. and Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al. raised the important question of the proper role of the National Energy Board, and other similarly constituted boards and tribunals who act as final decision-makers under their enabling statutes, in assessing and/or fulfilling whether the Crown has discharged its obligations to consult and accommodate Indigenous groups prior to issuing decisions that have the potential to adversely impact Aboriginal and treaty rights. This question is particularly important in circumstances where the Crown is not a party to the proceedings and, in fact, purports to rely on the board or tribunal to address potential impacts on Aboriginal rights resulting from decisions.
The Supreme Court clarified that, where a board or tribunal like the National Energy Board makes a final decision that can impact Indigenous rights, the decision constitutes Crown conduct and engages the Crown's duty to consult and accommodate. As a statutory body, exercising delegated Crown authority, the National Energy Board acted on behalf of the Crown in issuing the decisions in the companion cases. Thus, these decisions attracted the Crown's obligation to consult and, where necessary, accommodate. The Court further held that administrative tribunals have broad powers to hear and determine all relevant matters of fact and law and, accordingly, must assess whether the Crown has discharged its duty to consult. These decisions must conform to s. 35(1) of the Constitution Act, 1982.
The Supreme Court also held that an agency's duty to ensure adequate consultation is not dependent on the Crown's participation in the regulatory or administrative process. While the Supreme Court held that the Crown may rely on administrative bodies to fulfill its duty to consult, that body must be adequately empowered to discharge that duty. If the agency's statutory powers are insufficient, or it fails to adequately consult, the Crown must provide additional avenues for consultation prior to approval. The Court also held that interested Indigenous groups must be notified that the Crown intends to rely on the administrative process to fulfill its duty.
In the case of Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al., the Court stated that the Board's powers under s. 58 of the National Energy Board Act were sufficient to discharge the Crown's obligations and held that it had, in fact, discharged its obligations in this case. The Court attached significance to the facts that the Chippewas had been provided with participant funding, the opportunity to make both written and oral submissions to the Board, and had been provided with written reasons for the decision to approve the project which addressed the concerns raised by it. The Supreme Court further stated that the duty to consult is not a vehicle to address historical grievances, holding that the issue to be considered instead is the adequacy of consultation in the context of the current decision and its potential to impact rights. However, the Court stated that any cumulative impacts from historical actions may respectively inform the scope of the duty to consult.
Similarly, in Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al., the Court held that the Board has both the procedural powers necessary to implement consultation and the remedial powers to accommodate Aboriginal claims despite not adequately doing so in this case. In deciding that inadequate consultation had occurred in this case, the Court noted that no meaningful avenues of participation were provided to the Inuit, that they received no participant funding and no oral hearing was held. The Court also held that the Board failed to address concerns raised by the Inuit regarding the impact of the proposed activity on their asserted rights.
Through the work of Max Faille, Jaimie Lickers and Guy Régimbald, Gowling WLG is honoured to have represented the Intervener, the Chiefs of Ontario, on these important cases at the Supreme Court.
 Chippewas of the Thames at para 59.
 Chippewas of the Thames at para 79.
 Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 1792, at paras 2-3.
 Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222, at paras 19-20 [Chippewas of the Thames].
Prepared with assistance by Zainab Fayyaz, summer law student in the Gowling WLG Hamilton office.