On July 26, 2017, the Supreme Court of Canada rendered two much awaited decisions respecting the duty of the National Energy Board to consult and accommodate the aboriginal rights of two distinct Indigenous peoples for two distinct projects. In one, Clyde River (Hamlet) v. Petroleum Geoservices Inc., 2017 SCC 40, a tiny Inuit community from Nunavut convinced the Court that it had not been deeply and meaningfully consulted or reasonably accommodated and therefore, the National Energy Board’s approval of the petroleum-testing project was overturned and quashed. In the other, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, the Court held that the NEB had appropriately and sufficiently consulted and then accommodated the southwest Ontarian Indigenous nation and upheld the NEB’s approval of Enbridge’s project. Of note, the Court ordered that the Chippewas of the Thames pay Enbridge’s costs.

The Cout clarified that, where the Crown has delegated final decision-making authority to a regulatory agency (such as the NEB) to approve a project that may affect the claimed or perceived aboriginal rights of an Indigenous people, the constitutional obligation to consult deeply and sufficiently that Indigenous people and to accommodate their aboriginal rights and title claim is triggered. The Court stated that the regulatory body in question should seek to fulfill that duty. The Court noted that, even if the regulatory body does not meet that obligation, the Crown still must ensure that the consultation is sufficiently profound and that the accommodation is reasonable before the project can be approved. But if there has been sufficient and deep consultation and if there has been reasonable accommodation of the claimed aboriginal rights and title, then the regulatory agency’s approval of a proposed project may be upheld. For the Inuit Hamlet of Clyde River, the consultation was insufficient and weak. The accommodation was effectively non-existent. The NEB’s approval was jettisoned by the Court. But the opposite occurred for the Chippewas of the Thames.

In rendering these judgments, the Court reviewed the criteria for what was required in order to meet this constitutional duty. In the Clyde River case, the Court discussed the duty in the following tersm [paras. 45-47]:

[45] Bearing this in mind, the consultation that occurred here fell short in several respects. First, the inquiry was misdirected. While the NEB found that the proposed testing was not likely to cause significant adverse environmental effects, and that any effects on traditional resource use could be addressed by mitigation measures, the consultative inquiry is not properly into environmental effects per se. Rather, it inquires into the impact on the right. No consideration was given in the NEB’s environmental assessment to the source — in a treaty — of the appellants’ rights to harvest marine mammals, nor to the impact of the proposed testing on those rights.

[46] Furthermore, although the Crown relies on the processes of the NEB as fulfilling its duty to consult, that was not made clear to the Inuit. The significance of the process was not adequately explained to them.

[47] Finally, and most importantly, the process provided by the NEB did not fulfill the Crown’s duty to conduct deep consultation. Deep consultation “may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision” (Haida, at para. 44). Despite the NEB’s broad powers under COGOA to afford those advantages, limited opportunities for participation and consultation were made available to the appellants. Unlike many NEB proceedings, including the proceedings in Chippewas of the Thames, there were no oral hearings. Although the appellants submitted scientific evidence to the NEB, this was done without participant funding. Again, this stands in contrast to Chippewas of the Thames, where the consultation process was far more robust. In that case, the NEB held oral hearings, the appellants received funding to participate in the hearings, and they had the opportunity to present evidence and a final argument. While these procedural protections are characteristic of an adversarial process, they may be required for meaningful consultation (Haida, at para. 41) and do not transform its underlying objective: fostering reconciliation by promoting an ongoing relationship (Carrier Sekani, at para. 38).

Thus, the regualtory agency should focus on the claimed aboriginal right or title in question, how it may be impacted and how that impact may be addressed. The agency should ensure that there is a real consultation, that the Indigenous nation has capacity to engage in that consultation, whether viewed from a financial perspective, liguistic perspective or enironmental expertise, engineering or legal representation perspective.The Court has in essence, therefore, laid out a roadmap for proponents of projects and regulatory agencies having to determine whether to approve such projects or not. Although the NEB has been heavily criticized in recent years for its approval process, one thing is clear from these rulings: as flawed as it may be, the NEB can approve projects that may affect aboriginal rights and title and, if done right, its approval may withstand the scrutiny of a constitutional duty to consult review. Just ask the Chippewas of the Thames.

Thus for the proponents of projects and for these regulatory agencies, these two decisions offer an important lesson: do it right, and your approval can proceed.

For Indigenous peoples, however, who know that their ancestors occupied their lands for thousands of years and who know that their aboriginal title claim is just, the lesson is stark: litigate your aboriginal title claim and prove it or be “consulted and accommodated” out of your aboriginal rights.

In Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, the Supreme Court ruled for the first time in Canadian history that an Indigenous people had proven their claim for aboriginal title. The Court explained in that case the different situation before and after that sort of legal decision [paras. 89-92]:

[89] Prior to establishment of title by court declaration or agreement, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups. The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed. If the Crown fails to discharge its duty to consult, various remedies are available including injunctive relief, damages, or an order that consultation or accommodation be carried out: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at para. 37.

[90] After Aboriginal title to land has been established by court declaration or agreement, the Crown must seek the consent of the title-holding Aboriginal group to developments on the land. Absent consent, development of title land cannot proceed unless the Crown has discharged its duty to consult and can justify the intrusion on title under s. 35 of the Constitution Act, 1982. The usual remedies that lie for breach of interests in land are available, adapted as may be necessary to reflect the special nature of Aboriginal title and the fiduciary obligation owed by the Crown to the holders of Aboriginal title.

[91] The practical result may be a spectrum of duties applicable over time in a particular case. At the claims stage, prior to establishment of Aboriginal title, the Crown owes a good faith duty to consult with the group concerned and, if appropriate, accommodate its interests. As the claim strength increases, the required level of consultation and accommodation correspondingly increases. Where a claim is particularly strong — for example, shortly before a court declaration of title — appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim. Finally, once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.

[92] Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.

Accordingly, while nothing is absolute, if an Indigenous nation wants to control the decisions about proposed uses of its lands, to simply follow the lead of a proponent’s funded consultations and discuss the issues with the regulatory body and the proponent may simply end up in a highly dissatisfactory result. The slick marketing campaigns of the well-heeled proponents wll be used to create the circumstances where a regulatory body can find that the Indigenous nation in question has been deeply consulted and its aboriginal rights reasonably accommodated. And the project can then proceed. And if the Indigenous nation’s concerns come to pass and bitumen does leak into the environment and their ancient fishing and hunting grounds are thereby rendered sterile, their claim for aboriginal rights becomes practically moot.

The consequence of these two decisions, in my view, is that any Indigenous nation that has an unproven claim of aboriginal rights and/or title should litigate that constitutional claim. Such Indigenous nations should plan for the long and expensive battle knowing that it is the only real way to provide protection and security for their ancient rights. I am not saying that such Indigenous nations should not engage in consultation discussions with proponents and governments. But I am saying that they should not view those discussions and the resultant decisions as being ultimately protective of their aboriginal title or rights in relation to its lands. For that, only a proven claim seems to be sufficient. And once proven, the Indigenous nation will have far more control and say in any decision respecting its ancestral lands.

I remain

Constitutionally Yours,

Arthur Grant