Blueberry River First Nations v. Attorney General of Canada, et al.

(Federal) (Civil) (By Leave)


Constitutional law - Aboriginal peoples, Treaty rights, Administrative law, Boards and tribunals.


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Constitutional law — Aboriginal peoples — Treaty rights — Administrative law — Boards and tribunals — Crown’s duty to consult and accommodate Aboriginal peoples — Governor in Council issuing Order-in-Council (OIC) directing National Energy Board to approve pipeline project — Federal Court of Appeal denying leave to First Nation to apply for judicial review of OIC — Whether Federal Court of Appeal erred in denying leave under s. 55 of National Energy Board Act — What legal principles should determine access to judicial review for First Nation applicants who hold rights recognized and affirmed by s. 35(1) of Constitution Act, 1982, and what legal principles should inform test for leave under s. 55 of National Energy Board Act?

NOVA Gas Transmission Ltd. applied to the National Energy Board (“NEB”) for approval of a project involving the construction of a new pipeline. The NEB conducted an environmental assessment, including public hearings. The NEB submitted a report on the project to the Minister of Natural Resources, concluding that the project met the threshold of public convenience and necessity and would not likely cause significant adverse environmental effects. On the recommendation of the Minister, the Governor General in Council issued an Order-in-Council (“OIC”), directing the NEB to issue a Certificate of Public Convenience and Necessity, thus authorizing the approval of the project. Blueberry River First Nations sought leave from the FCA, pursuant to s. 55 of the National Energy Board Act, for judicial review of the OIC, on the grounds of inadequate consultation. A judge of the FCA refused leave to Blueberry River; no reasons were provided.