The Crown’s Duty to Consult and the Role of the Energy Regulator

Introduction

This coming fall—November 18, 2014—will mark ten years since the Supreme Court of Canada released two seminal decisions on the Crown’s duty to consult Aboriginal peoples: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74.  This was a turning point in one of the most significant developments in the law in recent years as it applies to Canadian provincial and federal energy regulators (“Energy Regulators”)—and arguably among the most significant developments in Canadian law generally in recent years—namely, the emergence and ongoing clarification of the Crown’s duty to consult and, if necessary, accommodate Aboriginal peoples.

Ten years ago, issues surrounding Aboriginal rights and title and the Crown’s duty to consult Aboriginal peoples inhabited only the periphery of energy/regulatory law and practice.  Today, for many Energy Regulators, project proponents, Aboriginal groups and intervenors, these issues have become a critical focus in the regulatory approval processes for major (and not-so-major) projects.  As the Supreme Court of Canada aptly noted in a more recent decision:

“In the intervening years [since Haida], government–Aboriginal consultation has become an important part of the resource development process…”2

Given the importance of Energy Regulators in the resource development process, issues of the Crown’s duty to consult Aboriginal peoples have also become an important part of the regulatory process.  However, the role and function of Energy Regulators in Aboriginal consultation and the review of Aboriginal consultation carried out by others—and how these issues fit as a part of the regulatory process—has often remained poorly understood.  Regulators have struggled to define their role and understand their jurisdiction in respect of the complicated legal, historical and social issues raised by such issues.

The meeting of Aboriginal law (and its practitioners) and energy/regulatory law (and its practitioners) has not always been smooth.  In the hearing rooms of today’s Energy Regulators, it is not uncommon to see Aboriginal law practitioners/legal counsel (who are well-versed in the law of Aboriginal rights and title and the Crown’s duty to consult) citing reams of Aboriginal case law to an (often somewhat confused) Energy Regulator, while often giving scant treatment to issues regarding the proper role and function of that Energy Regulator.  Similarly, it is not uncommon to see Energy Regulators struggle with such submissions and attempting to reconcile such submissions with their legislative role and function—and not finding significant guidance in their legislative job descriptions.

Objective and Outline

This article will suggest that much of the confusion that has plagued this area of the law is a result of failing to properly distinguish between (i) the various legal contexts in which the duty to consult can arise; (ii) the various types of decision-making structures in which Energy Regulators operate; and (iii) the different types of parties (private or Crown agents) that can be applicants or parties before Energy Regulators.  What is required is not a search for universal answers that will fit all Energy Regulators and all circumstances.  Instead, what is required is an analytical framework that will assist in clarifying the nature of the consultation obligations and the role of the Energy Regulator in the context of a specific legislative framework, application and applicant.

In an effort to begin discussion of such an analytical framework, this article will suggest:

  • There are three distinct legal contexts in Canada that need to be understood—(i) historic treaties; (ii) modern treaties or comprehensive land claims; and (iii) non-treaty areas.
  • The Crown’s duty to consult can arise in all three contexts, but purpose, scope and extent of the duty to consult may be different in each context.  Some Energy Regulators may encounter more than one such context (sometimes in the scope of a single project application) and must be alert to the potential differences in the ways the duty to consult may apply.
  • The duty on an Energy Regulator to consider consultation and the scope of that inquiry depends on the mandate conferred by the legislation that creates the tribunal. The legislature may delegate either, both or neither of the powers to carry out the Crown’s duty to consult and/or determine whether adequate consultation has taken place, as a condition of its statutory decision-making process.
  • The precise role of the Energy Regulator may be different depending on the nature of the application before it, the nature of the decision-making structure in place for such applications, and the Applicant before it—particularly whether the Applicant is a private company or a Crown agent.

This article is an attempt to provide a view from the vantage point of the intersection of Aboriginal and regulatory law.  Those with an expertise in Aboriginal law may find its treatment of the rich and varied principle and case law of this complex discipline to be somewhat elementary.  Those with an expertise in regulatory law may make the same complaint about its treatment of regulatory law and principles.  This is perhaps a consequence of attempting to speak to two rather diverse audiences at once.  As with so much of Aboriginal law (and with this part of the history of Canada), the dialogue is necessarily a “cross-cultural” discussion, and certain subtleties and nuances are (at least initially) apt to be sacrificed along the way.

More specifically, the objective of this article is to situate and examine the role of the Energy Regulatory in respect of the Crown’s duty to consult.  Given the number and diversity of Energy Regulators on the Canadian landscape, this article does not attempt or purport to canvass each and every Energy Regulator and/or consider its legislation.  Instead, it sets the more modest objective of attempting to identify and clarify the guiding principles and an analytical framework that apply in defining the role of the Energy Regulator.  It is my hope that this effort may be of some use to Canadian Energy Regulators and the myriad parties that appear before them, including project proponents, Aboriginal groups and other intervenors interested in the important (but often misunderstood) role of Canadian Energy Regulators.

This article has organized in the following three parts:

  1. Part I provides a primer on Aboriginal rights and title and outlines three distinct legal contexts that exist in contemporary Canada — historic treaties, modern treaties and non-treaty areas;
  2. Part II provides a discussion of the sources, purpose and principles applicable to the Crown’s duty to consult Aboriginal peoples and an examination of how the duty applies in each of the three legal contexts identified above;
  3. Part III provides the primary focus of this article in discussing the role of the Energy Regulator in respect of the Crown’s duty to consult;

The overview of Aboriginal rights and title (Part I) and the Crown’s duty to consult (Part II) provides a foundation for understanding and appreciating the interrelationship between Aboriginal law principles and regulatory/administrative law applicable to Energy Regulators (Part III).

Part I:  A Primer on Aboriginal Rights and Title in Canada

Section 35(1) of The Constitution Act, 19823  states:

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Behind this simple phrase lies a wealth of diversity and complexity.

In Canada, there are in excess of 600 First Nations, plus numerous Inuit and Métis groups and organizations.  These groups comprise numerous, rich and varied linguistic and cultural traditions.  Amongst these groups, there is a broad diversity of historical and contemporary circumstances and an equally diverse range of outlook, orientation and approach.  Any attempt to categorize such diversity into an artificially small number of legal frameworks risks being accused of being nothing more than generalization on a vast scale.  The attempt at creating such a categorization of these legal frameworks is not meant to be disrespectful of the diversity that exists among and between Aboriginal groups but is simply an effort to make such diversity manageable for the non-specialist in Aboriginal affairs and history.

With the above caveat in mind, I suggest that there are, broadly speaking, three legal frameworks applicable to Aboriginal peoples in Canada:

  1. (a) the historic treaties;
  2. (b) the modern treaties/comprehensive land claims; and
  3. (c) the non-treaty context.

Each is discussed further below.

Historic Treaties in the Area that is now Canada

In some parts of Canada, it is becoming increasingly common to hear the phrase:  “We are all treaty people.”  It is true that treaties between the Crown and Aboriginal peoples exist in many parts of Canada covering the majority of the Canadian land mass.  However, in some significant parts of Canada, treaty making remains unfinished business.  It is unfortunately not uncommon for non-Aboriginal Canadians to live many years or even their entire lives in a region of Canada not knowing or understanding the treaty arrangements that may have proceeded or accompanied non-Aboriginal settlement in that area.

A comprehensive examination of these treaties (and the rules of interpretation that apply to them) is beyond the scope of this article, but the existing historic treaties can generally be grouped into the following categories:

  • Treaties of Peace and Neutrality (1701-1760)

These treaties were the product of the British and French seeking military alliances with First Nations in the context of the struggle for the control of North America.  For example, the Treaty of Swegatchy and the Huron-British Treaty—both concluded in 1760 at the end of the Seven Years’ War—addressed, inter alia, issues such as the protection of First Nation village sites, the right to trade with the British and the protection of traditional practices.

  • Peace and Friendship Treaties (1725-1779)

These treaties were concluded between the British authorities in Nova Scotia and the Mi’kmaq and Maliseet peoples of the Maritimes.

  • Upper Canada Land Surrenders and the Williams Treaties (1781-1862/1923)

These treaties focused on land cessions in the Great Lakes region. For the most part, these treaties involved one-time cash payments with ongoing obligations.  In 1923, the Williams Treaties focused on land cessions (again for a fixed one-time cash payment) in the region between Georgian Bay, the Ottawa River, Lake Simcoe and the lands west of the Bay of Quinte.

  • Robinson Treaties (1850) and Douglas Treaties (1850-1854)

The Robinson treaties of 1850 were concluded between William Robinson and the primarily Ojibwa inhabitants of the northern Great Lakes region.  The Robinson-Superior Treaty covered the area of the north shore of Lake Superior.  The Robinson-Huron Treaty covered the Lake Huron and Georgian Bay areas. These treaties—in contrast to treaties negotiated earlier—contemplated the creation of reserves, annuities and the continued right to hunt and fish.

The Douglas Treaties—14 in all—were concluded from 1850 to 1854 between James Douglas (Chief Factor of the Hudson Bay Company and later governor of the colony on Vancouver Island) and certain First Nations on Vancouver Island.  These treaties contemplated the surrender of lands near Hudson Bay Company posts on Vancouver Island in exchange for reserves, payments and the continued right to hunt and fish.

This new approach (recognizing continued rights to hunt and fish) would be further developed in the Numbered Treaties (discussed below).

  • The Numbered Treaties (1871-1921)

Between 1871 and 1921, Canada undertook 11 “numbered” treaties (i.e. Treaty No. 1, Treaty No. 2, etc.) that covered the Prairies, northern Ontario and the Peace River and Mackenzie River valleys. These treaties contemplated the surrender of lands in exchange for reserves, payments and the continued right to hunt and fish.4

The other commonly employed catagorization for these historic treaties is to consider them in the groupings of: (i) Pre-Confederation; and (ii) Post-Confederation treaties—with the dividing line drawn at 1867.  The scope and content of the historic treaties remains subject to considerable debate and uncertainty.  For example, the “trade clause” in a Peace and Friendship treaty of 1760/61 was the famously the subject of 1999 litigation before the Supreme Court of Canada in R. v. Marshall.5  A rich and detailed jurisprudence has developed regarding the interpretation of these important historic treaties.6

The following map7 shows the approximate location and boundaries of historical treaties in Canada.

image6

As can be seen from the map, when the historic treaty making process concluded in the early 1900s, large sections of current-day Canada were not covered by treaties—notably the majority of British Columbia, Quebec, Newfoundland, Labrador, the Yukon, and eastern portions of the Northwest Territories and what is now Nunavut.8

As discussed below, some of these non-treaty areas were subsequently the subject of modern treaty negotiations.  In addition, in some areas where the historic treaties were never fully implemented (notably, for example, in relation to Treaty No. 11 and some of the northern areas of Treaty No. 8), the Crown and the relevant Aboriginal groups have also entered into modern treaty negotiations and in some cases concluded modern agreements.

Modern Treaty Making in Canada

The modern treaty process deals with unfinished treaty making in areas of Canada where historic treaties were not concluded. Section 35(3) of The Constitution Act, 1982, clarifies:

“For greater certainty … ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired.”

There is no bright line separation between the “historic” and the “modern” treaties.  The artificial distinction is employed here simply as a matter of convenience.  In most attempts at categorization, the first so-called modern day treaty is considered to be the “James Bay and Northern Quebec Agreement”, signed in 1975.  Perhaps the primary distinguishing feature of the modern treaties is their length and detail—typically consisting of hundreds of pages with numerous detail appendices and maps—compared to the historic treaties.

Mr. Justice Binnie, of the Supreme Court of Canada has observed:

“The increased detail and sophistication of modern treaties represents a quantum leap beyond the pre-Confederation historical treaties … and post-Confederation treaties such as Treaty No. 8 (1899) …  The historical treaties were typically expressed in lofty terms of high generality and were often ambiguous.  The courts were obliged to resort to general principles (such as the honour of the Crown) to fill the gaps and achieve a fair outcome. Modern comprehensive land claim agreements, on the other hand, starting perhaps with the James Bay and Northern Québec Agreement (1975), while still to be interpreted and applied in a manner that upholds the honour of the Crown, were nevertheless intended to create some precision around property and governance rights and obligations.  Instead of ad hoc remedies to smooth the way to reconciliation, the modern treaties are designed to place Aboriginal and non-Aboriginal relations in the mainstream legal system with its advantages of continuity, transparency, and predictability.”9

Modern Treaty-Making North of 60

The modern treaty making process has, to date, been far more prolific in Northern Canada.  Since 1973, 16 comprehensive land claims have been reached in the northern territories (Yukon, the Northwest Territories, and Nunavut).

  • In the Yukon, there are 14 resident First Nations. To date, land claims agreements with 11 of those First Nations have been concluded and implemented.  These 11 are, with the dates their agreements were implemented: the Champagne and Aishihik First Nation (1993); the Teslin Tlingit Council (1993); the Vuntut Gwitchin First Nation (1993); the First Nation of Nacho Nyak Dun (1993); the Little Salmon/Carmacks First Nation (1997); the Selkirk First Nation (1997); the Tr’ondek Hwech’in First Nation (1998); the Ta’an Kwach’an First Nation (2002); the Kluane First Nation (2003); the Kwanlin Dun First Nation (2005); and the Carcross Tagish First Nation (2005).10
  • In the Northwest Territories, to date land claims agreements with the following Aboriginal groups have been concluded and implemented: Inuvialuit (1984), Gwich’in (1992), Sahtu Dene and Métis (1994), and Tli’cho (2005).  In the southern part of the Northwest Territories, land claim negotiations continue with a number of First Nations and Métis groups.
  • In Nunavut, the Nunavut Final Agreement concluded in 1993 led to the division of the (formerly larger) Northwest Territories and the creation of the new territory of Nunavut in 1999.

Modern day treaties in Canada generally have two aspects: (i) comprehensive land claim settlements; and (ii) self-government agreements.  Some agreements address both lands claims and self-government.  However, some agreements address only land claims issues, but leave self-government negotiations to be concluded separately.  For example, in the Northwest Territories, the Tli’cho Final Agreement (2005) addresses both land claims and self-government; however, the earlier agreements in the territory (Inuvialuit, Gwich’in and Sahtu) addressed only comprehensive land claims and left self-government to subsequent (and ongoing) negotiations.

