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SUPREME COURT OF CANADA

 

Citation: Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41

Appeal heard: November 30, 2016

Judgment rendered: July 26, 2017

Docket: 36776



Between:

 

Chippewas of the Thames First Nation

Appellant

 

and

 

Enbridge Pipelines Inc., National Energy Board and Attorney General of Canada

Respondents

 

- and -

 

Attorney General of Ontario, Attorney General of Saskatchewan, Nunavut Wildlife Management Board, Suncor Energy Marketing Inc., Mohawk Council of Kahnawà:ke, Mississaugas of the New Credit First Nation and Chiefs of Ontario

Interveners

 

 

 

Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

 

Reasons for Judgment:

(paras. 1 to 66)

Karakatsanis and Brown JJ. (McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Côté and Rowe JJ. concurring)

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 


 


chippewas of the thames f.n. v. enbridge pipelines

Chippewas of the Thames First Nation                                                        Appellant

v.

Enbridge Pipelines Inc.,

National Energy Board and

Attorney General of Canada                                                                    Respondents

and

Attorney General of Ontario,

Attorney General of Saskatchewan,

Nunavut Wildlife Management Board,

Suncor Energy Marketing Inc.,

Mohawk Council of Kahnawà:ke,

Mississaugas of the New Credit First Nation and

Chiefs of Ontario                                                                                          Interveners

Indexed as: Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.

2017 SCC 41

File No.: 36776.

2016: November 30; 2017: July 26.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

on appeal from the federal court of appeal

                    Constitutional law — Aboriginal rights — Treaty rights — Crown — Duty to consult — Decision by federal independent regulatory agency which could impact Aboriginal and treaty rights — Pipeline crossing traditional territory of First Nation — National Energy Board approving modification of pipeline — Whether Board’s contemplated decision on project’s approval amounted to Crown conduct triggering duty to consult — Whether Crown consultation can be conducted through regulatory process — Role of regulatory tribunal when Crown not a party to regulatory process — Scope of duty to consult — Whether there was adequate notice to First Nation that Crown was relying on Board’s process to fulfill its duty to consult — Whether Crown’s consultation obligation fulfilled — Whether Board’s written reasons were sufficient to satisfy Crown’s obligation — National Energy Board Act, R.S.C. 1985, c. N-7, s. 58 .

                    The National Energy Board (NEB), a federal administrative tribunal and regulatory agency, was the final decision maker on an application by Enbridge Pipelines Inc. for a modification to a pipeline that would reverse the flow of part of the pipeline, increase its capacity, and enable it to carry heavy crude. The NEB issued notice to Indigenous groups, including the Chippewas of the Thames First Nation (Chippewas), informing them of the project, the NEB’s role, and the NEB’s upcoming hearing process. The Chippewas were granted funding to participate in the process, and they filed evidence and delivered oral argument delineating their concerns that the project would increase the risk of pipeline ruptures and spills, which could adversely impact their use of the land. The NEB approved the project, and was satisfied that potentially affected Indigenous groups had received adequate information and had the opportunity to share their views. The NEB also found that potential project impacts on the rights and interests of Aboriginal groups would likely be minimal and would be appropriately mitigated. A majority of the Federal Court of Appeal dismissed the Chippewas’ appeal.

                    Held: The appeal should be dismissed.

                    When an independent regulatory agency such as the NEB is tasked with a decision that could impact Aboriginal or treaty rights, the NEB’s decision would itself be Crown conduct that implicates the Crown’s duty to consult. As a statutory body with the delegated executive responsibility to make a decision that could adversely affect Aboriginal and treaty rights, the NEB acted on behalf of the Crown in approving Enbridge’s application. Because the authorized work could potentially adversely affect the Chippewas’ asserted Aboriginal and treaty rights, the Crown had an obligation to consult.

                    The Crown may rely on steps taken by 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 particular circumstances, and so long as it is made clear to the affected Indigenous group that the Crown is so relying. However, if the agency’s statutory powers are insufficient in the circumstances or if the agency does not provide adequate consultation and accommodation, the Crown must provide further avenues for meaningful consultation and accommodation prior to project approval. Otherwise, a regulatory decision made on the basis of inadequate consultation will not satisfy constitutional standards and should be quashed.

                    A regulatory tribunal’s ability to assess the Crown’s duty to consult does not depend on whether the government participated in the hearing process. The Crown’s constitutional obligation does not disappear when the Crown acts to approve a project through a regulatory body such as the NEB. It must be discharged before the government proceeds with approval of a project that could adversely affect Aboriginal or treaty rights. As the final decision maker on certain projects, the NEB is obliged to consider whether the Crown’s consultation was adequate if the concern is raised before it. The responsibility to ensure the honour of the Crown is upheld remains with the Crown. However, administrative decision makers have both the obligation to decide necessary questions of law and an obligation to make decisions within the contours of the state’s constitutional obligations.

                    The duty to consult is not the vehicle to address historical grievances. The subject of the consultation is the impact on the claimed rights of the current decision under consideration. Even taking the strength of the Chippewas’ claim and the seriousness of the potential impact on the claimed rights at their highest, the consultation undertaken in this case was manifestly adequate. Potentially affected Indigenous groups were given early notice of the NEB’s hearing and were invited to participate in the process. The Chippewas accepted the invitation and appeared before the NEB. They were aware that the NEB was the final decision maker. Moreover, they understood that no other Crown entity was involved in the process for the purposes of carrying out consultation. The circumstances of this case made it sufficiently clear to the Chippewas that the NEB process was intended to constitute Crown consultation and accommodation. Notwithstanding the Crown’s failure to provide timely notice that it intended to rely on the NEB’s process to fulfill its duty to consult, its consultation obligation was met.

