The appellant First Nation contended that the Board did not have jurisdiction approve the project until the Crown had fulfilled its duty to consult. A majority of the Federal Court of Appeal dismissed the appellant’s challenge to the approval (Ryer JA issued the judgment with Webb JA concurring), whereas one judge, Rennie JA, would have allowed the appeal and gave dissenting reasons to that effect.
Line 9 began transporting oil from Sarnia to Montreal in 1976. The Board approved a reversal of Line 9’s flow in 1999 and a re-reversal of that flow in a segment of Line 9 in 2012. The application at issue in this case was to reverse the flow in another segment of Line 9, as well as to increase Line 9’s capacity from 240,000 barrels of oil to 300,000 barrels per day, and approve it for the transportation of heavy oil.
The Board determined that a public hearing was required, and Aboriginal groups within 50km of Line 9 were given funding by Enbridge to engage in discussions regarding the application. The Chippewas of the Thames and other First Nations sent a letter to relevant federal ministers of the Crown requesting a consultation process and stated that Crown consultation was required because the Board did not have the power under the Board's enabling statute, the NEB Act, to engage in consultations that would fulfill the Crown’s duty to consult. The Crown failed to respond to this request prior to the hearing and the Crown did not take part in the Board’s hearings.
The Chippewas of the Thames participated in the proceeding and submitted written and oral evidence, as well as a preliminary traditional land use study with respect to land adjacent to the Line 9 right of way. The evidence indicated their spiritual connection to the land and its resources, as well as the threats the approval posed to their treaty and Aboriginal rights. The Chippewas of the Thames argued that the Board would have to decline Enbridge’s application until Crown consultation had occurred. Nevertheless, the Board approved the application after concluding that the potential threats to the Chippewas of the Thames and other First Nations were covered by Enbridge’s representations regarding safe operation of the pipeline, and that any impacts on their rights would be minimal and appropriately mitigated. The Minister of Natural Resources finally provided a response to the First Nations' request for Crown consultation after the hearing was completed, setting out general policy statements on its approach to meeting its duty to consult, including its position that it would rely on Board processes to address potential impacts to Aboriginal and treaty rights stemming from projects under the Board’s mandate.
Ryer JA first addressed whether the Board was obliged to determine whether the Crown had a duty to consult the Chippewas of the Thames and whether that duty to consult had been fulfilled, even though the Crown had not been a party to Enbridge’s application. The Federal Court of Appeal had previously addressed a very similar scenario in Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc where it determined that the Board was not obliged to resolve the dispute over the Crown’s duty to consult and could proceed to determine Enbridge’s application. The Supreme Court of Canada did not allow leave for appeal from that decision and, according to Ryer JA, no subsequent changes to the NEB Act suggested that it would no longer apply.
The Chippewas of the Thames argued that the Supreme Court of Canada’s subsequent decision in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council had overruled the Standing Buffalo decision, with the Supreme Court of Canada addressing when and how administrative tribunals might engage with the Crown’s duty to consult in that decision. However, Ryer JA concluded that Rio Tinto had not overruled Standing Buffalo since the Supreme Court was dealing with a situation in which the Crown was a party to the proceedings in that case, whereas Standing Buffalo, like this case, involved a proceeding in which the Crown had decided not to participate.
The Chippewas of the Thames also argued that Standing Buffalo was distinguishable since it involved a different section of the NEB Act than Enbridge’s application in this case; in Standing Buffalo the decision to approve the project could be suspended or overruled by the Governor-in-Council under the NEB Act whereas in this case the Board’s decision was final. The Governor-in-Council's ultimate decision making authority would have allowed for subsequent consultations in Standing Buffalo that were not available in this case. Ryer JA rejected this argument on the basis that: no such rationale appeared in the reasons from Standing Buffalo; it may be that the province is the “Crown” that is obliged to engage in further consultations with the Chippewas of the Thames, rather than the federal government; nothing in the NEB Actaddressed whether the Board could determine issues around the Crown’s duty to consult; and nothing about the finality of the Board’s decision making power assisted it in determining questions of the Crown’s duty to consult where the Crown was not a party to the proceeding.
