Supreme Court releases landmark decisions on role of regulatory bodies in fulfilling Crown's duty to consult with Indigenous peoples

26 July 2017

Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., [2017] 1 SCR 1099, 2017 SCC 41

Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., [2017] 1 SCR 1069, 2017 SCC 40

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 Nov. 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 ("NEB") adequately consulted the Chippewas of the Thames First Nation and that the potential impacts of the approved project were minimal. The Court found that the NEB adequately consulted prior to approving the proposed project by taking actions, such as issuing notice to the Chippewas with regards to the NEB'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.

Gowling WLG represented the Chiefs of Ontario, an intervener in each these cases, with a team that included Max Faille, Jaimie Lickers and Guy Régimbald.

Read our detailed case commentary.

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