Duty to Consult Indigenous Peoples: How has the Landscape Changed?

On July 26, 2017, the Supreme Court of Canada handed down two rulings: Clyde River (Hamlet) v. Petroleum Geo-Services Inc. ([2017] SCC 40), and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. ([2017] SCC 41). These companion decisions have important implications for the Crown’s duty to consult and accommodate Indigenous Peoples, particularly the role of regulatory agencies in the consultation process. The School of Public Policy at the University of Calgary brought together a panel of experts to discuss these cases and their implications at a public event on August 21^st in downtown Calgary. The event was moderated by Deborah Yedlin, a journalist at the Calgary Herald, and panel members included, Dwight Newman, Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan; Noreen Saddleback, Consultation Manager at the Samson Cree First Nation; Gerry Chipeur, partner at Miller Thompson LLP; and Gaétan Caron, former Chair and CEO of the National Energy Board (NEB). This blogpost summarizes the discussion, which will be valuable to those in attendance, and those who were unable to make the event, but are interested in the topic.

Before covering the event, it is important to provide the background of the two cases. In Chippewas of the Thames (CTFN), the NEB had approved an application by Enbridge Pipelines Inc. to reverse flow in a portion of its Line 9, running between Ontario and Quebec, increase the line’s capacity and allow heavy crude to be transported. The NEB found that consultation with Indigenous communities located near the line was adequate and the impact of the pipeline modifications on their traditional territory and rights would be minimal. The CTFN appealed the approval, however, the Supreme Court dismissed the appeal and the NEB’s decision was upheld. In Clyde River, the NEB authorized Petroleum Geo-Services Inc. (PGS), a Norwegian oil and gas company, to conduct seismic testing near the hamlet and, once again, found that Indigenous groups were informed and had an opportunity to participate in the NEB process, and the impacts of the work would be minimal. However, the Hamlet of Clyde River, an Inuit community in Nunavut, argued that the potential impact on marine mammals in the area would violate their rights and that they were not properly consulted. The Supreme Court ruled in favour of Clyde River and found that the NEB ruling should be overturned.

Dr. Newman began with some general remarks about the cases. He suggested that they reaffirm many elements of the duty to consult that had already been established and gave some further guidance – particularly related to the NEB and potentially other regulatory agencies. He highlighted that, while the decisions were different, the two cases had many commonalities, which led to their consideration as companion cases. In both, consultation had been carried out by a regulatory body, the NEB, rather than directly by the Crown. In Clyde River, the NEB had the authority to make the final decision under the Oil and Gas Operations Act. In CTFN, the decision fell under section 58 of the National Energy Board Act, which deals with the approval of modifications to existing pipelines, rather than section 52, which deals with approval of new pipelines. Under section 58, the NEB has authority for the final decision, while under section 52, it provides a recommendation to the Governor in Council (Cabinet), who has final say. In both these decisions, the Supreme Court found that in situations where the NEB is the final decision maker, the duty to consult can be triggered. In addition, the NEB itself can fulfill the duty to consult and evaluate whether it has been fulfilled. Prior to this, the Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc. decision ([2009] FCA 308) held that, if the Crown was not directly involved, the duty to consult was not triggered. After Clyde River and CTFN, the rule no longer applies to the NEB and likely other regulatory bodies as well. Dr. Newman highlighted that the NEB had already been developing processes to consult with Indigenous communities, but in Clyde River it was deemed insufficient. The court found that there was limited opportunity for participation, there was no oral hearing, no capacity supports were provided to the community and information about the project was not accessible. In the CTFN decision, the courts ruled differently because it was made clear from the beginning that the hearings would lead to and be considered in a decision.

Dr. Newman finished his remarks by noting the very specific context of these cases, which dealt with regulatory bodies, and highlighting that these were not overarching court decisions. He said that this needs to be kept in mind when considering the impact of these decisions on other projects which could end up in the courts. For example, most of the larger pipelines that have been prominent in the news in recent years (for example Enbridge’s Northern Gateway, Kinder Morgan’s Trans Mountain, TransCanada’s Energy East) are in a different situation under section 52 of the NEB which requires a final decision from Cabinet. Clyde River was also unique in that it involved a modern treaty, rather than historic or numbered treaties, which are found throughout the Prairie Provinces.

Noreen Saddleback emphasized the importance of language in discussing these issues. She indicated that language is important to Indigenous Peoples for harvesting and praying – both of which are required for developing and maintaining their nationhood. Ms. Saddleback suggested that Indigenous Peoples provide balance through the “usage principle”; they protect the environment through their use of the land. She explained that Indigenous People ask for support in determining and assessing their usage because they do not benefit equally from the aggregate spending of government, compared to the rest of the country. However, with the Haida v. British Columbia (Minister of Forests) ([2004] 3 SCR 511) and Delgamuukw v. British Columbia ([1997] 3 SCR 1010) decisions, Indigenous People started to become advocates for their own rights. Ms. Saddleback suggested that government has also said that industry needs to work with Indigenous Peoples, but reiterated that Indigenous People cannot work with industry if they do not have the capacity. She indicated that impact benefit agreements, private agreements signed directly between a company and a community, help in this regard because they allow for mapping and studies of traditional usage.

