Newspaper article The Canadian Press

Lessons from Supreme Court Decisions on Indigenous Consultation

Newspaper article The Canadian Press

Lessons from Supreme Court Decisions on Indigenous Consultation

Article excerpt

Lessons from Supreme Court decisions on Indigenous consultation


This article was originally published on The Conversation, an independent and nonprofit source of news, analysis and commentary from academic experts. Disclosure information is available on the original site.


Authors: Justin Safayeni, Adjunct Professor in Administrative Law, York University, Canada and Nader R. Hasan, Adjunct professor, U of T Faculty of Law, University of Toronto

In July, the Supreme Court of Canada released two major decisions on the Crown's duty to consult and accommodate Indigenous peoples. Those decisions provide important guidance that can help to ensure Indigenous peoples' constitutional rights are better recognized and respected moving forward.

The principles set out in the two Supreme Court cases - Clyde River (Hamlet) v. Petroleum Geo-Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. - will help define what adequate consultation and accommodation now requires, and the responsibilities of various government decision-makers in fulfilling and evaluating whether the duty to consult has been met.

Let's be clear: the Clyde River and Chippewas decisions are not a cure-all for Indigenous peoples' struggle to have their constitutional rights respected in regulatory decision-making. But if the lessons from these Supreme Court decisions are heeded, they will help advance that struggle.

Both Supreme Court decisions involved the review of project approvals by the National Energy Board (NEB). In Clyde River, the Supreme Court overturned an NEB order authorizing seismic testing for oil and gas deposits in the waters off the coast of Baffin Island, where the Inuit of Clyde River have a treaty right to hunt and harvest marine mammals.

In Chippewas, the NEB approved an application to modify Enbridge's Line 9 pipeline, which crosses the traditional territory of the Chippewas, by reversing the flow of part of the pipeline, increasing its capacity and enabling it to carry heavy crude oil. The Supreme Court dismissed the Chippewas' legal challenge to stop the project.

Guidance on what "deep consultation" requires

Although the Clyde River and Chippewas rulings both specifically concerned the NEB's actions, their consequences extend more broadly to every kind of government decision-making or regulatory approval process.

Part of the importance of the Clyde River decision stems from the fact that it is the first Supreme Court case to consider whether a regulatory process meets a duty of consultation at the "deep" end of the consultation spectrum described in Haida Nation v. British Columbia -- that is, where the Indigenous peoples' claim to the right is strong (e.g. treaty rights) and the potential harm to that right is severe (e.g. irreparable harm to marine mammals).

Given this duty of deep consultation, the court concluded that the process in Clyde River was "significantly flawed" for several reasons, among them the fact that although the NEB considered the environmental effects of the proposed seismic testing, it failed to take into account the impact of that testing on the Inuit's treaty rights.

As the court put it, the Inuit's rights were "an afterthought to the assessment of environmental concerns."

Second, the Crown failed to make clear that it was relying on the NEB's process to fulfil its duty to consult in Clyde River, and failed to explain the significance of that process to the Inuit.

Further, there were no oral hearings. No funding to the Inuit of Clyde River. No written explanations of how the Inuit's rights were considered. No meaningful ability to submit scientific evidence, and no ability to test the project proponents' scientific evidence.

It is noteworthy that the Court cited and re-affirmed the process in the 2004 Taku River Tlingit First Nation v. British Columbia -- a case where the affected Indigenous groups not only received what's known as participant funding, but participated as part of the committee that was the driving force in the assessment process. …

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