Modern Treaty-Making South of 60

In the rest of Canada (south of the 60th parallel) during this same time period, a relatively small number of other comprehensive land claims and self-government arrangement have been concluded:

  • In Quebec, there was the aforementioned James Bay and Northern Quebec Agreement (1977) and the Northeastern Quebec Agreement (1978).
  • The offshore island and marine areas adjacent to Quebec were the subject of the Nunavik Inuit Land Claims Agreement (2008) and the Eeyou Marine Region Land Claims Agreement (2012).
  • Northern Labrador was the subject of the Labrador Inuit Land Claims Agreement (2005).
  • In British Columbia, there has been the Nisga’a Final Agreement (2000), the Tsawwassen First Nation Final Agreement (2009) and Maa-nulth First Nations Final Agreement (2011).  There have also been self-government arrangements with the Sechelt Indian Band11 (1986) and Westbank First Nation Self-Government Agreement (2005).

The following map shows the locations of Modern Treaties, including both Comprehensive Land Claims and Self-Government agreements.12

image2

The BC Treaty Commission Process

British Columbia is where there is perhaps the largest concentration of unfinished treaty business in Canada.  As discussed above, there are no historic or modern treaties coving the majority of British Columbia.  However, the governments of Canada and British Columbia have been engaged in treaty negotiations with numerous First Nations pursuant to the B.C. Treaty Commission Process.  The Treaty Commission and the treaty process were established in 1992 by agreement among Canada, B.C. and the First Nations Summit.

The following map shows the numerous (overlapping) claims submitted to the B.C. Treaty Commission process:13

image3

Some Indian Bands in British Columbia are negotiating individually, while other Bands have combined to form larger treaty negotiation groups.  Of the more than 200 Indian Bands in British Columbia there are slightly more than 100 that are participating in the B.C. Treaty Commission process—grouped into about 60 treaty negotiations tables.14 Of these 60 treaty negotiation groups:

  • 2 (Maa-nulth and Tsawwassen) are implementing treaty agreements;
  • 3 have completed final agreements that are not yet implemented;
  • 5 are in final agreement negotiations or completed agreements in principle;
  • 10 are in “advanced” agreement-in-principle negotiations;
  • 20 are in “active” agreement-in-principle negotiations; and
  • 20 are described as “not currently negotiating a treaty.”

Many observers have expressed frustration at the relatively slow pace of treaty negotiations and the fact that—following over 20 years of the BC Treaty Commission process—there are no more than a handful of final agreements.  However, when one considers that the current situation was created over the course of a few hundred years, it is perhaps unrealistic to hope or expect that treaty negotiations will be concluded quickly.  In the past several years, a number of First Nations in BC have signed “incremental” agreements that provide the First Nation with access or title to a limited number of parcels of Crown land in advance of a full treaty agreement.

Modern Land Claims – Common Features

Given that the modern treaty making process in Canada already spans a four decade history, it is not surprising that there is considerable variation in the approach and details of the above mentioned modern treaties.  Again at the risk of generalization, the following discussion will focus on the common elements. A common approach in these agreements, which each contain their own structural and procedural arrangements, is as follows:

  1. a specific tract of land is identified and confirmed as land held by the Aboriginal group in fee simple;
  2. a larger tract of land is identified as a management area, within which the Aboriginal group, federal government and either territorial or provincial government participate in land use planning and land use permitting and approvals; and
  3. a larger area within which certain land use rights, such as hunting, fishing, trapping and gathering, continue to apply. This larger area often overlaps with management areas or other areas within which neighbouring Aboriginal groups have and exercise rights.

Clearly, decisions regarding land and resource projects on the fee simple lands under these agreements are within the control of the Aboriginal group, subject to the laws and regulations of the Aboriginal group, as well as to any generally applicable environmental assessment or environmental protection laws and regulations. The more difficult and nuanced  an issue is the more difficult it is to identify the degree of control exercised by the Aboriginal group on the second and third categories of land identified above.  This will be discussed further below in Part II.

Non-Treaty Areas in Canada

Notwithstanding the historic and modern treaty making efforts, there remain significant portions of Canada where treaties have never been signed.  For example, in British Columbia, where there are over 200 First Nations (of slightly more than 600 in all of Canada), the vast majority of Aboriginal groups do not have a treaty in place.15 In the absence of treaties, the major developments came from judicial decisions regarding Aboriginal rights and title.  In the hierarchical world of the courts, there are no judicial pronouncements more important than those that come from the Supreme Court of Canada and so the following overview will focus on the major milestones from that Court and constitutional developments.

The Calder Decision

In the late 1960’s, Frank Calder, the Nishga Tribal Council and four Indian bands, brought an action against the Attorney-General of British Columbia for a declaration “that the aboriginal title, otherwise known as the Indian title, of the Plaintiffs to their ancient tribal territory… has never been lawfully extinguished”.  The claim was based in part on The Royal Proclamation of October 7, 1763.  The action was dismissed at trial and the Court of Appeal rejected the appeal.

  • A seven judge panel of the Supreme Court of Canada heard the appeal and, in a procedurally unusual decision, split 3-3-1.16
  • Three judges (Hall, Spence and Laskin JJ.,) would have allowed the appeal, and rejected as “wholly wrong” the proposition that “after conquest or discovery the native peoples have no rights at all except those subsequently granted or recognized by the conqueror or discoverer.” They found that Aboriginal title continued and it had not been surrendered.
  • Three judges (Martland, Judson and Ritchie JJ) voted to dismiss the appeal based on the very terms of the Proclamation and “upon the history of the discovery, settlement and establishment of what is now British Columbia.” Since the area in question did not come under British sovereignty until 1846, the Appellants were not any of the several nations or tribes of Indians who lived under British protection in 1763 and they were outside the scope of the Proclamation.
  • The seventh judge (Pigeon J.) refused to decide the substantive issue, instead concluding that the Court had no jurisdiction (in the absence of a fiat of the Lieutenant-Governor of that Province) to make the declaration prayed for, being a claim of title against the Crown in the right of the province of British Columbia.

Given the unusual 3-3-1 split, the resulting decision was inconclusive, but this decision is generally credited with restarting the modern treaty making process in Canada.  (The Nisga’a Final Agreement became effective in 2000.)

Section 35 Jurisprudence

Following the introduction of s. 35(1) of the Constitution Act, 1982, the Supreme Court of Canada addressed its scope in R. v. Sparrow, [1990] 1 SCR 1075 [Sparrow].  The Court held that section 35(1) needs to be construed in “a purposive way” and that a generous, liberal interpretation is demanded given that the provision is to affirm Aboriginal rights.  Legislation that affects the exercise of aboriginal rights will be valid if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1).

Following the Sparrow decision in 1990, an increasing volume of Aboriginal law litigation throughout the 1990s focused on Aboriginal rights and title—including the content of such rights and how they could be established.  These issues made their way to the Supreme Court of Canada in the late 1990s in a series of appeals.  Arguably, two of the most important from this time were:

  • R. v. Van der Peet, [1996] 2 S.C.R. 507.

This appeal, heard along with the companion appeals in R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672, and R. v. Gladstone, [1996] 2 S.C.R. 723, addressed the issue left unresolved by the Supreme Court of Canada in its judgment in R. v. Sparrow, [1990] 1 S.C.R. 1075, namely: How are the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 to be defined?  To be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.  The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact with European society.

  • Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 [Delgamuukw].

This appeal addressed the content of Aboriginal title, how it is protected by s. 35 of the Constitution Act, 1982 and the requirements necessary to prove it.  The Court held that Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures.  In order to establish a claim to aboriginal title, the aboriginal group asserting the claim must establish that it occupied the lands in question at the time at which the Crown asserted sovereignty over the land subject to the title.

However, the Court did not identify precisely where Aboriginal rights or title existed or precisely define their content.  This was left to be defined through either further litigation or settled by treaty negotiations.  As discussed above, a number of the Aboriginal groups in the province are currently involved in treaty negotiations with the Crown—while other Aboriginal groups are seeking to establish Aboriginal title and/or rights through the courts.  In the meantime, the precise location of Aboriginal title in British Columbia and other such areas remains undefined.  In the absence of such definition, these Aboriginal groups have asserted Aboriginal rights and title over large tracts of Crown land.  Many of these asserted “traditional territories” overlap with neighbouring claims.

Both the further definition of Aboriginal rights and Aboriginal title remain a work in progress:

  • In respect of Aboriginal rights, the Supreme Court of Canada has considered a number of specific claims to specific rights.  For example, the Court has recently addressed a number of claims to commercial fishing rights.17
  • In respect of Aboriginal title, the Supreme Court of Canada has had the occasion to elaborate on the issue18, and it currently has a very significant case under reserve that will likely provide an opportunity to further clarify the nature of Aboriginal title.19
  • The Supreme Court of Canada has also issued a series of decisions on Metis rights.20

The key message from Part I is that, in order to begin correctly, it is necessary that all participants (Energy Regulators and parties appearing before them) appreciate and understand the applicable legal context of the Aboriginal groups that may participate in regulatory processes.  Energy Regulators, whose jurisdiction is confined by provincial, territorial or federal boundaries, may encounter Aboriginal groups in all three legal contexts.  Some groups may have treaty rights (based on historic and/or modern agreements) while others many have asserted or established Aboriginal rights.  Understanding the context can help to avoid errors that may arise in applying case law, principles or practices that have been developed or discussed in a different legal context.  The proper understanding of the legal context of Aboriginal and treaty rights is important in considering the Crown’s duty to consult, which is canvassed in Part II.

Part II:  The Duty to Consult21

The Duty to Consult – Origins and Overview of the Case Law

One of the first observations about the duty to consult is that it is in its origins (and still remains) primarily judge-made law.  Unlike many of the issues faced by Energy Regulators (which are grounded in statute, regulations or government policy), the law regarding the Crown’s duty to consult is primarily the result of jurisprudence.  While consultation policies and (recently) legislation have begun to play a larger role, it is still the jurisprudence that plays the dominant chords.

The duty to consult first received significant judicial attention in the non-treaty areas of Canada—particularly in British Columbia.  There were references to Crown consultation in the context of the discussion of Aboriginal rights22  and Aboriginal title,23 but the scope and extent of any legal duty remained indeterminate.  In the late 1990s and early 2000s, debate raged in the lower courts regarding when, if ever, the Crown had a “duty to consult” in circumstances where Aboriginal rights and title were asserted, but unproven.

This issue was addressed by the Supreme Court of Canada in 2004 when it issued two seminal decisions on the Crown’s duty to consult: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74.  These two cases arose in areas of British Columbia where treaties were never signed historically between the Crown (the federal and/or provincial governments) and First Nations.

From the very beginning, it was clear to the Supreme Court of Canada (and many observers) that the understanding of the duty to consult had only begun.  In Haida, the Court stated:

“This case is the first of its kind to reach this Court.  Our task is the modest one of establishing a general framework for the duty to consult and accommodate, where indicated, before Aboriginal title or rights claims have been decided. As this framework is applied, courts, in the age-old tradition of the Common Law, will be called on to fill in the details of the duty to consult and accommodate.” (para. 11)

This work of “filling in the details” of duty to consult has been underway ever since—including occasional decisions from the Supreme Court of Canada.  Notable milestones include the following:

  • In 2005, the Supreme Court of Canada applied this new framework of the Crown’s duty to consult in the context of a historic treaty (Treaty 8 signed in 1899). Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69.24
  • In 2010, the Supreme Court of Canada applied the framework in the context of a modern treaty (signed in 1997).  Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53.25
  • Also in 2010, the Supreme Court of Canada reaffirmed how the framework operates in a non-treaty context—with a particular emphasis on whether past infringements of Aboriginal rights could be a trigger for the duty to consult—and (importantly for the subject of this article) examined the place of government tribunals in consultation and the review of consultation. Rio Tinto Alcan Inc. and BC Hydro v. Carrier Sekani Tribal Council, 2010 SCC 43.
  • Most recently in 2013, the Supreme Court of Canada considered the question of to whom the Crown owes a duty to consult—including whether individuals can assert a duty to consult or invoke treaty rights—and the proper procedure for raising allegations of inadequate consultation. Behn v Moulton Contracting Ltd, 2013 SCC 26.

The following discussion will review the major aspects of this case law—focusing on those issues of key interest to Energy Regulators.

The Framework for the Duty to Consult in Non-Treaty Areas – Haida

In Haida, the Court held that the government has a duty to consult with Aboriginal peoples that is grounded in the principle of the “honour of the Crown.”  Pending settlement of Aboriginal claims, the Supreme Court of Canada determined that the Crown’s duty “arises when the Crown has knowledge, real or constructive of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”26

The scope and content of the duty to consult and accommodate varies with the circumstances.  In general terms, the scope of the duty is proportionate to a preliminary assessment of two variables: the strength of the case supporting the existence of the right or title, and the seriousness of the potentially adverse effect upon the right or title claimed.27 This produces a “spectrum” of consultation. In cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor, the only duty may be to give notice, disclose information and discuss any issues raised in response to the notice.28 At the other end of the spectrum, 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, “deep consultation”, aimed at finding a satisfactory interim solution, may be required.29   While the precise requirements will vary with the circumstances, the consultation required in these cases 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.  This list is neither exhaustive nor mandatory in every case.  Other cases fall between these two extremes.  Each case must be approached individually.  Each case must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light.  The Supreme Court of Canada has directed that the “controlling question” in all situations is “what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake.”30

The effect of good faith consultation may be to reveal a “duty to accommodate”.  Where a strong prima facie exists for the claim, and the consequences of government’s proposed decision may affect it in a significant way, addressing the Aboriginal concerns may require “taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim.”31

The right to be consulted about proposed activities on Crown land does not provide Aboriginal groups with a “veto.”32 There is no duty to agree.

Third parties, such as private oil and gas, mining or forestry companies, do not have a legal duty to consult.  However, that does not mean they have no role to play:

“The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments.” [Emphasis added.]33

The permissible scope and extent of delegation of “procedural aspects” of consultation (and how such delegation is carried out) is a source of ongoing debate.  In practice, this has frequently meant that the lion’s share of the consultation obligation falls to industrial proponents.

As further discussed in Part III, this observation is especially important in the context of the role of the Energy Regulator—where the Applicant is most often an “industry proponent seeking a particular development.”  The ability of the Crown to delegate “procedural aspects” of consultation to industry proponents seeking a particular development is important in the context of determining the role of Energy Regulators—who may have a role in assessing the adequacy of consultation carried out by a (private) proponent, but who may or may not have a role in assessing the adequacy of Crown consultation in respect of the same project.

The Framework Contemplates an Administrative Process

The decision at issue in Haida was not the product of an administrative tribunal (much less a quasi-judicial Energy Regulator).  Nevertheless, the Court provided some commentary on how an administrative regime may be an appropriate forum for addressing the Crown’s duty to consult:

The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.34

The Court went on to note that the choice of how to structure such a process rested with the government:

It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the Courts35.

