Canadian Lawyer InHouse

NOVEMBER 2017 34 INHOUSE I n d u s t r y S p o t l i g h t environmental, aboriginal and land group. David Schulze, a partner at Dionne Schulze in Montreal, says the principles set out by the SCC are helpful especially for indigenous peoples with modern treaty agreements. "It is very encouraging for northern Canada," says Schulze, who acted for the Makivik Corporation, the legal representative of the Inuit in Quebec, which was an intervener in the Clyde River case. The SCC, in decisions both co-authored by justices Andromache Karakatsanis and Russell Brown, concluded that the Crown did not meet its duty to consult in terms of proposed offshore seismic testing off Baffin Island in the Clyde River project. It over - turned the decisions of the Federal Court of Appeal and quashed the authorization granted by the National Energy Board. In the Enbridge case, involving a proposal to modify a section of a pipeline in southwest - ern Ontario, the NEB authorization was upheld and the court found that the duty to consult was met [see Facts: sidebar]. The outcomes turned mostly on the facts in each case, but the SCC also explained that an NEB decision will on its own trigger the duty to consult, although the Crown may be able to rely on the regulator's process, in whole or in part, to fulfil its duty. Nader Hasan, lead counsel for the successful appellants in Clyde River, says that even if the Crown is not involved directly in an NEB hearing, it will still be responsible to ensure that the duty to con - sult has been met if indigenous groups are affected. "Practically speaking, the buck stops with the Crown," says Hasan, a partner at Stockwoods LLP in Toronto. "The greater the right and the greater the potential for harm, the greater the duty to consult," he explains. For proponents, the challenge in ob - taining approval for an energy project and avoiding protracted litigation is in under- standing what the duty to consult requires. In its decisions, the SCC stressed that the level of consultation depends on the circumstances in each case, notes Joshua Jantzi, a partner at Dentons LLP in Calgary and one of the lawyers who acted for Enbridge. "There is no one-size-fits-all [formula]" when determining what consultation is necessary, says Jantzi, a partner in the firm's regulatory and energy litigation group. Tracy Pratt, a partner at Fasken Martineau DuMoulin LLP in Toronto, explains that relying only on the NEB or the Crown is unlikely to be effective. "Proponents have a very sig - nificant role to play themselves. Early and ongoing engagement is going to work to their long-term benefit. Consultation is not static; it is a fluid process," says Pratt, a litigator who specializes in aboriginal law. Ignasiak agrees that there are many aspects to effective consultation. "You are trying to mitigate the risk to the proponents. You don't deal just with the communities. You raise is - sues with Crown agencies, you interact with government departments," says Ignasiak, who was lead counsel for Suncor Energy Marketing Inc., an intervener in Clyde River. While these rulings provide clarity in a number of areas, "there is still going to be debate in the future" when the Crown is not a party in an NEB process, so that is why interaction with government at an early stage is always important, Ignasiak says. The duty to consult does not provide in - digenous groups with a veto over a project and the NEB framework is not intended to address broader or historical claims, the SCC stated in its decisions. But the duty is also about the principles of reconciliation and there must be meaningful opportuni- THE FACTS of the TWO CASES: Clyde River (Hamlet) v. Petroleum Geo-Services Inc. A Norwegian-led consortium sought to conduct seismic testing for oil and gas resources off the northeast coast of Baffin Island. The Inuit of Clyde River have harvested marine mammals for generations. It was not disputed that the testing could negatively impact this harvesting, which was protected by an established treaty right. The Supreme Court of Canada found that the consultation was inadequate on many levels. Basic questions asked by community members could not be answered by the proponent. When the National Energy Board asked for greater details, the proponents responded with a nearly 4,000- page document, posted on the regulator's website. Most of the document was not translated into Inuktitut and no efforts were made by the NEB to see if it was accessible to the community and answered its questions. Chippewas of the Thames First Nation v. Enbridge Pipelines Enbridge applied to the NEB for the modification of a pipeline that runs from southwestern Ontario to Quebec, to reverse the flow of a section of it, increase capacity and enable it to carry heavy crude. The Chippewas of the Thames argued that the NEB had no jurisdiction to approve the changes without Crown consultation. The Crown was not a party in the NEB process. The regulator issued notices in advance of hearings to indigenous groups that might be affected, including the Chippewas of the Thames. They were granted funding to participate as an intervener and filed evidence and made oral argument. The changes sought by Enbridge were on its existing right of way. The SCC concluded that the NEB hearing and its written reasons were sufficient to meet the Crown's duty to consult and properly balanced "asserted" aboriginal and treaty rights and safety concerns related to the pipeline. No one benefits — not project proponents, not indigenous peoples, and not non-indigenous members of affected communities — when projects are prematurely approved only to be subjected to litigation

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