Earlier today the Supreme Court of Canada released two decisions regarding the role of the National Energy Board in the fulfillment of the Crown’s duty to consult and accommodate potential impacted Indigenous Nations.
In Clyde River (Hamlet) v. Petroleum Geo‑Services Inc. 2017 SCC 40, the Court found in favour of the appellants, the Inuit of Clyde River. The Court quashed the NEB’s authorization for Petroleum Geo-Services Inc. to carry out seismic testing because the duty to consult had not been fulfilled for numerous reasons, including because the discussion of Aboriginal consultation was wrongly subsumed within an environmental assessment.
In Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, the Supreme Court of Canada dismissed the appeal of the Chippewas of the Thames First Nation given their finding that the consultation and accommodation for the proposed project by Enbridge Pipelines Inc. to modify and increase the capacity of their existing pipeline was sufficient.
In both decisions the Court confirmed that the NEB is not the Crown, and not an “agent” of the Crown but acts on behalf of the Crown to carry out consultation and accommodation. The Crown can rely on these actions, but if they are not adequate the Crown must carry out further measures. It was clarified that when the Crown is relying on the processes of a regulatory body to fulfill its duty, this must be made clear to the Indigenous Nations. The Court further found that the NEB has the procedural powers necessary to implement consultation, and the remedial powers to, where necessary, accommodate affected Aboriginal claims, or Aboriginal and treaty rights. Its process can therefore be relied on by the Crown to completely or partially fulfill the Crown’s duty to consult.