JURIST Guest Columnist Dwight Newman of the University of Saskatchewan discusses what is happening with recent leave decisions related to Indigenous rights and Canadian energy regulation….

The Supreme Court of Canada’s decision to grant leave to appeal in the Clyde River case means that it will hear an appeal from the Federal Court of Appeal decision in the case on November 30, 2016.

The case is about allegedly insufficient consultation with indigenous residents in the context of the National Energy Board‘s approval of seismic testing for energy resources off the Arctic shores of Clyde River, Nunavut. At a more fundamental level, the case will see the Supreme Court of Canada revisit what role administrative boards and tribunals can play in the context of Canadian governments’ legal duties to consult indigenous communities. As this comment will show, this has become a particularly heated topic; it is part of the atypical circumstances to the court’s granting of leave to appeal in this case, and the decision in this case may yet have significant effects on many resource-sector cases.

The Supreme Court of Canada developed the modern form of this legal duty to consult in a series of cases starting with the 2004 Haida Nation decision. Because Canada constitutionally entrenched Aboriginal and treaty rights during its major constitutional amendments in 1982, Canada’s courts are engaged in an ongoing process of defining those rights and the related duties on government.

In these consultation cases, the duty to consult is a proactive duty on governments (federal or provincial) to consult with indigenous communities whose Aboriginal rights or treaty rights might be adversely affected by a government decision prior to making that decision, even where there is ongoing uncertainty on the right. More complex parts to this case law say that the scope of what is owed under the duty varies in different circumstances and attempt to set out how. The duty itself has generated some types of uncertainty, but that has had some constructive effects, such as in often encouraging the negotiation of impact-benefit agreements between industry and indigenous communities (for discussion, see my May 2014 report for the Macdonald-Laurier Institute).

In 2010 the court considered an issue that many saw as not clearly resolved in the jurisprudence to that point. In the Rio Tinto case, which drew dozens of intervening parties to get at the various polycentric implications of the decision, the court sought to set out the rules on the role of administrative boards and tribunals in relation to the duty to consult. The duty is one owed by governments. The court in Rio Tinto effectively said that governments would define the role of administrative boards and tribunals in their statutory mandates. Some administrative boards or tribunals may carry out consultation, some may review it, and some may have nothing to do with consultation. Even in the latter case, though, the duty to consult does not disappear. The point of Rio Tinto is simply that governments themselves organize how they are going to deal with the duty to consult, and they choose whether they do so through a particular board or tribunal or in some other way.

The argument for leave to appeal in the Clyde River case was that the guidance provided by the earlier Supreme Court of Canada cases has still ended up in a cross-country patchwork in the regulatory context. In the context of the National Energy Board in particular, the applicants claimed that the ongoing application of a 2009 Federal Court of Appeal precedent from before the 2010 Rio Tinto decision, the Standing Buffalo case, results in too little analysis by the National Energy Board of consultation and should be revisited in light of the 2010 Rio Tinto decision. The federal Attorney General and other respondents argued in reply that the law is clear.

Timing, though, seemed to offer a fateful turn. Three days after the initial leave application document in Clyde River was filed, a differently constituted panel of the Federal Court of Appeal issued a split decision about consultation by the National Energy Board (though, notably, in relation to its operations under a significantly different section of its constituting Act). This decision, in Chippewas of the Thames, concerned a pipeline application by Enbridge, which sought to reverse the flow of Line 9 so as to bring Western Canadian oil to Quebec refineries. Around a month later, only one of the three respondent parties in Clyde River thought to mention the Chippewas of the Thames decision in the course of their written argument against the court granting leave to appeal, but the applicant went on to hammer home to the court the idea that the cases were connected and actually ultimately asked the court to hear them together.

The argument over leave to appeal in the Chippewas of the Thames decision itself saw a further fateful effect of timing. In the Clyde River case, the federal Attorney General filed a government reply opposing the granting of leave, with the filing of this argument taking place before Canada’s October 2015 election. After the election, the new Liberal government has announced its intention to seek a different, nation-to-nation relationship with Indigenous communities, and it indicated that it would take a different approach in relation to litigation. When the time came for arguments to be filed in the Chippewas of the Thames case, the federal Attorney General indicated that Canada would take no position on the leave application. This choice stands out as an unusual decision, in the context of the traditional practice of the Attorney General of defending decisions of major administrative boards from attacks and of trying to avoid seeing major legal issues revisited.

There were other unusual aspects to Clyde River as well, as seen in some of the materials filed on argument. The applicant in the Chippewas of the Thames application for leave to appeal appended to the application a lengthy affidavit from the Chief of the Assembly of First Nations (AFN) commenting on why the court should grant leave and introducing a significant political dimension to the case. Although the respondent company, Enbridge, briefly commented on this in its reply, the absence of any Attorney General objection to this use of an affidavit stands out. Moreover, the applicant’s reply document introduced for the first time an academic study of the National Energy Board’s engagement with the duty to consult, with no other party having a chance to reply to that even when the study’s conclusions arguably do not align well with what was asserted from it by the applicant.

It will be interesting to see who says what about it when matters reach the Supreme Court of Canada at the end of November. The court ended up granting leave in Clyde River and Chippewas of the Thames, to be heard together. Without some fateful timing and some unusual aspects in the leave process, there might or might not have been such a result.

Now, though, the Supreme Court of Canada has significantly opened a set of questions once again on the interaction of the duty to consult with the administrative regulatory process. Clyde River will not be a decision just about seismic testing near one hamlet in Nunavut, significant though that might itself be. Clyde River and Chippewas of the Thames will together see the court pronounce, at least, on the National Energy Board and consultation—and quite possibly in a way bearing on other regulatory contexts as well. With the Federal Court of Appeal having heard consultation-related challenges to the Northern Gateway project in October 2015, with its decision still under reserve, the Supreme Court of Canada will soon be pronouncing on issues that could bear on that case, adding an additional note of complexity. And in an era with many issues related to indigenous rights and regulatory processes, the effects could extend still wider.

Dwight Newman is Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan and is a 2015-16 Visiting Fellow in the James Madison Program at Princeton. His scholarship on the duty to consult has been widely cited, including at all levels of Canadian courts. Twitter: @DwightNewmanLaw.

Suggested citation: Dwight Newman, Indigenous Rights, Canada’s National Energy Board, and the Supreme Court of Canada, JURIST – Academic Commentary, Apr. 11, 2016, http://jurist.org/forum/2016/04/Dwight-Newman-indigenous-rights.php.