National Energy Board process not fulfilling Crown duty to conduct deep consultation

Supreme court | Aboriginal Law | Constitutional Issues | Treaty Rights

Majority of residents of hamlet located on Baffin Island were Inuit. Residents relied upon harvest of marine mammals for their food security and their economic, cultural and spiritual well-being. Respondents were companies interested in finding oil and gas resources (proponents). Proponents applied to National Energy Board (NEB) for authorization under s. 5(1)(b) of Canada Oil and Gas Operations Act (COGOA) to conduct seismic testing adjacent to area where Inuit have treaty rights to harvest marine mammals. After consultation and environmental assessment, NEB concluded that project was not likely to result in significant adverse environmental effects and granted authorization. Hamlet, its mayor and trappers’ organization (appellants) applied to Federal Court of Appeal for judicial review of NEB’s decision to grant authorization. Application for judicial review was dismissed. Appellants appealed. Appeal allowed. Duty to consult seeks to protect Aboriginal and treaty rights while furthering reconciliation between Indigenous peoples and Crown. Any decision affecting Aboriginal or treaty rights made on basis of inadequate consultation will not be in compliance with duty to consult, which is constitutional imperative. Where challenged, it should be quashed on judicial review. Adequate Crown consultation before project approval is always preferable to judicial remonstration following adversarial process. No consideration was given in NEB’s environmental assessment to source, in treaty, of appellants’ rights to harvest marine mammals, nor to impact of proposed testing on those rights. Process provided by NEB did not fulfill Crown’s duty to conduct deep consultation. Limited opportunities for participation and consultation were made available to appellants. No mutual understanding on core issue of potential impact on treaty rights and possible accommodations could possibly have emerged from process. NEB’s authorization was quashed.

Clyde River (Hamlet) v. Petroleum Geo-Services Inc. (2017), 2017 CarswellNat 3470, 2017 CarswellNat 3471, 2017 SCC 40, 2017 CSC 40, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellNat 12196, 2015 CarswellNat 3750, 2015 FCA 179, 2015 CAF 179, M. Nadon J.A., Eleanor R. Dawson J.A., and Richard Boivin J.A. (F.C.A.).

 

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