Treaty Rights And The Crown's Duty To Consult Remain At Forefront Of Legal Discourse

In 2017, several significant decisions were released that keep the treaty rights of Indigenous peoples and the Crown's duty to consult at the forefront of legal discourse. While the importance of treaty rights is now consistently espoused by all levels of courts in Canada, the scope of those rights, and exactly what it takes to fulfill the Crown's duty in any given situation, continues to be a hotbed of litigation.

Regulatory Tribunals Must Heed Crown Consultation Obligations

In June 2017, the Supreme Court of Canada delivered two rulings with respect to the scope of the duty to consult, Clyde River (Hamlet) v. Petroleum Geo-Services Inc. ("Clyde River")1 and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. ("Chippewas of the Thames").2 These decisions clarify that the Crown's duty must be fulfilled prior to a project's final approval. If the Crown's duty remains unfulfilled, the decision maker must withhold the approval.

Both Clyde River and Chippewas of the Thames concerned appeals of project approvals by the National Energy Board ("NEB") on the grounds of inadequate consultation. In both instances, the appeals to Canada's Federal Court of Appeal were dismissed. Given the similar legal issues involved, the Supreme Court of Canada released its decisions on the two cases concurrently.

The two cases differed on the facts. In Clyde River, minimal effort was made to assess the potential impact of the proposed seismic project on the rights of the affected Inuit and the NEB did not hold a public hearing. In Chippewas of the Thames, the First Nation participated fully in a public hearing held by the NEB, for which they applied for and received participant funding. The Supreme Court allowed the Inuit's appeal in Clyde River, finding that the consultation carried out by the NEB on the Crown's behalf was inadequate due to the lack of opportunity to participate meaningfully in the environmental assessment and regulatory review processes. In contrast, the appeal in Chippewas of the Thames was dismissed as the Court found that the First Nation's full participation in the NEB public hearing process constituted effective consultation, which discharged the Crown's duty to consult.

The differing results in these two cases do not take away from the overarching message, namely that the Crown's consultation obligation must be fulfilled prior to a final decision on a project. In Chippewas of the Thames, the First Nation's receipt of participant funding and full participation in the NEB's public hearing fulfilled this requirement, but in Clyde River, the lack of a meaningful consultation process on the potential environmental impacts as well as the absence of a public hearing process in which the Inuit could participate was found by the Supreme Court to be inadequate consultation.

In British Columbia, the Fort Nelson First Nation filed a judicial review of a decision by the British Columbia Oil and Gas Commission ("OGC") to approve a 39 kilometre gas pipeline and storage facility located in an area of British Columbia known as the Fortune Core, traditional territory of the First Nation...