                    The NEB’s statutory powers under s. 58  of the National Energy Board Act  were capable of satisfying the Crown’s constitutional obligations in this case. Furthermore, the process undertaken by the NEB in this case was sufficient to satisfy the Crown’s duty to consult. First, the NEB provided the Chippewas with an adequate opportunity to participate in the decision-making process. Second, 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, in order to mitigate potential risks, the NEB provided appropriate accommodation through the imposition of conditions on Enbridge.

                    Finally, where affected Indigenous peoples have squarely raised concerns about Crown consultation, the NEB must usually provide written reasons. What is necessary is an indication that the NEB took the asserted Aboriginal and treaty rights and interests into consideration and accommodated them where appropriate. In this case, the NEB’s written reasons are sufficient to satisfy the Crown’s obligation. Unlike the NEB’s reasons in the companion case Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, the discussion of Aboriginal consultation was not subsumed within an environmental assessment. The NEB reviewed the written and oral evidence of numerous Indigenous groups and identified, in writing, the rights and interests at stake. It assessed the risks that the project posed to those rights and interests and concluded that the risks were minimal. Nonetheless, it provided written and binding conditions of accommodation to adequately address any negative impacts on the asserted rights from the approval and completion of the project.

Cases Cited

                    Applied: Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; referred to: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 512; Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781; Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308, [2010] 4 F.C.R. 500; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, 18 B.C.L.R. (5th) 234; Kainaiwa/Blood Tribe v. Alberta (Energy), 2017 ABQB 107; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

Statutes and Regulations Cited

Constitution Act, 1982, s. 35 .

National Energy Board Act, R.S.C. 1985, c. N‑7, ss. 3 , 22(1) , 30(1) , 52 , 54(1) , 58 .

Oil Pipeline Uniform Accounting Regulations, C.R.C., c. 1058.

Authors Cited

Woodward, Jack. Native Law, vol. 1. Toronto: Thomson Reuters, 1994 (loose‑leaf updated 2017, release 2).

                    APPEAL from a judgment of the Federal Court of Appeal (Ryer, Webb and Rennie JJ.A.), 2015 FCA 222, [2016] 3 F.C.R. 96, 390 D.L.R. (4th) 735, [2016] 1 C.N.L.R. 18, 479 N.R. 220, [2015] F.C.J. No. 1294 (QL), 2015 CarswellNat 5511 (WL Can.), affirming a decision of the National Energy Board, No. OH‑002‑2013, March 6, 2014, 2014 LNCNEB 4 (QL). Appeal dismissed.

                    David C. Nahwegahbow and Scott Robertson, for the appellant.

                    Douglas E. Crowther, Q.C., Joshua A. Jantzi and Aaron Stephenson, for the respondent Enbridge Pipelines Inc.

                    Jody Saunders and Kristen Lozynsky, for the respondent the National Energy Board.

                    Peter Southey and Mark R. Kindrachuk, Q.C., for the respondent the Attorney General of Canada.

                    Manizeh Fancy and Richard Ogden, for the intervener the Attorney General of Ontario.

                    Richard James Fyfe, for the intervener the Attorney General of Saskatchewan.

                    Marie‑France Major and Thomas Slade, for the intervener the Nunavut Wildlife Management Board.

                    Martin Ignasiak, W. David Rankin and Thomas Kehler, for the intervener Suncor Energy Marketing Inc.

                    Francis Walsh and Suzanne Jackson, for the intervener the Mohawk Council of Kahnawà:ke.

                    Nuri G. Frame, Jason T. Madden and Jessica Labranche, for the intervener the Mississaugas of the New Credit First Nation.

                    Maxime Faille, Jaimie Lickers and Guy Régimbald, for the intervener the Chiefs of Ontario.

 

The judgment of the Court was delivered by

 

                    Karakatsanis and Brown JJ. —

I.              Introduction

[1]                              In this appeal and in its companion, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, this Court must consider the Crown’s duty to consult with Indigenous peoples prior to an independent regulatory agency’s approval of a project that could impact their rights. As we explain in the companion case, the Crown may rely on regulatory processes to partially or completely fulfill its duty to consult.

[2]                              These cases demonstrate that the duty to consult has meaningful content, but that it is limited in scope. The duty to consult is rooted in the need to avoid the impairment of asserted or recognized rights that flows from the implementation of the specific project at issue; it is not about resolving broader claims that transcend the scope of the proposed project. That said, the duty to consult requires an informed and meaningful opportunity for dialogue with Indigenous groups whose rights may be impacted.

[3]                              The Chippewas of the Thames First Nation has historically resided near the Thames River in southwestern Ontario, where its members carry out traditional activities that are central to their identity and way of life. Enbridge Pipelines Inc.’s Line 9 pipeline crosses their traditional territory.

[4]                              In November 2012, Enbridge applied to the National Energy Board (NEB) for approval of a modification of Line 9 that would reverse the flow of part of the pipeline, increase its capacity, and enable it to carry heavy crude. These changes would increase the assessed risk of spills along the pipeline. The Chippewas of the Thames requested Crown consultation before the NEB’s approval, but the Crown signalled that it was relying on the NEB’s public hearing process to address its duty to consult.

