SUPREME
COURT OF CANADA
Citation:
Clyde River (Hamlet) v. Petroleum Geo‑Services Inc.,
2017 SCC 40
|
Appeal heard:
November 30, 2016
Judgment
rendered: July 26, 2017
Docket:
36692
|
Between:
Hamlet
of Clyde River, Nammautaq Hunters & Trappers Organization — Clyde River and
Jerry Natanine
Appellants
and
Petroleum
Geo-Services Inc. (PGS), Multi Klient Invest As (MKI),
TGS-Nopec Geophysical Company ASA (TGS) and Attorney General of Canada
Respondents
-
and -
Attorney
General of Ontario, Attorney General of Saskatchewan, Nunavut Tunngavik
Incorporated, Makivik Corporation, Nunavut Wildlife Management Board,
Inuvialuit Regional Corporation 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 53)
|
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.
clyde river (hamlet) v. petroleum geo‑services
inc.
Hamlet of Clyde River,
Nammautaq Hunters & Trappers
Organization — Clyde River and
Jerry Natanine Appellants
v.
Petroleum Geo‑Services Inc. (PGS),
Multi Klient Invest As (MKI),
TGS‑Nopec Geophysical Company ASA
(TGS) and
Attorney General of Canada Respondents
and
Attorney General of Ontario,
Attorney General of Saskatchewan,
Nunavut Tunngavik Incorporated,
Makivik Corporation,
Nunavut Wildlife Management Board,
Inuvialuit Regional Corporation and
Chiefs of Ontario Interveners
Indexed as: Clyde River (Hamlet) v. Petroleum Geo‑Services
Inc.
2017 SCC 40
File No.: 36692.
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 — Inuit — Treaty rights — Crown — Duty to consult — Decision by federal
independent regulatory agency which could impact upon treaty rights — Offshore
seismic testing for oil and gas resources potentially affecting Inuit treaty
rights — National Energy Board authorizing project — Whether Board’s approval
process triggered Crown’s duty to consult — Whether Crown can rely on Board’s
process to fulfill its duty — Role of Board in considering Crown consultation
before approval of project — Whether consultation was adequate in this case —
Canada Oil and Gas Operations Act, R.S.C. 1985, c. 0-7, s. 5(1)(b).
The
National Energy Board (NEB), a federal administrative tribunal and regulatory
agency, is the final decision maker for issuing authorizations for activities such
as exploration and drilling for the production of oil and gas in certain
designated areas. The proponents applied to the NEB to conduct offshore seismic
testing for oil and gas in Nunavut. The proposed testing could negatively
affect the treaty rights of the Inuit of Clyde River, who opposed the seismic
testing, alleging that the duty to consult had not been fulfilled in relation
to it. The NEB granted the requested authorization. It concluded that the
proponents made sufficient efforts to consult with Aboriginal groups and that
Aboriginal groups had an adequate opportunity to participate in the NEB’s
process. The NEB also concluded that the testing was unlikely to cause
significant adverse environmental effects. Clyde River applied for judicial
review of the NEB’s decision. The Federal Court of Appeal found that while the
duty to consult had been triggered, the Crown was entitled to rely on the NEB
to undertake such consultation, and the Crown’s duty to consult had been
satisfied in this case by the NEB’s process.
Held:
The appeal should be allowed and the NEB’s authorization quashed.
The
NEB’s approval process, in this case, triggered the duty to consult. Crown
conduct which would trigger the duty to consult is not restricted to the
exercise by or on behalf of the Crown of statutory powers or of the royal
prerogative, nor is it limited to decisions that have an immediate impact on
lands and resources. The NEB is not, strictly speaking, “the Crown” or an agent
of the Crown. However, it acts on behalf of the Crown when making a final
decision on a project application. In this context, the NEB is the vehicle
through which the Crown acts. It therefore does not matter whether the final
decision maker is Cabinet or the NEB. In either case, the decision constitutes
Crown action that may trigger the duty to consult. The substance of the duty
does not change when a regulatory agency holds final decision-making authority.
It
is open to legislatures to empower regulatory bodies to play a role in
fulfilling the Crown’s duty to consult. While the Crown always holds ultimate
responsibility for ensuring consultation is adequate, it may rely on steps
undertaken by a regulatory agency to fulfill its duty to consult. Where the
regulatory process being relied upon does not achieve adequate consultation or
accommodation, the Crown must take further measures. Also, where the Crown
relies on the processes of a regulatory body to fulfill its duty in whole or in
part, it should be made clear to affected Indigenous groups that the Crown is
so relying. The NEB has the procedural powers necessary to implement
consultation, and the remedial powers to, where necessary, accommodate affected
Aboriginal claims, or Aboriginal and treaty rights. Its process can therefore
be relied on by the Crown to completely or partially fulfill the Crown’s duty
to consult.
The
NEB has broad powers to hear and determine all relevant matters of fact and
law, and its decisions must conform to s. 35(1) the Constitution Act,
1982 . It follows that the NEB can determine whether the Crown’s duty has
been fulfilled. The public interest and the duty to consult do not operate in
conflict here. The duty to consult, being a constitutional imperative, gives
rise to a special public interest that supersedes other concerns typically
considered by tribunals tasked with assessing the public interest. A project
authorization that breaches the constitutionally protected rights of Indigenous
peoples cannot serve the public interest. When affected Indigenous groups have
squarely raised concerns about Crown consultation with the NEB, the NEB must
usually address those concerns in reasons. The degree of consideration that is
appropriate will depend on the circumstances of each case. Above all, any decision
affecting Aboriginal or treaty rights made on the basis of inadequate
consultation will not be in compliance with the duty to consult. Where the
Crown’s duty to consult remains unfulfilled, the NEB must withhold project
approval. Where the NEB fails to do so, its approval decision should be quashed
on judicial review.
