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Court Reaffirms That NEB Process Can Fulfill Duty to Consult

Fasken
Reading Time 4 minute read
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Aboriginal Law Bulletin

Introduction

On September 14, 2017, the Supreme Court of Canada (“SCC”) refused leave to appeal two cases: Blueberry River First Nations v. A.G. of Canada and NOVA Gas Transmission and Saulteau First Nations v A.G. of Canada, NOVA Gas Transmission and National Energy Board. The denial of the applications to leave follows the recent SCC decisions of 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, and confirms the Crown’s ability to rely on the National Energy Board’s (“NEB”) regulatory processes to fulfill its duty to consult.

Background

In November 2013, Nova Gas Transmission Ltd. (“NGTL”) applied to the NEB to construct and operate a pipeline in northeastern British Columbia, called the North Montney Mainline (the “Project”).  The Project is a proposed extension of NGTL’s existing natural gas pipeline system.

From January 21 to December 5, 2014, the NEB assessed NGTL’s application, which included engagement with 25 potentially affected Indigenous groups. Of the 25 potentially affected Indigenous groups, 7 had intervenor status in the assessment.

On April 15, 2015, the NEB issued its report.  The NEB’s report concluded that the Project was in the public interest and recommended that the NEB issue NGTL a Certificate of Public Convenience and Necessity (“CPCN”), subject to the 45 conditions in the report. 

On June 10, 2015, the Governor in Council issued Order in Council P.C. 2015-0799 (“OIC”), thereby approving the Project and directing the NEB to issue the CPCN to NGTL.

Federal Court of Appeal (“FCA”)

The Blueberry River First Nation (“BRFN”) and the Saulteau First Nation (“SFN”) separately applied for judicial review of the OIC on the basis of inadequate consultation.  The  BRFN and the SFN each argued that no Crown consultation had occurred outside the NEB process.  In addition, the SFN argued that the OIC should be quashed since the Project was improperly characterized as an interprovincial pipeline and the NEB had no jurisdiction to recommend its approval.

In August 2015, the FCA dismissed the applications brought by the BRFN and the SFN.  The FCA provided no reasons for its decision. The BRFN and SFN applied for leave to appeal the FCA’s decision.

Supreme Court of Canada

The SCC dismissed the applications for leave to appeal brought by the BRFN and the SFN.  Although the SCC did not provide reasons, it effectively approved the consultation process undertaken by the NEB.  Key features of the NEB’s process are found in its written reasons (“Reasons”) and described below:

  • The NEB relied on its “Enhanced Aboriginal Engagement [“EAE”] initiative and hearing process” in which the NEB sent letters to each potentially impacted Indigenous group that informed them of the Project, the NEB’s regulatory role and offered to provide further information.
  • The Crown stated that it relied on the NEB’s processes to the extent possible to meet any duty that it may have to consult with Indigenous groups for the Project.
  • Both written evidence as well as oral traditional evidence were provided by the BRFN and SFN as well as other Indigenous groups.
  • As intervenors, the BRFN and SFN participated throughout the NEB’s process by filing evidence, presenting witnesses, and providing final argument. However, the Reasons acknowledge the BRFN and SFN’s views that neither group were meaningfully consulted nor accommodated by NGTL or the NEB’s process.
  • NGTL undertook Traditional Ecological Knowledge and Traditional Land Use (“TLU”) studies which the NEB considered when it examined the Project’s impact on Indigenous groups.
  • “Aboriginal Matters” is its own chapter within the Reasons which addresses: Indigenous groups’ participation in the regulatory process; NGTL’s engagement of Indigenous groups; and the Project’s impacts on Indigenous groups. On each topic, the Reasons contain a summary of the views of NGTL, and each Indigenous group participating, including the BRFN and SFG, before stating the NEB’s conclusions.
  • Despite finding NGTL’s consultation “satisfactory”, the NEB acknowledged the BRFN’s concerns regarding the pipeline’s route and the lack of time for the TLU studies by imposing a condition on the CPCN recommendation requiring NGTL to file a consultation plan report with the NEB regarding the results of outstanding TLU studies including NGTL’s addressing of any concerns or issues.
  • The NEB imposed conditions to minimize the Project’s potential effects that required NGTL to submit a protection plan before construction, and a monitoring report following the commencement of the operation of the pipeline.

Implications

The SCC’s decision to deny leave reaffirms that the Crown may rely on the NEB’s regulatory process, in whole or in part, to discharge the duty to consult.  The NEB’s Reasons also provide proponents with some helpful guidance for designing and undertaking a consultation process that the NEB will find sufficient to satisfy the Crown’s consultation obligations.

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