Ms. Saddleback stated that if you do not have a conversation, you get litigation, and it is always better to avoid lawyers. But Indigenous People need to have the right to say no. She indicated that she has been trained to say no by elders, because in the past their rights were infringed upon. Ms. Saddleback noted that the treaties say that the signatories will talk forever indicating that there should be a continuous discussion – and that this is appropriate because development has a continuous effect on Indigenous Peoples, through cumulative impacts in areas like climate change, water and health. Ms. Saddleback asserted that right now, Indigenous People in Canada are living in the equivalent of the developing world.

Ms. Saddleback finished by emphasizing the important of language and saying that collaboration is key for implementing international agreements like UNDRIP and the Paris Climate Accord – and that we can either innovate or litigate. She indicated that Indigenous Peoples have all the keys for nationhood and referenced the United Nations Economic and Social Council forum. She stated that language is key, and that other elements include government, peoples, land, religion or spirituality, military and economies. Ms. Saddleback stated that Indigenous Peoples have the ability and the willingness to stop the impacts of development that are harmful to all of us, not just Indigenous People. In the case of the Trans Mountain pipeline project, Indigenous People are looking for certainty, capability and mutual benefits.

Gerry Chipeur highlighted that Clyde River and CTFN were clearly related to reconciliation and that UNDRIP could be used to provide some accountability and outline what the Supreme Court could do to foster that. Mr. Chipeur asked: will consent be the operating point moving forward in these decisions? He added that so far it has not been a principle. Another question raised by Mr. Chipeur is: what happens when government rejects a project and Indigenous groups do not agree and want the project to proceed? The duty to consult could also apply in these cases, which are the opposite of how most people think about consultation.

Mr. Chipeur stated that litigation is not the answer to conflicts over consultation and that the courts have said “do not rely on us”. The best option is to make a deal and go beyond relying on the duty to consult – anything else leaves you exposed to risk. They key is communication and clearly defining what constitutes successful and unsuccessful consultation in these cases.

Gaétan Caron began his remarks by noting that previously the NEB has been reluctant to evaluate the adequacy of consultation by the Crown. Early court cases found that the NEB did not owe Indigenous People a higher standard of procedural fairness than that owed to other parties. However, the decisions since that time, culminating in Clyde River and CTFN, have clarified this. The NEB can now be responsible for judging the adequacy of Crown consultation. This will change the business of regulators in Canada. These cases focused on regulatory decisions for smaller pipeline projects and oil and gas exploration. But the courts may also look favourably on the use of the NEB to assess the adequacy of Crown consultation for major pipeline projects that fall under section 52 of the NEB Act, where the Crown makes the final decision based on NEB recommendations.

Ms. Yedlin began the question and answer portion of the event by asking about the impact of these cases on the issue of veto and consent. Dr. Newman indicated that courts have been clear that Indigenous groups do not have a unilateral or absolute veto over resource development projects – because their interests must be reconciled and balanced with the public interest. These recent cases do not change that. He highlighted that granting consent across the board, in every case, would be a massive change from previous legal rulings.

Ms. Saddleback reiterated the importance of language and a balanced approach to decision making. According to her, this means that consultation needs to be holistic and take a 360 degree assessment, covering all aspects of development and all of the actors involved. She stressed that Indigenous Peoples need to be articulate and knowledgeable. For example, they need to know how to manage data, to assess and monitor the impact of a project and to protect their rights and way of life. For Ms. Saddleback, that is more important than the issue of veto and consent.

Mr. Chipeur added that UNDRIP suggests that the representative body of the community, the band council for example, is to be consulted. He suggested focusing on that relationship to avoid the influence of environmental groups who come from outside the community and do not speak for it, particularly those from the U.S.

An audience member asked about the importance of Indigenous communities having land-use plans (LUP), which identify sites with cultural, traditional and historic significance, when IBAs are signed.

The panel indicated that communities do not always have LUP and the question then becomes – should capacity supports be provided earlier in the process to help them develop plans?

Ms. Saddleback said that cultural impact assessments need to be part of the decision making process and that Indigenous communities need capacity to quantify and measure these impacts – which can build up over time and have a cumulative effect. She suggested that proponents should fund the assessments and that they should be treated the same way as construction and environmental permitting. In other words, the amount of money put into these assessments should be in the millions of dollars not thousands. On a positive note, Ms. Saddleback highlighted that an Indigenous Advisory Monitoring Committee was established as part of the Trans-Mountain pipeline review. The first of its kind at the national level, Indigenous community members are now participating in project monitoring activities alongside government and industry inspectors.

An audience member expressed concern that the requirements of the duty to consult could make projects uneconomical, which he suggested, effectively gives Indigenous communities a veto over development.

Mr. Caron highlighted that the courts have clearly stated that Indigenous Peoples do not have a veto. He went further to say that the courts are one of several institutions or branches of government and that Indigenous groups have used them frequently and with great success. In short, the courts point out where mistakes were made and help fix them. Dr. Newman added that governments can make decisions and development can move forward, as long as the rights of Indigenous Peoples are respected. If a project is uneconomic, then it is because it is infringing on those rights. Ms. Saddleback pointed out that a veto does not go to one person. The treaties say that the Crown will provide for Indigenous Peoples in her abundance and the need to sign IBAs are part of that. If no agreement is signed, it is hard to know if a project is uneconomical or not.

Ms. Yedlin closed the event by thanking the speakers and the audience.