The majority of the court then moved on to the issue of whether the Board itself was obliged to consult with the Chippewas of the Thames on behalf of the Crown. Ryer JA found no indication that the Crown’s duty to consult had been delegated to the Board through the NEB Act and held that requiring the Board to engage in consultation would force it to act outside its core areas of technical expertise and could make it impossible for the Board to then determine the adequacy of that consultation as a quasi-judicial tribunal and court of record. Ryer JA also dismissed the notion that the Crown’s letter to the Chippewas of the Thames, which indicated that it would be relying on the Board’s process to fulfill its duty to consult, could be sufficient to delegate that duty, noting that this letter was only sent to the Chippewas of the Thames after the Board’s process was complete.
Finally, Ryer JA noted that the Chippewas of the Thames could have taken the Crown’s letter as amounting to a refusal to consult with them and sought judicial review of this decision and the courts could have provided a wide scope of potential remedies for such a breach. Ryer JA expressed his concern over Enbridge’s application being held up indefinitely simply because the NEB Act failed to provide the Board with sufficient tools to meaningfully remediate a breach of the Crown’s duty to consult.
Rennie JA, on the other hand, held that Carrier Sekani had overruled the Standing Buffalo decision so that the latter should no longer be followed. Rennie JA also held that the factual and legal contexts in this case were markedly different from those in Standing Buffalo so as to require re-consideration of that decision. In Standing Buffalo there had been many years of unproductive discussions between the First Nation and the Crown. In this case, however, the Chippewas of the Thames had written to Cabinet in advance of the NEB hearings to raise its concerns over the Crown’s failure to fulfill its duty to consult, it had fully participated in the NEB hearings, and it had even repeated its request for consultation to the Crown. Rennie JA noted that the issue was not the degree to which the project would impact the Aboriginal and treaty rights of the Chippewas of the Thames, which very well could be minimal, but rather whether the Board was required to resolve issues around the duty to consult as final decision maker in this matter. Rennie JA also accepted the Chippewas’ argument that the section of the NEB Act at issue in this case was markedly different than the section at issue in Standing Buffalo since the Board was a final decision maker in Enbridge's application in this case.
Rennie JA went on to note that in Carrier Sekani the Supreme Court of Canada held that a tribunal could determine the existence and fulfillment of the Crown’s duty to consult if it was able to resolve questions of law and there was no statutory exception from determining such constitutional questions as these. In Standing Buffalo, on the other hand, the Federal Court of Appeal held that a tribunal would require explicit statutory authorization in order to determine these questions. Based on Carrier Sekani, Rennie JA held that the Board was unequivocally required to consider whether consultation was required and had taken place. Rennie JA further noted that the Crown’s refusal to participate in the Board’s hearings did nothing to change the Board’s obligations since its jurisdiction did not vary depending on who the project proponent was.
Rennie JA also rejected the notion that the Crown could simply avoid its constitutional duty to consult by waiting until it was too late in the decision making process to change the outcome or by delegating the final decision to a tribunal. Rennie JA went on to note that had the NEB Act prevented the Crown’s duty to consult from being fulfilled it would have been of no force and effect. However, in this case the Board did have the power to consider this duty and determine whether it had been fulfilled.
The Board’s obligation was to determine whether the Crown had adequately consulted the Chippewas of the Thames, and absent such consultation the Board could not approve Enbridge’s application. Rennie JA held that the implications of the majority’s decision would only undermine the goal of reconciliation between Aboriginal peoples and the Crown by reducing the Crown’s incentive to engage in good faith consultation in a timely manner. Rennie JA concluded by suggesting that the Supreme Court of Canada’s fear in Carrier Sekani had come to fruition: the Crown could effectively avoid its duty to consult if a tribunal was denied the power to consider issues around consultation, or if this power was split between tribunals that would prevent the issue of consultation from being appropriately dealt with.Note: The Supreme Court of Canada granted the Chippewas of the Thames leave to appeal from this decision on March 10, 2016.