Crown Consultation – Reliance on Regulator to Meet Crown Consultation Obligation – Pipelines
Following the NEB’s approval of Enbridge Pipelines Inc. (“Enbridge”) Line 9 modification application in OH-002-2013 (the “NEB Decision”), the Chippewas of the Thames appealed the NEB Decision to the Federal Court of Appeal (“FCA”). Before the FCA, the Chippewas of the Thames argued that the NEB had no jurisdiction to approve the Line 9 modification in the absence of Crown consultation. In a 2-1 split decision (Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222), the majority of the FCA dismissed the Chippewas’ appeal (the “FCA Decision”).
The Chippewas of the Thames’ appealed the FCA Decision to the Supreme Court of Canada (“SCC”).
The SCC found that, in light of the scope of the project and the consultation process afforded to the Chippewas of the Thames by the NEB, the Crown’s duty to consult and accommodate was fulfilled.
For the reasons summarized below, the SCC dismissed the appeal of the FCA Decision, thereby upholding the NEB’s approval of the Line 9 modification project.
NEB Decision
The SCC summarized the significant findings from the NEB Decision regarding Aboriginal matters and Crown consultation with Chippewas of the Thames. NEB findings noted by the SCC included the following:
• The scope of the modification project was limited.
• The NEB was not assessing the current operating Line 9, but rather, the modifications required to increase the capacity of Line 9, transport heavy crude on Line 9, and reverse the flow.
• Enbridge would not need to acquire any new permanent land rights for the project.
• Potentially affected Indigenous groups had received adequate information about the project and had the opportunity to share their views about the project through the NEB hearing process and through discussions with Enbridge.
• Any potential project impacts on the rights and interests of Aboriginal groups were likely to be minimal and would be appropriately mitigated, given the project’s limited scope, the commitments
made by Enbridge, and the conditions imposed by the NEB.
• While the project would occur on lands used by Indigenous groups for traditional purposes, those lands were within Enbridge’s existing right of way. The project was therefore unlikely to impact traditional land use.
• The NEB acknowledged that a spill on Line 9 could impact traditional land use, but it was satisfied that “Enbridge will continue to safely operate Line 9, protect the environment, and maintain comprehensive emergency response plans.”
The NEB imposed three conditions on the project related to Indigenous communities, requiring Enbridge to:
(a) file an Environmental Protection Plan for the project including an Archaeological Resource Contingency plan (Condition 6);
(b) prepare an Ongoing Engagement Report providing details on its discussions with Indigenous groups going forward (Condition 24); and
(c) include Aboriginal groups in Enbridge’s continuing education program (including emergency management exercises), liaison program and consultation activities on emergency preparedness and response (Condition 26).
Indigenous Consultation
In February 2013, after Enbridge filed its application and several months before the hearings, the NEB issued notice to 19 potentially affected Indigenous groups, including the Chippewas of the Thames, informing them of the project, the NEB’s role, and the NEB’s upcoming hearing process.
The SCC explained that during the NEB hearing process, Chippewas of the Thames were granted funding to participate as an intervener, filed evidence and delivered oral argument regarding their concerns that the project would increase the risk of pipeline ruptures and spills along Line 9, which could adversely impact their use of the land and the Thames River for traditional purposes.
Federal Court of Appeal Decision
The majority FCA Decision concluded that the NEB was not required to determine whether the Crown had a duty to consult under Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (“Haida Nation”), and, if so, whether the Crown had fulfilled this duty.
The FCA majority also concluded that the NEB did not itself have a duty to consult the Chippewas of the Thames. It noted that while the NEB is required to carry out its mandate in a manner that respects section 35(1) of the Constitution Act, 1982, the NEB had adhered to this obligation by requiring Enbridge to consult extensively with the Chippewas of the Thames and other First Nations.
SCC Reasons
Crown Conduct Triggering Duty to Consult
The SCC found that the NEB’s contemplated decision on the project’s approval would amount to Crown conduct. Specifically, the SCC found that when the NEB grants an exemption under section 58 of the NEB Act from the requirement for a certificate of public convenience and necessity, which otherwise would be subject to Governor in Council approval, the NEB effectively becomes the final decision maker on the entire application.