While noting that “[t]o date, the Province has established no process for this purpose”, the Court nevertheless outlined what standard of review would apply to any administrative process that might be set up for such a purpose.36 The Court concluded this discussion with another reference that suggests the parallels between this area of Aboriginal law and administrative/regulatory law: “The focus…is not on the outcome, but on the process of consultation and accommodation.”37

This discussion would be picked up an elaborated in later cases (notably Carrier Sekani).  However, first it is necessary to examine Haida’s companion case—Taku River—for what it can teach regarding the role of administrative processes and decision-making.

The Framework Applied to a (non-quasi-judicial) Administrative Process – Taku River

The Supreme Court’s decision in Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 was released together with the Haida decision.  Unlike the governmental decision at issue in Haida, the decision-making process reviewed in Taku followed a recommendation resulting from an environmental assessment process unfolding under a legislatively established administrative scheme—although not one involving a quasi-judicial regulatory tribunal hearing in the manner common to Energy Regulators.  The project at issue involved reopening an old mine site and developing an access road.  While the application was being considered, it became subject to the then-newly passed the Environmental Assessment Act, R.S.B.C. 1996, c. 119.38  One of the purposes of the Environmental Assessment Act (as it read at the time), set out in former section 2(e), was “to provide for participation, in an assessment under this Act, by… First Nations…”.  The Taku River Tlingit were invited and agreed to participate in the “project committee” and various sub-committees.  Ultimately, the majority of the project committee members prepared a written recommendations report to refer the application for a project approval certificate to the Ministers for decision.  The First Nation disagreed with the recommendations contained in the report and prepared its own report stating their concerns with the process and the proposal.  The Ministers approved the proposed project and a Project Approval Certificate was issued, subject to detailed terms and conditions.

The Supreme Court of Canada found that the province was under a duty to consult with the Taku River Tlingit in making the decision to reopen the mine.39 The Court found that acceptance of the Taku River Tlingit’s title claim for negotiation under the B.C. Treaty Commission Process established a prima facie case in support of its Aboriginal rights and title and that the potential for negative impacts on the Taku River Tlingit’s claims was high.40 The Court concluded that the Taku River Tlingit were “entitled to something significantly deeper than minimal consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation.”41

However, after reviewing the process that had unfolded through the environmental assessment, the Court concluded that the consultation provided by the province was adequate.42 Notably, the Court confirmed that the province was not required to establish a separate consultation process to address Aboriginal concerns, but that this could take place within the existing administrative process.

“The province was not required to develop special consultation measures to address TRTFN’s [Taku River Tlingit First Nation’s] concerns, outside of the process provided for by the Environmental Assessment Act, which specifically set out a scheme that required consultation with affected Aboriginal peoples.”43

In reviewing the extensive participation of the Taku River Tlingit in multiple stages of the review, the Court found that, by the time the assessment was concluded, the concerns of the First Nation were well understood and had been meaningfully discussed. Thus, the Crown “had thoroughly fulfilled its duty to consult.”44

The Court noted that further, more detailed consultations would occur through the project permitting phase, as well, allowing the Crown to continue to discharge its obligation to consult and, where necessary, accommodate Aboriginal concerns.

The Project Committee concluded that some outstanding TRTFN concerns could be more effectively considered at the permit stage or at the broader stage of treaty negotiations or land use strategy planning.  …  The Project Committee, and by extension the Ministers, therefore clearly addressed the issue of what accommodation of the TRTFN’s concerns was warranted at this stage of the project, and what other venues would also be appropriate for the TRTFN’s continued input. It is expected that, throughout the permitting, approval and licensing process, as well as in the development of a land use strategy, the Crown will continue to fulfill its honourable duty to consult and, if indicated, accommodate the TRTFN.”45

It is clear from the discussion in Haida and Taku that the duty consult framework included, from the very beginning, contemplation of an important role for administrative decision-making within the existing environmental and regulatory review process—even if such processes did not address all outstanding issues.  Further clarification of the role of Energy Regulators would be some years in coming.  However, the broad outlines of the approach that emerged were visible in the Court’s early decisions.

The Duty to Consult in Historic Treaty Areas – Mikisew

Following the establishment of the framework for the duty to consult in 2004, one of the first questions to arise was how the duty to consult applied in the context of treaty rights.  In 2005, the Court considered the duty to consult in the context of a historic treaty—Treaty 8 concluded in 1899.

The case involved a challenge to Ministerial approval of a proposal to re-establish a winter road through Wood Buffalo National Park. The Mikisew Cree First Nation, a Treaty 8 signatory, objected to the proposed road on the grounds that it would infringe on their hunting and trapping rights under Treaty 8.  Parks Canada had provided a standard information package about the road to the First Nation, and the First Nation was invited to informational open houses along with the general public. Parks Canada did not consult directly with the First Nation about the road, or about means of mitigating impacts of the road on treaty rights, until after important routing decisions had been made.  The First Nation challenged the decision of the Minister of Canadian Heritage, the Minister responsible for Parks Canada, to authorize the construction of the road on the grounds that the Minister had not adequately consulted the First Nation about the road.

Treaty Number 8 contains the following clause (which is included in similar terms in most of the other numbered treaties)46:

“And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.”  [Emphasis added.]

The Court confirmed that Treaty 8 contemplated that land would be “taken up”, but found that the treaty did not specify the process by which such taking up would occur.  The Court employed the duty to consult to fill this procedural gap:

Both the historical context and the inevitable tensions underlying implementation of Treaty 8 demand a process by which lands may be transferred from the one category (where the First Nations retain rights to hunt, fish and trap) to the other category (where they do not).  The content of the process is dictated by the duty of the Crown to act honourably.47

The Court held that Treaty 8 confers on the Mikisew Cree substantive rights (hunting, trapping, and fishing) along with the procedural right to be consulted about infringements of the substantive rights.  The Supreme Court found that, because the taking up adversely affected the First Nation’s treaty right to hunt and trap, Parks Canada was required to consult with the Mikisew Cree before making its decision.

The Court noted that a similar sliding scale of consultation obligations applied in a treaty context as in a non-treaty context.   However, in place of the “strength of claim” (for an asserted but unproven right) the Court substituted the “specificity of the treaty promise”.  The second variable (adverse effect) remained substantially unchanged, with the Court stating that “adverse impact is a matter of degree, as is the extent of the Crown’s duty.”

The historic treaty clearly altered how the duty to consult applied.  The Court held that, while the winter road would affect Mikisew Cree treaty hunting and trapping rights, this was a fairly minor road that was built on lands “surrendered” by the Mikisew Cree when they signed Treaty 8. As a result, the lower end of the consultation spectrum was engaged. This meant Parks Canada should have provided notice to the Mikisew Cree, and should have engaged them directly to solicit their views and to attempt to minimize adverse impacts on their rights. As Parks Canada had unilaterally determined important matters like road alignment before meeting with the Mikisew Cree, the Court held that the Crown’s duty to consult had not been adequately discharged.

The Duty to Consult in Modern Treaty Areas – Little Salmon 

The 2004/2005 decisions outlined how the duty to consult applied in non-treaty and historic treaty areas.  In 2010, the Supreme Court of Canada released its decision in Beckman v. Little Salmon/Carmacks First Nation which addressed how the Crown’s duty to consult Aboriginal groups about Crown decisions applies in the context of modern land claims agreements.

The case arose in respect of the 1997 Little Salmon/Carmacks First Nation Final Agreement (the “Final Agreement”), which the Little Salmon/Carmacks First Nation entered into with the Yukon and Canadian governments.48   In 2001, the government received an application for an agricultural land grant of some 65 hectares of Yukon Crown Land within the traditional territory covered by the Final Agreement.  The Final Agreement provided that members of Little Salmon/Carmacks have the right to access Crown land in their traditional territory for subsistence harvesting except where the land in question is subject to an agreement for sale as was sought in the Application.  The Application was reviewed in a series of administrative review processes including:

  • A “pre-screening” by the Agriculture Branch and the Lands Branch as well as the Land Claims and Implementation Secretariat;
  • A more in-depth technical review by the Agriculture Land Application Review Committee (“ALARC”) – a body that predated and was completely independent from the treaty.  ALARC recommended that the Applicant reconfigure his parcel for reasons related to the suitability of the soil and unspecified environmental, wildlife, and trapping concerns.  The Applicant complied.
  • A further level of review by the Land Application Review Committee (“LARC”), a committee composed of representatives of the federal, territorial, provincial government agencies as well as First Nations including the Little Salmon/Carmacks.  LARC also predated and was completely independent from the treaty.

By way of letter to LARC, Little Salmon/Carmacks expressed concerns regarding the Application.  However, no representative of Little Salmon/Carmacks attended the meeting and there was no request for an adjournment.  The concerns raised in the letter were considered by LARC, but LARC ultimately approved the Application.  The Director of Agriculture Branch of the Yukon government (the “Director”) considered and confirmed LARC’s approval.

The Little Salmon/Carmacks sought judicial review of the Director’s decision to approve the Application.  There were two major issues: 1. Was the Yukon government required to consult with and, if necessary, accommodate Little Salmon/Carmacks beyond what was expressly required by the Final Agreement? 2. If so, what scope of consultation was required and had the government’s duty been discharged?

The Supreme Court of Canada issued two judgments: one supported by seven judges, and another supported by two judges.  While the two judgements are technically “concurring” opinions (as they agreed on the disposition of the particular case), they represent fundamentally different views on how the duty to consult should apply in the context of modern treaties.

The Majority Decision

Binnie J. writing for the seven-judge majority emphasised that the Final Agreement reflects “a balance of interests” and that the Yukon treaties are intended, in part, to replace expensive and time-consuming ad hoc procedures with mutually agreed upon legal mechanisms that are efficient but fair.

On the first issue (whether the duty to consult applied), the majority decision concluded that “duty to consult is derived from the honour of the Crown which applies independently of the expressed or implied intention of the parties.”  The Majority stated:

…the procedural gap created by the failure to implement Chapter 12 had to be addressed, and the First Nation, in my view, was quite correct in calling in aid the duty of consultation in putting together an appropriate procedural framework.49

The majority stated: “Consultation can be shaped by agreement of the parties, but the Crown cannot contract out of its duty of honourable dealing with Aboriginal people.”50

When a modern treaty has been concluded, the first step is to look at its provisions and try to determine the parties’ respective obligations, and whether there is some form of consultation provided for in the treaty itself.  If a process of consultation has been established in the treaty, the scope of the duty to consult will be shaped by its provisions.

The majority emphasized that “the honour of the Crown may not always require consultation.  The parties may, in their treaty, negotiate a different mechanism which, nevertheless, in the result, upholds the honour of the Crown.”51 However, in this case, the majority concluded that the Final Agreement did not exclude the duty to consult and, if appropriate, accommodate.

On the second issue (what scope of consultation was required and whether the duty to consult had been fulfilled), the majority reviewed the negotiated definition of Consultation contained in the Final Agreement and found it to be a reasonable statement of the content of consultation “at the lower end of the spectrum.”  The majority concluded that “consultation was made available and did take place through the LARC process.”52 The majority confirmed that “participation in a forum created for other purposes may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided.”53 On the facts, the majority concluded that the requirements of the duty to consult were met.

The First Nation had argued that the legal requirement was not only procedural consultation but “substantive accommodation.”  In this case, in its view, accommodation must inevitably lead to rejection of the Application.  The majority firmly rejected this argument and concluded that “nothing in the treaty itself or in the surrounding circumstances gave rise to a requirement of accommodation.”54

The Minority Decision

Deschamps J. writing for a two-judge minority agreed with the result, but her reasons for doing so were very different.  The minority emphasized that the Final Agreement was the product of extensive negotiations between the parties.

To add a further duty to consult to these provisions would be to defeat the very purpose of negotiating a treaty.  Such an approach would be a step backward that would undermine both the parties’ mutual undertakings and the objective of reconciliation through negotiation.  This would jeopardize the negotiation processes currently under way across the country. The minority expressed the concern that “the courts must ensure that this duty is not distorted and invoked in a way that compromises rather than fostering negotiation.”

The fundamental difference between the majority and the minority was that the minority disagreed that any “procedural gap” existed in this case, and disagreed with superimposing the Common Law duty to consult on the treaty.

Deschamps J. (for the minority) agreed in principle that if there was a procedural gap in a modern treaty then the Common Law duty to consult could be applied to fill that gap.  However, the minority examined the treaty’s transitional provisions and concluded that no such gap could be found in the treaty in question.55

Deschamps J. would appear to draw a distinction between the duty to consult in the context of asserted but unproven claims and the duty to consult in the context of a treaty—going so far as to state that it would be “misleading” to consider the duty to consult to be the same duty in both contexts:

Moreover, where, as in Mikisew, the Common Law duty to consult must be discharged to remedy a gap in the treaty, the duty undergoes a transformation.  Where there is a treaty, the function of the Common Law duty to consult is so different from that of the duty to consult in issue in Haida Nation and Taku River that it would be misleading to consider these two duties to be one and the same.  It is true that both of them are constitutional duties based on the principle of the honour of the Crown that applies to relations between the Crown and Aboriginal peoples whose constitutional — Aboriginal or treaty — rights are at stake.  However, it is important to make a clear distinction between, on the one hand, the Crown’s duty to consult before taking actions or making decisions that might infringe Aboriginal rights and, on the other hand, the minimum duty to consult the Aboriginal party that necessarily applies to the Crown with regard to its exercise of rights granted to it by the Aboriginal party in a treaty.56

The minority looked to the provisions of the Final Agreement itself—in particular the assessment process provided for in the Final Agreement that applied to the Application—and concluded that there are provisions in the Final Agreement that govern the very issue of whether the Crown is required to consult the First Nation before exercising its right to transfer land.

The requirements of the processes in question included not only consultation with the First Nation concerned, but also its participation in the assessment of the project.  Any such participation would involve a more extensive consultation than would be required by the Common Law duty in that regard.  Therefore, nothing in this case can justify resorting to a duty other than the one provided for in the Final Agreement.

The minority concluded that the process that led to the decision on the Application was consistent with the provisions of the Final Agreement and that there was no legal basis for finding that the Crown breached its duty to consult.

Implications of the Decision

The Little Salmon/Carmacks decision, along with the Supreme Court of Canada’s decision in Moses57 were the Supreme Court’s first opportunities to apply jurisprudence on the Crown’s duty to consult in the context of modern treaties and land claim agreements.

