On September 28, 2017 the OBA Aboriginal Law Section held a panel entitled “Duty to Consult: Implications of the Clyde River and Chippewas of the Thames Decisions.” The panel was co-chaired by Professor Sari Graben from the Ted Rogers School of Business Management, Ryerson University, and Naomi Sayers from Hydro One Networks Inc. The panel included three speakers: Alison Hall, counsel with the Ministry of Environment and Climate Change (“MOECC”); Justin Safayeni, lawyer with Stockwoods Barristers and co-counsel for the Hamlet of Clyde River in their case before the Supreme Court of Canada; and Jody Saunders, former lawyer and executive at the National Energy Board (“NEB”).
Ms. Saunders and Ms. Hall both stipulated that they were speaking independently, not on behalf of the NEB or the MOECC, respectively.
Professor Graben opened the session, asking the panel about any novel developments in the decisions, and how they might alter legal advice in light of the rulings. Ms. Saunders noted that generally, the decisions confirmed that administrative processes can be relied on by the Crown, and clarified that an administrative body given executive authority can trigger the duty to consult.
The panelists discussed the Court’s finding that a full formulaic Haida analysis is not always required. Ms. Saunders opined that this decision would likely be welcome to regulatory tribunals such as the NEB, and Ms. Hall likewise suggested that there would be favourable reception to the removal of a full Haida analysis requirement because such a formulaic procedure could be difficult for many reasons.
Ms. Hall observed that at first glance these cases do not seem to add anything new to the law, but upon a closer reading the Court provides more specific guidelines on the duty to consult. The companion cases don’t change what is required to meet the duty, but rather are more specific about procedure. For example, both cases note when reasons for a decision are appropriate, aligning consultation with administrative law principles.
Mr. Safayeni stated that some were surprised how deep the court looked into the statute in reaching its conclusions about whether the NEB has the power to consult. He also argued that the more you think of the duty to consult as an administrative procedure within the adversarial process, the more these decisions make sense.
On the topic of statutory powers, Professor Graben elaborated that the NEB may use its remedial powers to accommodate, and Ms. Saunders confirmed that the NEB can and does assess impacts on a variety of rights, and also considers how to mitigate those impacts. She asserted that the scope of what the Court is expecting shouldn’t surprise anyone because it’s what the Board already does.
Ms. Sayers asked the panel to comment on the differences between the two cases.
Mr. Safayeni noted that the actual projects in question were very different: in Clyde River the project had yet to begin, but in Chippewas the pipeline at issue was already in existence. Moreover, there was a lot more procedural engagement with the Chippewas project—for example, there was funding and a hearing—but in Clyde River, there was no hearing, no expert evidence, no community information sessions, and no participant funding. Ms. Hall agreed that the facts of the two cases and the nature of the impact were quite different, but maintained that the court applied a consistent approach to the cases.
Ms. Saunders pointed out that the two projects at issue were conducted under different statutes. The seismic testing Petroleum Geo-Services wanted to conduct near the Inuit community of Clyde River was under the purview of the Canada Oil and Gas Operations Act, which at the time did not grant authority for hearings, and stipulated that some information be kept privileged. However, Ms. Saunders believes that the same situation would be treated differently under recent amendments to the legislation.
Mr. Safayeni found the issue of notice as discussed in the decisions difficult to reconcile. In both cases, the Court insists that if the Crown is going to rely on a regulatory body for consultation, it must be made explicit to the affected Indigenous group. Lack of notice that the Crown was relying on the NEB for consultation was an issue in Clyde River, leading the Court to find for the appellants, but there was also no such notice in Chippewas, though the Court found in that case the duty to consult had been met. Mr. Safayeni observed that in Chippewas the Court reasoned that the notice was implicit, which explains the discrepancy between the cases. Therefore, he interpreted Chippewas as suggesting that notice that the Crown is relying on a regulatory board for the consultation process doesn’t need to be explicit.
Professor Graben asked the panel how these decisions change the nature of the duty to consult.
Mr. Safayeni responded that it will be helpful for affected groups to have clarity, and so rather than waiting for the Crown to step in, Indigenous groups can strategize based on the process of the regulatory body involved. He posited that such clarity will likely also be beneficial for regulators. Ms. Saunders also felt that these decisions will have positive implications for regulators, noting that if they provide the impetus for communities to come directly to the regulator with impacts, the regulator can respond with more immediacy.
However, Ms. Saunders thought that the requirement of the Crown to notify of its intent to rely on a specific tribunal process poses risks, as the Crown would have to know what process the tribunal will use. Mr. Safayeni expressed similar concerns that a one-letter notice might be sufficient for the Crown to download its duty to consult: the Crown should have to assess the level of duty, and whether the administrative body’s process is good enough before relying on that body as its conduit for consultation. He was sceptical that these decisions would actually encourage the Crown to do the work up front, and noted that as counsel for Clyde River, they pushed for continued use of the formulaic Haida analysis.