[5]                              The NEB approved Enbridge’s proposed modification. The Chippewas of the Thames then brought an appeal from that decision to the Federal Court of Appeal, arguing that the NEB had no jurisdiction to approve the Line 9 modification in the absence of Crown consultation. The majority of the Federal Court of Appeal dismissed the appeal, and the Chippewas of the Thames brought an appeal from that decision to this Court. For the reasons set out below, we would dismiss the appeal. The Crown is entitled to rely on the NEB’s process to fulfill the duty to consult. In this case, 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.

II.           Background

A.           The Chippewas of the Thames First Nation

[6]                              The Chippewas of the Thames are the descendants of a part of the Anishinaabe Nation that lived along the shore of the Thames River in southwestern Ontario prior to the arrival of European settlers in the area at the beginning of the 18th century. Their ancestors’ lifestyle involved hunting, fishing, trapping, gathering, growing corn and squash, performing ceremonies at sacred sites, and collecting animals, plants, minerals, maple sugar and oil in their traditional territory.

[7]                              The Chippewas of the Thames assert that they have a treaty right guaranteeing their exclusive use and enjoyment of their reserve lands. They also assert Aboriginal harvesting rights as well as the right to access and preserve sacred sites in their traditional territory. Finally, they claim Aboriginal title to the bed of the Thames River, its airspace, and other lands throughout their traditional territory.

B.            Legislative Scheme

[8]                              The NEB is a federal administrative tribunal and regulatory agency established under s. 3  of the National Energy Board Act, R.S.C. 1985, c. N-7  (NEB  Act ), whose functions include the approval and regulation of pipeline projects. The NEB Act prohibits the operation of a pipeline unless a certificate of public convenience and necessity has been issued for the project and the proponent has been given leave under Part III to open the pipeline (s. 30(1) ).

[9]                              The NEB occupies an advisory role with respect to the issuance of a certificate of public convenience and necessity. Under ss. 52(1) and 52(2), it can submit a report to the Minister of Natural Resources setting out: (i) its recommendation on whether a certificate should be issued based on its consideration of certain criteria; and (ii) the terms and conditions that it considers necessary or desirable in the public interest to be attached to the project should the certificate be issued. The Governor in Council may then direct the NEB  either to issue the certificate or to dismiss the application (s. 54(1) ).

[10]                          Under s. 58 of the NEB Act, however, the NEB  may make orders, on terms and conditions that it considers proper, exempting smaller pipeline projects or project modifications from various requirements that would otherwise apply under Part III, including the requirement for the issuance of a certificate of public convenience and necessity. Consequently, as in this case, smaller projects and amendments to existing facilities are commonly sought under s. 58 . The NEB is the final decision maker on s. 58  exemptions.

C.            The Line 9 Pipeline and the Project

[11]                          The Line 9 pipeline, connecting Sarnia to Montreal, opened in 1976 with the purpose of transporting crude oil from western Canada to eastern refineries. Line 9 cuts through the Chippewas of the Thames’ traditional territory and crosses the Thames River. It was approved and built without any consultation of the Chippewas of the Thames.

[12]                          In 1999, following NEB  approval, Line 9 was reversed to carry oil westward. In July 2012, the NEB  approved an application from Enbridge, the current operator of Line 9, for the re-reversal (back to eastward flow) of the westernmost segment of Line 9, between Sarnia and North Westover, called “Line 9A”. 

[13]                          In November 2012, Enbridge filed an application under Part III of the NEB Act for a modification to Line 9. The project would involve reversing the flow (to eastward) in the remaining 639-kilometre segment of Line 9, called “Line 9B”, between North Westover and Montreal; increasing the annual capacity of Line 9 from 240,000 to 300,000 barrels per day; and allowing for the transportation of heavy crude. While the project involved a significant increase of Line 9’s throughput, virtually all of the required construction would take place on previously disturbed lands owned by Enbridge and on Enbridge’s right of way.

[14]                          Enbridge also sought exemptions under s. 58  from various filing requirements which would otherwise apply under Part III of the NEB Act, the Oil Pipeline Uniform Accounting Regulations, C.R.C., c. 1058, and the NEB ’s Filing Manual. The most significant requested exemption was to dispense with the requirement for a certificate of public convenience and necessity, which as explained above is subject to the Governor in Council’s final approval under s. 52 of the NEB Act. Without the need for a Governor in Council-approved certificate, the NEB  would have the final word on the project’s approval.

[15]                          In December 2012, the NEB , having determined that Enbridge’s application was complete enough to proceed to assessment, issued a hearing order, which established the process for the NEB ’s consideration of the project. This process culminated in a public hearing, the purpose of which was for the NEB  to gather and review information that was relevant to the assessment of the project. Persons or organizations interested in the outcome of the project, or in possession of relevant information or expertise, could apply to participate in the hearing. The NEB accepted the participation of 60 interveners and 111 commenters.

D.           Indigenous Consultation on the Project

[16]                          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. Between April and July 2013, it also held information meetings in three communities upon their request.

[17]                          In September 2013, prior to the NEB  hearing, the Chiefs of the Chippewas of the Thames and the Aamjiwnaang First Nation wrote a joint letter to the Prime Minister, the Minister of Natural Resources, and the Minister of Aboriginal Affairs and Northern Development. The letter described the asserted Aboriginal and treaty rights of both groups and the project’s potential impact on them. The Chiefs noted that no Crown consultation with any affected Indigenous groups had taken place with respect to the project’s approval, and called on the Ministers to initiate Crown consultation. No response arrived until after the conclusion of the NEB  hearing.

