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...