While
the Crown may rely on the NEB’s process to fulfill its duty to consult, the
consultation and accommodation efforts in this case were inadequate and fell
short in several respects. First, the inquiry was misdirected. The consultative
inquiry is not properly into environmental effects per se. Rather, it
inquires into the impact on the right itself. No consideration was given in the
NEB’s environmental assessment to the source of the Inuit’s treaty rights, nor
to the impact of the proposed testing on those rights. Second, although the
Crown relies on the processes of the NEB as fulfilling its duty to consult,
that was not made clear to the Inuit. Finally, and most importantly, the process provided by the NEB did not fulfill the Crown’s duty to
conduct the deep consultation that was required here. Limited opportunities for
participation and consultation were made available. There were no oral hearings
and there was no participant funding. While these procedural safeguards are not
always necessary, their absence in this case significantly impaired the quality
of consultation. As well, the proponents eventually responded to questions
raised during the environmental assessment process in the form of a practically
inaccessible document months after the questions were asked. There was no
mutual understanding on the core issues — the potential impact on treaty
rights, and possible accommodations. As well, the changes made to the project
as a result of consultation were insignificant concessions in light of the
potential impairment of the Inuit’s treaty rights. Therefore, the Crown
breached its duty to consult in respect of the proposed testing.
Cases Cited
Applied:
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43,
[2010] 2 S.C.R. 650; distinguished: Taku River Tlingit First Nation
v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3
S.C.R. 550; referred to: Chippewas of the Thames First Nation v.
Enbridge Pipelines Inc., 2017 SCC 41; Haida Nation v. British Columbia
(Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; R. v. Kapp,
2008 SCC 41, [2008] 2 S.C.R. 483; Ross River Dena Council v. Yukon, 2012
YKCA 14, 358 D.L.R. (4th) 100; Beckman v. Little Salmon/Carmacks First
Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Chippewas of the Thames First
Nation v. Enbridge Pipelines Inc., 2015 FCA 222, [2016] 3 F.C.R. 96; McAteer
v. Canada (Attorney General), 2014 ONCA 578, 121 O.R. (3d) 1; Town
Investments Ltd. v. Department of the Environment, [1978] A.C. 359; R.
v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Quebec (Attorney General)
v. Canada (National Energy Board), [1994] 1 S.C.R. 159; 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; Kainaiwa/Blood Tribe v. Alberta (Energy), 2017 ABQB 107; Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Qikiqtani
Inuit Assn. v. Canada (Minister of Natural Resources), 2010 NUCJ 12, 54
C.E.L.R. (3d) 263.
Statutes and Regulations Cited
Canada Oil and Gas Operations Act,
R.S.C. 1985, c. O‑7, ss. 2.1 , 3 , 5(1) (a), 5(1) (b), 5(4) , 5(5) ,
5.002 , 5.2(2) , 5.31 , 5.32 , 5.331 , 5.36 .
Canadian Environmental Assessment Act,
S.C. 1992, c. 37 .
Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 .
Constitution Act, 1982, s. 35 .
National Energy Board Act, R.S.C. 1985,
c. N‑7, s. 12(2) .
National Energy Board Act, S.C. 1959, c. 46.
Treaties and Agreements
Nunavut Land Claims Agreement (1993).
Authors Cited
Freedman, Robert, and Sarah Hansen. “Aboriginal Rights vs. The
Public Interest” prepared for Pacific Business & Law Institute Conference,
Vancouver, B.C. (February 26-27, 2009) (online:
http://www.millerthomson.com/assets/files/article_attachments/Aboriginal_Rights_vs_The_Public_Interest.pdf;
archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC40_1_eng.pdf).
Hogg, Peter W., Patrick J. Monahan and Wade K. Wright. Liability
of the Crown, 4th ed. Toronto: Carswell, 2011.
Isaac, Thomas, and Anthony Knox. “The Crown’s Duty to Consult
Aboriginal People” (2003), 41 Alta. L. Rev. 49.
Newman, Dwight G. The Duty to Consult: New Relationships with
Aboriginal Peoples. Saskatoon: Purich Publishing, 2009.
APPEAL
from a judgment of the Federal Court of Appeal (Nadon, Dawson and
Boivin JJ.A.), 2015 FCA 179, [2016] 3 F.C.R. 167, 474 N.R. 96, 94 C.E.L.R.
(3d) 1, [2015] F.C.J. No. 991 (QL), 2015 CarswellNat 3750 (WL Can.),
affirming a decision of the National Energy Board, No. 5554587,
June 26, 2014. Appeal allowed.
Nader R.
Hasan, Justin Safayeni and Pam Hrick,
for the appellants.
Sandy
Carpenter and Ian Breneman, for the
respondents Petroleum Geo‑Services Inc. (PGS), Multi Klient Invest As
(MKI) and TGS‑Nopec Geophysical Company ASA (TGS).
Mark R.
Kindrachuk, Q.C., and Peter Southey, 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.
Dominique
Nouvet, Marie Belleau and Sonya Morgan,
for the intervener Nunavut Tunngavik Incorporated.
Written
submissions only by David Schulze and Nicholas
Dodd, for the intervener the Makivik Corporation.
Marie‑France
Major and Thomas Slade, for the intervener the Nunavut Wildlife
Management Board.
Kate
Darling, Lorraine Land, Matt McPherson and Krista
Nerland, for the intervener the Inuvialuit Regional Corporation.