[18]                          In the meantime, the NEB ’s process unfolded. The Chippewas of the Thames were granted funding to participate as an intervener, and they filed evidence and delivered oral argument at the hearing delineating 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.

[19]                          In January 2014, after the NEB ’s hearing process had concluded, the Minister of Natural Resources responded to the September 2013 letter. The response acknowledged the Government of Canada’s commitment to fulfilling its duty to consult where it exists, and stated that the “[NEB ’s] regulatory review process is where the Government’s jurisdiction on a pipeline project is addressed. The Government relies on the NEB  processes to address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate” (A.R., vol. VI, at p. 47). In sum, the Minister indicated that he would be relying solely on the NEB ’s process to fulfill the Crown’s duty to consult Indigenous peoples on the project.

III.        The Decisions Below

A.           The NEB’s Decision, 2014 LNCNEB 4 (QL)

[20]                          The NEB approved the project, finding that it was in the public interest and consistent with the requirements in the NEB Act. It explained that the approval “enables Enbridge to react to market forces and provide benefits to Canadians, while at the same time implementing the Project in a safe and environmentally sensitive manner” (para. 20). The NEB imposed conditions on the project related to pipeline integrity, safety, environmental protection, and the impact of the project on Indigenous communities.

[21]                          In its discussion of Aboriginal Matters (Section 7 of the NEB ’s reasons), the NEB  explained that it “interprets its responsibilities, including those outlined in section 58 of the NEB Act, in a manner consistent with the Constitution Act, 1982 , including section 35 ” (para. 293). It noted that proponents are required to make reasonable efforts to consult with Indigenous groups, and that the NEB  hearing process is part of the consultative process. In deciding whether a project is in the public interest, the NEB  “considers all of the benefits and burdens associated with the project, balancing the interests and concerns of Aboriginal groups with other interests and factors” (para. 301).

[22]                          The NEB noted that, in this case, the scope of the project was limited. It was not an assessment of the current operating Line 9, but rather of the modifications required to increase the capacity of Line 9, transport heavy crude on Line 9, and reverse the flow of Line 9B. Enbridge would not need to acquire any new permanent land rights for the project. Most work would take place within existing Enbridge facilities and its existing right of way. Given the limited scope of the project, the NEB  was satisfied that potentially affected Indigenous groups had received adequate information about the project. It was also satisfied that potentially affected Indigenous groups had the opportunity to share their views about the project through the NEB  hearing process and through discussions with Enbridge. The NEB expected that Enbridge would continue consultations after the project’s approval.

[23]                          While Enbridge acknowledged that the project would increase the assessed risk for some parts of Line 9, the NEB  found that “any potential Project impacts on the rights and interests of Aboriginal groups are likely to be minimal and will be appropriately mitigated” (para. 343) 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 are 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” (ibid.).

[24]                          The NEB imposed three conditions on the project related to Indigenous communities. Condition 6 required Enbridge to file an Environmental Protection Plan for the project including an Archaeological Resource Contingency plan. Condition 24 required Enbridge to prepare an Ongoing Engagement Report providing details on its discussions with Indigenous groups going forward. Condition 26 “directs Enbridge to include Aboriginal groups in Enbridge’s continuing education program (including emergency management exercises), liaison program and consultation activities on emergency preparedness and response” (ibid.).

B.            Appeal to the Federal Court of Appeal, 2015 FCA 222, [2016] 3 F.C.R. 96

[25]                          The Chippewas of the Thames brought an appeal from the NEB ’s decision to the Federal Court of Appeal pursuant to s. 22(1) of the NEB Act. They argued that the decision should be quashed, as the NEB  was “without jurisdiction to issue exemptions and authorizations to [Enbridge] prior to the Crown fulfilling its duty to consult and accommodate” (para. 2).

[26]                          The majority of the Federal Court of Appeal (Ryer and Webb JJ.A.) dismissed the appeal. It concluded that the NEB  was not required to determine, as a condition of undertaking its mandate with respect to Enbridge’s application, whether the Crown had a duty to consult under Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 512, and, if so, whether the Crown had fulfilled this duty.

[27]                          The majority also concluded that the NEB  did not 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 s. 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.

[28]                          Rennie J.A. dissented. He would have allowed the appeal. In his view, the NEB  was required to determine whether the duty to consult had been triggered and fulfilled. Given that the NEB  is the final decision maker for s. 58  applications, it must have the power and duty to assess whether consultation is adequate, and to refuse a s. 58  application where consultation is inadequate.

IV.        Analysis

A.           Crown Conduct Triggering the Duty to Consult

[29]                          In the companion case to this appeal, Clyde River, we outline the principles which apply when an independent regulatory agency such as the NEB  is tasked with a decision that could impact Aboriginal or treaty rights. In these circumstances, the NEB ’s decision would itself be Crown conduct that implicates the Crown’s duty to consult (Clyde River, at para. 29). A decision by a regulatory tribunal would trigger the Crown’s duty to consult when the Crown has knowledge, real or constructive, of a potential or recognized Aboriginal or treaty right that may be adversely affected by the tribunal’s decision (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at para. 31; Clyde River, at para. 25).

[30]                          We do not agree with the suggestion that because the Crown, in the form of a representative of the relevant federal department, was not a party before the NEB , there may have been no Crown conduct triggering the duty to consult (see C.A. reasons, at paras. 57 and 69-70).

