The Supreme Court of Canada has unanimously clarified several features of the crown’s duty to consult with and accommodate indigenous populations before project approvals are granted. The companion decisions of Canada’s top court in Clyde River (Hamlet) v. Petroleum Geo-Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. clarify when the duty to consult is triggered; confirmed that the Crown can discharge its duty to consult through the project approval process undertaken by the regulatory body (including the National Energy Board, which, for the most part, had declined to assess how a project affected aboriginal or treaty rights); and illustrated how to, and how not to, discharge the duty.
These decisions set out benchmarks for discharging the duty to consult, and, while the duty to consult is the crown’s obligation, project proponents are often left to carry out or bolster the consultation process. Without the duty being discharged, a project approval process cannot proceed, and, therefore, it is essential that the project proponent ensure the crown’s duty is discharged. This can mean paying for participation in the process by affected aboriginal parties, for example, or providing the requisite information about the project to the affected parties so that consultation can be robust.
Therefore, while the court was clear that each situation should be viewed independently, the court provides an illustrative roadmap for discharging the duty to consult and, in doing so, has reduced some of the uncertainty plaguing Canadian project approvals.