Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. et al., (2015) 479 N.R. 220 (FCA)

• Judge: Ryer, Webb and Rennie, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 20, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 479 N.R. 220 (FCA);2015 FCA 222

Chippewas v. Enbridge (2015), 479 N.R. 220 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. NO.005

Chippewas of the Thames First Nation (appellant) v. Enbridge Pipelines Inc., The National Energy Board and Attorney General of Canada (respondents)

(A-358-14; 2015 FCA 222; 2015 CAF 222)

Indexed As: Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. et al.

Federal Court of Appeal

Ryer, Webb and Rennie, JJ.A.

October 20, 2015.

Summary:

The National Energy Board approved Enbridge Pipeline's application under s. 58 of the National Energy Board Act for the Line 9B Reversal and Line 9 Capacity Expansion Project. The Chippewas of the Thames First Nation (Chippewas) applied to quash the Board's approval on the ground that the Crown failed to first fulfill its duty to consult and accommodate. The Chippewas had participated in a public hearing as an intervenor, with funding from Enbridge, and Enbridge had discussed the matter with the Chippewas and other First Nations with lands within 50 kilometres of the pipeline. The Crown did not participate. The Chippewas' letter request for consultation with the Crown went unanswered prior to the Board's decision. The Chippewas argued that the Board had to hold the application in abeyance until it was satisfied that the Crown's duty to consult was met. The issues on appeal were: "a) Whether the Board itself has been delegated the power to undertake the fulfilment of the Haida duty on behalf of the Crown in relation to the Project; and b) Whether the Board was required to determine, as a condition of undertaking its mandate with respect to Enbridge's application for approval of the Project, if the Crown, which was not a party to the application, was under a Haida duty and, if so, whether the Crown had discharged that duty".

The Federal Court of Appeal, Rennie, J.A., dissenting, dismissed the appeal. The court held that "there has been no delegation by the Crown to the Board, under the NEB Act or otherwise, of the power to undertake the fulfilment of any applicable Haida duty of the Crown in relation to the Project" and "the Board, in the absence of the Crown as a participant in the section 58 application in respect of the Project, was not required, as a precondition to its consideration of that application, to determine whether the Crown was under a Haida duty, and if so, had discharged that duty, in respect of the Project".

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The National Energy Board approved Enbridge Pipeline's application under s. 58 of the National Energy Board Act for the Line 9B Reversal and Line 9 Capacity Expansion Project - The Chippewas of the Thames First Nation (Chippewas) applied to quash the Board's approval on the ground that the Crown failed to first fulfill its duty to consult and accommodate - The Chippewas had participated in a public hearing as an intervenor, with funding from Enbridge, and Enbridge had discussed the matter with the Chippewas and other First Nations with lands within 50 kilometres of the pipeline - The Crown did not participate - The Chippewas' letter request for consultation with the Crown went unanswered prior to the Board's decision - The Chippewas argued that the Board had to hold the application in abeyance until it was satisfied that the Crown's duty to consult was met - The issues on appeal were: "a) Whether the Board itself has been delegated the power to undertake the fulfilment of the Haida duty on behalf of the Crown in relation to the Project; and b) Whether the Board was required to determine, as a condition of undertaking its mandate with respect to Enbridge's application for approval of the Project, if the Crown, which was not a party to the application, was under a Haida duty and, if so, whether the Crown had discharged that duty." - The Federal Court of Appeal dismissed the appeal - The Board did not err in hearing the application without making the Haida determinations requested - The Board had a duty under the Act to ensure that the interests of Aboriginal groups were considered, but that duty was not the same as the Crown's Haida duties and did not constitute a delegation of the Crown's Haida duties - The court held that "there has been no delegation by the Crown to the Board, under the NEB Act or otherwise, of the power to undertake the fulfilment of any applicable Haida duty of the Crown in relation to the Project" and "the Board, in the absence of the Crown as a participant in the section 58 application in respect of the Project, was not required, as a precondition to its consideration of that application, to determine whether the Crown was under a Haida duty, and if so, had discharged that duty, in respect of the Project." - See paragraphs 1 to 80.

