Crown may rely on steps taken by administrative body to fulfill its duty to consult

Pipeline which cut through C First Nation’s traditional territory had been approved and built without consultation with C First Nation. E Inc. applied for approval of modification of pipeline. National Energy Board served notice of public hearing. Board approved application. Appeal by C First Nation was dismissed. C First Nation appealed. Appeal dismissed. Crown had obligation to consult with respect to E Inc.’s project application. Crown may rely on steps taken by administrative body to fulfill its duty to consult. Circumstances of this case made it sufficiently clear to C First Nation that Board process was intended to constitute Crown consultation and accommodation. Board’s statutory powers were capable of satisfying Crown’s constitutional obligations. Board provided C First Nation with adequate opportunity to participate in decision-making process. Board sufficiently assessed potential impacts on rights of Indigenous groups and found that risk of negative consequences were minimal and could be mitigated. Board provided adequate accommodation through imposition of conditions on E Inc.. Board’s written reasons were sufficient to satisfy Crown’s obligation.
Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (2017), 2017 CarswellNat 3468, 2017 CarswellNat 3469, 2017 SCC 41, 2017 CSC 41, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2015), 2015 CarswellNat 10332, 2015 CarswellNat 5511, 2015 FCA 222, 2015 CAF 222, Ryer J.A., Webb J.A., and Donald J. Rennie J.A. (F.C.A.).