Federal Court Affirms Regulatory Process May Satisfy Duty To Consult

On May 12, 2009 the Federal Court rendered its decision

in Brokenhead Ojibway Nation et al v. Attorney General of

Canada (National Energy Board) et al. The court determined

that the Crown had fulfilled its duty to consult the Treaty One

First Nations of Manitoba concerning the construction of three

major pipeline projects under the jurisdiction of the National

Energy Board. This decision affirms the direction from the courts

in previous decisions that regulatory processes may satisfy the

Crown's duty to consult and, where appropriate, accommodate the

interests of Aboriginal groups.

In Brokenhead Ojibway Nation et al v. Attorney General of

Canada (National Energy Board) et al., 2009 FC 484

(Brokenhead Decision), the Federal Court denied three

applications for judicial review of decisions made by the Governor

in Council (GIC) to approve National Energy Board (NEB)

authorizations for the construction of the Keystone Pipeline

Project, Southern Lights Pipeline Project and Alberta Clipper

Pipeline Expansion Project (Pipeline Projects). The Treaty One

First Nations of Manitoba (TOFN) brought the judicial review

applications, alleging that the federal Crown had failed to fulfill

its constitutional obligation of consultation and accommodation

prior to granting the approvals for the construction of the

Pipeline Projects in their traditional territory. Although the

project-specific concerns of the TOFN were largely resolved through

consultation with the proponents of the Pipeline Projects, the TOFN

claimed that the regulatory process was not designed to address the

larger issue of unresolved land claims. TOFN alleged that issues

surrounding TOFN's unresolved land claims and cumulative

impacts required separate consultation with the Crown.

In its decision, the court noted that pursuant to Haida

Nation v. British Columbia (Minister of Forests), 2004 SCC 73

(Haida Decision), Taku River Tlingit First Nation v.

British Columbia (Project Assessment Director), 2004 SCC 74

(Taku Decision) and Ka'a'Gee Tu First Nation

v. The Attorney General of Canada and Paramount Resources

Ltd., 2007 FC 763 (Ka'a'Gee Tu), the Crown

owes a duty to consult with Aboriginal communities when their

interests may be impacted. The content of this duty is

proportionate to the potential strength of the claim or right

asserted and the anticipated impact of a project on those asserted

interests.

The evidence before the court showed that the Pipeline Projects

were constructed on land that was almost entirely privately owned

and had been previously exploited. The cultural, environmental and

traditional land use issues raised by the TOFN were not linked

specifically to the Pipeline Projects themselves. The court

concluded that if the Crown had any duty to consult with the TOFN

with respect to the impact of the Pipeline Projects on their

unresolved land claims, it was at the extreme low end of the

spectrum attracting no more than an obligation to give notice, and

that in this case the duty owed by the Crown had been met.

The Regulatory...