Indians, Inuit and Métis - Topic 4

General - Duty owed to Indians by third parties - [See Indians, Inuit and Métis - Topic 3 ].

Mines and Minerals - Topic 8023

Oil and gas - Regulation - National Energy Board - General - [See Indians, Inuit and Métis - Topic 3 ].

Cases Noticed:

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 19].

Standing Buffalo Dakota First Nation et al. v. Enbridge Pipelines Inc. et al. (2009), 395 N.R. 355; 2009 FCA 308, refd to. [para. 21].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 21].

Rio Tino Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Fond du Lac Denesuline First Nation et al. v. Canada (Attorney General) et al. (2010), 377 F.T.R. 50; 2010 FC 948, affd. (2012), 430 N.R. 190; 2012 FCA 73, refd to. [para. 53].

Forest Ethics Advocacy Association et al. v. National Energy Board et al. (2014), 465 N.R. 152; 2014 FCA 245, refd to. [para. 54].

Miller v. Canada (Attorney General) (2002), 293 N.R. 391; 220 D.L.R.(4th) 149; 2002 FCA 370, refd to. [para. 56].

ViiV Healthcare ULC et al. v. Teva Canada Ltd. et al. (2015), 474 N.R. 235; 2015 FCA 93, refd to. [para. 56].

Ross River Dena Council v. Yukon et al. (2012), 331 B.C.A.C. 234; 565 W.A.C. 234; 358 D.L.R.(4th) 100; 2012 YKCA 14, refd to. [para. 74].

Brokenhead Ojibway Nation et al. v. Canada (Attorney General) et al. (2009), 345 F.T.R. 119; 2009 FC 484, refd to. [para. 76].

Quebec (Procueur général) v. Office national de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 97].

William v. British Columbia et al., [2014] 2 S.C.R. 256; 459 N.R. 287; 356 B.C.A.C. 1; 610 W.A.C. 1; 2014 SCC 44, refd to. [para. 114].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

Ahousaht Indian Band et al. v. Canada (Minister of Fisheries and Oceans) (2008), 379 N.R. 297; 2008 FCA 212, refd to. [para. 117].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 117].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 117].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 117].

Sambaa K'e Dene Band et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (2012), 405 F.T.R. 182; 2012 FC 204, refd to. [para. 124].

Sambaa K'e Dene Band v. Duncan - see Sambaa K'e Dene Band et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Squamish Nation v. British Columbia (Minister of Sustainable Resource Management) et al., [2004] B.C.T.C. 1320; 2004 BCSC 1320, refd to. [para. 124].

Gitxaala Nation v. Canada (Minister of Transport, Infrastructure and Communities) et al. (2012), 421 F.T.R. 169; 2012 FC 1336, refd to. [para. 124].

Counsel:

David Nahwegahbow and Scott Robertson, for the appellant;

Joshua Jantzi and Doug Crowther, for the respondent, Enbridge Pipelines Inc.;

Rebecca Brown, for the respondent, The National Energy Board;

Peter Southey, Dayna Anderson and Sarah Bird, for the respondent, Attorney General of Canada.

Solicitors of Record:

Nahwegahbow, Corbiere, Rama, Ontario, for the appellant;

Dentons Canada LLP, Calgary, Alberta, for the respondent, Enbridge Pipelines Inc.;

National Energy Board, Calgary, Alberta, for the respondent, The National Energy Board;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Attorney General of Canada.

This appeal was heard on June 16, 2015, at Toronto, Ontario, before Ryer, Webb and Rennie, JJ.A., of the Federal Court of Appeal.

On October 20, 2015, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Ryer, J.A. (Webb, J.A., concurring) - see paragraphs 1 to 80;

Rennie, J.A., dissenting - see paragraphs 81 to 129.