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]
This Court has on several occasions affirmed the
role of the duty to consult in fostering reconciliation between Canada’s
Indigenous peoples and the Crown. In this appeal, and its companion Chippewas
of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41,
we consider the Crown’s duty to consult with Indigenous peoples before an
independent regulatory agency authorizes a project which could impact upon
their rights. The Court’s jurisprudence shows that the substance of the duty
does not change when a regulatory agency holds final decision-making authority
in respect of a project. While the Crown always owes the duty to consult,
regulatory processes can partially or completely fulfill this duty.
[2]
The Hamlet of Clyde River lies on the northeast
coast of Baffin Island, in Nunavut. The community is situated on a flood plain
between Patricia Bay and the Arctic Cordillera. Most residents of Clyde River
are Inuit, who rely on marine mammals for food and for their economic,
cultural, and spiritual well-being. They have harvested marine mammals for
generations. The bowhead whale, the narwhal, the ringed, bearded, and harp
seals, and the polar bear are of particular importance to them. Under the Nunavut
Land Claims Agreement (1993), the Inuit of Clyde River ceded all
Aboriginal claims, rights, title, and interests in the Nunavut Settlement Area,
including Clyde River, in exchange for defined treaty rights, including the
right to harvest marine mammals.
[3]
In 2011, the respondents TGS-NOPEC Geophysical
Company ASA, Multi Klient Invest As and Petroleum Geo-Services Inc. (the
proponents) applied to the National Energy Board (NEB) to conduct offshore
seismic testing for oil and gas resources. It is undisputed that this testing
could negatively affect the harvesting rights of the Inuit of Clyde River.
After a period of consultation among the project proponents, the NEB, and
affected Inuit communities, the NEB granted the requested authorization.
[4]
While the Crown may rely on the NEB’s process to
fulfill its duty to consult, considering the importance of the established
treaty rights at stake and the potential impact of the seismic testing on those
rights, we agree with the appellants that the consultation and accommodation
efforts in this case were inadequate. For the reasons set out below, we would
therefore allow the appeal and quash the NEB’s authorization.
II.
Background
A.
Legislative Framework
[5]
The Canada Oil and Gas Operations Act, R.S.C. 1985, c. O-7
(COGOA ), aims, in part, to promote responsible exploration for and
exploitation of oil and gas resources (s. 2.1 ). It applies to exploration and
drilling for the production, conservation, processing, and transportation of
oil and gas in certain designated areas, including Nunavut (s. 3). Engaging in
such activities is prohibited without an operating licence under s. 5(1) (a) or
an authorization under s. 5(1) (b).
[6]
The NEB is a federal administrative tribunal and regulatory
agency established by the National Energy Board Act, R.S.C. 1985, c. N-7
(NEB Act ). In this case, it is the final decision maker for issuing an
authorization under s. 5(1) (b) of COGOA . The NEB has broad discretion to
impose requirements for authorization under s. 5(4) , and can ask parties to
provide any information it deems necessary to comply with its statutory mandate
(s. 5.31 ).
B. The
Seismic Testing Authorization
[7]
In May 2011, the proponents applied to the NEB
for an authorization under s. 5(1) (b) of COGOA to conduct seismic
testing in Baffin Bay and Davis Strait, adjacent to the area where the Inuit
have treaty rights to harvest marine mammals. The proposed testing contemplated
towing airguns by ship through a project area. These airguns produce underwater
sound waves, which are intended to find and measure underwater geological
resources such as petroleum. The testing was to run from July through November,
for five successive years.
[8]
The NEB launched an environmental assessment of
the project.[1]
[9]
Clyde River opposed the seismic testing, and
filed a petition against it with the NEB in May 2011. In 2012, the proponents
responded to requests for further information from the NEB . They held meetings
in communities that would be affected by the testing, including Clyde River.
[10]
In April and May 2013, the NEB held meetings in
Pond Inlet, Clyde River, Qikiqtarjuaq, and Iqaluit to collect comments from the
public on the project. Representatives of the proponents attended these
meetings. Community members asked basic questions about the effects of the
survey on marine mammals in the region, but the proponents were unable to
answer many of them. For example, in Pond Inlet, a community member asked the
proponents which marine mammals would be affected by the survey. The proponents
answered: “That’s a very difficult question to answer because we’re not
the core experts” (A.R., vol. III, at p. 541). Similarly, in Clyde River, a
community member asked how the testing would affect marine mammals. The
proponents answered:
. . . a lot of work has been done with seismic surveys in
other places and a lot of that information is used in doing the environmental
assessment, the document that has been submitted by the companies to the
National Energy Board for the approval process. It has a section on, you know,
marine mammals and the effects on marine mammals.
(A.R.,
vol. III, at p. 651)
[11]
These are but two examples of multiple instances of the
proponents’ failure to offer substantive answers to basic questions about the
impacts of the proposed seismic testing. That failure led the
NEB , in May 2013, to suspend its assessment. In August 2013, the proponents
filed a 3,926 page document with the NEB , purporting to answer those questions.
This document was posted on the NEB website and delivered to the hamlet
offices. The vast majority of this document was not translated into Inuktitut.
No further efforts were made to determine whether this document was accessible
to the communities, and whether their questions were answered. After this
document was filed, the NEB resumed its assessment.
[12]
Throughout the environmental assessment process,
Clyde River and various Inuit organizations filed letters of comment with the
NEB , noting the inadequacy of consultation and expressing concerns about the
testing.
[13]
In April 2014, organizations representing the
appellants and Inuit in other communities wrote to the Minister of Aboriginal
Affairs and Northern Development and to the NEB , stating their view that the
duty to consult had not been fulfilled in relation to the testing. This could
be remedied, they said, by completing a strategic environmental assessment[2]
before authorizing any seismic testing. In May, the Nunavut Marine Council also
wrote to the NEB , with a copy to the Minister, asking that any regulatory
decisions affecting the Nunavut Settlement Area’s marine environment be
postponed until completion of the strategic environmental assessment. This
assessment was necessary, in the Council’s view, to understand the baseline
conditions in the marine environment and to ensure that seismic tests are
properly regulated.
