Supreme Court to decide on oil and gas development and Indigenous consultation

The Supreme Court is set to wade into the area of Indigenous rights and natural resource development once again.

The court will decide this morning whether the federal government can rely on National Energy Board reviews to fulfil its duty to consult Indigenous communities before development can take place on their traditional territories.

The court will release decisions on two separate cases involving different oil and gas projects, one in Nunavut and one in southwestern Ontario, which were both heard together last November.

In the first case, the Inuit Hamlet of Clyde River in Nunavut was challenging the approval granted to a consortium of oil and gas companies searching for oil in Baffin Bay and Davis Straight, which are both adjacent to areas where the Clyde River Inuit have treaty rights.

In the second case, the Chippewas of the Thames First Nation in southwestern Ontario, challenged the NEB's approval to allow Enbridge to reverse the flow and increase capacity on its Line 9 pipeline which runs across Chippewas' land on its path between Sarnia, Ont., and Montreal.

The affected communities participated in NEB hearings but both Clyde River and the Chippewas argue the process was not complete enough because there was no consultation undertaken by the minister of Indigenous Affairs.

Among the decisions the high court must make are whether NEB reviews trigger the Crown's duty to consult, whether or not the Crown can rely on the NEB process to fulfil that duty and if so, whether or not the consultations that were undertaken did in fact fulfil that duty.