[31]                          As the respondents conceded before this Court, the NEB ’s contemplated decision on the project’s approval would amount to Crown conduct. When the NEB  grants an exemption under s. 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. As a statutory body with the delegated executive responsibility to make a decision that could adversely affect Aboriginal and treaty rights, the NEB  acted on behalf of the Crown in approving Enbridge’s application. 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.

B.            Crown Consultation Can Be Conducted Through a Regulatory Process

[32]                          The Chippewas of the Thames argue that meaningful Crown consultation cannot be carried out wholly through a regulatory process. We disagree. As we conclude in Clyde River, the Crown may rely on steps taken by an administrative body to fulfill its duty to consult (para. 30). The Crown may rely on a regulatory agency in this way so long as the agency possesses the statutory powers to do what the duty to consult requires in the particular circumstances (Carrier Sekani, at para. 60; Clyde River, at para. 30). However, if the agency’s statutory powers are insufficient in the circumstances or if the agency does not provide adequate consultation and accommodation, the Crown must provide further avenues for meaningful consultation and accommodation in order to fulfill the duty prior to project approval. Otherwise, the regulatory decision made on the basis of inadequate consultation will not satisfy constitutional standards and should be quashed on judicial review or appeal.

[33]                          The majority of the Federal Court of Appeal in this case expressed concern that a tribunal like the NEB  might be charged with both carrying out consultation on behalf of the Crown and then adjudicating on the adequacy of these consultations (para. 66). A similar concern was expressed in Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, where, in a pre-Haida decision, the Court held that quasi-judicial tribunals like the NEB  do not owe Indigenous peoples a heightened degree of procedural fairness. The Court reasoned that imposition of such an obligation would risk compromising the independence of quasi-judicial bodies like the NEB  (pp. 183-84).

[34]                          In our view, these concerns are answered by recalling that while it is the Crown that owes a constitutional obligation to consult with potentially affected Indigenous peoples, the NEB  is tasked with making legal decisions that comply with the Constitution. When the NEB  is called on to assess the adequacy of Crown consultation, it may consider what consultative steps were provided, but its obligation to remain a neutral arbitrator does not change. A tribunal is not compromised when it carries out the functions Parliament has assigned to it under its Act  and issues decisions that conform to the law and the Constitution. Regulatory agencies often carry out different, overlapping functions without giving rise to a reasonable apprehension of bias. Indeed this may be necessary for agencies to operate effectively and according to their intended roles (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at para. 41). Furthermore, the Court contemplated this very possibility in Carrier Sekani, when it reasoned that tribunals may be empowered with both the power to carry out the Crown’s duty to consult and the ability to adjudicate on the sufficiency of consultation (para. 58).

C.            The Role of a Regulatory Tribunal When the Crown Is Not a Party

[35]                          At the Federal Court of Appeal, the majority and dissenting justices disagreed over whether the NEB  was empowered to decide whether the Crown’s consultation was adequate in the absence of the Crown participating in the NEB  process as a party. The disagreement stems from differing interpretations of Carrier Sekani and whether it overruled Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308, [2010] 4 F.C.R. 500. In Standing Buffalo, the Federal Court of Appeal held that the NEB  was not required to consider whether the Crown’s duty to consult had been discharged before approving a s. 52  pipeline application when the Crown did not formally participate in the NEB ’s hearing process. The majority in this case held that the principle from Standing Buffalo applied here. Because the Crown (meaning, presumably, a relevant federal ministry or department) had not participated in the NEB ’s hearing process, the majority reasoned that the NEB  was under no obligation to consider whether the Crown’s duty to consult had been discharged before it approved Enbridge’s s. 58  application (para. 59). In dissent, Rennie J.A. reasoned that Standing Buffalo had been overtaken by this Court’s decision in Carrier Sekani. Even in the absence of the Crown’s participation as a party before the NEB , he held that the NEB  was required to consider the Crown’s duty to consult before approving Enbridge’s application (para. 112).

[36]                          We agree with Rennie J.A. that a regulatory tribunal’s ability to assess the Crown’s duty to consult does not depend on whether the government participated in the NEB ’s hearing process. If the Crown’s duty to consult has been triggered, a decision maker may only proceed to approve a project if Crown consultation is adequate. The Crown’s constitutional obligation does not disappear when the Crown acts to approve a project through a regulatory body such as the NEB . It must be discharged before the government proceeds with approval of a project that could adversely affect Aboriginal or treaty rights (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at para. 78).

[37]                          As the final decision maker on certain projects, the NEB  is obliged to consider whether the Crown’s consultation with respect to a project was adequate if the concern is raised before it (Clyde River, at para. 36). The responsibility to ensure the honour of the Crown is upheld remains with the Crown (Clyde River, at para. 22). However, administrative decision makers have both the obligation to decide necessary questions of law raised before them and an obligation to make their decisions within the contours of the state’s constitutional obligations (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 77).

D.           Scope of the Duty to Consult

[38]                          The degree of consultation required depends on the strength of the Aboriginal claim, and the seriousness of the potential impact on the right (Haida, at paras. 39 and 43-45).

[39]                          Relying on Carrier Sekani, the Attorney General of Canada asserts that the duty to consult in this case “is limited to the [p]roject” and “does not arise in relation to claims for past infringement such as the construction of a pipeline under the Thames River in 1976” (R.F., vol. I, at para. 80).