[14]
In June 2014, the Minister responded to both
letters, “disagree[ing] with the view that seismic exploration of the region
should be put on hold until the completion of a strategic environmental
assessment” (A.R., vol. IV, at p. 967). A Geophysical Operations Authorisation
letter from the NEB soon followed, advising that the environmental assessment
report was completed and that the authorization had been granted.
[15]
In its environmental assessment (EA) report, the
NEB discussed consultation with, and the participation of, Aboriginal groups in
the NEB process. It concluded that the proponents “made sufficient efforts to
consult with potentially-impacted Aboriginal groups and to address concerns
raised” and that “Aboriginal groups had an adequate opportunity to participate
in the NEB ’s EA process” (A.R., vol. I, at p. 24). It also determined that the
testing could change the migration routes of marine mammals and increase their
risk of mortality, thereby affecting traditional harvesting of marine mammals
including bowhead whales and narwhals, which are both identified as being of
“Special Concern” by the Committee on the Status of Endangered Wildlife in
Canada (COSEWIC). The NEB concluded, however, that the testing was unlikely to
cause significant adverse environmental effects given the mitigation measures
that the proponents would implement.
C.
The Judicial Review Proceedings
[16]
Clyde River applied to the Federal Court of
Appeal for judicial review of the NEB ’s decision to grant the authorization.
Dawson J.A. (Nadon and Boivin JJ.A. concurring) found that the duty to consult
had been triggered because the NEB could not grant the authorization without
the minister’s approval (or waiver of the requirement for approval) of a
benefits plan for the project, pursuant to s. 5.2(2) of COGOA (2015 FCA
179, [2016] 3 F.C.R. 167). The Federal Court of Appeal characterized the degree
of consultation owed in the circumstances as deep, as that concept was
discussed in Haida Nation v. British Columbia (Minister of Forests),
2004 SCC 73, [2004] 3 S.C.R. 511, at para. 44, and found that the Crown was
entitled to rely on the NEB to undertake such consultation.
[17]
The Court of Appeal also concluded that the
Crown’s duty to consult had been satisfied by the nature and scope of the NEB ’s
processes. The conditions upon which the authorization had been granted showed
that the interests of the Inuit had been sufficiently considered and that
further consultation would be expected to occur were the proposed testing to be
followed by further development activities. In the circumstances, a strategic
environmental assessment report was not required.
III.
Analysis
[18]
The following issues arise in this appeal:
1.
Can an NEB approval process trigger the duty to consult?
2.
Can the Crown rely on the NEB ’s process to fulfill the duty to consult?
3.
What is the NEB ’s role in considering Crown
consultation before approval?
4.
Was the consultation adequate in this case?
A.
The Duty to Consult — General Principles
[19]
The duty to consult seeks to protect Aboriginal
and treaty rights while furthering reconciliation between Indigenous peoples
and the Crown (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,
2010 SCC 43, [2010] 2 S.C.R. 650, at para. 34). It has both a constitutional and a legal dimension (R. v. Kapp,
2008 SCC 41, [2008] 2 S.C.R. 483, at para. 6; Carrier Sekani, at para.
34). Its constitutional dimension is grounded in the honour of the Crown (Kapp,
at para. 6). This principle is in turn enshrined in s. 35(1) of the Constitution
Act, 1982 , which recognizes and affirms existing Aboriginal and treaty
rights (Taku River Tlingit First Nation v. British Columbia (Project
Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24). And,
as a legal obligation, it is based in the Crown’s assumption of sovereignty
over lands and resources formerly held by Indigenous peoples (Haida, at
para. 53).
[20]
The content of the duty, once triggered, falls
along a spectrum ranging from limited to deep consultation, depending upon the
strength of the Aboriginal claim, and the seriousness of the potential impact
on the right. Each case must be considered individually. Flexibility is
required, as the depth of consultation required may change as the process
advances and new information comes to light (Haida, at paras. 39
and 43-45).
[21]
This Court has affirmed that it is open to
legislatures to empower regulatory bodies to play a role in fulfilling the
Crown’s duty to consult (Carrier Sekani, at para. 56; Haida, at
para. 51). The appellants argue that a regulatory process alone cannot fulfill
the duty to consult because at least some direct engagement between “the Crown”
and the affected Indigenous community is necessary.
[22]
In our view, while the Crown may rely on steps
undertaken by a regulatory agency to fulfill its duty to consult in whole or in
part and, where appropriate, accommodate, the Crown always holds ultimate
responsibility for ensuring consultation is adequate. Practically speaking,
this does not mean that a minister of the Crown must give explicit
consideration in every case to whether the duty to consult has been satisfied,
or must directly participate in the process of consultation. Where the regulatory
process being relied upon does not achieve adequate consultation or
accommodation, the Crown must take further measures to meet its duty. This
might entail filling any gaps on a case-by-case basis or more systemically
through legislative or regulatory amendments (see e.g. Ross River Dena
Council v. Yukon, 2012 YKCA 14, 358 D.L.R. (4th) 100). Or, it might require
making submissions to the regulatory body, requesting reconsideration of a
decision, or seeking a postponement in order to carry out further consultation
in a separate process before the decision is rendered. And, if an affected
Indigenous group is (like the Inuit of Nunavut) a party to a modern treaty and
perceives the process to be deficient, it should, as it did here, request such
direct Crown engagement in a timely manner (since parties to treaties are
obliged to act diligently to advance their respective interests) (Beckman v.
Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at
para. 12).
[23]
Further, because the honour of the Crown
requires a meaningful, good faith consultation process (Haida, at para.
41), where the Crown relies on the processes of a regulatory body to fulfill
its duty in whole or in part, it should be made clear to affected Indigenous
groups that the Crown is so relying. Guidance about the form of the
consultation process should be provided so that Indigenous peoples know how
consultation will be carried out to allow for their effective participation
and, if necessary, to permit them to raise concerns with the proposed form of
the consultations in a timely manner.
[24]
Above all, and irrespective of the process by
which consultation is undertaken, any decision affecting Aboriginal or treaty
rights made on the basis of inadequate consultation will not be in compliance
with the duty to consult, which is a constitutional imperative. Where
challenged, it should be quashed on judicial review. That said, judicial review
is no substitute for adequate consultation. True reconciliation is rarely, if
ever, achieved in courtrooms. Judicial remedies may seek to undo past
infringements of Aboriginal and treaty rights, but adequate Crown consultation before
project approval is always preferable to after-the-fact judicial remonstration
following an adversarial process. Consultation is, after all, “[c]oncerned with an ethic of ongoing relationships” (Carrier Sekani,
at para. 38, quoting D. G. Newman, The Duty to Consult: New
Relationships with Aboriginal Peoples (2009), at p. 21). As the Court noted in Haida, “[w]hile
Aboriginal claims can be and are pursued through litigation, negotiation is a
preferable way of reconciling state and Aboriginal interests” (para. 14). 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.
B. Can an NEB Approval Process Trigger the Duty to Consult?
[25]
The duty to consult is triggered when the Crown
has actual or constructive knowledge of a potential Aboriginal claim or
Aboriginal or treaty rights that might be adversely affected by Crown conduct (Haida,
at para. 35; Carrier Sekani, at para. 31). Crown conduct which would
trigger the duty is not restricted to the exercise by or on behalf of the Crown
of statutory powers or of the royal prerogative, nor is it limited to decisions
that have an immediate impact on lands and resources. The concern is for
adverse impacts, however made, upon Aboriginal and treaty rights and, indeed, a
goal of consultation is to identify, minimize and address adverse impacts where
possible. (Carrier Sekani, at paras. 45-46).
[26]
In this appeal, all parties agreed that the
Crown’s duty to consult was triggered, although agreement on just what
Crown conduct triggered the duty has proven elusive. The Federal Court of
Appeal saw the trigger in COGOA ’s requirement for ministerial approval
(or waiver of the requirement for approval) of a benefits plan for the testing.
In the companion appeal of Chippewas of the Thames, the majority of the
Federal Court of Appeal concluded that it was not necessary to decide whether
the duty to consult was triggered since the Crown was not a party before the
NEB , but suggested the only Crown action involved might have been the 1959
enactment of the NEB Act[3] (Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.,
2015 FCA 222, [2016] 3 F.C.R. 96). In short, the Federal Court of Appeal in
both cases was of the view that only action by a minister of the Crown or a
government department, or a Crown corporation, can constitute Crown conduct
triggering the duty to consult. And, before this Court in Chippewas of the
Thames, the Attorney General of Canada argued that the duty was triggered
by the NEB ’s approval of the pipeline project, because it was state action with
the potential to affect Aboriginal or treaty rights.
[27]
Contrary to the Federal Court of Appeal’s
conclusions on this point, we agree that the NEB ’s approval process, in this
case, as in Chippewas of the Thames, triggered the duty to consult.
[28]
It bears reiterating that the duty to consult is
owed by the Crown. In one sense, the “Crown” refers to the personification in
Her Majesty of the Canadian state in exercising the prerogatives and privileges
reserved to it. The Crown also, however, denotes the sovereign in the exercise
of her formal legislative role (in assenting, refusing assent to, or reserving
legislative or parliamentary bills), and as the head of executive authority (McAteer
v. Canada (Attorney General), 2014 ONCA 578, 121 O.R. (3d) 1, at para. 51;
P. W. Hogg, P. J. Monahan and W. K. Wright, Liability of the Crown (4th
ed. 2011), at pp. 11-12; but see Carrier Sekani, at para. 44). For this
reason, the term “Crown” is commonly used to symbolize and denote executive
power. This was described by Lord Simon of Glaisdale in Town Investments
Ltd. v. Department of the Environment, [1978] A.C. 359 (H.L.), at p. 397:
The crown as an object is a piece of
jewelled headgear under guard at the Tower of London. But it symbolises the
powers of government which were formerly wielded by the wearer of the crown; so
that by the 13th century crimes were committed not only against the king’s
peace but also against “his crown and dignity”: Pollock and Maitland,
History of English Law, 2nd ed. (1898), vol. I, p. 525. The term “the
Crown” is therefore used in constitutional law to denote the collection of such
of those powers as remain extant (the royal prerogative), together with such
other powers as have been expressly conferred by statute on “the Crown.”
[29]
By this understanding, the NEB is not, strictly
speaking, “the Crown”. Nor is it, strictly speaking, an agent of the Crown,
since — as the NEB operates independently of the Crown’s ministers — no
relationship of control exists between them (Hogg, Monahan and Wright, at p.
465). As a statutory body holding responsibility under s. 5(1) (b) of COGOA ,
however, the NEB acts on behalf of the Crown when making a final decision
on a project application. Put plainly, once it is accepted that a regulatory
agency exists to exercise executive power as authorized by legislatures, any
distinction between its actions and Crown action quickly falls away. In this
context, the NEB is the vehicle through which the Crown acts. Hence this
Court’s interchangeable references in Carrier Sekani to “government
action” and “Crown conduct” (paras. 42-44). It therefore does not matter
whether the final decision maker on a resource project is Cabinet or the NEB .
