Clyde River and the National Energy Board: The Prospects for Legal Reconciliation

Abstract

This thesis aims to address uncertainty within the legal regulatory environment of the duty to consult in Canada. It will examine the role of the National Energy Board in conducting consultations with Indigenous peoples when their rights may be adversely impacted by natural resource development projects. In Clyde River et. al. v. Petroleum Geo-Services Inc., 2017, the Supreme Court of Canada found the National Energy Board’s consultation with Inuit to be inadequate. The findings are based on an in-depth analysis of the Court’s decision.

In this research, I discuss the prospect of the duty to consult as a unique mechanism for facilitating dialogue about Aboriginal rights under s.35 of the Canadian Constitution. I also consider the potential for consultative dialogue to further a process of legal reconciliation of the pre-existence of distinct Indigenous societies with the assertion of Crown sovereignty. Lastly, I examine the Supreme Court’s ruling in Clyde River that the Crown may rely on the National Energy Board to fulfil its duty to consult.

I argue that the National Energy Board’s regulatory process is insufficient to conduct consultations that positively affect the prospect of legal reconciliation. The Board’s mandate fails to direct consultative inquiry to address the concerns Indigenous peoples have about potential impacts on their rights. The Board’s weak consultation in Clyde River is evidence that its mandate requires modernizing if it is to maintain the honour of the Crown and respect Aboriginal rights.