Elysia Petrone-Reitberger is completing her internship in Toronto, Canada with the Chiefs of Ontario.
July 13, 2015
I am this year’s CLA summer intern at the Chiefs of Ontario. On June 16, I walked the few block down Queen St. to observe the Chippewa of the Thames First Nation (“Chippewa FN”) have their day at the Federal Court of Appeal. Chippewa FN had a busload of supporters that were set up in an overflow room and there were a hundred or so rallying outside. Inside three justices were presiding: Justice Ryer, Justice Webb and Justice Rennie.
It took me a few minutes to figure out who was who. Representing the Appellant (Chippewa FN) was David Nahwegahbow and Scott Robertson who sat front left. Joshua Jantzi and Doug Crowther were on the right representing Enbridge Pipelines Inc. (“Enbridge”). Peter Southey, Dayna Anderson and Sarah Bird, also on the right represented the Attorney General of Canada. Finally, Rebecca Brown for the National Energy Board (“NEB”) was on the left behind the Chippewa FN’s lawyers.
It was an interesting scene to watch. All the lawyers had a turn to make oral arguments and each had a Q&A with the judges. It was difficult to guess whose side the judges were on. For the most part, it seemed to me they favoured Enbridge but at the end it felt like there could have been a shift.
Chippewa FN are signatories to several treaties with the British Crown, which recognizes and affirms their exclusive rights to their unceded lands. Enbridge wants to run more heavy crude through their traditional territory. So the NEB held hearings and Chippewa FN was an intervener. The NEB later approved Line 9. The Chippewa FN holds the NEB did not address whether the Crown’s duty to consult was triggered in the circumstances of Enbridge’s application. The NEB did not make any findings regarding the adequacy of Crown consultation.
The main issue the court will determine is whether the NEB has jurisdiction under their Act to discharge the Crown’s duty to consult and accommodate. Chippewa FN’s argued they do not have jurisdiction and that the Crown’s delegation of both the procedural and substantive elements of the Crown’s duty to consult is unlawful. Also, they argued the NEB erred by not considering the strength of Chippewa FN’s Aboriginal and Treaty right and misconceived the impacts of Line 9.
When the NEB approved Line 9, it suggested Enbridge’s consultation and Chippewa FN participation at the NEB hearing were sufficient. While the NEB stated they recognized the potential for impacts on traditional land use (TLU) if a spill occurs, they still hold the impacts are unlikely and they would be minimal and mitigated.
Nahwegahbow went through the Rio Tinto 3-part test and argued the duty to consult was triggered. He said Chippewa FN are under Treaty so the Crown has notice. He went on to state that Enbridge’s application is contemplated Crown conduct and the potential adverse impacts favour extensive consultation and accommodation based on the seriousness of the cumulative impacts to the Chippewa FN members’ use of the land and resources close to Line 9. Nahwegahbow also pointed out that Chippewa FN asserts title over the Thames River.
Chippewa FN in their factum state “the process is not well-suited for meaningful engagement with Aboriginal peoples and the NEB decisions show a pattern of ‘rubberstamping’ applications, the board uses standard boilerplate language.”
Robertson finished his arguments by claiming the NEB’s failure to properly assess and consider the seriousness of the First Nation claim and the impact of the infringement on that claim amounted to errors of law reviewable on a standard of correctness. Chippewa FN want the appeal to be allowed and an order quashing the NEB’s decision.
Enbridge, had several seats reserved in the court for some of its corporate employees. Enbridge’s lawyers want the appeal to be dismissed and argued the NEB had no duty to assess the adequacy of Crown consultation. Enbridge heavily relied on Standing Buffalo Dakota First Nation v. Enbridge 2009 FCA 308 [“Standing Buffalo”] a decision written by Justice Ryer. The Supreme Court refused to grant the First Nations in Standing Buffalo leave to appeal. Justice Ryer had several lines of questioning on how one can get around that decision. Chippewa FN’s lawyer pointed out that Rio Tinto is the most recent decision out of the SCC on the duty to consult and that is the case that needs to be followed.
Enbridge argued the Crown’s duty to consult was not triggered as it fails the 3rd step since there is no casual relationship between the approval of Line 9 and any appreciable adverse effect on the exercise of Chippewa FN’s rights or interests. They also submit the NEB is the expert and they should get judicial deference and that the standard of review is reasonableness.
Attorney General of Canada (“AGC”) was next up. They submit the NEB is not the Crown or its agent- it is a quasi-judicial body and its duties do not include evaluating or assessing the Crown’s independent duty to consult. They held the NEB did its job and that Standing Buffalo is the applicable and binding case law. They requested the appeal be dismissed. The AGC argued there needed to be another proceeding, which could engage the Crown’s independent duty to consult, since the Federal Court of Appeal was not the proper venue, in their opinion. This argument was not popular with the audience, as the sentiment was First Nations do not want to be dragged through multiple layers of courtrooms.
Southey for the AGC also made unpopular comments when he submit the Crown’s duty to consult would be on the low end of the spectrum and that it had been entirely discharged through the NEB’s process.
The NEB’s lawyer was up last. She did not have mush to say. She stated the NEB is taking no position and that the NEB has jurisdiction to hear and determine matters of fact or law.
It was a fascinating case to observe for my first time in the Federal Court of Appeal. I am now patiently waiting to see how the judges will decide.
The decision is to be released sometime this summer.
 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,  2 SCR 650, 2010 SCC 43