The SCC found that:
(a) the NEB acted on behalf of the Crown in approving Enbridge’s application; and
(b) because the authorized work — the increase in flow capacity and change to heavy crude — could potentially adversely affect the Chippewas of the Thames’ asserted Aboriginal and treaty rights, the Crown had an obligation to consult with respect to Enbridge’s project application.
The SCC rejected the suggestion that because the Crown was not a party before the NEB, there may have been no Crown conduct triggering the duty to consult. The SCC clarified that the NEB’s ability to assess the Crown’s duty to consult does not depend on whether the government participated in the NEB’s hearing process. The SCC explained that the Crown’s Constitutional obligation does not disappear when the Crown acts to approve a project through a regulatory body such as the NEB.
Crown Consultation Through a Regulatory Process
The SCC held that the Crown may rely on an administrative body to fulfill its duty to consult, so long as the agency possesses the statutory powers to do what the duty to consult requires in the circumstances.
In addition, the SCC held that where the Crown intends to rely on a regulator to fulfill its consultation duty, it should be made clear to the affected Indigenous group that the Crown is relying on the regulatory body’s processes to fulfill its duty.
The SCC noted that, in this case, the NEB provided the Indigenous groups early notice of the hearing and were invited to participate in the NEB process. The Chippewas of the Thames accepted the invitation and appeared before the NEB as an intervener.
The SCC found that as interveners, the Chippewas of the Thames were aware that the NEB was the final decision maker under s. 58 of the NEB Act. The SCC concluded that the circumstances made it sufficiently clear to the Chippewas of the Thames that the NEB process was intended to constitute Crown consultation and accommodation. Notwithstanding the Crown’s failure to provide timely notice, its consultation obligation was met.
Scope of Duty to Consult
The SCC explained that the degree of consultation required depends on the strength of the Aboriginal claim, and the seriousness of the potential impact on the right (citing Haida Nation, at paras. 39 and 43-45).
The SCC also affirmed that the duty to consult should focus on project specific impacts, as opposed to historical or cumulative impacts. However, the SCC acknowledge that it may be impossible to understand the seriousness of the impact of a project on Aboriginal rights without considering the larger context. The SCC explained that cumulative effects of an ongoing project, and historical context, may therefore inform the scope of the duty to consult.
As was found by the SCC in this case, the duty to consult may be satisfied if indigenous groups are provided the opportunity to make submissions, to formally participate in the decision-making process, and the decision maker provides written reasons to show that Aboriginal concerns were considered (citing Haida Nation, at para. 44).
The SCC found that the process undertaken by the NEB was sufficient to satisfy the Crown’s duty to consult.
Adequacy of Reasons
The SCC affirmed its findings from Haida Nation, that where deep consultation is required, written reasons will often be necessary to permit Indigenous groups to determine whether their concerns were adequately considered and addressed (citing Haida Nation, at para. 44).
The SCC found that the NEB’s written reasons were sufficient to satisfy the Crown’s obligation. The SCC noted that unlike the NEB’s reasons in the companion case Clyde River (Hamlet) (summarized in this issue of Energy Regulatory Report below), the discussion of Aboriginal consultation was not subsumed within an environmental assessment.
The SCC found that the NEB’s written reasons demonstrated that it had:
(a) reviewed the written and oral evidence of Indigenous interveners and identified the rights and interests at stake;
(b) assessed the risks that the project posed to those rights and interests and concluded that the risks were minimal; and
(c) provided written and binding conditions of accommodation to adequately address the potential for negative impacts on the asserted rights from the approval and completion of the project.
The SCC found that even taking the strength of the Chippewas of the Thames’ claim and the seriousness of the potential impact on the claimed rights at their highest, the consultation in this case was “manifestly adequate.”
Disposition
The SCC held that the Crown’s duty to consult was met and dismissed the appeal with costs to Enbridge.
