In a split decision, the Federal Court of Appeal has dismissed the appeal of the Chippewas of the Thames First Nation of the National Energy Board's approval of Enbridge's Line 9B Reversal and Line 9 Expansion Project. At issue in the appeal was the Federal Crown's duty to consult with First Nations - was the NEB required as part of its decision-making process to determine whether the Federal Crown (which was not a party to the NEB process) was under a duty to consult First Nations with respect to potential adverse impacts of the proposed project and, if so, whether it had adequately discharged that duty?
Ryer, J.A., writing for the majority of the Court in dismissing the appeal, found that that the NEB was not required as a precondition to its consideration of Enbridge's application to determine whether the Federal Crown was under a duty to consult (or whether it had discharged that duty) because the Federal Crown was not a participant in the Enbridge application. Justice Ryer noted that, if the Crown had appeared before the NEB, these issues could have been argued. However, the Federal Crown did not participate in the NEB approval process.
Justice Ryer then went on to consider whether the NEB itself has the power to undertake and discharge the duty to consult with First Nations on behalf of the Federal Crown. He noted that it is within the power of Parliament to require the NEB to discharge the Crown's duty to consult, but it has not done so by legislation. He questions how the NEB could both carry out the duty to consult and then adjudicate on whether or it had adequately discharged the duty. Yet, in a letter sent by the Minister of Natural Resources concerning the Enbridge project, the Minister suggested that the Federal Government "relies on the NEB processes to address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate."
Nevertheless, Justice Ryer concluded that there was no delegation of the duty to consult by the Federal Crown to the NEB. Therefore, any shortcoming in the NEB's consultation with First Nations could not stand as a reason for setting aside its decision to consider Enbridge's application and, ultimately, to approve it.
Justice Rennie of the Federal Court of Appeal provided a dissenting opinion on the case. His opinion was that the Supreme Court's 2010 decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council meant that it was not necessary for the Federal Crown to be a party to the NEB proceeding in order for the NEB to be required to rule upon the Crown's duty to consult. He viewed that decision of the Supreme Court as changing the law on the duty to consult. As a result, Justice Rennie's opinion was the NEB must review the duty to consult in the context of a Section 58 application (like the Enbridge Line 9B application, which is not subject to final approval by the Federal Cabinet):
The Board must have, and
exercise, the power to assess whether the duty to consult has been fulfilled,
and to refuse to grant an approval if there is an unfulfilled duty to consult;
otherwise the section 58 regime allows for the approval of projects which may
adversely affect Aboriginal rights without the Crown ever consulting with the
Aboriginal group in question. A project proponent can apply, go through the
NEB's hearing process, and receive approval. The Crown can remain silent, on
the sidelines. No consultation with the Crown need occur at any point. Indeed,
the Crown lacks the statutory authority to prevent an application from being
approved by the Board, even if it should want to.
Rennie, J.A. concluded that the NEB should have considered whether there was a duty to consult and, if so, whether it had been fulfilled. And the NEB should only have granted approval to Enbridge if there was no unfulfilled duty to consult with First Nations. Justice Rennie would have allowed the appeal.
Given the split in the Federal Court of Appeal on this appeal, this may very well be a case that will be heard by the Supreme Court of Canada.
The full text of the Federal Court of Appeal decision is available at: 2015 FCA 222.