Summary

Keywords

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

Summary

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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 — In what circumstances can exception in ss. 92(10)(a) and 91(29) of Constitution Act, 1867 be applied to expand federal jurisdiction to include works or undertakings wholly located within province and highly integrated with provincially-regulated infrastructure? — What is test for leave to commence judicial review proceedings in Federal Court of Appeal under s. 55 of National Energy Board Act, R.S.C. 1985, c. N-7?

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. Saulteau 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, and on the grounds that the NEB lacked jurisdiction to consider approval of the pipeline project, arguing that it was not interprovincial in nature. A judge of the FCA refused leave to Saulteau First Nations; no reasons were provided.