Summary

Keywords

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

Summary

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Constitutional law - Aboriginal peoples - Inuit - Treaty rights -Administrative law - Boards and tribunals - Crown’s duty to consult and accommodate Aboriginal peoples - National Energy Board approving marine seismic survey program - Whether the Court of Appeal erred by holding that the NEB had properly considered the Aboriginal rights of the Inuit and the duty to consult, despite the absence of any reference to Aboriginal rights or the duty to consult in the NEB’s reasons - Whether the Crown discharged its duty to consult the Inuit in this case - Whether the Court of Appeal’s approach to reviewing the duty to consult is consistent with the honour of the Crown and the overarching project of reconciliation - Whether the Court of Appeal erred by suggesting that further consultation at the operational phase could cure any deficiencies in the duty to consult to date.

The respondents (the project proponents) applied to the National Energy Board (NEB) for authorization to undertake a marine seismic survey program in coastal waters in Nunavut. Local Inuit groups and communities objected to the project. The NEB issued the requested authorization to the project proponents, on specified terms and conditions. The NEB also provided an environmental assessment report which outlined the consultation steps and activities undertaken by the project proponents and by the NEB itself. The Inuit of Clyde River brought an application for judicial review of the authorization, on various grounds including inadequate consultation.

The Federal Court of Appeal dismissed the application for judicial review, finding that the NEB was statutorily mandated to undertake Aboriginal consultation activities and to assess the sufficiency of the consultation, and that the Crown could rely on the NEB’s regulatory process to help satisfy the Crown’s duty to consult affected Aboriginal groups. In this case, the court found that the Crown’s duty was discharged, that the Inuit were meaningfully consulted on their rights, and that an appropriate level of accommodation was undertaken in response to their concerns.