For many of the existing modern land claims agreements—particularly the earlier agreements and those in the Yukon, Northwest Territories and Nunavut (discussed above)—the result of the majority decision is that there will be continued uncertainty as to whether government is under a duty, and the extent of that duty, to consult Aboriginal groups when making land and resource management decisions.  While the Little Salmon/Carmacks decision indicates that governments can, through negotiation of treaties, narrow and define the extent of the duty to consult, the fact remains that, where this has not been done in existing treaties, the Common Law duty to consult will continue to apply and will continue to be a potential source of disagreement between governments and Aboriginal treaty signatories as to whether the duty is triggered and what it requires governments to do.

Some recent modern treaties such the Tsawwassen Final Agreement in British Columbia have included provisions specifying that the treaties contain an “exhaustive list of the consultation obligations of Canada and British Columbia.”58 The Little Salmon/Carmacks decision recognizes that courts should defer to the intentions of the parties where clearly expressed in the treaty and where not inconsistent with the honour of the Crown.  It can be expected that future treaties will continue to address with greater specificity how the parties intend the Crown’s duty to consult will apply in those treaties.

In respect of fulfilling the duty to consult, it is notable that all nine judges of the Supreme Court of Canada was unanimous in concluding that the steps undertaken by the Government of the Yukon were adequate to fulfill the Crown’s obligation.  It is clear that allowing First Nations to participate in a forum created for other purposes may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided.  On the facts of this case—where the First Nation failed to attend the meeting, submitted its concern by letter and those concerns were considered by the decision-maker—the Court concluded that the requirements of the duty to consult were met.

Special Issues – Past Wrongs

In addition to clarifying how the duty to consult applies differently in different legal contexts (non-treaty, historic treaty and modern treaty areas), the jurisprudence as also wrestled with a number of related scoping issues.  Two will be canvassed here given their importance for Energy Regulators: (i) the issue of past infringements; and (ii) the issue of to whom the duty to consult is owed.

In Rio Tinto the Court commented on the significance of past grievances or historical infringements in the context of what is required to establish the possibility that the Crown conduct may affect the Aboriginal claim or right:

“The [First Nation] must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Past wrongs, including previous breaches of the duty to consult, do not suffice. …

An underlying or continuing breach, while remediable in other ways, is not an adverse impact for the purposes of determining whether a particular government decision gives rise to a duty to consult.  …

The question is whether there is a claim or right that potentially may be adversely impacted by the current government conduct or decision in question.  Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right.”59

This clarification of the law regarding the duty to consult has significantly sharpened the focus of inquiry in front of Energy Regulators.  Prior to this decision, significant debate took place in regulatory hearings regarding whether the scope of the duty to consult required consultation in respect of pre-existing facilities that we, in some manner, related to the subject matter of the application in front of the Energy Regulator.   Two examples can be seen in proceeding before the British Columbia Utilities Commission:

  • In proceedings in respect of B.C. Transmission Corporation’s (BCUC) Interior to Lower Mainland (ILM) transmission line, a primary issue during consultation and in the First Nation Interveners’ evidence and submissions before the Commission was the assertion that BCTC/BC Hydro failed to consult on transmission lines, rights‐of‐way, and other assets associated with lines built in the 1960s and 1970s (the “Existing Assets”). The historical infringement of asserted Aboriginal rights permeated the discussions between BCTC/BC Hydro and First Nations.  However, following the release of the Court’s decision in Rio Tinto, the First Nation Interveners withdrew their submissions on Existing Assets.60
  • The issue also arose in proceedings regarding BC Hydro’s (a Crown agent) proposal to acquire from Teck Metals Ltd. an undivided one-third interest in the Waneta Dam and associated assets.  The Waneta Dam is an existing hydro-electric facility that was constructed in the 1950s and has operated ever since.  BC Hydro required the approval of the BC Utilities Commission, which was to determine whether the acquisition was in the public interest.  In its decision dated March 12, 2010, the BCUC accepted that (i) BC Hydro had a duty to consult; and (ii) the BCUC had to consider the adequacy of that consultation.  However, the BCUC rejected the First Nations’ position and BC Hydro was required to consult and accommodate in respect of past infringements and grievances.61  The three First Nation groups all sought leave to appeal the decision of the Commission to the B.C. Court of Appeal on the grounds, inter alia, that the Commission erred in its treatment of the issue of historical infringements.  These leave applications were pending (and give a sense of the issues that were pending) at the time the Supreme Court of Canada’s decision in the Rio Tinto was released.  Following the Supreme Court’s decision, all three leave to appeal applications were abandoned.

Following the Rio Tinto decision, it is clear that the focus of Energy Regulators is on the project and application that is before them—the analysis is confined to the adverse impacts flowing from the current decision, not to larger adverse impacts of the project of which it is a part. Subsequent court decisions62 have elaborated or clarified this principle, but not altered it.

Special Issues – To  Whom is the Duty to Consult Owed?

Uncertainty regarding the identity of the proper Aboriginal group to be consulted can arise in both a non-treaty or treaty context.

In the May 2013 decision in Behn v Moulton Contracting Ltd, 2013 SCC 26, the Supreme Court of Canada considered the questions of to whom a duty to consult is owed and the proper procedure for bringing a challenge to the adequacy of consultation.  The Behns were individual members of the Fort Nelson First Nation. No party brought any legal challenge to the validity of certain forestry authorizations issued to Moulton Contracting Ltd.  However, when Moulton attempted to access one of the sites, the Behns erected a camp that, in effect, blocked the company’s access to the logging sites. Moulton commenced a court action. As a defence to that action, the Behns argued that the Authorizations were void because they were issued in breach of the Crown’s duty to consult and because they violated the Behns’ hunting and trapping rights under Treaty No. 8.

The first addressed by the Court was whether the Behns, as individual members of an Aboriginal community, can assert a breach of the duty to consult? The Court confirmed that the duty to consult exists to protect the collective rights of Aboriginal peoples and is owed to the Aboriginal group that holds them. While an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its Aboriginal or treaty rights, no such authorization was given in this case.

Many Energy Regulators, other Crown decision-makers and project proponents have struggled in attempting to discern “who speaks for the Nation” in a consultation process.  Many observers had hoped that this decision would provide greater certainty regarding to whom the Crown owes a duty to consult.  The Court’s conclusion that the duty “is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature” provides some clarification.63 However, there remains some legal uncertainty around identifying the Aboriginal group that holds s. 35 rights.

The identity of the proper rights- holder is also a subject that has generated extensive litigation.  For example, in William v. British Columbia, 2012 BCCA 285, the BC Court of Appeal recognized that “[w]here there is no body with authority to speak for the collective (or worse, where there are competing bodies contending that they have such authority), consultation may be stymied.”64  However, in the end, the Court of Appeal agreed with the trial judge’s conclusion “that the definition of the proper rights holder is a matter to be determined primarily from the viewpoint of the Aboriginal collective itself.”65  The Supreme Court of Canada heard an appeal from this case in November 2013, and a decision is pending.  Accordingly, both legally and factually, there remains residual uncertainty regarding how to identify—in the words of the Behns case—“the Aboriginal group that holds the s. 35 rights” to whom a consultation duty is owed.

The Court in Behn also commented a related issue—whether treaty rights be invoked by individual members of an Aboriginal community?  The Court noted that certain Aboriginal and treaty rights may have both collective and individual aspects, and it may well be that in appropriate circumstances, individual members can assert them.  However, the Court found it unnecessary to make any “definitive pronouncement” in this regard in the circumstances of this case.  The Court’s reluctance to fully address this issue is somewhat disappointing (although understandable) and leaves unanswered (for now) the question of what might be “appropriate circumstances” in which an individual may assert Aboriginal and treaty rights (and whether such circumstances may further require consultation with such individuals). The Court had previously sent signals that individuals were not necessary parties to consultation. In Little Salmon, the Court had considered the position of an individual trapper and concluded that the trappers’ entitlement “was a derivative benefit based on the collective interest of the First Nation of which he was a member” and that “he was not, as an individual, a necessary party to the consultation.”66 The Court’s more open-ended discussion in Behn ensures that further litigation on this point is all but inevitable.

Part II Conclusion

In summary, while many important questions have been answered and many “details” have been filled in on the Crown’s duty to consult and accommodate, many equally large and important questions remain to be resolved.  Such further clarity will likely only come—“in the age-old tradition of the Common Law”—in small, incremental steps.  While it remains to be seen whether the next ten years of jurisprudence will be as dramatic as the last ten years, there remain an ample number of significant questions still awaiting a definitive pronouncement.

The next Part will address the role of the Energy Regulator in respect of the Crown’s duty to consult.  The reach of the regulator is determined and confined by the government (federal or provincial) that created it and thus the jurisdiction of many Energy Regulators is limited or differentiated by provincial/territorial political boundaries.  However, as we have discussed in Parts 1 and 2, the various legal contexts applicable to Aboriginal groups (historic treaty, modern treaty or non-treaty) are not confined or limited to provincial or territorial boundaries.  A single province may include (and thus a single Energy Regulator may encounter) Aboriginal groups with a historic treaty, modern treaty or no treaty.

Part III – The Role of the Energy Regulator in Respect of the Crown’s Duty to Consult67

The key argument in this Part is that there is no universally applicable answer to the question:  What is the role of the Energy Regulator?  The answer will depend on the statutory mandate given to the Energy Regulator in the context of the application being considered. As discussed below, some guidance may be had from examining how the regulatory process fits into the overall decision-making process.  In addition, the role of the Energy Regulator may differ depending on the nature of the Applicant appearing before it—in particular whether the Applicant is a Crown agent or a private party.  This Part will first outline the general principles and then look at three case studies to consider how these principles apply in the context of a number of Canadian Energy Regulators.

The Role of the Energy Regulator – General Principles

In Rio Tinto Alcan, the Court directly addressed the legal principles underlying the role of an Energy Regulator in relation to the Crown’s duty to consult:

“The duty on a tribunal to consider consultation and the scope of that inquiry depends on the mandate conferred by the legislation that creates the tribunal.  Tribunals are confined to the powers conferred on them by their constituent legislation … the role of particular tribunals in relation to consultation depends on the duties and powers the legislature has conferred on it.

The legislature may choose to delegate to a tribunal the Crown’s duty to consult. As noted in Haida Nation, it is open to governments to set up regulatory schemes to address the procedural requirements of consultation at different stages of the decision-making process with respect to a resource.

Alternatively, the legislature may choose to confine a tribunal’s power to determinations of whether adequate consultation has taken place, as a condition of its statutory decision-making process.  In this case, the tribunal is not itself engaged in the consultation. Rather, it is reviewing whether the Crown has discharged its duty to consult with a given First Nation about potential adverse impacts on their Aboriginal interest relevant to the decision at hand.

Tribunals considering resource issues touching on Aboriginal interests may have neither of these duties, one of these duties, or both depending on what responsibilities the legislature has conferred on them. …”68

This right of the legislature to determine the mandate of a tribunal results in one of four scenarios:

  • the Energy Regulator fulfills the role of engaging in consultation;
  • the Energy Regulator fulfills the role of adjudicating the adequacy of consultation;
  • the Energy Regulator fulfills both of the above roles; or
  • the Energy Regulator fulfills neither of the above roles.

When faced with issues regarding the duty to consult, the first task of the Energy Regulator (and those appearing before them) ought to be to determine which of the above scenarios applies.  All too often, the debate—both academic and in the hearing rooms—has focused on what role the Energy Regulator ought to play and the legitimacy and/or efficacy of the alternative means by which the Crown can either carry out consultation and/or assess its adequacy.  A commonly invoked passage in this regard is the Court’s statement that: “specialized tribunals with both the expertise and authority to decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates.”69 However, regardless of who may be in the best position to hear and decide (and it is often a matter of perspective as to who is in the best position), it is clear that, when it comes to the role of the Energy Regulator and the duty to consult, the choice is with the government.  The relevant legal inquiry is into legislative intent.

While the legal question may be clear, unfortunately the answer is not always so obvious.  In the vast majority of instances, the legislative foundations of today’s Energy Regulators were laid down at a time when the duty to consult was not (as it is today) an issue that attracted much focus.  In the absence of explicit guidance, Energy Regulators will have to search for clues in their existing legislative scheme.

Two key indicia are (i) the power to consider questions of law, and (ii) the remedial powers granted to the Energy Regulator.

Both the powers of the tribunal to consider questions of law and the remedial powers granted it by the legislature are relevant considerations in determining the contours of that tribunal’s jurisdiction: Conway.  As such, they are also relevant to determining whether a particular tribunal has a duty to consult, a duty to consider consultation, or no duty at all.

….In order for a tribunal to have the power to enter into interim resource consultations with a First Nation, pending the final settlement of claims, the tribunal must be expressly or impliedly authorized to do so.  The power to engage in consultation itself, as distinct from the jurisdiction to determine whether a duty to consult exists, cannot be inferred from the mere power to consider questions of law.  Consultation itself is not a question of law; it is a distinct and often complex constitutional process and, in certain circumstances, a right involving facts, law, policy, and compromise. The tribunal seeking to engage in consultation itself must therefore possess remedial powers necessary to do what it is asked to do in connection with the consultation…

A tribunal that has the power to consider the adequacy of consultation, but does not itself have the power to enter into consultations, should provide whatever relief it considers appropriate in the circumstances, in accordance with the remedial powers expressly or impliedly conferred upon it by statute.70

It is not relevant to the inquiry to ask whether or not there is some other administrative or regulatory tribunal that can or will fulfill the role.  The Crown cannot avoid its duty to Aboriginal peoples by simply choosing to not assign one or both these functions (i.e. carrying out consultation and/or assessing the adequacy of consultation) to a particular Energy Regulator. The Court was clear in Rio Tinto that the honour of the Crown cannot be avoided.

“The fear is that if a tribunal is denied the power to consider consultation issues, or if the power to rule on consultation is split between tribunals so as to prevent any one from effectively dealing with consultation arising from particular government actions, the government might effectively be able to avoid its duty to consult.

…the duty to consult with Aboriginal groups, triggered when government decisions have the potential to adversely affect Aboriginal interests, is a constitutional duty invoking the honour of the Crown.  It must be met.  If the tribunal structure set up by the legislature is incapable of dealing with a decision’s potential adverse impacts on Aboriginal interests, then the Aboriginal peoples affected must seek appropriate remedies in the courts:  Haida Nation, at para. 51.”71

While there may still be legitimate policy debate about where or by whom the duty to consult should be discharged and/or adjudicated, such policy debate should be separate and distinct from any legal debate about whether the Energy Regulator plays any role in carrying out and/or adjudicating the adequacy of consultation.  The proper legal question is: What role has the legislature assigned the Energy Regulator?