[40]                          While the Chippewas of the Thames identify new impacts associated with the s. 58  application that trigger the duty to consult and delimit its scope [AF, at para. 62], they also note that “[t]he potential adverse impacts to [the asserted] Aboriginal rights and title resulting from approval of Enbridge’s application for modifications to Line 9 are cumulative and serious and could even be catastrophic in the event of a pipeline spill” (A.F., at para. 57). Similarly, the Mississaugas of the New Credit First Nation, an intervener, argued in the hearing that, because s. 58  is frequently applied to discrete pipeline expansion and redevelopment projects, there are no high-level strategic discussions or consultations about the broader impact of pipelines on the First Nations in southern Ontario.

[41]                          The duty to consult is not triggered by historical impacts. It is not the vehicle to address historical grievances. In Carrier Sekani, this Court explained that the Crown is required to consult on “adverse impacts flowing from the specific Crown proposal at issue — not [on] larger adverse impacts of the project of which it is a part. The subject of the consultation is the impact on the claimed rights of the current decision under consideration” (Carrier Sekani, at para. 53 (emphasis in original)). Carrier Sekani also clarified that “[a]n order compelling consultation is only appropriate where the proposed Crown conduct, immediate or prospective, may adversely impact on established or claimed rights” (para. 54).

[42]                          That said, it may be impossible to understand the seriousness of the impact of a project on s. 35  rights without considering the larger context (J. Woodward, Native Law (loose-leaf), vol. 1, at pp. 5-107 to 5-108). Cumulative effects of an ongoing project, and historical context, may therefore inform the scope of the duty to consult (West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, 18 B.C.L.R. (5th) 234, at para. 117). This is not “to attempt the redress of past wrongs. Rather, it is simply to recognize an existing state of affairs, and to address the consequences of what may result from” the project (West Moberly, at para. 119).

[43]                          Neither the Federal Court of Appeal nor the NEB  discussed the degree of consultation required. That said, and as we will explain below, 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 undertaken in this case was manifestly adequate.

E.            Was There Adequate Notice That the Crown Was Relying on the NEB ’s Process in This Case?

[44]                          As indicated in the companion case Clyde River, the Crown may rely on a regulatory body such as the NEB  to fulfill the duty to consult. However, where the Crown intends to do so, 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 (Clyde River, at para. 23). The Crown’s constitutional obligation requires a meaningful consultation process that is carried out in good faith. Obviously, notice helps ensure the appropriate participation of Indigenous groups, because it makes clear to them that consultation is being carried out through the regulatory body’s processes (see ibid.).

[45]                          In this case, the Chippewas of the Thames say they did not receive explicit notice from the Crown that it intended to rely on the NEB ’s process to satisfy the duty. In September 2013, the Chippewas of the Thames wrote to the Prime Minister, the Minister of Natural Resources and the Minister of Aboriginal Affairs and Northern Development requesting a formal Crown consultation process in relation to the project. It was not until January 2014, after the NEB ’s hearing process was complete, that the Minister of Natural Resources responded to the Chippewas of the Thames on behalf of the Crown advising them that it relied on the NEB ’s process. At the hearing before this Court, the Chippewas of the Thames conceded that the Crown may have been entitled to rely on the NEB  to carry out the duty had they received the Minister’s letter indicating the Crown’s reliance prior to the NEB  hearing (transcript, at pp. 34-35). However, having not received advance notice of the Crown’s intention to do so, the Chippewas of the Thames maintain that consultation could not properly be carried out by the NEB .

[46]                          In February 2013, the NEB  contacted the Chippewas of the Thames and 18 other Indigenous groups to inform them of the project and of the NEB ’s role in relation to its approval. The Indigenous groups were given 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. In this role, they were aware that the NEB  was the final decision maker under s. 58 of the NEB Act. Moreover, as is evidenced from their letter of September 2013, they understood that no other Crown entity was involved in the process for the purposes of carrying out consultation. In our view, the circumstances of this case 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. 

F.             Was the Crown’s Consultation Obligation Fulfilled?

[47]                          When deep consultation is required, the duty to consult may be satisfied if there is “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). As well, this Court has recognized that the Crown may wish to “adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers” (ibid.). This list is neither exhaustive nor mandatory. As we indicated above, neither the NEB  nor the Federal Court of Appeal assessed the depth of consultation required in this case. However, the Attorney General of Canada submitted before this Court that the NEB ’s statutory powers were capable of satisfying the Crown’s constitutional obligations in this case, accepting the rights as asserted by the Chippewas of the Thames and the potential adverse impact of a spill. With this, we agree. 

[48]                          As acknowledged in its reasons, the NEB , as a quasi-judicial decision maker, is required to carry out its responsibilities under s. 58 of the NEB Act in a manner consistent with s. 35  of the Constitution Act, 1982 . In our view, this requires it to take the rights and interests of Indigenous groups into consideration before it makes a final decision that could impact them. Given the NEB ’s expertise in the supervision and approval of federally regulated pipeline projects, the NEB  is particularly well positioned to assess the risks posed by such projects to Indigenous groups. Moreover, the NEB  has broad jurisdiction to impose conditions on proponents to mitigate those risks. Additionally, its ongoing regulatory role in the enforcement of safety measures permits it to oversee long-term compliance with such conditions. Therefore, we conclude that the NEB ’s statutory powers under s. 58  are capable of satisfying the Crown’s duty to consult in this case.

