NEB can fulfill duty to consult, but must do so meaningfully

By Yves Faguy July 26, 201726 July 2017

NEB can fulfill duty to consult, but must do so meaningfully

 

The top court handed down two major rulings today on the duty to consult Indigenous communities.

In Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., it quashed a National Energy Board granting authorization to conduct offshore seismic testing for oil and gas off Baffin Island, noting, “No one benefits — not project proponents, not Indigenous peoples, and not non-Indigenous members of affected communities — when projects are prematurely approved only to be subjected to litigation.”

The Crown, it held, can rely on the NEB’s process to fulfill its duty to consult, but in this case the regulatory agency failed to conduct deep consultation:

Deep consultation “may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision” (Haida, at para. 44). Despite the NEB’s broad powers under COGOA  to afford those advantages, limited opportunities for participation and consultation were made available to the appellants. Unlike many NEB proceedings, including the proceedings in Chippewas of the Thames, there were no oral hearings. Although the appellants submitted scientific evidence to the NEB, this was done without participant funding. Again, this stands in contrast to Chippewas of the Thames, where the consultation process was far more robust. In that case, the NEB held oral hearings, the appellants received funding to participate in the hearings, and they had the opportunity to present evidence and a final argument. While these procedural protections are characteristic of an adversarial process, they may be required for meaningful consultation (Haida, at para. 41) and do not transform its underlying objective: fostering reconciliation by promoting an ongoing relationship (Carrier Sekani, at para. 38).

In the companion case to Clyde River, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., the Supreme Court held that consultations with Indigenous groups with respect to the Enbridge Line 9 pipeline project were meaningful, and so it dismissed the appeal:

First, we find that the NEB provided the Chippewas of the Thames with an adequate opportunity to participate in the decision‑making process. Second, we find that the NEB sufficiently assessed the potential impacts on the rights of Indigenous groups and found that the risk of negative consequences was minimal and could be mitigated. Third, we agree with Enbridge that, in order to mitigate potential risks to the rights of Indigenous groups, the NEB provided appropriate accommodation through the imposition of conditions on Enbridge.

 

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