This is not dissimilar to the situation that arose following the introduction of the Charter, and questions arose with respect to the role of administrative tribunals in applying the Charter.  Following the introduction of the Charter, there was a lengthy legal and policy debate (in and out of the courts) regarding the role of administrative tribunals in applying and interpreting the Charter. Ultimately, the Supreme Court of Canada clarified the guiding principle was determining the legislative intent.72 In so doing, the Court made it clear that it was open to legislators to express their intent more clearly.  Alberta73 and British Columbia74 both took up the Court’s invitation and passed statutes clarifying the role of administrative tribunals in respect of constitutional questions.75 Certain definitional challenges remain in terms of how this legislation defines a “constitutional question” and debate has already arisen regarding the extent to which the duty to consult invokes such “constitutional questions.”   However, the law is now clear that legislative intent is the guiding principle and it is open to legislators to clearly express their intent regarding the role of Energy Regulators.  As will be discussed below (in relation to Alberta), some legislatures are also taking up this invitation from the Court and are expressly defining the role of Energy Regulators in respect of the duty to consult.

Different Regulatory Decision-Making Structures

Further guidance might be obtained by looking at how the role the Energy Regulator fits into the overall decision-making or approval process for a project.  It is useful to distinguish between a couple of basic scenarios:

  • Some Energy Regulators make the final decision which enables a proponent to proceed with a project.  For example, it may be the Energy Regulator that directly issues a Certificate of Public Convenience and Necessity or other licence, permit or authorization.
  • Some Energy Regulators make a “decision” in respect of such an authorization; however that decision is subject to the approval or confirmation of the Governor in Council (or Lieutenant- Governor in Council) or Minister(s) before the decision of the Energy Regulator is effective.76 Alternatively, some Energy Regulators make a “recommendation” in respect of such an authorization; however the ultimate decision is made by the Governor in Council (or Lieutenant- Governor in Council) or Minister(s).

It is important to note that a single Energy Regulator may have more than one variety of decision-making structure contained within its statute.  The Energy Regulator may make final decisions on certain types of applications, while its decisions (or recommendations) under other sections of its statute may be only the first stage in the decision-making process and subject to further steps by the (Lieutenant) Governor in Council.

As will be seen in the discussion below, these different decision-making structures may give rise to different requirements regarding the duty to consult at different stages of the process.

Different Types of Applicants

Another factor to consider is whether the party appearing in front of the Energy Regulator is a Crown agent or a private party.  The role of an Energy Regulator may differ in each scenario.  As discussed in Part II, the Crown has the legal duty to consult, although the Crown may delegate procedural aspects of consultation to industry proponents.  The proper role of the Energy Regulator may well be different when considering an application from a (private) industry proponent compared to an application by the Crown or agent of the Crown.

As will be seen in the discussion below, some regulators (and courts) have correctly drawn a clear distinction between the role of the Energy Regulator when considering an application brought by a Crown agent and an application brought by a private party.

The Role of the Regulator: Three Case Studies

The above factors should be kept in mind when considering the jurisprudence below.  It is easy to fall into error when attempting to transport the findings of one case (dealing with a different piece of legislation, a different decision-making structure and/or a different type of applicant) to another situation.  The case studies below will review the existing and developing jurisprudence in respect of the B.C. Utilities Commission, the National Energy Board and the Alberta Energy Regulator.77

The British Columbia Utilities Commission

The Supreme Court of Canada applied its test to the BC Utilities Commission after it laid out the general principles in Rio Tinto.  The first factor considered was that the Utilities Commission Act gave the Commission the power to decide questions of law.

“The power 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 …”78

In addition, the statutory provision (at the time) at issue also empowered the Commission to consider “any other factor that the commission considers relevant to the public interest.”

“The constitutional dimension of the duty to consult gives rise to a special public interest, surpassing the dominantly economic focus of the consultation under the Utilities Commission Act.”79

Finally, the Court concluded that the legislation did “not indicate a clear intention on the part of the legislature to exclude from the Commission’s jurisdiction the duty to consider whether the Crown has discharged its duty to consult with holders of relevant Aboriginal interests.”80

In the result, the Court concluded that (i) the Commission had the power to consider whether adequate consultation had taken place, however (ii) the Commission did have the power to engage in consultations itself in order to discharge the Crown’s constitutional obligation to consult.81

Some commentators appear to suggest that this is a conclusion that applies with equal force to all Energy Regulators in all circumstances.  However, far from being universally applicable conclusions, the Court’s conclusion in Carrier Sekani regarding the BCUC was one firmly grounded in the context of the case before it.  It is important to note that the application before the BCUC was an application where the final decision rested with the BCUC.82 It was not an application where the decision of the BCUC was subject to the approval of the Lieutenant Governor in Council or other decision-making authority.  There was no other stop in the decision-making process where the ultimate decision was made and/or the adequacy of consultation in respect of that decision might be adjudicated.

Also, it is important to note that the Commission was considering an application from BC Hydro—an agent of the Crown.  This clearly impacted the Court’s consideration.

“BC Hydro is a Crown corporation.  It acts in place of the Crown.  No one seriously argues that the 2007 EPA does not represent a proposed action of the province of British Columbia.”83

The consultation (or lack there of) carried out by the Applicant (a Crown agent) fell clearly within the scope of the application before the Commission.  (This is in contrast to the situation discussed below where the applicant is a private party and the Crown (and the evidence of its consultation efforts) is not before the Energy Regulator.)

Nigel Bankes has argued forcefully to the contrary and suggested that “there is no suggestion here that the ‘special public interest’ is created by the fact that the applicant for the statutory approval in Carrier Sekani was an agent of the Crown.”84   With greatest respect (and I certainly have a lot for Nigel Bankes), what this and similar commentaries seem to ignore is that an Energy Regulator has the power to decide constitutional questions that arise in respect of the application before it—not constitutional questions at large.  If the Crown is not a party before the Energy Regulator, there is no basis for extending the mandate of the Energy Regulator to assessing the adequacy of Crown consultation.

The BCUC has clearly acknowledged the significance of having a Crown agent as an applicant.  In March 2010,85 the Commission introduced “2010 First Nations Information Filing Guidelines for Crown Utilities.”86  The focus on “Applications and filings made by a Crown utility” reflects the unique situation that arises when a Crown agent is also the industry proponent appearing before the Energy Regulator.

The specific context of the Rio Tinto decision and the BCUC’s statute cannot be ignored.  The Court’s conclusions in respect of the BCUC cannot be universally applied to all Energy Regulators.  It can easily lead to err to attempt to transport the Court’s conclusions in respect of the BCUC into a different context where there is a different statute, a different decision-making structure and/or a different type of applicant.  The contrast can be seen by examining a scenario where there is a different decision-making structure (as at the National Energy Board) and a private (non-Crown) applicant.

National Energy Board

Ten years before the duty to consult was articulated by the Supreme Court of Canada (in 2004 in the Haida and Taku decisions), the Supreme Court of Canada considered the National Energy Board’s regulatory and administrative processes in respect of the fiduciary duty owed by government to First Nations in certain circumstances.  In Quebec (Attorney General) v. Canada (National Energy Board) the Court commented on the NEB’s hearing process:

Counsel for the appellants conceded in oral argument that it could not be said that such a duty should apply to the courts, as a creation of government, in the exercise of their judicial function.  In my view, the considerations which apply in evaluating whether such an obligation is impressed on the process by which the Board decides whether to grant a licence for export differ little from those applying to the courts.  The function of the Board in this regard is quasi-judicial: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 385.  While this characterization may not carry with it all the procedural and other requirements identical to those applicable to a court, it is inherently inconsistent with the imposition of a relationship of utmost good faith between the Board and a party appearing before it. …

Therefore, I conclude that the fiduciary relationship between the Crown and the appellants does not impose a duty on the Board to make its decisions in the best interests of the appellants, or to change its hearing process so as to impose superadded requirements of disclosure.  When the duty is defined in this manner, such tribunals no more owe this sort of fiduciary duty than do the courts.  Consequently, no such duty existed in relation to the decision-making function of the Board.

Moreover, even if this Court were to assume that the Board, in conducting its review, should have taken into account the existence of the fiduciary relationship between the Crown and the appellants, I am satisfied that, for the reasons set out above relating to the procedure followed by the Board, its actions in this case would have met the requirements of such a duty. There is no indication that the appellants were given anything less than the fullest opportunity to be heard. They had access to all the evidence that was before the Board, were able to make submissions and argument in reply, and were entitled to cross-examine the witnesses called by the respondent Hydro-Quebec…”87

In the wake of Haida, Taku and Mikisew, some thoughtful commentators suggested that the 1994 decision may no longer be good law.  This view seemed to be born of the conclusion that Energy Regulators (such as the NEB) were themselves to be equated with the Crown whose decisions could themselves trigger a duty to consult.  With respect, I believe this view to be mistaken.  While the fiduciary obligation and the duty to consult serve different purposes and arise in different circumstances,88 both duties (the fiduciary duty and the duty to consult) have their origins in the honour of the Crown.  It is no more necessary to impose the duty to consult on an Energy Regulator than it was to impose a fiduciary obligation on an Energy Regulator.  As discussed further below, the Court’s decision in Quebec (Attorney General) v. Canada (National Energy Board) still holds valuable lessons in considering the NEB’s role in relation to the duty to consult—especially in circumstances where (unlike in Rio Tinto) the applicant is a private party and not a Crown agent.

The NEB also has (and had) a different decision-making structure from the BCUC process considered in Rio Tinto.  Prior to recent amendments (discussed below), the National Energy Board was an example of an Energy Regulator that, in certain applications, made a decision that was subject to the approval of the Governor in Council.  The former version of s. 52 of the National Energy Board Act provided:

The Board may, subject to the approval of the Governor in Council, issue a certificate in respect of a pipeline if the Board is satisfied that the pipeline is and will be required by the present and future public convenience and necessity and, in considering an application for a certificate, the Board shall have regard to all considerations that appear to it to be relevant…”

This two-step decision-making structure created two potential avenues for legal challenge.  Under the former version of s. 52 of the National Energy Board Act, the two avenues were:

  • An appeal (with leave) of the NEB decision; and
  • Judicial Review of the Governor in Council’s approval.

Both of these challenges arose following three separate decisions by the NEB in 2007/2008 in respect of three separate pipelines and the three subsequent Orders-in-Council granting approvals for three Certificates of Public Convenience and Necessity for the following projects: the Keystone Pipeline Project89; the Southern Lights Pipeline Project90; and the Alberta Clipper Pipeline Expansion Project.91

i.        National Energy Board Decisions

In each of these three proceedings, the NEB heard from numerous Aboriginal groups—some of which expressly asked the Board to address the jurisdictional question of whether the Crown’s duty to consult had been fulfilled in accordance with the test in Haida.  The Board took the view that, in adjudicating the pipeline applications before it, it did not have a duty to determine whether the honour of the Crown had been maintained in the Haida sense, but did consider the proponent-led consultation with First Nations took place pursuant to the Board’s filing guidelines and regulatory process.  For example, in the Southern Lights decision, the Board stated:

“The Board disagrees with Standing Buffalo’s position that, before it considers the substantive merits of the certificate application, it must determine the strength of Standing Buffalo’s claim and assess the adequacy of Crown consultation. The Board’s process is designed to ensure that it has a full understanding of the concerns that Aboriginal people have in relation to a project, before it renders its decision.  Aboriginal people who have an interest in a project are able to participate in the regulatory process on several levels. The Board weighs and analyzes the nature of the Aboriginal concerns and the impacts a proposed project might have on those interests as part of its overall assessment of whether or not the Project is in the public interest. The Board is of the view that the process it followed in the evaluation of the Project ensures that the decisions of the Board in respect of the Project will be made in accordance with all legal imperatives.”92

The NEB issued a favourable decision in respect of all three pipelines, and subsequently the Governor in Council gave its approval (in the form of Orders in Council) in respect of all three pipelines.

ii.         Federal Court litigation – challenge to the Governor in Council approval

Several First Nations93 that did not participate in the National Energy Board hearings brought judicial review proceedings94 challenging the three Orders in Council (that approved the three NEB decisions). The Federal Court dismissed the applications.  In the Brokenhead Ojibway decision, the Federal Court stated:

In determining whether and to what extent the Crown has a duty to consult with Aboriginal peoples about projects or transactions that may affect their interests, the Crown may fairly consider the opportunities for Aboriginal consultation that are available within the existing processes for regulatory or environmental review:  …Those review processes may be sufficient to address Aboriginal concerns, subject always to the Crown’s overriding duty to consider their adequacy in any particular situation.  This is not a delegation of the Crown’s duty to consult but only one means by which the Crown may be satisfied that Aboriginal concerns have been heard and, where appropriate, accommodated:  see Haida, above, at para. 53 and Taku, above, at para. 40.95

Even where the ultimate decision rests with the government, the process of the Energy Regulator can play a supporting if not central role.  Many Aboriginal groups had discounted the role of Energy Regulators (and other administrative tribunals and processes) on the grounds that they were entitled to a separate and distinct process focused exclusively on their interests. They did so often in reliance on a passage from Mikisew Cree, which states that, in the circumstances of that case, the Crown “was required to provide notice to the Mikisew and to engage directly with them and not … as an afterthought to a general public consultation with Park users.”96

In Brokenhead, the Court made it clear that the process of the Energy Regulator (in this case the NEB) had an important role to play and that the opportunity should not be squandered.

“The fact that the Treaty One First Nations may not have availed themselves fully of the opportunity to be heard before the NEB does not justify the demand for a separate or discrete consultation with the Crown.  To the extent that regulatory procedures are readily accessible to Aboriginal communities to address their concerns about development projects like these, there is a responsibility to use them.  First Nations cannot complain about a failure by the Crown to consult where they have failed to avail themselves of reasonable avenues for seeking relief.  … This presupposes, of course, that available regulatory processes are accessible, adequate and provide First Nations an opportunity to participate in a meaningful way.”97

It does not follow that the process of the NEB (or another Energy Regulator) will always be enough on its own to discharge the duty to consult that arises in respect of the decision of the Governor in Council.  This was a case where the pipeline projects were found to have a fairly minor impact—given they were largely located on private, previously disturbed land and the Court found insufficient evidence to indicate a significant adverse impact.  Also, the lands in question were subject to a historic treaty (Treaty No. 1).  In these circumstances, the NEB process on its own was sufficient to discharge the duty—even in the absence of any further consultation to support the Governor in Council’s decision.  However, the Court recognized that there may be circumstances where the Board process may be, on its own, insufficient.

