The recent Federal Court of Appeal decision to quash the Enbridge Northern Gateway pipeline approval on the basis of inadequate consultation with affected aboriginal communities has, unsurprisingly, garnered significant attention in the media. This is no doubt due to the high-profile nature of the controversial pipeline, but the decision also provides an interesting window into the current state of the law relating to the duty to consult.

The process of government consultation with aboriginal groups over the Northern Gateway pipeline was arguably among the most extensive of any resource project in Canadian history. The Government of Canada accepted from the outset that a deep level of aboriginal consultation would be required, and released a five-phase consultation plan, of which Joint Review Panel hearings conducted on behalf of the National Energy Board and Canadian Environmental Assessment Agency were but one stage.

During the course of these hearings, concerned aboriginal groups provided the Panel with thousands of pages of written material as well as oral testimony from dozens of witnesses, dealing with matters such as traditional cultural practices, community perspectives, and the environmental effects of the project. The panel issued a two-volume report that dealt with aboriginal concerns in detail, and ultimately recommended that the project be approved subject to 209 conditions. Prior to making a final decision, government representatives met with interested aboriginal groups, received submissions relating to outstanding concerns, corresponded with groups in response to their submissions, and prepared a consultation report for Cabinet. On June 17, 2014, Cabinet issued an Order-in-Council accepting the Joint Review panel’s recommendation to approve the project subject to the conditions set forth in panel report.

Enbridge also engaged in its own extensive consultation process. It won the support of the majority of the aboriginal groups along the path of the pipeline, representing 80 per cent of the aboriginal population in the area. In other words, more affected aboriginal groups supported the pipeline than opposed it. That said, a number of aboriginal groups remained strongly opposed, especially coastal First Nations whose main concerns related to the effects of a potential marine oil spill.

The three-judge panel at the Federal Court of Appeal split on the issue of whether the Crown had breached its duty to aboriginal peoples to consult on matters that could affect their asserted aboriginal rights and title. Justices Dawson and Stratas, writing for the majority, held that the Crown had not met its obligations. All of the flaws in the consultation process identified by the majority related to “Phase IV” of the five-phase consultation process, which took place following the Joint Review Panel report but prior to the Cabinet decision. Among the shortcomings in consultation identified by the majority was a failure on the part of the government to share information and engage in dialogue relating to the nature and strength of particular aboriginal groups’ claims to aboriginal rights and title.

The decision has already been criticized for perpetuating the legal uncertainty associated with the duty to consult, and it is true that the present state of the law relating to the duty to consult is highly uncertain. However, I have argued elsewhere with Dwight Newman that some of this uncertainty is a function of the relative novelty of the doctrine, as well as the fact that it aims to protect aboriginal interests in cases where the aboriginal group’s underlying rights are themselves uncertain. The problem with the majority’s approach is not so much that it perpetuates uncertainty, though it does, but rather that it applies an unduly burdensome standard of consultation in a manner that is actually contrary to the underlying purposes of the duty to consult and the interests of aboriginal communities.

As observed by Prof. Newman, current doctrine relating to the duty to consult was developed in the context of projects that affected a single aboriginal group. Extending that doctrine to a project, like a pipeline, that affects a large number of groups creates the potential for a relatively small number of groups to use the duty to consult to hold up approval of a project, even in cases where this is contrary to the interests of other aboriginal groups and society at large.

In projects affecting many groups, a proper balancing of interests, including the interests of aboriginal groups that support the project as a means of using their lands for economic development, would seem to indicate that unnecessarily onerous consultation requirements should be avoided. In particular, the majority’s requirement that the Crown share information and engage to a significant extent on the nature and strength of each community’s claim seems superfluous and unnecessarily burdensome in a case such as this, where the Crown acknowledges that deep consultation is required, and where the principal negative impact of the project, namely a possible oil spill, will be felt in a significant way regardless of whether a given group is able to make out a claim to aboriginal rights, aboriginal title, or both. Where possible, the focus of consultations should be on the impacts of the project, not on the precise nature and strength of aboriginal groups’ rights or title claims.
    
By requiring engagement and information-sharing on the nature and strength of asserted aboriginal rights, the majority has reinforced an emerging requirement that often will not serve the purposes of the duty to consult. The duty to consult aims to facilitate reconciliation by protecting aboriginal interests pending resolution of an asserted claim to aboriginal rights or title. Interim protections of this nature are needed because of the costly and complex nature of litigation or negotiations over asserted rights. In other words, the consultation requirement protects aboriginal interests in a more streamlined way than direct resolution of the aboriginal claim.

Yet by requiring detailed discussions of asserted rights as part of the consultation process, the majority approach would import the complexity associated with asserted rights into consultations, thus partly undermining the justification for the duty to consult. It is true that under the approach in Haida Nation v B.C., the strength of the aboriginal claim is a factor that helps determine the level of consultation that is required. But it does not follow that the Crown’s assessment of the strength of claim should itself always be the subject of consultations, at least not where the Crown concedes that deep consultation is required.

As emphasized by Justice Ryer’s dissenting opinion, it will often be sufficient for the purposes of consultation to consider the effect of a project on an aboriginal group’s ability to use and benefit from the land, without getting into specifics regarding the legal nature of the group’s claim to rights or title. Fine-grained discussions relating to the nature and strength of each individual group’s claim are better suited to other venues, such as comprehensive claim negotiations or an action for a declaration of aboriginal rights or title. In these venues, unlike a project approval process, disputes over aboriginal interests can be definitively resolved, thus providing greater certainty going forward.

Needless to say, Canadian law relating to the duty to consult continues to evolve. It is to be hoped that this evolution takes it in a direction that reflects the interests of all aboriginal communities, in a manner consistent with the purposes of the doctrine.