The Duty to Consult and Accommodate: Supreme Court of Canada Rules on the Role of Regulatory Processes

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The Supreme Court of Canada has released two highly anticipated decisions on the role of regulatory bodies in fulfilling the Crown’s duty to consult with Indigenous groups and to accommodate their interests. Following brief summaries, we discuss a few significant takeaways from the decisions.

Clyde River (Hamlet) v. Petroleum Geo-Services Inc, 2017 SCC 40

In this case, the Inuit of Clyde River sought judicial review of an authorization by the National Energy Board (the “NEB”) of an offshore seismic oil and gas exploration project. It was not disputed that the testing could negatively affect their treaty rights, and the Inuit alleged that the Crown had failed to meet its duty to consult in approving the project.

The Court unanimously concluded that the Crown had breached its duty to consult in respect of the proposed testing, and quashed the NEB’s authorization. In doing so, the Court found that the NEB process itself constituted Crown action that triggered the duty to consult, and that the NEB, as a tribunal empowered to decide questions of law, can consider whether the duty to consult has been met and may only proceed to approve a project if Crown consultation is adequate.

While the Crown may rely on steps taken by a regulatory agency to fulfill the duty, the Crown has the ultimate responsibility for fulfilling the duty to consult. In this case, the Court found that the NEB’s process fell short of the deep consultation required in the circumstances: the Crown’s reliance on the NEB’s process was not made clear to the Inuit; the process failed to adequately consider the impact of the proposed testing on the affected treaty rights; and opportunities for participation and consultation were limited by a lack of participant funding and an absence of oral hearings.

Chippewas of the Thames First Nation v. Enbridge Pipelines Inc, 2017 SCC 41

Here, the Chippewas of the Thames First Nation (the “Chippewas”) sought judicial review of an approval by the NEB of a modification of the Line 9 pipeline owned by Enbridge Pipelines Inc. (“Enbridge”). The proposed modification would reverse the flow of part of the pipeline, increase its capacity and enable it to carry heavy crude, thereby increasing the assessed risk of spills along the pipeline, which crossed the Chippewas’ traditional territory.

The Court unanimously concluded that the Crown’s duty to consult was met by the process undertaken by the NEB in approving Enbridge’s application. In contrast to Clyde River, in this case the NEB had held an oral hearing, provided early notice of the hearing process to affected Indigenous groups and sought their formal participation, provided the Chippewas with participant funding which allowed them to prepare and tender evidence, and provided adequate written reasons. Additionally, the Chippewas were able to pose formal information requests to Enbridge, to which they received written responses, and to make closing oral submissions to the NEB.

The Court affirmed that where the Crown’s duty to consult has been triggered, a decision maker may only proceed to approve a project if Crown consultation is adequate. Although agreeing with the Federal Court of Appeal (the “FCA”) in the result, the Court overruled the FCA’s holding that the NEB was not required to consider whether the Crown’s duty to consult had been discharged before approving a pipeline application when the Crown did not formally participate in the NEB’s hearing process—stating that the Crown’s constitutional obligation does not disappear when the Crown acts to approve a project through a regulatory body such as the NEB.

The Court also commented that the Crown should provide adequate notice to affected Indigenous groups that it will be relying on consultation performed by a regulatory agency, however, the Court considered the Chippewas to have adequately gleaned such information from surrounding circumstances, despite explicit notice from the Crown coming only after the hearing process had concluded.

Significance

These two decisions provided important guidance on the duty to consult. While the Supreme Court affirmed a number of established principles, the following are a few significant highlights:

Direct Crown Consultation is Not Required

It is settled law that the Crown may rely on consultative steps taken by an administrative body to satisfy its duty to consult, but Chippewas now makes clear that an administrative body can satisfy the duty in whole and a final decision can be made with no direct consultation by the Crown.

Whether a particular administrative body is able to completely satisfy the duty to consult will depend on the powers it has been given, but the Supreme Court has clearly signalled that it is willing to uphold the delegation of the performance of this constitutional duty to administrative bodies that it finds competent.

While this may signal an erosion of the constitutional protection and the opportunity to foster reconciliation that the duty to consult is meant to provide, the Supreme Court did maintain that the Crown holds the ultimate responsibility for ensuring that the duty is met. If the consultation by the regulatory body is not sufficient, the Crown will be required to go further. However, this may be cold comfort to Indigenous groups hoping that these concerns would be heard by persons with the power to initiate the broader governmental actions or changes that reconciliation may require, as opposed to a regulatory body with potentially limited ability to carry out reconciliation through conditions to approval.