“I have no doubt, however, that had any of the Pipeline Projects crossed or significantly impacted areas of unallocated Crown land which formed a part of an outstanding land claim a much deeper duty to consult would have been triggered.  Because this is also the type of issue that the NEB process is not designed to address, the Crown would almost certainly have had an independent obligation to consult in such a context.”98

The Federal Court’s decision was not appealed.

In summary, what the Court appears to be saying is that the Crown can rely on existing environmental and regulatory processes (like those of many Energy Regulators) in making Crown decisions.  It is important to note that the Crown decision at issue here was the Order in Council—not the Board’s decision. In some circumstances, those existing processes may be enough to address the consultation requirements and the Crown will not be required to carry out any additional, independent consultation.  However, in other circumstances (particularly where the potential adverse impact of the project is more significant), the Crown may be required to carry out additional, supplemental consultation with Aboriginal groups to inform its own decision-making process.

iii.        Federal Court of Appeal litigation – Challenge to the National Energy Board Decisions                  

Meanwhile, a number of Aboriginal groups that had participated in the NEB process for these same three pipelines brought four separate appeals99 that sought to challenge three decisions by the National Energy Board to issues Certificates of Public Convenience and Necessity. These four appeals were all heard together by the Federal Court of Appeal.

The Court’s decision in Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc. (“Standing Buffalo”),100 identified the “novel question” raised as:

[W]hether before making its decisions in relation to those applications, the NEB was required to determine whether by virtue of the decision in Haida Nation, the Crown, which was not a party to those applications or a participant in the hearings, was under a duty to consult the First Nations with respect to potential adverse impacts of the proposed projects on the First Nations interest and if it was, whether that duty had been adequately discharged?101

The Court concluded that the NEB does not have duty to consult itself:

“…the NEB itself is not under a Haida duty and, indeed, the appellants made no argument that it was. The NEB is a quasi-judicial body (see Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, at page 184, and, in my view, when it functions as such, the NEB is not the Crown or its agent.”102

The Court noted (citing the decision of Quebec (Attorney General) v. Canada (National Energy Board) that, in exercising its decision-making function, the NEB must act within the dictates of the Constitution, including s.35. The Court had little difficultly concluding that it had:

“…the NEB dealt with three applications for Section 52 Certificates. Each of those applications is a discrete process in which a specific applicant seeks approval in respect of an identifiable Project. The process focuses on the applicant, on whom the NEB imposes broad consultation obligations. The applicant must consult with Aboriginal groups, determine their concerns and attempt to address them, failing which the NEB can impose accommodative requirements. In my view, this process ensures that the applicant for the Project approval has due regard for existing Aboriginal rights that are recognized and affirmed in subsection 35(1) of the Constitution. And, in ensuring that the applicant respects such Aboriginal rights, in my view, the NEB demonstrates that it is exercising its decision-making function in accordance with the dictates of subsection 35(1) of the Constitution.”103

Nevertheless, the Court concluded that the requirement to exercise its decision-making function within the dictates of the Constitution did not require the Board to determine whether the Crown was under, and had discharged, a Haida duty before making a decision on the application before it in these circumstances where the applicant was a private actor (and not a Crown agent). The Court found that these matters could be adjudicated by a court of competent jurisdiction.

The Court of Appeal in Standing Buffalo commented on (and endorsed the usefulness of) the role of the NEB process in a manner reminiscent of the Federal Court’s comments in Brokenhead:

“…the ability of an Aboriginal group to have recourse to the courts to adjudicate matters relating to the existence, scope and fulfillment of a Haida duty in respect of the subject matter of an application for a Section 52 Certificate should not be taken as suggesting that the Aboriginal group should decline to participate in the NEB process with respect to such an application.  As previously stated, the NEB process focuses on the duty of the applicant for a Section 52 Certificate.  That process provides a practical and efficient framework within which the Aboriginal group can request assurances with respect to the impact of the particular project on the matters of concern to it. While the Aboriginal group is free to determine the course of action it wishes to pursue, it would be unfortunate if the opportunity afforded by the NEB process to have Aboriginal concerns dealt with in a direct and non-abstract matter was not exploited.”104

iv.        Traffic Jam at the Supreme Court of Canada – Standing Buffalo and Rio Tinto

The Federal Court of Appeal (per. Noel, Layden-Stevenson and Ryer JJ.A.) dismissed the Standing Buffalo appeals on October 23, 2009.  Less than two weeks later, on November 5, 2009, the Supreme Court of Canada granted leave to appeal from the B.C. Court of Appeal decision in the Rio Tinto appeal.105  The First Nations involved in the Standing Buffalo case sought leave to appeal to the Supreme Court of Canada and also sought to have the appeal process expedited and heard together with the appeal in Rio Tinto.  Instead, the Supreme Court of Canada placed the applications for leave in abeyance until the appeal in Rio Tinto decision was heard and decided.  Some of the applicant First Nations (Standing Buffalo Dakota First Nation and Moosomin First Nation) and the impacted pipelines (Enbridge Pipelines Inc. and TransCanada Keystone Pipeline GP Ltd.) applied for and were granted the right to join the Rio Tinto appeal as Intervenors.  Thus, the significance of the issues raised in the Standing Buffalo appeal was before the Supreme Court of Canada when it considered and decided the Rio Tinto appeal.

The Supreme Court of Canada issued Rio Tinto decision (discussed above) on October 28, 2010.  A few weeks later on December 2, 2010, the Court dismissed the applications for leave to appeal in the Standing Buffalo case.106 (It is also notable that, in the intervening period, on November 19, 2010, the Court released its decision in the Little Salmon appeal (discussed above).)

As a result of the Supreme Court denying leave to appeal in the Standing Buffalo case, we do not have the advantage of the Supreme Court of Canada’s opinion on the role of the NEB as discussed in that decision.107 Some commentators have expressed regret that the leave to appeal was denied and suggested it leaves the law uncertain.108

What is clear is that the Supreme Court of Canada—having recently given clear guidance on the role of regulatory tribunals in the Rio Tinto decision—was content to take a pass on revisiting the issue so quickly in the specific context of the NEB.

Given that the Standing Buffalo decision of the Federal Court of Appeal was released prior to the Supreme Court of Canada’s decision in Rio Tinto, it is not surprising that the language and the analysis used in the decision does not precisely track completely with the Rio Tinto analysis.  However, in summary what the Courts appears to have concluded about the NEB’s regulatory process and Governor-in-General approval process (as it then was) is that:

  • The NEB (like the BCUC) does not fulfill the role of engaging in Crown consultation;
  • The NEB does fulfill the role of adjudicating the adequacy of consultation carried out by the (private) applicant, but
  • The NEB does not fulfill the role of adjudicating the adequacy of consultation carried out by the Crown (when the Crown is not a party before it and when the Crown decision (i.e. the Order in Council) is made subsequent to the NEB regulatory process), and
  • The Governor in Council approval of the NEB decision can rely on the existing regulatory process as discharging (in whole or in part) the duty to consult.  In some circumstances, the regulatory process may be enough in and of itself, but in some circumstances the Crown may be required to conduct further direct consultation in order to discharge the duty to consult.

Some have asked how the process of the Energy Regulator that does not play the role of consulting or adjudicating the adequacy of consultation can then subsequently be relied on by the Crown to discharge (in whole or in part) the Crown’s duty to consult.  The answer is quite straightforward.  If the tribunal is not charged with consulting and/or assessing the adequacy of Crown consultation, the process before, and the decision of, an Energy Regulator may nevertheless assist the Crown in meeting its obligation to act honourably if the Energy Regulator’s statutory mandate requires it to have sufficient regard to First Nation interests in the circumstances.  The process of an Energy Regulator can provide significant procedural support by ensuring that First Nations are provided with:

  1. adequate notice of a proposal;
  2. all necessary information in a timely way;
  3. the opportunity to engage in direct consultation with the applicant and/or attend regulatory hearings proceedings and lead or elicit evidence;
  4. an opportunity to express their interests and concerns through submissions to the Energy Regulator; and
  5. having those submissions given full, fair and serious consideration in the formulation of a decision, recommendation and/or conditions to be imposed on the project.

These elements assist in fulfilling the requirements of the Crown’s duty.109  If properly conducted, the process of an Energy Regulator can provide these elements and assist in maintaining the honour of the Crown.  In some circumstances, this process may be enough on its own to support a Crown decision; however, in some cases more may be required.

This appears consistent with how the NEB subsequently understood and articulated its role.  For example, in the NEB’s March 2010 decision in respect of the Keystone XL Pipeline Project, the Board further explained its view of how its process fit in respect of the Crown duty to consult.

“The Board is governed by a variety of legislative and Common Law requirements and is a court of record that operates independently and at arm’s length from the government of Canada.  It is not the same thing as “the Crown” because it is an independent tribunal that is not subject to direction by the Crown. … In respect of the Crown’s Aboriginal consultation obligations, this legislative structure provides particular challenges not faced by federal departments directed by Ministers of the Crown. In light of the specific legislative structure established in 1959 by parliament under the NEB Act, the Crown has determined that it will rely on the NEB process as a means to meet some or all of its consultation obligations in respect of matters that fall within the mandate of the NEB. This does not mean that the Crown has delegated its duty to consult to the Board. The Board has jurisdiction to consider whether a project is in the public interest and as a part of that consideration it weighs the costs and benefits of the project, including its potential effects on Aboriginal interests.”110

These observations in respect of the NEB are also not universally applicable conclusions to all Energy Regulators.  Again, what is critical is to examine the role given to the Energy Regulator by the legislation.  The duty on an Energy Regulator to consider consultation and the scope of that inquiry depends on the mandate conferred by the legislation that creates or continues it.  That role may be different depending on the nature of the decision-making structure and on the nature of the Applicant (Crown agent or private party) appearing before it.

v.         National Energy Board – Current Legislation

Since the court decisions discussed above, the relevant sections of the National Energy Board Act have been amended.  The recent amendments slightly alter the respective roles of the NEB and the Governor in Council, although the scope of the Board’s considerations remains unchanged.  The table below compares the former version of section 52 (considered by the Federal Court of Appeal in the Standing Buffalo case) and the revised (currently contained in the National Energy Board Act) with the material changes highlighted.

Whereas the National Energy Board formerly “issued” a CPCN “subject to the approval” of the Governor in Council, the Board now makes a “recommendation” as to whether or not the certificate should be issued.  Section 54 of the current National Energy Board Act provides that, after the Board has submitted its report under section 52, the Governor in Council may (a) direct the Board to issue a certificate or (b) direct the Board to dismiss the application for a certificate.  Together, sections 52 and 54 of the current legislation make clear the respective roles of the Board and the Governor in Council.  Clearly, the decision to “direct” the Board to issue or dismiss the application for a certificate rests with the Governor in Council under section 54(1) of the Act.  Section 55 of the Act provides that any order made under subsection 54(1) can be challenged (with leave of the Court) by judicial review by the Federal Court of Appeal.

Given the clear lines of responsibility (and the clear lines for challenging the resulting decisions), it is submitted that any determination regarding the legitimacy or constitutionality of the decision the Governor in Council may ultimately make is clearly beyond the mandate of an NEB hearing panel to determine.  The Joint Review Panel hearing the Northern Gateway Pipeline application stayed true to this approach in its recent ruling dated 9 April 2013:

The Panel cannot consider the constitutionality of decisions that are beyond its mandate. This would include the ultimate decision of GiC as to whether to order the Board to issue a Certificate and how the Board will apply its legislation in issuing a Certificate. The decision of the GiC and any potential issuance of a Certificate will be undertaken well after the Panel has issued its report. These decisions and actions are beyond the Panel’s mandate. In accordance with section 55 of the NEB Act, any decision of GiC may be challenged before the Federal Court of Appeal, on judicial review.111

The Joint Review Panel issued its final report on December 19, 2013, and described its role as follows under the heading “Participation by Aboriginal groups”:

“Our hearing process provided an opportunity for Aboriginal people to learn more about the project and to place on our record their views about:

  • their traditional knowledge with respect to the environmental effects;
  • the effects any change in the environment resulting from the project may have on their current use of lands and resources for traditional purposes; and
  • the nature and scope of their potential or established Aboriginal and treaty rights, the effects the project may have on those rights, and appropriate measures to avoid or mitigate such effects.

Aboriginal people participated as intervenors in the final hearing process and through oral evidence, oral statements, and letters of comment. Many attended our information sessions and hearings.

Under the Joint Review Panel Agreement, our process received information on the nature and scope of potential or established Aboriginal and treaty rights that the project might affect and the effects that the project might have on these rights. We received a great deal of evidence from Aboriginal groups and other parties on these matters.”112, 113

Under both the old and new versions of its legislative mandate, the Board’s process is well designed to elicit, hear and consider evidence of Aboriginal interests and potential impacts of proposed projects.  The Board will also consider the consultation process carried out by the (private) applicants appearing before it. This process can be relied upon by the Crown when making its own decision—i.e. determining whether to direct the Board to issue a certificate.  In some circumstances, the Crown may be satisfied that the direct consultation between the proponent and Aboriginal groups, combined with the access of Aboriginal groups to the Energy Regulator’s process has upheld the honour of the Crown.  In other circumstances (such as where the potential impact of a project has greater potential for adverse impacts), the Crown may choose to undertake further consultation to ensure the honour of the Crown is upheld.114 The adequacy of the Crown’s ultimate decision can be challenged, with leave, by judicial review in the Federal Court of Appeal.  This is entirely consistent with the principles established by the Court’s decision in Carrier Sekani.

Alberta Energy Regulator

While the remaining space and time do not permit an extended discussion, it is necessary to comment briefly on recent (and ongoing) developments in respect of energy/regulatory practice in Alberta.

Issues regarding the role of the Energy Regulator in relation to the duty to consult arose a number of times in relation to the (former) the Energy Resources Conservation Board (ERCB).

