In this study, the authors present evidence that the National Energy Board (NEB) does not evaluate whether the duty to consult has been met by applicants or the Crown for the purposes of regulatory approval. While NEB panels do draw conclusions about the sufficiency of consultation, they are not premised on the legal requirements established by the Supreme Court of Canada or subsequent case law. On the contrary, the authors discover that the NEB has approved nearly 100 per cent of the applications in which consultation remains an issue but it relies on three types of justifications for still recommending approval: (i) that it lacks the jurisdiction to consider the consultation at issue; (ii) that outstanding consultation can be addressed through ongoing consultation; and/or (iii) that there are no impacts on rights. Based on these findings, the authors argue that courts should attend to differences over legality and institutional rationality in guiding tribunal authority. In doing so, courts will be in a better position to identify the effect of these differences on tribunal findings, to understand how courts and governments already rely on these findings irrespective of their quality, and to compel transparency for their generation and use.
<p>[From Introduction]: "Over the course of the last thirty years, section 35(1) of the Constitution Act, 1982 has shifted governmental engagement with Aboriginal peoples from a matter of executive discretion to a matter of legal right. While there are differences over the scope, content, and protections of those rights, the jurisprudence has first and foremost clarified that disputes over competing uses can be settled in law. Nevertheless, if past jurisprudence has focused on the duty of the executive, the authors argue here that there has been little clarity surrounding the duty of administrative tribunals to adhere to the legal requirements of section 35(1) in regulating resource use. The Supreme Court of Canada has affirmed the authority of tribunals to administer Aboriginal rights and to evaluate the Crown’s duty to consult. Moreover, the courts are willing to treat tribunal proceedings as part of a larger framework for achieving consultation. Yet, even though courts have implicated tribunals in the task of ensuring that rights are respected, key decisions have seemingly released tribunals from the legal strictures of the jurisprudence on section 35(1). As a consequence, it is unclear whether tribunals can use their own methods of evaluation or whether they are required to assess consultation in accordance with the legal criteria established by the Supreme Court."</p>
<p>[From Introduction]: "Over the course of the last thirty years, section 35(1) of the Constitution Act, 1982 has shifted governmental engagement with Aboriginal peoples from a matter of executive discretion to a matter of legal right. While there are differences over the scope, content, and protections of those rights, the jurisprudence has first and foremost clarified that disputes over competing uses can be settled in law. Nevertheless, if past jurisprudence has focused on the duty of the executive, the authors argue here that there has been little clarity surrounding the duty of administrative tribunals to adhere to the legal requirements of section 35(1) in regulating resource use. The Supreme Court of Canada has affirmed the authority of tribunals to administer Aboriginal rights and to evaluate the Crown’s duty to consult. Moreover, the courts are willing to treat tribunal proceedings as part of a larger framework for achieving consultation. Yet, even though courts have implicated tribunals in the task of ensuring that rights are respected, key decisions have seemingly released tribunals from the legal strictures of the jurisprudence on section 35(1). As a consequence, it is unclear whether tribunals can use their own methods of evaluation or whether they are required to assess consultation in accordance with the legal criteria established by the Supreme Court."</p>
<p>In this study, the authors present evidence that the National Energy Board (NEB) does not evaluate whether the duty to consult has been met by applicants or the Crown for the purposes of regulatory approval. While NEB panels do draw conclusions about the sufficiency of consultation, they are not premised on the legal requirements established by the Supreme Court of Canada or subsequent case law. On the contrary, the authors discover that the NEB has approved nearly 100 per cent of the applications in which consultation remains an issue but it relies on three types of justifications for still recommending approval: (i) that it lacks the jurisdiction to consider the consultation at issue; (ii) that outstanding consultation can be addressed through ongoing consultation; and/or (iii) that there are no impacts on rights. Based on these findings, the authors argue that courts should attend to differences over legality and institutional rationality in guiding tribunal authority. In doing so, courts will be in a better position to identify the effect of these differences on tribunal findings, to understand how courts and governments already rely on these findings irrespective of their quality, and to compel transparency for their generation and use.</p> <p> </p>
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