The Supreme Court of Canada shed new light on the Crown’s constitutional duty to consult with Aboriginal communities and clarified the role and obligation of decision-making bodies in two separate decisons that has the potential of providing greater predictability for natural resources companies seeking regulatory approval.
In companion decisions, the nation’s highest court handed mixed results to Inuit and First Nations groups who challenged decisions by the National Energy Board (NEB), a regulatory agency.
In one, the SCC unanimously held that the NEB failed to adequately assess the impact on Inuit’s treaty rights and weigh the risk posed by seismic testing to the community’s treaty rights to hunting.
“This is important because Nunavik Inuit have a similar right to harvest marine mammals,” David Schulze, a Montreal lawyer specializing in aboriginal law. “Protections of those rights must now take precedence when the government assesses development in the directly adjacent waters of the Nunavik marine region.”
In the other ruling, the top court held that the “duty to consult is not the vehicle to address historical grievances” and that Indigenous communities do not have a veto over proposed resource projects. Still, the SCC set a high bar. The government and regulatory agencies must ensure that the rights of Indigenous communities are fully considered and accommodated.
- Triggering the duty: In both cases the Supreme Court found that if the regulatory body has the power to make a final decision on a regulatory application, and that decision affects treaty or Aboriginal rights, then the duty is triggered when the regulatory process begins. While the NEB operates independently and is not strictly speaking the Crown or an agent of the Crown, it acts on behalf of the Crown when making a final decision on a project authorization.
- Can the Crown rely on the NEB’s process to fulfill the duty to consult: This is a procedural issue, said Schulze. “Government ministers or cabinet do not need to consult Aboriginal peoples directly,” added Schulze. “They can do so through the approval and assessment process offered by administrative tribunals such as the NEB.” But the SCC also made clear that where the Crown relies on the processes of a regulatory body to fulfill its duty to consult, that reliance should be made clear to affected Indigenous peoples, said Thomas Isaac, a lawyer with Cassels Brock with an expertise in aboriginal law.
- The NEB’s role in considering Crown consultation before approval: The NEB may only proceed to approve a project if consultation has been adequate. “Where the Crown’s duty to consult an affected Indigenous group with respect to a project remains unfilled, the NEB must withhold project approval,” said the SCC. This is an important finding, said Schulze.
The decisions provide “useful bookends” to help better under the nature and obligations of the Crown’s duty to consult as it applies to regulatory bodies and other government decision-makers, said Isaac.
The law firm Fasken Martineau DuMoulin LLP has a slightly different take. In a legal bulletin it said that these decisions “dispel the uncertainty” regarding the NEB’s jurisdiction in dealing with the duty to consult.
The law firm Osler, Hoskin & Harcourt LLP points out that the decisions largely confirm previously established legal principles. But “they also provide additional clarity for regulatory processes that do not involve direct Crown action and establish helpful goalposts for processes that satisfy the Crown’s obligations and those that fall short.”
Some Aboriginal leaders are disappointed. Assembly of First Nations (AFN) National Chief Perry Bellegarde said its time to implement the United Nations Declaration on the Rights of Indigenous Peoples.
“The federal government has endorsed the UN Declaration without qualification in Canada and internationally,” said Bellegarde. “Implementation of the Declaration will reduce conflict and court cases and ensure our rights are respected.”
Ontario Regional Chief Isadore Day said she is concerned. “There are still some outstanding questions as to whose role is it to consult?”