Two decisions by the Supreme Court of Canada have further clarified the Crown’s duty to consult with Indigenous groups on projects that may affect their rights and interests. Both cases involved projects under the National Energy Board’s (NEB’s) jurisdiction. In one (Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.), the court found that the NEB had properly consulted with affected Indigenous groups. In the other (Clyde River (Hamlet) v. Petroleum Geo-Services Inc.), the court found that it had not.
The two cases revolved around two related questions: 1) whether the Crown’s constitutional duty to consult with Indigenous groups can be exercised by an administrative and regulatory agency like the NEB; and 2) if it can, how must that body go about meeting the standard of meaningful consultation and accommodation.
The Chippewas case involved an application by Enbridge Pipelines Inc. to reverse the flow on a portion of an oil pipeline linking Sarnia and Montreal. The line crosses land used by Indigenous groups for traditional purposes.
The Clyde River case involved an application by Petroleum Geo-Services Inc. to conduct offshore seismic testing for oil and gas that could negatively affect the treaty rights of the Inuit of Clyde River, Nunavut.
The NEB approached the two applications differently. In the Chippewas case, the affected First Nations were given adequate notice of proceedings, participant funding, the opportunity to provide meaningful input into the decision, and had their concerns considered by the NEB and reflected in the final decision.
Almost none of that happened with the Clyde River case. There were no oral hearings. There was no participant funding. Responses were slow to come and largely inaccessible. There was no mutual understanding of the issues, and the changes to the project resulting from the consultation were trivial when weighed against the concerns raised by the Inuit of Clyde River.
In the Clyde River case, the inquiry focussed on environmental effects and their impact, when it should have focussed on Inuit treaty rights, according to the court.
The two decisions state conclusively that the Crown’s duty to consult can be met by an administrative decision-making body, provided that body does it right. First of all, the body must have the necessary authority to do everything that a proper consultation requires. It must begin the process by informing affected groups that it is acting on behalf of the Crown, and must proceed with all the necessary steps (which will vary, depending upon the strength of the claim and issue being considered) to ensure meaningful and effective consultation that preserves the honour of the Crown.