Federal Court Affirms Regulatory Process May Satisfy Duty To Consult

On May 12, 2009 the Federal Court rendered its decision in Brokenhead Ojibway Nation et al v. Attorney General of Canada (National Energy Board) et al. The court determined that the Crown had fulfilled its duty to consult the Treaty One First Nations of Manitoba concerning the construction of three major pipeline projects under the jurisdiction of the National Energy Board. This decision affirms the direction from the courts in previous decisions that regulatory processes may satisfy the Crown's duty to consult and, where appropriate, accommodate the interests of Aboriginal groups.

In Brokenhead Ojibway Nation et al v. Attorney General of Canada (National Energy Board) et al., 2009 FC 484 (Brokenhead Decision), the Federal Court denied three applications for judicial review of decisions made by the Governor in Council (GIC) to approve National Energy Board (NEB) authorizations for the construction of the Keystone Pipeline Project, Southern Lights Pipeline Project and