On the topic of Haida analysis, Professor Graben returned to the panelists’ earlier assertion that a less rigid approach was more pragmatic. Ms. Hall noted that Ontario as an intervener for the cases asked for flexibility with respect to the Haida analysis because consultation is an iterative process where the extent of the duty may fluctuate over the course of a project.
Ms. Saunders suggested that although the decisions maintain the need for an analysis, if an analysis is based on impacts and strategies for mitigation, then the formulaic Haida analysis is not necessary. She further hypothesized that if a regulator always assumes the highest level of rights, then all possible scenarios would be addressed.
Mr. Safayeni expressed reservations on this tactic, arguing that assuming “deep” consultation is always needed is inefficient, and risks diluting the concept. He suspects that there is a middle ground between going back to the parchment of a treaty and an explicit rights analysis, but found it disconcerting that the Court has left this unspoken.
Implications for Other Regulators
Professor Graben asked the panel to discuss the implications of these cases for other regulators, specifically municipalities. Ms. Saunders remarked that these decisions indicate that the duty to consult may be broader than previously thought, in that any entity exercising delegated executive authority could have consultation obligations. Mr. Safayeni asserted that the triggers of the duty to consult are now clear, but it is less clear who has the power to engage in consultation; it may depend on whether there are procedural and remedial powers in the enabling statute.
Ms. Hall recommended that administrative bodies make sure that those in oversight roles have the proper resources to carry out consultation. Ms. Saunders suspects that some of these bodies may move towards a more adversarial process for consultation. She cautioned that such processes do not always make the best fora for open discussions, and so may undermine the reconciliation the Court is trying to achieve.
The first question from the floor asked the panel to address the extent of the duty to consult on the part of developers in a forum with Indigenous involvement. Ms. Saunders responded that private actors do not have a duty to consult, but Crown conduct triggers the duty: if there is need for government approval, such as a permit, the duty is triggered. She noted that the duty to consult is easily triggered, but the required depth of consultation varies. Ms. Hall added that with any permit, if you go back far enough there will be a Crown actor that will trigger the duty.
The next audience question asked who is in charge of the duty to consult when there are multiple administrative bodies involved. Ms. Hall stated that it varies, but it would likely be whichever body is in the best position to conduct consultation. Mr. Safayeni emphasized that, from a litigant’s perspective, this question highlights the importance of the need for notice: the sooner everyone involved knows who is acting on behalf of the Crown, the more both sides are equipped for consultation.
Ms. Sayers then introduced questions and comments from the online audience of the webcast. Most of the online questions expressed fears that these decisions, and the removal of the Haida analysis requirement, will undermine the duty to consult. The online comments also highlighted how the decisions shift the focus away from Indigenous peoples by speaking of “affected parties” rather than the Indigenous parties, and voiced disappointment that the panel seemed to be more about those who must conduct consultation, and not enough about those who must be consulted.
Mr. Safayeni replied that the clearer the process and the earlier the process is known, the better opportunity affected Indigenous people will have to participate. He maintained that reconciliation requires proper understanding of what the process looks like, and the support to participate, such as funding to pay experts to assess impacts and hire representation.
Professor Graben echoed the concerns of the online audience by questioning whether these decisions will bring a shift away from the rights Indigenous people want to protect towards a simply procedural process for the purposes of transparency. Ms. Saunders agreed that the procedural element prescribed by these cases is very similar to concepts of procedural fairness in administrative law, but insisted that there is also a substantive element in the accommodation process. Ms. Hall added that reconciliation will not be achieved through the duty to consult; it is a small and important element, but it is not a stop-gap because it is too project specific.
What About Accommodation?
The co-chairs then returned to the audience for one final question, which highlighted a potential issue with these decisions: what happens if a regulatory body conducts deep consultation, but then there’s no accommodation? Professor Graben noted that in Chippewas, the Indigenous community brought a title claim, but in their analysis the Court glossed over it, which may suggest that procedure could undermine accommodation. The panel’s discussion returned to the Haida analysis, and Ms. Hall suggested that it would be used at the accommodation stage. Mr. Safayeni seemed to agree, stating that he does not read the cases as saying the Haida analysis is never needed, just that it is not always needed.
Discussion of accommodation continued briefly after the end of the session, with some hinting that these cases could have negative repercussions: the Crown qua administrative bodies may be able to avoid accommodating Indigenous rights but still demonstrate that they met their duty by simply showing that they followed proper procedure for consultation.