Apparently, the Supreme Court of Canada has had its fill of “duty to consult” cases. After November’s Little Salmon/Carmacks and October’s Rio Tinto cases, the SC recently dismissed three applications for leave to appeal.
Falling squarely into the “better posted late than never” category, on December 2nd, 3 Saskatchewan bands (Sweetgrass, Moosomin, and Standing Buffalo Dakota) were denied access to the Supreme Court.
Their complaint was rooted in the belief that the National Energy Board failed to properly consult with them before three pipelines were built on land they claimed was theirs.
Here’s the one size fits all dismissal.
Enbridge Pipelines Inc. requested that the National Energy Board (“NEB”) approve the Alberta Clipper Project, which passes through lands claimed by the Standing Buffalo Dakota First Nation Dakota Band and the Sweetgrass and Moosomin First Nations. Standing Buffalo participated as an intervener in the hearing concerning the project on the strength of its claim to Aboriginal rights and title unextinguished by treaty. The Crown has not admitted the validity of the claims.
The adequacy of Crown consultation, the need for Crown participation in the hearing, and the consequences of the Crown’s failure to participate were raised by motion prior to the hearing. The NEB found that it was not required to address the consultation issue prior to making the substantive decision with respect to the approvals sought, and that its process was designed to ensure that it understands all the concerns about a project before making a decision.
Turtle Talk 