In the Osum Decision,115  the ERCB determined that it did not have jurisdiction to determine whether the Crown discharged its duty to consult and accommodate the Cold Lake First Nations in relation to the adverse impact arising from an Oil Sand project. The Board drew a distinction based on the fact that the applicant before it was not a Crown agent:

“The Board is not satisfied that in this matter, where the proponent is not the Crown or a Crown or a Crown agent and thus does not owe the constitutional duty, the ERCB’s public interest mandate extends to assessing the adequacy of Crown conduct (consultation) which has yet to be completed.”116

Following the Boards’ decision, the First Nation reached an agreement with the proponent and withdrew its objection to the project.  Nevertheless, the First Nation sought leave to appeal on the basis that the question was one of general importance.   The Alberta Court of Appeal denied leave to appeal on the basis that the issue was moot.  The Court also noted that “the issue will shortly come before the ERCB in the context of a concrete dispute which, on its face, engages the same question that the Applicant seeks to advance before this Court.”117

The pending dispute that the Court of Appeal was referring to was the Notice of Constitutional Question filed by the Athabasca Chippewan First Nation as part of the Joint Review Panel for Shell’s Jackpine Project.  The Agreement that established the Joint Review Panel for that project made it clear that the Joint Review Panel “may receive information from Aboriginal groups related to the nature and scope of asserted or established Aboriginal and treaty rights in the area of the project, as well as information on the potential adverse environmental effects that the project may have on asserted or established Aboriginal and treaty rights”118 and “may use this information to make recommendations that relate to the manner in which the project may adversely affect the Aboriginal and treaty rights asserted by participants.”119  However, the Agreement was clear that:

“Notwithstanding articles 6.1 and 6.2, the Joint Review Panel is not required by this agreement to make any determinations as to:

  1. the validity of Aboriginal or treaty rights asserted by a participant or the strength of such claims;
  2. the scope of the Crown’s duty to consult an Aboriginal group; or
  3. whether the Crown has met its respective duties to consult or accommodate in respect of rights recognized and affirmed by section 35 of the Constitution Act, 1982.”

In the Jackpine Decision120 the Joint Review Panel created to review the application for the Jackpine Mine Expansion Project issued an interlocutory decision in which it concluded that it did not have jurisdiction to consider whether the Crown had complied with its obligation to consult with aboriginal peoples.

Some commentators have suggested the Osum and Jackpine ERCB decisions reflect some sort of reluctance or some sort of improper “avoidance of treating the duty to consult like other questions of constitutional law.”121  In contrast, I would suggest that the ERCB correctly identified the difference arising from the presence of a private (non-Crown) applicant and correctly understood the limitations expressly placed on the Joint Review Panel.  To date, the Courts appear to agree.

The Athabasca Chipewyan First Nation and the Métis Nation of Alberta Region 1 sought leave to appeal the Jackpine Decision. Again, the Alberta Court of Appeal denied leave to appeal.

“While the jurisdictional issues raised by the applicants are interesting in the abstract, it is not appropriate to grant leave to appeal as the answers to those questions would not affect the outcome of this hearing. The Joint Review Panel ‘. . . is not required . . . to make any determination as to . . . whether the Crown has met its respective duties to consult . . .’. The Joint Review Panel has clearly decided not to engage this issue, at least at this stage of its proceedings. It is entitled to do that.”122

An application for leave to appeal to the Supreme Court of Canada was denied.123

i.          New Alberta Legislation

Effective June 17, 2013, the newly-minted Alberta Energy Regulator replaced the ERCB.  Section 21 of the Responsible Energy Development Act, SA 2012, c R-17.3 makes it clear that the new Regulator shall have neither the duty to consult nor the duty to access Crown consultation:

“Crown consultation with aboriginal peoples.

The Regulator has no jurisdiction with respect to assessing the adequacy of Crown consultation associated with the rights of Aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982.”

Certain commentators have decried the removal of duty to consult issues from the regulatory forum.  For example Nigel Bankes has commented:

Will this lead to certainty and expedited approval or more delays and uncertainty?  I suspect that different readers will have different responses but I have a hard time seeing how this is going to lead to improved and integrated decision making.  In fact it looks like a single window for everything except decisions which engage the duty to consult.124

While there is certainly a legitimate policy debate to be had around whether or not an Energy Regulator ought to play a role in carrying out and/or assessing the adequacy of the duty to consult, the legal debate has been settled.  The Supreme Court of Canada has made it clear that “[t]he duty on a tribunal to consider consultation and the scope of that inquiry depends on the mandate conferred by the legislation that creates the tribunal.”125 The Alberta legislation clearly takes up this invitation and clearly states the mandate conferred (and not conferred) on the Alberta Energy Regulator.  Absent a challenge to the legislation, the Legislature’s answer is determinative.126

Not withstanding the clear statement of legislative intent, there still appear to be transitional and definitional issues to be addressed regarding the proper scope of constitutional questions.  On October 18, 2013, Fort McKay First Nations was granted leave to appeal the decision of the Alberta Energy Regulator in relation to the Dover/Brion Project.127 The Court of Appeal (per. Justice Frans Slatter) granted leave on two questions:

  1. Did the Energy Resources Conservation Board or the Alberta Energy Regulator commit any reviewable error of law or jurisdiction in the assessment of the type of constitutional questions they could or should consider under their general jurisdiction over issues of law, or the Administrative Procedures and Jurisdiction Act?, and if so
  2. Did any such reviewable error in defining the scope of the constitutional issues have any reviewable impact on the ultimate approval of the project by the Alberta Energy Regulator?128

This decision clearly would have been one to watch closely as it may have provided further clarity on the AER’s role in considering aboriginal rights and treaty issues under the Administrative Procedures and Jurisdiction Act.129   However, as this article was being concluded, the First Nation and project proponent reached a settlement agreement, and the pending appeal was discontinued.  The definitional issues under the Alberta legislation will remain unresolved—for now.

As we have seen (in the discussion of the B.C. legislation in Rio Tinto), the legislative treatment of “constitutional questions” in the legislation may not always be drafted in a manner that expressly contemplate (and clarifies) the role of the Regulator in relation to the duty to consult.  However, given the very clear statement in section 21 of REDA, the role of the Alberta Energy Regulator in relation to the duty to consult appears to be settled.130

Conclusion

In the discussion of the duty to consult and the role of the Energy Regulator, what is required is not a single universal, one-size-fits-all answer, which has proven elusive in both the Aboriginal law and the Regulatory/administrative law context.  Instead, what is required is a greater awareness of (i) the different legal contexts for Aboriginal groups (non-treaty, historic treaty or modern treaty); (ii) the resulting differences in the purpose and scope of the Crown’s duty to consult in each legal context; and (iii) the specific mandate assigned to the Energy Regulator in the legislation that creates it.

Energy Regulators may be required to carry out the duty to consult, the duty to adjudicate the adequacy of consultation carried out by others, both of these roles, or neither.  Two key indicia are the power to consider questions of law, and the remedial powers granted to the Energy Regulator.  Guidance may be had from examining how the regulatory process fits into the overall decision-making process.  In addition, the role of the Energy Regulator may differ depending on the nature of the Applicant appearing before it—in particular whether the Applicant is a Crown agent or a private party.  The various combinations and permutations of these various factors does not lend itself to universal solutions that apply to all Energy Regulators.  Instead, the key message is one that should be familiar to administrative law practitioners—it depends.  It depends on the statute, the nature of the application and even the nature of the Applicant.  This diversity is not to be decried, but embraced, as Energy Regulators find their proper place in the decision-making process and their proper role in respect of the Crown’s duty to consult Aboriginal peoples.

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Keith Bergner, a partner with the law firm of Lawson Lundell, LLP, practices Aboriginal and regulatory/energy law.  http://www.lawsonlundell.com/team-Keith-Bergner.html

It is the policy of the Energy Regulation Quarterly to disclose when a contributor acted as counsel or co-counsel in court cases and/or regulatory hearings discussed in an article or case comment.  In the spirit of full disclosure, it is noted that Lawson Lundell and Keith Bergner acted as counsel or, in most cases, co-counsel for a party or participant in the following regulatory hearings and appellate court proceedings discussed in this article.

Court Decisions:

Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650.  (Chris Sanderson, Q.C., Keith Bergner and Laura Bevan representing the Respondent BC Hydro and Power Authority.)

Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53.  (Brad Armstrong, Q.C. and Keith Bergner of Lawson Lundell and Penelope Gawn and Lesley McCullough of the Yukon Department of Justice representing the Appellant Government of Yukon.)

Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc., 2009 FCA 308; leave to appeal to the Supreme Court of Canada dismissed, December 2010.  (Lewis Manning and Keith Bergner representing the Respondent Canadian Association of Petroleum Producers.)

Carrier Sekani Tribal Council v British Columbia (Utilities Commission), 2009 BCCA 67, appealed to the Supreme Court of Canada.  (Chris Sanderson, Q.C., Keith Bergner representing the Respondent BC Hydro and Power Authority.)

Kwikwetlem First Nation v British Columbia (Utilities Commission), 2009 BCCA 68.  (Keith Bergner and Angela Bespflug representing the Respondent BC Hydro and Power Authority.)

Brokenhead Ojibway First Nation v Canada (Attorney General), 2009 FC 484.  (Lewis Manning and Keith Bergner representing the Intervenor Canadian Association of Petroleum Producers.)

Regulatory Proceedings:

Northern Gateway Pipeline, Report of the Joint Review Panel, December 2013.  (Keith Bergner representing the intervenor Canadian Association of Petroleum Producers.)

Interior to Lower Mainland (ILM) Transmission Project, British Columbia Transmission Corporation, British Columbia Utilities Commission, Reconsideration Decision, February 3, 2011. (Keith Bergner and Michelle Jones representing BC Hydro and Power Authority.)

2  Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 at para 2, [2010] 2 SCR 650 [Rio Tinto].

3  being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

4  For further information on treaty making in Canada, including treaty texts and maps, see the material at Aboriginal Affairs and Northern Development Canada: <http://www.aadnc-aandc.gc.ca/eng/1100100028574/1100100028578>.

5  R v Marshall, [1999] 3 SCR 456 [Marshall]; application for rehearing dismissed R v Marshall, [1999] 3 SCR 533.

6  See for example: R v Badger, [1996] 1 SCR 771 at paras 52-58.

7  Source: Aboriginal Affairs and Northern Development Canada: <http://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/htoc_1100100032308_eng.pdf>.

8  It is not uncommon to hear the historic treaties referred to as “covering” some portion of the Province. For example, you will hear that Treaty No 8 “covers” portions of North-East B.C., Northern Alberta, Saskatchewan and the Southern Northwest Territories. However, given that in many places, particularly in the Prairie Provinces, the act of treaty making preceded the creation of the Prairie Provinces, the more accurate statement is that these Provinces actually “cover” the treaties.

9  Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 12, [2010] 3 SCR 103 [Beckman] [Little Salmon].

10 The principal terms of the land claims agreements with Yukon First Nations are set out in the Umbrella Final Agreement (the “UFA”).  Among other things, the UFA includes provisions related to ownership of lands by Yukon First Nations (“Settlement Land”) and management of lands and resources in Yukon.  The final agreements implemented to date include the provisions of the UFA.

11  The Sechelt self-government arrangement was somewhat different from many of the Agreements discussed above as it was undertaken by legislation. See: Sechelt Indian Band Self-Government Act, SC 1986, c 27.

12 Source: <http://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ-AI/STAGING/texte-text/mprm_pdf_modrn-treaty_1383144351646_eng.pdf>.

13  Source:  BC Treaty Commission: <http://www.bctreaty.net/files/negotiations.php>.

14  The astute observer of the map will notice that, while there are numerous overlapping treaty claims, there are also large areas that are not covered by treaty claims.  There are a large number of BC First Nations that have chosen to pursue their claims outside the context of the BC Treaty Commission process.

15  As discussed above, the major exceptions are (i) small portions of Vancouver Island that are covered by the pre-Confederation Douglas Treaties; (ii) the northeast section of the province, which is covered by post-Confederation Treaty No 8; (iii) the modern-day Nisga’a treaty (2000) and the relatively small number of modern treaties completed to date under the BC Treaty Commission process, including the Tsawwassen First Nation

Final Agreement (2009) and Maa-nulth First Nations Final Agreement (2011).

16  Calder et al. v Attorney-General of British Columbia, [1973] SCR 313.

17  See Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56, [2011] 3 SCR 535.  See also

Ahousaht Indian Band v Canada (Attorney General), 2012 BCCA 404, leave to appeal to the Supreme Court of Canada denied January 30, 2014.

18  See Marshall, supra note 5; R v Bernard, [2005] 2 SCR 220, 2005 SCC 43.

19  See the BC Court of Appeal decision in William v British Columbia, 2012 BCCA 285 [William].  The Supreme Court of Canada granted leave to appeal and the appeal was heard in November 2013.  The decision is under reserve.

20  R v Powley, 2003 SCC 43, [2003] 2 SCR 207;  Manitoba Metis Federation Inc. v Canada (Attorney General), 2013 SCC 14; R v Hirsekorn, 2013 ABCA 242, application for leave to appeal dismissed Hirsekorn v the Queen, 2014 CanLII 2421.

21  Some portions of Part II and Part III draw upon and develop ideas initially put forward in the article by Chris W. Sanderson, Q.C., K. Bergner and Michelle S. Jones “The Crown’s Duty to Consult Aboriginal Peoples: Towards an understanding of the source, purpose and limits of the duty”, (May 2012) 49:1 Alberta Law Review.

22  For example, in the 1990 decision Sparrow, the Court’s discussion of “justification” for infringement of Aboriginal rights identified some of the questions to be addressed, including whether the aboriginal group in question has been consulted with respect to the measures being implemented.

23  For example, in the 1997 decision Delgamuukw, the Court’s discussion of “justification” for infringement of Aboriginal title included the following statements: “There is always a duty of consultation.  Whether the Aboriginal group has been consulted is relevant to determining whether the infringement of Aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at Common Law.” (at para 168.)

24  Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 (in respect of Treaty 8 signed in 1899) [Mikisew].

25  Beckman, supra note 9 (in respect of a treaty signed in 1997).

26  Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 [Haida]. In Rio Tinto, supra note 2 at para 31, the Court confirmed that test for when the duty to consult arises (in non-treaty areas) can be broken down into three elements: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.

27  Ibid at para 39.

28  Ibid at para 43.

29  Ibid at para 44.

30  Ibid at para 45.

31  Ibid at para 47.

32  Ibid at para 48.

33  Ibid at para 53.

34  Ibid at para 44.

35  Ibid at para 51.

36  Ibid at para 60-63.

37  Ibid at para 63.

38  The 1996 BC Environmental Assessment Act was subsequently amended, SBC 2002, c 43.

39  Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at paras 23-28 [Taku].

40  Ibid at para 30.

41  Ibid at para 32.

42  Ibid at para 39.

43  Ibid at para 40.

44  Ibid at para 41.

45  Ibid at para 46.

46  Some of the numbered treaties contain slightly different language, although the significance of the difference is still not a resolved question.  The Supreme Court of Canada has granted leave to appeal in respect of Treaty 3.  See:  Keewatin v Ontario (Natural Resources), 2013 ONCA 158; leave to appeal granted Keewatin v Minister of Natural Resources, 2013 CanLII 59883.