[49]                          However, a finding that the NEB ’s statutory authority allowed for it to satisfy the duty to consult is not determinative of whether the Crown’s constitutional obligations were upheld in this case. The Chippewas of the Thames maintain that the process carried out by the NEB  was not an adequate substitute for Crown consultation. In particular, the Chippewas of the Thames argue that the NEB ’s regulatory process failed to engage affected Indigenous groups in a “meaningful way in order for adverse impacts to be understood and minimized” (A.F., at para. 110). They allege that the NEB ’s process did not “apprehend or address the seriousness” of the potential infringement of their treaty rights and title, nor did it “afford a genuine opportunity for accommodation by the Crown” (A.F., at para. 113). By minimizing the rights of the affected Indigenous groups and relying upon the proponent to mitigate potential impacts, they allege the process undertaken by the NEB  allowed for nothing more than “blowing off steam” (ibid.).

[50]                          Enbridge, on the other hand, argues not only that the NEB  was capable of satisfying the Crown’s duty to consult but that, in fact, it did so here. In support of its position, Enbridge points to the Chippewas of the Thames’ early notice of, and participation in, the NEB ’s formal hearing process as well as the NEB ’s provision of written reasons. Moreover, Enbridge submits that far from failing to afford a genuine opportunity for accommodation by the Crown, the NEB ’s process provided “effective accommodation” through the imposition of conditions on Enbridge to mitigate the risk and effect of potential spills arising from the project (R.F., at para. 107).

[51]                          In our view, the process undertaken by the NEB  in this case was sufficient to satisfy the Crown’s duty to consult. 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.

[52]                          First, unlike the Inuit in the companion case of Clyde River, the Chippewas of the Thames were given a sufficient opportunity to make submissions to the NEB  as part of its independent decision-making process (consistent with Haida, at para. 44). Here, the NEB  held an oral hearing. It provided early notice of the hearing process to affected Indigenous groups and sought their formal participation. As mentioned above, the Chippewas of the Thames participated as an intervener. The NEB provided the Chippewas of the Thames with participant funding which allowed them to prepare and tender evidence including an expertly prepared “preliminary” traditional land use study (C.A. reasons, at para. 14). Additionally, as an intervener, the Chippewas of the Thames were able to pose formal information requests to Enbridge, to which they received written responses, and to make closing oral submissions to the NEB .

[53]                          Contrary to the submissions of the Chippewas of the Thames, we do not find that the NEB  minimized or failed to apprehend the importance of their asserted Aboriginal and treaty rights. Before the NEB , the Chippewas of the Thames asserted rights that had the potential to be impacted by the project: (a) Aboriginal harvesting and hunting rights; (b) the right to access and preserve sacred sites; (c) Aboriginal title to the bed of the Thames River and its related airspace or, in the alternative, an Aboriginal right to use the water, resources and airspace in the bed of the Thames River; and (d) the treaty right to the exclusive use of their reserve lands. In its written reasons, the NEB  expressly recognized these rights. Moreover, in light of the rights asserted, the NEB  went on to consider whether affected Indigenous groups had received adequate information regarding the project and a proper opportunity to express their concerns to Enbridge. It noted that the project was to occur within Enbridge’s existing right of way on previously disturbed land. No additional Crown land was required. Given the scope of the project and its location, the NEB  was satisfied that all Indigenous groups had been adequately consulted.

[54]                          Second, the NEB  considered the potential for negative impacts on the rights and interests of the Chippewas of the Thames. It identified potential consequences that could arise from either the construction required for the completion of the project or the increased risk of spill brought about by the continued operation of Line 9.

[55]                          The NEB found that any potential negative impacts on the rights and interests of the Chippewas of the Thames from the modification of Line 9 were minimal and could be reasonably mitigated. The NEB found that it was unlikely that the completion of the project would have any impact on the traditional land use rights of Indigenous groups. Given the location of the project and its limited scope, as well as the conditions that the NEB  imposed on Enbridge, the NEB  was satisfied that the risk of negative impact through the completion of the project was negligible.

[56]                          Similarly, the NEB  assessed the increased risk of a spill or leak from Line 9 as a result of the project. It recognized the potential negative impacts that a spill could have on traditional land use, but found that the risk was low and could be adequately mitigated. Given Enbridge’s commitment to safety and the conditions imposed upon it by the NEB , the NEB  was confident that Line 9 would be operated in a safe manner throughout the term of the project. The risk to the rights asserted by the Chippewas of the Thames resulting from a potential spill or leak was therefore minimal.

[57]                          Third, we do not agree with the Chippewas of the Thames that the NEB ’s process failed to provide an opportunity for adequate accommodation. Having enumerated the rights asserted by the Chippewas of the Thames and other Indigenous groups, the adequacy of information provided to the Indigenous groups from Enbridge in light of those rights, and the risks to those rights posed by the construction and ongoing operation of Line 9, the NEB  imposed a number of accommodation measures that were designed to minimize risks and respond directly to the concerns posed by affected Indigenous groups. To facilitate ongoing communication between Enbridge and affected Indigenous groups regarding the project, the NEB  imposed Condition 24. This accommodation measure required Enbridge to continue to consult with Indigenous groups and produce Ongoing Engagement Reports which were to be provided to the NEB . Similarly, Condition 29 required Enbridge to file a plan for continued engagement with persons and groups during the operation of Line 9. Therefore, we find that the NEB  carried out a meaningful process of consultation including the imposition of appropriate accommodation measures where necessary.

