[2016] 2 F.C.R. D-1
Aboriginal Peoples
Duty to consult — Appeal from National Energy Board decision dated March 6, 2014 (In the Matter of Enbridge Pipelines Inc., OH-002-2013) approving application by Enbridge Pipelines Inc. for pipeline reversal, expansion project — Enbridge applying under National Energy Board Act, R.S.C., 1985, c. N-7, s. 58 to request approval of project — Appellant seeking to have Board’s approval of project quashed on basis Board without jurisdiction to issue exemptions, authorizations to Enbridge before Crown fulfilling duty to consult, accommodate appellant — In decision, Board acknowledging potential threat that project could pose to appellant’s traditional land use but satisfied by Enbridge’s representations regarding safety, contingency operations in event of pipeline rupture — Thus, Board stating that any impacts on appellant’s rights would be minimal, mitigated –– Issues: (1) whether Board itself being delegated power to undertake fulfillment of duty established in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 to consult with, accommodate appellant’s concerns relating to potential effects of project on Aboriginal, treaty rights; (2) whether Board required to determine, as condition of undertaking mandate with respect to Enbridge’s application for approval of project, if Crown, as non-party to application, under Haida duty; if so, whether Crown discharging duty thereunder — Latter issue dealt with first — Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308, [2010] 4 F.C.R. 500 (Standing Buffalo), holding that Board not precluded from exercising jurisdiction to hear applications before it despite fact Crown not party to applications — That same month, Supreme Court of Canada rendering decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 (Carrier Sekani), wherein determining that British Columbia Hydro and Power Authority (BCUC) correct in finding that it had power to make Haida determinations — However, Carrier Sekani not going so far as to establish that before undertaking consideration of matter at issue in proceedings before it, tribunal having to make Haida determinations irrespective of whether Crown participant in those proceedings — Circumstances in Carrier Sekani differing significantly from those in Standing Buffalo — Particularly, in Carrier Sekani, party seeking approval from BCUC Crown itself — In contrast, Crown not participating in approval proceedings before Board in Standing Buffalo — Standing Buffalo not overruled by Carrier Sekani — Standing Buffalo indistinguishable from factual context in present appeal, principle established therein followed — Board, in absence of Crown as participant in Act, s. 58 application pertaining to project, not required as precondition to consideration of application, to determine whether Crown under Haida duty, and if so, discharging that duty — As to whether Board under Haida duty, Board clearly obligated to carry out mandate in manner respecting provisions of Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(1); ensuring interests of Aboriginal groups in relation to project approval process considered by Board, project proponents — By requiring Enbridge engage in dialogue with appellant, other First Nations, Board ensuring it adhered to its Constitutional obligations under s. 35(1) — Crown’s response letter not constituting effective delegation to Board of Crown’s responsibility for performance of any portion of Haida duty if such duty arising in relation to project — Effective delegation by Crown of its Haida duties requiring legislation to that effect — In present case, no delegation by Crown to Board under Act or otherwise of power to undertake fulfillment of any applicable Haida duty of Crown in relation to project occurring — Appeal dismissed — Per Rennie J.A. (dissenting): Foundation on which Standing Buffalo predicated altered by Carrier Sekani — Standing Buffalo no longer ought to be followed — Factual, legal contexts in this appeal markedly different from those in Standing Buffalo so as to require reconsideration of that decision — Language of Carrier Sekani unequivocal; Board having to consider whether consultation required, taking place — Whether or not Crown showing up at regulatory proceedings not altering Board’s responsibilities with respect to Crown’s duty of consultation — In case at bar, Crown’s duty to consult triggered, consultation not taking place — To extent Minister purporting to rely on Board to fulfill duty to consult, doing so in error.
Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (A-358-14, 2015 FCA 222d*, Ryer and Rennie JJ.A., judgment dated October 20, 2015, 41 pp.)
* Please note that the proper neutral citation for this decision is 2015 FCA 222. The “d” has been added to differentiate this digest from the decision that will be reported in full in the Federal Courts Reports.