Written by Duncan M. McPherson, Deirdre Sheehan, Marie Buchinski
The National Energy Board (NEB), in its quasi-judicial function, does not owe a fiduciary duty to aboriginal parties (Québec (Attorney General) v. Canada (National Energy Board),  1 S.C.R. 159). The NEB is not the Crown nor its agent. On October 23, 2009, the Federal Court of Appeal confirmed that the NEB does not itself owe a duty of consultation to aboriginal communities affected by applications before it. The Court also clarified that the NEB, when considering the merits of an application, is not required to determine whether a Crown duty of consultation exists in respect of the proposed project, or whether such a duty has been discharged: Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308.
In the Standing Buffalo decision, three First Nations appealed to the Federal Court of Appeal the decisions of the NEB to grant approvals to two new major trans-border crude oil pipelines and one diluent pipeline. The Appellants argued that the NEB was required and failed to consider whether the Crown had adequately consulted the First Nations in respect of the proposed projects. The Court denied the appeal, finding that because the applicants for the pipelines were all private sector entities, the NEB's determinations on the applications did not need to encompass conclusions on the Crown's consultation. The Court further found that the proponents were required to consult with the First Nations pursuant to NEB consultation requirements, that this process ensured due regard to aboriginal rights by the project applicants, and that consideration of the performance of these obligations was within the NEB's mandate. Furthermore, while the NEB is not required to adjudicate the adequacy of Crown consultation as part of its hearings, the Court of Appeal stressed that aggrieved aboriginal groups would have recourse to court-based litigation to resolve such issues.
However, in Carrier Sekani Tribunal Council v. British Columbia (Utilities Commission), 2009 BCCA 67, the British Columbia Court of Appeal (BCCA) reached the opposite conclusion, holding that the British Columbia Utilities Commission (BCUC) did have an obligation to decide consultation disputes which arose within the scheme of its regulation. In Standing Buffalo, the Federal Court of Appeal had distinguished Carrier Sekani on the basis that the applicant before the BCUC (B.C. Hydro) was the Crown or its agent, whereas the applicants before the NEB were private sector entities. On December 5, 2009, the Supreme Court of Canada granted leave to appeal the BCCA Carrier Sekani decision on the general question of, “Does the honour of the Crown require administrative tribunals to decide disputes about the Crown's duty to consult First Nations, regardless of the tribunal's statutory mandate?” In December 2009, an application for leave to appeal Standing Buffalo to the Supreme Court of Canada was also filed by two of the First Nations involved. The applicant First Nations have asked, if leave to appeal is granted, that the Supreme Court hear the appeal of Standing Buffalo concurrently with the appeal of Carrier Sekani.
The Supreme Court has not yet rendered a decision on whether to grant leave to appeal the Federal Court of Appeal's decision in Standing Buffalo. However, given that leave has been granted in Carrier Sekani, there is some prospect that leave may also be granted in Standing Buffalo and that further direction on these issues will be forthcoming from the Supreme Court.