In either case, the decision constitutes Crown action that may trigger the duty
to consult. As Rennie J.A. said in dissent at the Federal Court of Appeal in Chippewas
of the Thames, “[t]he duty, like the honour of the Crown, does not
evaporate simply because a final decision has been made by a tribunal
established by Parliament, as opposed to Cabinet” (para. 105). The action of
the NEB , taken in furtherance of its statutory powers under s. 5(1) (b) of COGOA
to make final decisions respecting such testing as was proposed here, clearly
constitutes Crown action.
C.
Can the Crown Rely on the NEB ’s Process to
Fulfill the Duty to Consult?
[30]
As we have said, while ultimate responsibility
for ensuring the adequacy of consultation remains with the Crown, the Crown may
rely on steps undertaken by a regulatory agency to fulfill the duty to consult.
Whether, however, the Crown is capable of doing so, in whole or in part,
depends on whether the agency’s statutory duties and
powers enable it to do what the duty requires in the particular circumstances (Carrier
Sekani, at paras. 55 and 60). In the NEB ’s case, therefore, the question is
whether the NEB is able, to the extent it is being relied on, to provide an
appropriate level of consultation and, where necessary, accommodation to the
Inuit of Clyde River in respect of the proposed testing.
[31]
We note that the NEB and COGOA each
predate judicial recognition of the duty to consult. However, given the
flexible nature of the duty, a process that was originally designed for a
different purpose may be relied on by the Crown so long as it affords an
appropriate level of consultation to the affected Indigenous group (Beckman,
at para. 39; Taku River, at para. 22). Under COGOA, the NEB has a
significant array of powers that permit extensive consultation. It may conduct
hearings, and has broad discretion to make orders or elicit information in
furtherance of COGOA and the public interest (ss. 5 .331, s. 5.31(1) and
s. 5.32). It can also require studies to be undertaken and impose preconditions
to approval (s. 5(4) ). In the case of designated projects, it can also (as
here) conduct environmental assessments, and establish participant funding
programs to facilitate public participation (s. 5.002 ).
[32]
COGOA also grants
the NEB broad powers to accommodate the concerns of Indigenous groups where
necessary. The NEB can attach any terms and conditions it sees fit to an
authorization issued under s. 5(1) (b), and can make such authorization
contingent on their performance (ss. 5(4) and 5.36(1) ). Most importantly, the
NEB may require accommodation by exercising its discretion to deny an
authorization or by reserving its decision pending further proceedings (s.
5(1) (b), s. 5(5) and s. 5.36(2) ).
[33]
The NEB has also developed considerable
institutional expertise, both in conducting consultations and in assessing the
environmental impacts of proposed projects. Where the effects of a proposed
project on Aboriginal or treaty rights substantially overlap with the project’s
potential environmental impact, the NEB is well situated to oversee
consultations which seek to address these effects, and to use its technical
expertise to assess what forms of accommodation might be available.
[34]
In sum, the NEB has (1) the procedural powers
necessary to implement consultation; and (2) the remedial powers to, where
necessary, accommodate affected Aboriginal claims, or Aboriginal and treaty
rights. Its process can therefore be relied on by the Crown to completely or
partially fulfill the Crown’s duty to consult. Whether the NEB ’s process did so
in this case, we consider below.
D.
What Is the NEB ’s Role in Considering Crown
Consultation Before Approval?
[35]
The appellants argue that, as a tribunal
empowered to decide questions of law, the NEB must exercise its
decision-making authority in accordance with s. 35(1) of the Constitution
Act, 1982 by evaluating the adequacy of consultation before issuing an
authorization for seismic testing. In contrast, the proponents submit that
there is no basis in this Court’s jurisprudence for imposing this obligation on
the NEB . Although the Attorney General of Canada agrees with the appellants
that the NEB has the legal capacity to decide constitutional questions when
doing so is necessary to its decision-making powers, she argues that the NEB ’s
environmental assessment decision in this case appropriately considered the
adequacy of the proponents’ consultation efforts.
[36]
Generally, a tribunal empowered to consider
questions of law must determine whether such consultation was constitutionally
sufficient if the issue is properly raised. The power of a tribunal “to decide
questions of law implies a power to decide constitutional issues that are
properly before it, absent a clear demonstration that the legislature intended
to exclude such jurisdiction from the tribunal’s power” (Carrier Sekani,
at para. 69). Regulatory agencies with the authority to
decide questions of law have both the duty and authority to apply the
Constitution, unless the authority to decide the constitutional issue has been
clearly withdrawn (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at
para. 77). It follows that they must ensure their
decisions comply with s. 35 of the Constitution Act, 1982 (Carrier
Sekani, at para. 72).
[37]
The NEB has broad powers under both the NEB Act and
COGOA to hear and determine all relevant matters of fact and law (NEB
Act, s. 12(2); COGOA, s. 5.31(2) ). No provision in either statute suggests an intention to withhold from the NEB the power to decide
the adequacy of consultation. And, in Quebec (Attorney General) v. Canada
(National Energy Board), [1994] 1 S.C.R. 159, this Court concluded that NEB
decisions must conform to s. 35(1) of the Constitution Act, 1982 . It
follows that the NEB can determine whether the Crown’s duty to consult has been
fulfilled.
