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ABORIGINAL LANDS - Aboriginal and treaty rights - Duties of the Crown - Fair dealing and reconciliation - Consultation and accommodation

Wednesday, July 26, 2017 @ 2:06 PM  


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Appeal by the Chippewas of the Thames First Nation (Chippewas) from a judgment of the Federal Court of Appeal affirming a decision of the National Energy Board (NEB). The Court was called upon to examine the Crown’s duty to consult with Indigenous peoples before the NEB, an independent regulatory agency, authorized Enbridge Pipelines (Enbridge) Inc.’s Line 9 pipeline project. Enbridge applied to the NEB for approval of a modification of Line 9 that would reverse the flow of part of the pipeline, increase its capacity and enable it to carry heavy crude. These changes would increase the assessed risk of spills along the pipeline, which crossed the Chippewas’ traditional territory. The Chippewas requested Crown consultation before the NEB’s approval, but the Crown signalled that it was relying on the NEB’s public hearing process to address its duty to consult. After the NEB approved Enbridge’s proposed modification, the Chippewas brought an appeal from that decision to the Federal Court of Appeal, arguing that the NEB had no jurisdiction to approve the Line 9 modification in the absence of Crown consultation. The majority of the Federal Court of Appeal dismissed the appeal.

HELD: Appeal dismissed. Because Enbridge’s requested increase in flow capacity and change to heavy crude could potentially adversely affect the Chippewas’ asserted Aboriginal and treaty rights, the Crown had an obligation to consult with respect to the project application. The responsibility to ensure the honour of the Crown was upheld lay with the Crown. However, administrative decision makers had both the obligation to decide necessary questions of law raised before them and an obligation to make their decisions within the contours of the state’s constitutional obligations. The NEB’s contemplated decision on the project’s approval amounted to Crown conduct. The Crown could rely on steps taken by an administrative body such as the NEB to fulfill its duty to consult. As the final decision maker on certain projects, the NEB was obliged to consider whether the Crown’s consultation with respect to a project was adequate if the concern was raised before it. The circumstances of this case made it sufficiently clear to the Chippewas that the NEB process was intended to constitute Crown consultation and accommodation. Notwithstanding the Crown’s failure to provide timely notice that it intended to rely on the NEB’s process to fulfill its duty to consult, its consultation obligation was met. Even taking the strength of the Chippewas’ claim and the seriousness of the potential impact on the claimed rights at their highest, the consultation undertaken in this case was manifestly adequate. The NEB’s written reasons were sufficient to satisfy the Crown’s obligation, and the Crown’s duty to consult was met.

Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., [2017] S.C.J. No. 41, 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-July242017015SCC