Role of Administrative Bodies in Consultation

As one may expect, there are certain constitutional requirements that apply to a regulatory body that is able to make final decisions impacting Aboriginal and treaty rights without any direct consultation by the Crown. With these two decisions, the Supreme Court also clarified that:

  • a contemplated administrative decision can itself be Crown conduct triggering the duty to consult;
  • decision-makers empowered to decide questions of law can consider whether the duty to consult has been met, and indeed must do so where the issue of adequacy of consultation is raised; and
  • a decision-maker may only approve a project if Crown consultation is adequate.

With these requirements, the Supreme Court addressed the concerning decision of the Federal Court of Appeal in Chippewas. In that decision, the majority had held that the NEB was not required to consider whether the duty to consult had been discharged before approving a pipeline application when the Crown did not formally participate in the NEB hearing process. In effect, the Crown could delegate decision-making power to a tribunal, but the duty to consult would not follow unless the Crown itself got involved.

Instead, the Supreme Court sided with the dissenting judge at the FCA and made clear that the Crown’s constitutional obligation does not disappear when the Crown acts to approve a project through a regulatory body like the NEB. Whether the Crown is there or not, a regulatory body must ensure that its decisions that may themselves be considered Crown conduct are consistent with the duty to consult.

That said, while these are important safeguards, the onus is still on the affected Indigenous groups to raise these issues of adequacy of consultation, which may ultimately become a routine practice.

Factors Indicating Adequate Consultation

In both cases, the Supreme Court identified a number of factors that indicate the adequacy of the consultation process. As an example of adequate consultation, in Chippewas, the NEB had:

  • provided an oral hearing
  • provided early notice of the hearing process
  • formally sought the participation of affected Indigenous groups
  • provided participant funding to prepare and tender evidence
  • enabled formal information requests to Enbridge, to which written responses were received
  • accepted closing oral submissions from affected Indigenous groups
  • provided reasons for its decision that expressly weighed impacts on Aboriginal and treaty rights
  • provided written and binding conditions of accommodation

The process at issue in Clyde River lacked a number of the above factors, but one of the major failings highlighted by the Supreme Court was that the consultation process and the reasons were too focused on whether the testing was likely to cause significant adverse environmental effects. No consideration was given in the environmental assessment to the source of the treaty rights to harvest marine mammals, nor the impact of the proposed testing on those rights.

While the degree of consideration required in each case will vary, these decisions indicate that regulatory agencies are required to show how asserted Aboriginal and treaty rights have been taken into consideration and accommodated where appropriate, and that this can no longer simply be subsumed within an environmental assessment.

The Crown Must Make Clear its Reliance on Consultation Performed by a Regulatory Body

In both cases, the Supreme Court explained that where the Crown intends to rely on the processes of a regulatory body to fulfill its duty to consult, in whole or in part, the honour of the Crown requires that this reliance be made clear to affected Indigenous groups. This helps ensure the appropriate participation of Indigenous groups by making clear to them that consultation is being carried out through that process.

Such notice was absent in Clyde River, but even in Chippewas the notice from the Crown only came after the NEB hearing process had concluded. Nevertheless, the Court found that the Crown had provided adequate notice, as it was sufficiently clear from that the NEB would be the final decision maker, and there was no other Crown entity involved in the process for the purposes of carrying out consultation.

The result is that while the Crown should be making its reliance clear, this is not a strict requirement. If there is any uncertainty as to whether the Crown will be relying on certain consultative processes, Indigenous groups and industry alike may be well advised to seek clarification.

Historical and Cumulative Impacts

Finally, the Supreme Court took the opportunity in Chippewas to address the fact that parties had raised historical and cumulative impacts of the Line 9 pipeline as influencing the scope of the duty to consult.

Citing Carrier Sekani, the Court reiterated that the subject of consultation is the adverse impact of the current decision under consideration, which in this case was limited to the modification of the pipeline, and not necessarily the broader impacts of Line 9 as it currently existed or the circumstances of its original approval in 1976. However, referring to West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, the Supreme Court expanded on this to say that historical and cumulative impacts can permissibly inform the scope of the duty to consult, as they are part of recognizing the existing state of affairs so that the consequences of the project under consideration can be addressed.

Although this discussion in Chippewas was perhaps a bit of an aside, it may be useful when a proposed project is small, but connected to a broader and more complicated context.