[38]
We note that the majority at the Federal Court of
Appeal in Chippewas of the Thames considered that this issue was not
properly before the NEB . It distinguished Carrier Sekani on the basis
that the Crown was not a party to the NEB hearing in Chippewas of the Thames,
while the Crown (in the form of B.C. Hydro, a Crown corporation) was a party in
the utilities commission proceedings in Carrier Sekani. Based on the
authority of Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc.,
2009 FCA 308, [2010] 4 F.C.R. 500, the majority of the Federal Court of Appeal
in Chippewas of the Thames reasoned that the NEB is not required to
evaluate whether the Crown’s duty to consult had been triggered (or whether it
was satisfied) before granting a resource project authorization, except where
the Crown is a party before the NEB .
[39]
The difficulty with this view, however, is that —
as we have explained — action taken by the NEB in
furtherance of its powers under s. 5(1) (b) of COGOA to make final
decisions is itself Crown conduct which triggers
the duty to consult. Nor, respectfully, can we agree with the majority of the
Federal Court of Appeal in Chippewas of the Thames that an NEB decision
will comply with s. 35(1) of the Constitution Act, 1982 so long as the
NEB ensures the proponents engage in a “dialogue” with potentially affected
Indigenous groups (para. 62). 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. Although
in many cases the Crown will be able to rely on the NEB ’s processes as meeting
the duty to consult, because the NEB is the final decision maker, the key
question is whether the duty is fulfilled prior to project approval (Haida,
at para. 67). Accordingly, where the Crown’s duty to
consult an affected Indigenous group with respect to a project under COGOA remains
unfulfilled, the NEB must withhold project approval. And, where the NEB fails
to do so, its approval decision should (as we have already
said) be quashed on judicial review, since the duty to consult must be
fulfilled prior to the action that could adversely affect the right in question
(Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R.
257, at para. 78).
[40]
Some commentators have suggested that the NEB ,
in view of its mandate to decide issues in the public interest, cannot
effectively account for Aboriginal and treaty rights and assess the Crown’s
duty to consult (see R. Freedman and S. Hansen, “Aboriginal Rights vs. The
Public Interest”, prepared for Pacific Business & Law Institute Conference,
Vancouver, B.C. (February 26-27, 2009) (online), at pp. 4 and 14). We do not,
however, see the public interest and the duty to consult as operating in
conflict. As this Court explained in Carrier Sekani, the duty to
consult, being a constitutional imperative, gives rise to a special public
interest that supersedes other concerns typically considered by tribunals
tasked with assessing the public interest (para. 70). A project authorization
that breaches the constitutionally protected rights of Indigenous peoples
cannot serve the public interest (ibid.).
[41]
This leaves the question of what a regulatory
agency must do where the adequacy of Crown consultation is raised before it.
When affected Indigenous groups have squarely raised concerns about Crown
consultation with the NEB , the NEB must usually address those concerns in
reasons, particularly in respect of project applications requiring deep
consultation. Engagement of the honour of the Crown does not predispose a
certain outcome, but promotes reconciliation by imposing obligations on the
manner and approach of government (Haida, at paras. 49 and 63). Written
reasons foster reconciliation by showing affected Indigenous peoples that their
rights were considered and addressed (Haida, at para. 44). Reasons are
“a sign of respect [which] displays the requisite comity and courtesy becoming
the Crown as Sovereign toward a prior occupying nation” (Kainaiwa/Blood
Tribe v. Alberta (Energy), 2017 ABQB 107, at para. 117 (CanLII)). Written
reasons also promote better decision making (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 39).
[42]
This does not
mean, however, that the NEB is always required to review the adequacy of Crown
consultation by applying a formulaic “Haida analysis”, as the appellants
suggest. Nor will explicit reasons be required in every case. The degree of
consideration that is appropriate will depend on the circumstances of each
case. But where deep consultation is required and the affected Indigenous peoples
have made their concerns known, the honour of the Crown will usually oblige the
NEB , where its approval process triggers the duty to consult, to explain how it
considered and addressed these concerns.
E.
Was the Consultation Adequate in This Case?
[43]
The Crown acknowledges that deep consultation
was required in this case, and we agree. As this Court explained in Haida,
deep consultation is required “where a strong prima
facie case for the claim is established, the right and potential
infringement is of high significance to the Aboriginal peoples, and the risk of
non-compensable damage is high” (para. 44). Here, the appellants had established
treaty rights to hunt and harvest marine mammals. These rights were
acknowledged at the Federal Court of Appeal as being extremely important to the
appellants for their economic, cultural, and spiritual well-being (para. 2).
Jerry Natanine, the former mayor of Clyde River, explained that hunting marine
mammals “provides us with nutritious food; enables us
to take part in practices we have maintained for generations; and enables us to
maintain close relationships with each other through the sharing of what we
call ‘country food’” (A.R., vol. II, at p. 197). The
importance of these rights was also recently recognized by the Nunavut Court of
Justice:
The
Inuit right which is of concern in this matter is the right to harvest marine
mammals. Many Inuit in Nunavut rely on country food for the majority of their
diet. Food costs are very high and many would be unable to purchase food to
replace country food if country food were unavailable.
Country food is recognized as being of higher nutritional
value than purchased food. But the inability to harvest marine mammals
would impact more than . . . just the diet of Inuit.
The cultural tradition of sharing country food with others in
the community would be lost. The opportunity to make traditional
clothing would be impacted. The opportunity to participate in the hunt, an
activity which is fundamental to being Inuk, would be
lost. The Inuit right which is at stake is of high
significance. This suggests a significant level of consultation and accommodation is required.
(Qikiqtani Inuit Assn. v.
Canada (Minister of Natural Resources), 2010 NUCJ 12, 54 C.E.L.R. (3d) 263,
at para. 25)
[44]
The risks posed by the proposed testing to these
treaty rights were also high. The NEB’s environmental assessment concluded that
the project could increase the mortality risk of marine mammals, cause
permanent hearing damage, and change their migration routes, thereby affecting
traditional resource use. Given the importance of the rights at stake, the
significance of the potential impact, and the risk of non-compensable damage,
the duty owed in this case falls at the highest end of the spectrum.