[58]                          Nonetheless, the Chippewas of the Thames argue that any putative consultation that occurred in this case was inadequate as the NEB  “focused on balancing multiple interests” which resulted in the Chippewas of the Thames’ “Aboriginal and treaty rights [being] weighed by the Board against a number of economic and public interest factors” (A.F., at paras. 95 and 104). This, the Chippewas of the Thames assert, is an inadequate means by which to assess Aboriginal and treaty rights that are constitutionally guaranteed by s. 35  of the Constitution Act, 1982 .

[59]                          In Carrier Sekani, this Court recognized that “[t]he constitutional dimension of the duty to consult gives rise to a special public interest” which surpasses economic concerns (para. 70). A decision to authorize a project cannot be in the public interest if the Crown’s duty to consult has not been met (Clyde River, at para. 40; Carrier Sekani, at para. 70). Nevertheless, this does not mean that the interests of Indigenous groups cannot be balanced with other interests at the accommodation stage. Indeed, it is for this reason that the duty to consult does not provide Indigenous groups with a “veto” over final Crown decisions (Haida, at para. 48). Rather, proper accommodation “stress[es] the need to balance competing societal interests with Aboriginal and treaty rights” (Haida, at para. 50).

[60]                          Here, the NEB  recognized that the impact of the project on the rights and interests of the Chippewas of the Thames was likely to be minimal. Nonetheless, it imposed conditions on Enbridge to accommodate the interests of the Chippewas of the Thames and to ensure ongoing consultation between the proponent and Indigenous groups. The Chippewas of the Thames are not entitled to a one-sided process, but rather, a cooperative one with a view towards reconciliation. Balance and compromise are inherent in that process (Haida, at para. 50).

G.           Were the NEB ’s Reasons Sufficient?

[61]                          Finally, in the hearing before us, the Chippewas of the Thames raised the issue of the adequacy of the NEB ’s reasons regarding consultation with Indigenous groups. The Chippewas of the Thames asserted that the NEB ’s process could not have constituted consultation in part because of the NEB ’s failure to engage in a Haida-style analysis. In particular, the NEB  did not identify the strength of the asserted Aboriginal and treaty rights, nor did it identify the depth of consultation required in relation to each Indigenous group. As a consequence, the Chippewas of the Thames submit that the NEB  could not have fulfilled the Crown’s duty to consult.

[62]                          In Haida, this Court found 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 (Haida, at para. 44). In Clyde River, we note that written reasons foster reconciliation (para. 41). Where Aboriginal and treaty rights are asserted, the provision of reasons denotes respect (Kainaiwa/Blood Tribe v. Alberta (Energy), 2017 ABQB 107, at para. 117 (CanLII)) and encourages proper decision making (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 39).

[63]                          We agree with the Chippewas of the Thames that this case required the NEB  to provide written reasons. Additionally, as we recognized in the companion case Clyde River, where affected Indigenous peoples have squarely raised concerns about Crown consultation with the NEB , the NEB  must usually provide written reasons (Clyde River, at para. 41). However, this requirement does not necessitate a formulaic “Haida analysis” in all circumstances (para. 42). Instead, where deep consultation is required and the issue of Crown consultation is raised with the NEB , the NEB  will be obliged to “explain how it considered and addressed” Indigenous concerns (ibid.). What is necessary is an indication that the NEB  took the asserted Aboriginal and treaty rights into consideration and accommodated them where appropriate.

[64]                          In our view, the NEB ’s written reasons are sufficient to satisfy the Crown’s obligation. It is notable that, unlike the NEB ’s reasons in the companion case Clyde River, the discussion of Aboriginal consultation in this case was not subsumed within an environmental assessment. The NEB reviewed the written and oral evidence of numerous Indigenous interveners and identified, in writing, the rights and interests at stake. It assessed the risks that the project posed to those rights and interests and concluded that the risks were minimal. Nonetheless, it 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.

[65]                          For these reasons, we reject the Chippewas of the Thames’ assertion that the NEB ’s reasons were insufficient to satisfy the Crown’s duty to consult.

V.           Conclusion

[66]                          We are of the view that the Crown’s duty to consult was met. Accordingly, we would dismiss this appeal with costs to Enbridge.

 

                    Appeal dismissed with costs to Enbridge Pipelines Inc.

                    Solicitors for the appellant: Nahwegahbow, Corbiere, Rama, Ontario.

                    Solicitors for the respondent Enbridge Pipelines Inc.: Dentons Canada, Calgary; Enbridge Law Department, Calgary.

                    Solicitor for the respondent the National Energy Board: National Energy Board, Calgary.

                    Solicitor for the respondent the Attorney General of Canada: Attorney General of Canada, Toronto.

                    Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

                    Solicitor for the intervener the Attorney General of Saskatchewan: Attorney General of Saskatchewan, Regina.

                    Solicitors for the intervener the Nunavut Wildlife Management Board: Supreme Advocacy, Ottawa.

                    Solicitors for the intervener Suncor Energy Marketing Inc.: Osler, Hoskin & Harcourt, Calgary; Suncor Law Department, Calgary.

                    Solicitor for the intervener the Mohawk Council of Kahnawà:ke: Mohawk Council of Kahnawake Legal Services, Mohawk Territory of Kahnawà:ke, Quebec.

                    Solicitors for the intervener the Mississaugas of the New Credit First Nation: Pape Salter Teillet, Toronto.

                    Solicitors for the intervener the Chiefs of Ontario: Gowling WLG (Canada), Ottawa.

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