The Crown’s duty to consult and accommodate – 3 upcoming cases at the SCC to watch

Earlier this month, the Supreme Court of Canada (SCC) granted leave to appeal in three cases that concern important aspects of the Crown’s duty to consult and accommodate Aboriginal peoples. A summary of each decision under appeal is provided below. Follow our ERA blog for further updates as we track these cases at the SCC.

1.  Role of Tribunals in Consultation – Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.

On March 10, 2016, the SCC granted leave to appeal in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222, a decision of the Federal Court of Appeal (FCA) released on October 20, 2015. The SCC may use this opportunity to build on its decision in Rio Tinto Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43 to address the role of regulatory tribunals vis-à-vis the Crown’s duty to consult, including in circumstances where the Crown is not a party to the regulatory proceedings, and the tribunal (in this case, the National Energy Board (NEB)) is the final decision-maker.

In the decision under appeal, the FCA upheld the NEB’s approval of Enbridge Pipelines Inc.’s application for a pipeline reversal and capacity expansion project in Ontario. The First Nation argued that the NEB ought not to have granted the approvals until the Crown’s duty to consult and accommodate was fulfilled. The FCA considered: (i) whether the NEB was required to determine if the Crown was under a duty to consult and if that duty had been discharged (the DTC Determinations); and (ii) whether the NEB itself had a duty to consult.

On the first issue, following the FCA’s 2009 decision in Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308, the majority of the FCA held that in the absence of the Crown’s participation in Enbridge’s application, the NEB was not required to make the DTC Determinations prior to rendering a decision. On the second issue, the FCA found that there had been no delegation of the Crown’s duty to consult by the Crown to the NEB, under the NEB Act or otherwise, and the NEB was not obliged to discharge the duty to consult for the Crown.

In dissent, Justice Rennie argued that Rio Tinto overruled Standing Buffalo. In Rio Tinto, the SCC held that the power of a tribunal to decide questions of law implies a power to decide constitutional issues that are properly before it. Therefore, he felt that the NEB was required to make the DTC Determinations, whether or not the Crown was a participant in the hearing. Further, Justice Rennie felt that the NEB must have the power to assess whether the duty to consult has been fulfilled, and to refuse to grant an approval if it has not. Otherwise, in cases where the NEB is the final decision-maker, projects could be approved without the Crown ever consulting with Aboriginal groups whose rights may be adversely affected.

2.  Role of Tribunals in Consultation – Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS)

Also on March 10, 2016, the SCC granted leave to appeal in Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179, which will be heard together with Chippewas of the Thames, above.

This appeal relates to a decision of the NEB to issue a Geophysical Operations Authorization to three proponents allowing an offshore seismic survey program in Baffin Island and the Davis Strait for up to five years. The appellants challenged the decision arguing, among other things, that the Crown had not met the duty to consult with the Inuit residing in Clyde River. The Crown did not undertake any consultation outside of the NEB process and the appellants argued that the public participation process through the NEB was not a substitute for formal consultation and that the proponents’ consultation efforts were inadequate, among other things.

The Federal Court of Appeal dismissed the application for judicial review on August 17, 2015 holding that the NEB has a mandate to engage in a consultation process such that the Crown could rely on this process to meet its duty to consult, at least in part. However, the FCA held that “when the Crown relies on the Board’s process, in every case it will be necessary for the Crown to assess if additional consultation activities or accommodation is required in order to satisfy the honour of the Crown.” In this case, the Court concluded that there was no additional consultation required by the Crown beyond what took place through the NEB’s environmental assessment process and by the proponents.

Like Chippewas of the Thames, this case will require the SCC to determine the role of a regulatory tribunal vis-à-vis the Crown. While this case does not directly deal with whether the NEB itself has an independent duty to consult, the SCC will be asked to consider the extent to which the Crown can rely on its regulatory processes and the circumstances under which the Crown may be required to engage in separate additional consultation with potentially affected Aboriginal groups in order to satisfy the honour of the Crown. The SCC already determined in Taku River that the Crown can rely on regulatory processes to fulfill the duty to consult and thus this appeal will likely focus on the permissible degree of that reliance rather than the question of reliance in general.

3.  Adequacy of Consultation and Accommodation, and Freedom of Religion – Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations)

On March 17, 2016, the SCC granted leave to appeal in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 352, a decision of the BC Court of Appeal (BCCA) released on August 6, 2015. The case will provide the SCC with an opportunity to address the Crown’s duty to consult and accommodate in the context of potential impacts on an Aboriginal group’s spiritual and religious beliefs, as well as the application of freedom of religion protected under the Charter.

The BCCA dismissed the appeal of the Ktunaxa Nation Council concerning the Province’s decision to approve a Master Development Agreement (MDA) for a proposed ski resort in the Jumbo Valley in southeastern BC. Ktunaxa sought to quash the MDA approval, claiming that it violated two of their constitutional rights: the Crown’s duty to consult and accommodate Aboriginal peoples under s. 25 of the Constitution Act, 1982, and their freedom of religion to exercise a spiritual practice under s. 2(a) of the Charter.  

Ktunaxa claimed that the proposed resort would be located in Qat’muk, a sacred area of spiritual significance and the home of the Grizzly Bear Spirit. The Ktunaxa claimed that the resort and overnight human habitation would desecrate the site and cause the Grizzly Bear spirit to leave, which would profoundly impact their culture and identity. Plans for the resort began in 1991 and an environmental assessment certificate was issued in 2004. However, Ktunaxa first raised the position that no accommodation was possible in 2009, based primarily on the beliefs of one Ktunaxa elder which were not widely held among the Ktunaxa. Nevertheless, approval of the MDA was delayed from 2009 until 2012, while the Minister consulted with the Ktunaxa to attempt to accommodate and reach agreement with them.

In respect of the alleged Charter breach, the BCCA held that s.2(a) did not protect the religious belief asserted by the Ktunaxa in this case, finding that s.2(a) does not apply to protect the vitality of religious communities where such vitality is predicated on the assertion that others must act or refrain from acting and behave in a manner consistent with a belief that they do not share.  The BCCA also dismissed Ktunaxa’s position that the MDA violated the Crown’s duty to consult and accommodate, finding that the Crown engaged in good faith, deep consultation with the Ktunaxa and that the process of consultation and accommodation met the standard of reasonableness.

These three cases will provide important opportunities for the SCC to further clarify the requirements and limits of duty to consult for all parties involved. We will continue to monitor these cases and report on further developments.

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