47  Mikisew, supra note 23 para 33.

48 Under the Final Agreement, Little Salmon/Carmacks received certain benefits, including title to 2,589 square kilometres of land, financial compensation in excess of $34 million, potential for royalty sharing, economic development measures and rights to harvest fish, wildlife, and forest resources.  In addition, Little Salmon/Carmacks, along with other Yukon First Nations, was entitled to appoint members to co-management boards dealing with fish and wildlife management, development assessment, land use planning and other renewable resources management issues in their traditional territories.

49  Little Salmon, supra note 9 at para 38.

50  Ibid at para 61.

51  Ibid at para 71.

52  Ibid at para 39.

53  Ibid at para 39.

54  Nigel Bankes has criticized the majority’s decision: “In my view the content of the duty to consult articulated by the Court in this case is no greater than that which would be provided by the application of standard principles of administrative law. This impoverished view of the duty to consult is hardly likely to contribute to the constitutional goal of inter-societal reconciliation.”  See “Little Salmon and the juridical nature of the duty to consult and accommodate” posted on December 10, 2010: <http://ablawg.ca/2010/12/10/little-salmon-and-the-juridical-nature-of-the-duty-to-consult-and-accommodate/>.

55  Little Salmon, supra note 9 at para 124, Deschamps J.

56  Ibid at para 19.

57  Quebec (Attorney General) v Moses, 2010 SCC 17.

58  See for example articles 45 and 46 of the Tsawwassen First Nation Final Agreement, December 8, 2006.

59  Rio Tinto, supra note 2 at paras 45, 48-49.

60  British Columbia Transmission Corporation (BCTC), Reconsideration of the Interior to Lower Mainland (ILM) Transmission Project, Decision, February 3, 2011.  This proceeding was a “reconsideration” of an earlier (5 August 2008) decision of the British Columbia Utilities Commission granted a Certificate of Public Convenience and Necessity (CPCN) to the BCTC for the ILM Project.  During that Proceeding, the Commission decided that it need not consider the adequacy of First Nations consultation and accommodation efforts on the ILM Project. The decision was appealed and on February 18, 2009 the Court of Appeal issued its decision in Kwikwetlem First Nation v British Columbia (Utilities Commission) 2009 BCCA 68 (issued at the same time as the BC Court of Appeal decision in Carrier Sekani, which was further appealed to the Supreme Court of Canada). In Kwikwetlem, the Court suspended the CPCN and directed the Commission to reconsider First Nations consultation and to determine whether the Crown’s duty to consult and accommodate First Nations had been met up to August 5, 2008, the date the CPCN was granted.  See also: Upper Nicola Indian Band v British Columbia (Environment), 2011 BCSC 388, which addressed a challenge to the Environmental Assessment Certificate for the ILM Project.

61 BCUC Order G-12-10, Reasons for Decision at 28.  See online: BCUC <http://www.bcuc.com/Documents/Orders/2010/DOC_24485_G-12-10_BCH_Waneta-Decision.pdf>.  On August 5, 2010, the BCUC dismissed an application for reconsideration.  BCUC G-126-10.  See online: BCUC <http://www.bcuc.com/Documents/Decisions/2010/DOC_25967_Sinixt-Nation_BCH-Waneta-Reconsideration-Decision-Web.pdf>.  Full disclosure: Lawson Lundell represented BC Hydro in the BCUC proceedings and related appeals.

62  See for example: Upper Nicola Indian Band v British Columbia (Environment), supra note 60; West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247, leave to appeal denied Her Majesty the Queen v West Moberly First Nations, 2012 CanLII 8361; and Louis v British Columbia (Minister of Energy, Mines, and Petroleum Resources), 2013 BCCA 412, leave to appeal to the Supreme Court of Canada denied 2014 CanLII 8257.

63  Behn v Moulton Contracting Ltd, 2013 SCC 26, at para 30 [Behn]

64  William, supra note 19 at para 142.

65  Ibid at para 149.

66  Beckman, supra note 9 at para 35.

67  At various times during the last several years, I have had the profound privilege of having had several discussions with David Mullan regarding the Crown’s duty to consult and the role of Energy Regulators.  He has been generous in sharing his encyclopedic knowledge of administrative law and his enthusiasm for and keen interest in the practice of (and before) Energy Regulators.  These discussions and his writing on the topic have challenged me and assisted me in developing my thoughts on these subjects.  See: D. Mullan, “The Supreme Court and the Duty to Consult Aboriginal Peoples: A Lifting of the Fog?” 24 CJALP 233; and D. Mullan, “Regulators and the Courts: A Ten Year Perspective”, Vol. 1 Energy Regulation Quarterly 13, especially Section 14 “Duty to Consult with Aboriginal Peoples.”

68  Rio Tinto, supra note 2 at paras 55-58.

69  R v Conway, 2010 SCC 22 at para 6, [2010] 1 SCR 765.

70  Rio Tinto, supra note 2 at paras 58-61.

71  Ibid.

72  See Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504; Paul v British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 SCR 585.

73  See Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3, s 16 and the Designation of Constitutional Decision Makers Regulation, Alta Reg 69/2006.

74  See Administrative Tribunals Act, SBC 2004, c 45, s 43-45.

75  In Rio Tinto, supra note 2 at para 72, the Court considered the application of the BC legislation in respect of the BCUC and concluded that it did not preclude the BCUC from determining the adequacy of consultation in respect of the application before it.  The Court found that “the provisions of the Administrative Tribunals Act and the Constitutional Question Act do not indicate a clear intention on the part of the legislature to exclude from the Commission’s jurisdiction the duty to consider whether the Crown has discharged its duty to consult with holders of relevant Aboriginal interests.”

76  A variation on this structure is where the Energy Regulator makes a decision, which is final subject to the ability of a Minister (or other government actor) to override or set aside that decision.

77  These three Energy Regulators were chosen because the issue of their role in respect of the duty to consult has been more extensively litigated—or at least I am more familiar with the existing jurisprudence in respect of these three regulators.

78  Rio Tinto, supra note 2( at para. 69.)

79  Ibid at at para 70.

80  Ibid at para 72.

81  Ibid at para 74.

82  The Commission was charged with determining whether the sale of electricity was in the public interest under the then-current version s. 71 of the Utilities Commission Act, RSBC 1996, c 473.  The Commission had the power to declare a contract for the sale of electricity unenforceable if it found that it was not in the public interest having regard to a specified list of factors, including “any other factor that the commission considers relevant to the public interest”. Section 71 of the Utilities Commission Act, RSBC 1996, c 473 has since been amended.

83  Rio Tinto, supra note 2 at para 81.

84  Nigel Bankes, “Who decides if the Crown has met its duty to consult and accommodate?” (6 September 2012), online: <http://ablawg.ca/wp-content/uploads/2012/09/Blog_NB_Who_Decides_Sept-20123.pdf> at page 5.

85  Following the February 18, 2009 decisions of the British Columbia Court of Appeal in Carrier Sekani Tribal Council v British Columbia (Utilities Commission), 2009 BCCA 67 and Kwikwetlem First Nation v British Columbia (Utilities Commission), 2009 BCCA 68.

86 BCUC Order G‐51‐10 (18 March 2010), online: BCUC <http://www.bcuc.com/Documents/Guidelines/2010/DOC_25327_G-51-10_2010-First-Nations-Information-Filing-Guidelines.pdf>.

87  Quebec (Attorney General) v Canada (National Energy Board), [1994] 1 SCR 159, 1994 CanLII 113 (SCC), 31.

88  See the discussion in Sanderson et al., supra note 21, pages at 835.

89 NEB Decision OH-1-2007, (6 September 2007); and Order in Council No PC 2007-1786 (22 November  2007).

90  NEB Decision OH-3-2007, (19 February 2008); Order in Council No PC 2008-856 (8 May 2008).

91  NEB Decision OH-4-2007, (22 February 2008); and Order in Council No PC 2008-857 (8 May 2008).

92  See for instance, Enbridge Southern Lights LP (Re), 2008 LNCNEB 1 (No OH-3-2007), at paras 56-57.

93  Brokenhead Ojibway Nation, Long Plain First Nation, Swan Lake First Nation, Fort Alexander First Nation, Roseau River Anishinabe First Nation, Peguis First Nation, Sandy Bay First Nation (collectively, the “the Treaty One First Nations”).

94  There was one judicial review for each Order in Council – for a total of three.  See Federal Court Files: T-225-08, T-921-08 and T-925-08.

95  Brokenhead Ojibway First Nation v Canada (Attorney General), 2009 FC 484 at para 25 [Brokenhead Ojibway].  This statement was adopted by the Alberta Court of Appeal in Tsuu T’ina Nation v Alberta (Environment), 2010 ABCA 137 at para 104.

96  Mikisew, supra note 24 at para 64.

97  Brokenhead Ojibway, supra note 95 at para 42.

98  Ibid at para 44.

99  The Standing Buffalo Dakota First Nations brought three separate challenges arising from the three decisions of the National Energy Board to issue Certificates of Public Convenience and Necessity (CPCN) for the three pipeline projects: Keystone Pipeline, Southern Lights Pipeline and the Alberta Clipper Pipeline.  The Sweetgrass First Nation and the Moosimin First Nation brought an additional challenge arising from the NEB’s Alberta Clipper decision—for a total of four appeals.  See Federal Court of Appeal Files: 08-A-25; 08-A-28; 08-A-29; and 08-A-30.

100  Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc., 2009 FCA 308 [Standing Buffalo].

101  Ibid at para 2.

102  Ibid at para 34.

103  Ibid at para 40.

104  Ibid at para 44.

105  Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council – and – British Columbia Utilities Commission, 2009 CanLII 61380.

106  The Standing Buffalo leave to appeal application was considered and dismissed by the same panel of the Court that had granted leave in the Rio Tinto appeal.  See 2010 CanLII 70763 (SCC); 2010 CanLII 70737 (SCC); 2010 CanLII 78628 (SCC); 2010 CanLII 74561 (SCC); and 2010 CanLII 70764 (SCC).  The Supreme Court of Canada does not provide reasons when dismissing applications for leave to appeal.

107  Perhaps because the leave to appeal application was still pending at the time it decided the Rio Tinto appeal, the Supreme Court of Canada did not reference or comment on the Federal Court of Appeal’s decision in Standing Buffalo (even though many of the parties in the Standing Buffalo appeal participated in the Rio Tinto appeal as intervenors).

108  D. Mullan, supra note 52, 67 CJALP 233 at 259: “…the Supreme Court, in the interests of rounding the circle on the issue of tribunal consultation, should have given leave in Standing Buffalo.  Carrier Sekani did not resolve all of the issues raised by that Federal Court of Appeal decision.”

109  See Mikisew, supra note 24 at para 64; citing Halfway River First Nation v BC (Ministry of Forests), 1999 BCCA 470 at paras 159, 160, 64 BCLR (3d) 206, Finch J.A.

110  TransCanada Keystone Pipeline GP Ltd. (Re), 2010 LNCNEB 2 (No OH-1-2009) at para 87.

111  Joint Review Panel Decision (9 April 2013) at page 6.

112  See Report of the Joint Review Panel for the Enbridge Northern Gateway Project, Volume 1 “Connections”, section 2.2.1.

113  It should be noted that a number of Aboriginal and environmental groups have commenced litigation in the Federal Court of Appeal seeking to challenge and/or set aside the Joint Review Panel’s report.  Given the early stage of this litigation, and the involvement of the author as counsel to an intervenor in the Joint Review Panel process, this article will unfortunately have to refrain from direct comment on this pending litigation.

114  A similar discussion of the Board process (under the former version of the legislation) was earlier published in the Alberta Law Review article by Sanderson et. al., supra note 21, at page 848-49.

115  Osum Oil Sands Corp., Taiga Project, ERCB Reasons for Decision on Notice of Question of Constitutional Law, dated July 17, 2012.

116  Ibid at 7.

117  Cold Lake First Nations v Alberta (Energy Resources Conservation Board), 2012 ABCA 304 at para 6.

118 Agreement to Establish a Joint Review Panel for the Jackpine Mine Expansion Project, online: Canadian Environmental Assessment Agency <http://www.ceaa.gc.ca/050/documents/52084/52084E.pdf> at s6.1.

119  Ibid at s6.2.

120  Jackpine Mine Expansion Project, Joint Review Panel decision, (26 October 2012).

121  See J. Promislow, “Irreconcilable?: The Duty to Consult and Administrative Decision Makers”, 26 CJALP 251 at 266.

122  Métis Nation of Alberta Region 1 v Joint Review Panel, 2012 ABCA 352 at para 20.

123  Athabasca Chipewyan First Nation v Energy Resources Conservation Board acting in its capacity as part of the Joint Review Panel, Joint Review Panel, 2013 CanLII 18847.

124  Nigel Bankes, “Bill 2 the Responsible Energy Development Act and the Duty to Consult” Ablawg (19 November 2012), online: Ablawg <http://ablawg.ca/wp-content/uploads/2012/11/Blog_NB_Bill2_Duty_to_Consult_Nov2012.pdf>.

125  Rio Tinto Alcan, supra note 2 at para 55.

126  In Rio Tinto, the Court expressly left open the question of whether government conduct that can trigger the duty to consult includes legislative action at para 44. Thus, whether legislation setting up the regulatory process can be challenged in this way remains to be determined.

127    Dover Operating Corp. Application for a Bitumen Recovery Scheme Athabasca Oil Sand Area, 2013 ABAER 014, August 6, 2013.  Fort McKay First Nation v Alberta Energy Regulator, 2013 ABCA 355.  It should be noted that the decision of the AER is subject to the further approval of the Lieutenant Governor in Council.

128  Leave to appeal was denied on two other issues raised by the Applicants, which were characterized in the Applicants’ Notice of Appeal as follows:

Whether the Tribunal erred in law or jurisdiction by reason of its narrow interpretation of its inquiry jurisdiction and its remedial jurisdiction to consider and respond, respectively, to cumulative environmental effects; and

Whether the Tribunal erred in law or jurisdiction by reason of the process through which it purported to make findings respecting project impacts on constitutionally protected Treaty rights of the Fort McKay First Nation.

129  RSA 2000, c A-3.

130  The issue of the duty to consult may still be judiciable in relation to the (as yet still forthcoming) decision of the Lieutenant Governor in Council—similar to the scenario in Brokenhead Ojibway, supra note 95

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