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Supreme Court of Canada to Consider the Duty to Consult in the Context of NEB Proceedings


By Michael Barbero

On March 10, 2016, the Supreme Court of Canada granted leave to appeal in the matters of Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS) ("Hamlet of Clyde River") and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. ("Chippewas"). The appeals are to be heard concurrently as both consider the Crown’s duty to consult in the context of NEB proceedings. The outcome of the appeals may have significant impacts on pending and future projects before the NEB, such as TransCanada’s Energy East pipeline.

Clyde River
The NEB approved a marine seismic survey program in the vicinity of Patricia Bay, Nunavut. Patricia Bay is located on the northeast coast of Baffin Island near the Inuit hamlet of Clyde River. The residents of Clyde River rely upon the harvest of marine mammals (i.e. bowhead whale, narwhal and seals) as an important source of food.

As part of the regulatory process, an environmental assessment report was prepared. The report found the project was unlikely to result in significant adverse environmental effects. The report also outlined the consultation steps undertaken both by the NEB and the project proponent.

The residents of Clyde River applied for judicial review of the NEB’s decision. Among other grounds, the residents argued that consultation with them was inadequate.

The Federal Court of Appeal disagreed. The Court found that the NEB was, in the circumstance, mandated to undertake aboriginal consultation and to assess the sufficiency of same. Further, the Crown was entitled to rely upon the NEB’s process in helping to satisfy the duty to consult.

The Chippewas of the Thames First Nation applied to quash the NEB’s approval of an Enbridge pipeline project. The Chippewas argued the NEB could not approve the project in the absence of consultation with the Nation. In effect, the Chippewas argued that consultation was a pre-condition to any approval.

The Federal Court of Appeal dismissed the application. The Court of Appeal noted the Crown was not a participant in the original application. In the absence of the Crown being a participant in the original application, the Court of Appeal held that the NEB was not required to determine if the Crown was under a duty to consult, and if so, whether the duty had been discharged. In dissent, Rennie, JA, would have allowed the appeal, having concluded consultation with the Chippewas was a precondition to approval of the project.

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