NEW CASE ALERT: Crown consultation and pipelines - Brokenhead Ojibway Nation v. Canada (Attorney General), is a brief that focuses on a new Federal Court decision about the government’s duty to consult First Nations when considering pipeline projects (May 2009).
New federal court ruling suggests that Crown has an independent duty to consult, separate from its regulatory approval processes, on projects with major impacts on Aboriginal Title and Rights.
When the federal Crown considers a pipeline project that will have a significant impact on Aboriginal Title and Rights, project-specific regulatory and environmental review processes like that of the National Energy Board (“NEB”) are unlikely to be able to fulfill the Crown’s duty to consult: Brokenhead Ojibway Nation v. Canada (Attorney General), 2009 FC 484. Because the NEB process is not designed to consider larger issues related to impacts on Aboriginal Title and Rights, nor to conduct the deeper consultation that such projects require, the Crown would “almost certainly have ... an independent duty to consult,” beyond the scope of the NEB’s process (para. 44).
In this case, the NEB and the federal cabinet approved three 1000-kilometre-long underground pipelines from Alberta to Manitoba. In doing so they relied heavily on steps taken by the corporate proponents to consult First Nations and mitigate project-specific concerns, and ignored repeated letters from Treaty One First Nations to cabinet ministers asking for meaningful consultation regarding the impacts of the projects on their outstanding treaty claims. The Treaty One First Nations challenged these decisions in Federal Court. While the court’s ruling had to do with treaty land, it also has implications for First Nations in BC without treaties that are dealing with pipeline proposals. Although the court found that the Crown had satisfied its duty to consult with Treaty One First Nations in this case, the decision strongly suggests that where a project has potentially significant impacts on Aboriginal Title and Rights, regulatory and environmental assessment processes alone are unlikely to satisfy the Crown’s duty to consult.
The primary issue before the court was whether the pipeline projects “had a sufficient impact on the interests of the Treaty One First Nations such that a duty to consult on the part of the Crown was engaged,” and if there was a duty, to determine its content and “whether and to what extent the duty may be fulfilled by the NEB acting essentially as a surrogate for the Crown” (para 16).
This document discusses the court's decision and the implication for future consultation on pipeline projects.