[45]
Bearing this in mind, the consultation that
occurred here fell short in several respects. First, the inquiry was
misdirected. While the NEB found that the proposed testing was not likely to
cause significant adverse environmental effects, and that any effects on traditional
resource use could be addressed by mitigation measures, the consultative
inquiry is not properly into environmental effects per se. Rather, it
inquires into the impact on the right. No consideration was given in the
NEB ’s environmental assessment to the source — in a treaty — of the appellants’
rights to harvest marine mammals, nor to the impact of the proposed testing on
those rights.
[46]
Furthermore, although the
Crown relies on the processes of the NEB as fulfilling its duty to consult,
that was not made clear to the Inuit. The significance of
the process was not adequately explained to them.
[47]
Finally, and most importantly, the process provided
by the NEB did not fulfill the Crown’s duty 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).
[48]
The consultation in this case also stands in
contrast to Taku River where, despite its entitlement to consultation
falling only at the midrange of the spectrum (para. 32), the Taku River Tlingit
First Nation, with financial assistance (para. 37), fully participated in the
assessment process as a member of the project committee, which was “the primary
engine driving the assessment process” (paras. 3, 8 and 40).
[49]
While these procedural safeguards are not always
necessary, their absence in this case significantly impaired the quality of
consultation. Although the appellants had the
opportunity to question the proponents about the project during the NEB
meetings in the spring of 2013, the proponents were unable to answer many
questions, including basic questions about the effect of the proposed testing
on marine mammals. The proponents did eventually respond to these questions;
however, they did so in a 3,926 page document which they submitted to the NEB .
This document was posted on the NEB website and delivered to the hamlet offices
in Pond Inlet, Clyde River, Qikiqtajuak and Iqaluit. Internet speed is slow in
Nunavut, however, and bandwidth is expensive. The former mayor of Clyde River
deposed that he was unable to download this document because it was too large.
Furthermore, only a fraction of this enormous document was translated into
Inuktitut. To put it mildly, furnishing answers to questions that went to the
heart of the treaty rights at stake in the form of a practically inaccessible
document dump months after the questions were initially asked in person is not
true consultation. “‘[C]onsultation’ in its least
technical definition is talking together for mutual understanding” (T. Isaac
and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta.
L. Rev. 49, at p. 61). No mutual understanding on the core issues — the
potential impact on treaty rights, and possible accommodations — could possibly
have emerged from what occurred here.
[50]
The fruits of the Inuit’s limited participation in
the assessment process here are plain in considering the accommodations
recorded by the NEB ’s environmental assessment report. It
noted changes made to the project as a result of consultation, such as a
commitment to ongoing consultation, the placement of community liaison officers
in affected communities, and the design of an Inuit
Qaujimajatuqangit (Inuit traditional knowledge) study.
The proponents also committed to installing passive acoustic monitoring on the
ship to be used in the proposed testing to avoid collisions with marine
mammals.
[51]
These changes were, however, insignificant
concessions in light of the potential impairment of the Inuit’s treaty rights.
Further, passive acoustic monitoring was no concession at all, since it is a
requirement of the Statement of Canadian Practice With Respect to the Mitigation
of Seismic Sound in the Marine Environment which provides “minimum standards,
which will apply in all non-ice covered marine waters in Canada” (A.R., vol. I,
at p. 40), and which would be included in virtually all seismic testing
projects. None of these putative concessions, nor the NEB ’s reasons themselves,
gave the Inuit any reasonable assurance that their constitutionally protected
treaty rights were considered as rights, rather than as an afterthought
to the assessment of environmental concerns.
[52]
The consultation process here was, in view of
the Inuit’s established treaty rights and the risk posed by the proposed
testing to those rights, significantly flawed. Had the appellants had the
resources to submit their own scientific evidence, and the opportunity to test
the evidence of the proponents, the result of the environmental assessment
could have been very different. Nor were the Inuit given meaningful responses
to their questions regarding the impact of the testing on marine life. While
the NEB considered potential impacts of the project on marine mammals and on
Inuit traditional resource use, its report does not acknowledge, or even
mention, the Inuit treaty rights to harvest wildlife in the Nunavut Settlement
Area, or that deep consultation was required.
IV. Conclusion
[53]
For the foregoing reasons, we conclude that the
Crown breached its duty to consult the appellants in respect of the proposed
testing. We would allow the appeal with costs to the appellants, and quash the
NEB ’s authorization.
Appeal
allowed with costs.
Solicitors for the
appellants: Stockwoods, Toronto.
Solicitors for the
respondents Petroleum Geo‑Services Inc. (PGS), Multi Klient Invest As
(MKI) and TGS‑Nopec Geophysical Company ASA (TGS): Blake, Cassels
& Graydon, Calgary.
Solicitor for the
respondent the Attorney General of Canada: Attorney General of Canada,
Saskatoon.
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 Nunavut Tunngavik Incorporated: Woodward & Company,
Victoria; Nunavut Tunngavik Incorporated, Iqaluit.
Solicitors for the
intervener the Makivik Corporation: Dionne Schulze, Montréal.
Solicitors for the
intervener the Nunavut Wildlife Management Board: Supreme Advocacy,
Ottawa.
Solicitors for the
intervener the Inuvialuit Regional Corporation: Inuvialuit Regional
Corporation, Inuvik; Olthuis Kleer Townshend, Toronto.
Solicitors for the
intervener the Chiefs of Ontario: Gowling WLG (Canada), Ottawa.