Supreme Court provides clarity on duty to consult

On Wednesday, July 26, the Supreme Court of Canada released its decisions in two cases, “Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41” and “Clyde River (Hamlet) v. Petroleum Geo-Services Inc.”, both of which deal with the issue of the constitutional “duty to consult” Indigenous Peoples.

The Supreme Court in these decisions has made it clear that the duty to consult requires the government to ensure that the communities impacted are fully able to engage with the process in the manner of the community member’s choice.

At the same time, the Court made it clear that the duty does not constitute a veto. It has also narrowed the terms of consultation to current treaty realities rather than historic claims and grievances.

The principles outlined in yesterday’s decisions will serve as the basis for consultation in the Impact Assessment process that the government is currently developing to replace the current Environmental Assessment system.

Key points – Duty to consult as defined by Supreme Court

• There is a duty for the National Energy Board (NEB) to consult Indigenous Peoples, taking specific and demonstrable steps to ensure that this consultation happens and that treaty parties are able to engage in meaningful ways. This includes the provision of materials, funding to attend consultations, and a clear demonstration of intent to engage in an open setting.
• There is an inherent duty to accommodate Indigenous communities. In order to fulfil this duty the NEB must ensure that the community or persons invited must be fully aware. This means contacting individuals and ensuring that they have full access to all relevant materials pertaining to the consultation. A passive process like posting the materials online is not sufficient.
• There should be funding made available to those wishing to participate in the consultation, ensuring equal access for all voices. While not required, the lack of funding in this case significantly impaired the quality of consultation.
• There should be oral hearings as part of the consultation process in order for the NEB to meet its duty to consult. While not required, their absence in this case significantly impaired the quality of consultation.
• The consultation process must adequately reflect the potential impacts that the proposed project will have upon the treaty rights of the Indigenous people whose land is impacted.
• The consultation process requires a mutual understanding of the core issues that are being addressed during the consultation process. This implies that the proponent, NEB and, proposed host community should agree on the issues prior to the terms of the consultation being issued.

The duty to consult is not the vehicle to address historical grievances. The subject of the consultation is the impact on the claimed rights of the current decision under consideration.