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ABORIGINAL TREATY RIGHTS - Duties of the Crown - Fair dealing and reconciliation - Consultation and accommodation

Wednesday, July 26, 2017 @ 1:58 PM  


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Appeal by the Hamlet of Clyde River, the Nammautaq Hunters & Trappers Organization and Natanine, former mayor of Clyde River, from a judgment of the Federal Court of Appeal affirming a decision of the National Energy Board (NEB). The respondents, TGS-NOPEC Geophysical Company ASA, Multi Klient Invest As and Petroleum Geo-Services Inc. (proponents), applied to the NEB to conduct offshore seismic testing for oil and gas resources. It was undisputed that this testing could negatively affect the harvesting rights of the Inuit of Clyde River, who relied on marine mammals for food and for their economic, cultural, and spiritual well-being. Under the Nunavut Land Claims Agreement (1993), the Inuit of Clyde River ceded all Aboriginal claims, rights, title, and interests in the Nunavut Settlement Area, including Clyde River, in exchange for defined treaty rights, including the right to harvest marine mammals. After a period of consultation among the project proponents, the NEB, and affected Inuit communities, the NEB granted the requested authorization under s. 5(1)(b) of the Canada Oil and Gas Operations Act (COGOA). The NEB launched an environmental assessment of the project. Clyde River opposed the seismic testing, and filed a petition against it with the NEB. Throughout the environmental assessment process, Clyde River and various Inuit organizations filed letters of comment with the NEB, noting the inadequacy of consultation and expressing concerns about the testing. In its environmental assessment (EA) report, the NEB discussed consultation with, and the participation of, Aboriginal groups in the NEB process. It concluded that the proponents “made sufficient efforts to consult with potentially-impacted Aboriginal groups and to address concerns raised” and that “Aboriginal groups had an adequate opportunity to participate in the NEB’s EA process”. Clyde River applied to the Federal Court of Appeal for judicial review of the NEB’s decision to grant the authorization. The Court of Appeal also concluded that the Crown’s duty to consult had been satisfied by the nature and scope of the NEB’s processes.

HELD: Appeal allowed. While the Crown could rely on steps undertaken by a regulatory agency to fulfill its duty to consult in whole or in part and, where appropriate, accommodate, the Crown always held ultimate responsibility for ensuring consultation was adequate. In circumstances where the Crown was relying on the processes of a regulatory body to fulfill its duty in whole or in part, it should be made clear to affected Indigenous groups that the Crown was so relying. The NEB’s approval process, in this case, triggered the duty to consult. The action of the NEB, taken in furtherance of its statutory powers to make final decisions respecting seismic testing, clearly constituted Crown action. The NEB had the procedural powers necessary to implement consultation and the remedial powers to, where necessary, accommodate affected Aboriginal claims, or Aboriginal and treaty rights. Its process could therefore be relied on by the Crown to completely or partially fulfill the Crown’s duty to consult. The NEB could also determine whether the Crown’s duty to consult had been fulfilled. Where the Crown’s duty to consult an affected Indigenous group with respect to a project under the COGOA remained unfulfilled, the NEB was required to withhold project approval. And, where the NEB failed to do so, its approval decision should be quashed on judicial review, since the duty to consult must be fulfilled prior to the action that could adversely affect the right in question. When affected Indigenous groups squarely raised concerns about Crown consultation with the NEB, the NEB would usually be required to address those concerns in reasons, particularly in respect of project applications requiring deep consultation. In the present case, the Crown acknowledged that deep consultation was required. However, the consultation process provided by the NEB fell short in several respects. The NEB’s environmental assessment did not consider the treaty source of the appellants’ right to harvest marine animals or the impact of the proposed testing on those rights. Further, although the Crown relied on the processes of the NEB as fulfilling its duty to consult, that was not made clear to the Inuit. The significance of the process was not adequately explained to them. The process provided by the NEB also did not fulfill the Crown’s duty to conduct deep consultation. Despite the NEB’s broad powers under the COGOA, limited opportunities for participation and consultation were made available to the appellants. There were no oral hearings, and although the appellants submitted scientific evidence to the NEB, this was done without participant funding. Although the appellants had the opportunity to question the proponents about the project during NEB meetings, the proponents were unable to answer basic questions about the effect of the proposed testing on marine mammals. Further, although the proponents did eventually respond to these questions, they did so by submitting a 3,926 page document to the NEB which was largely inaccessible to the appellants. In view of the Inuit’s established treaty rights and the risk posed by the proposed testing to those rights, the consultation process was significantly flawed. The Crown breached its duty to consult the appellants in respect of the proposed testing. Accordingly, the NEB’s authorization was quashed.

Clyde River (Hamlet) v. Petroleum Geo-Services Inc., [2017] S.C.J. No. 40, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., July 26, 2017. Digest No. TLD-July242017014SCC