Pursuing a Reconciliatory Administrative Law: Integrating Aboriginal Consultation with the National Energy Board

Abstract

Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty with National Energy Board proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This paper directs critical assessment towards the issue of whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. The paper argues, through an examination of the Board’s process, and recent decisions at the Federal Court of Appeal, that there now exists good reason to revisit the Supreme Court’s jurisprudence concerning the role of administrative expertise in affecting reconciliation in the NEB context. In particular, it submits that both reconciliatory and administrative objectives would be better served if the NEB were to engage a formal consultative role with Aboriginal claimants in accordance with prescribed constitutional standards. This would help to ensure that administrators reach right-compliant decisions in the first instance and provide a more reliable basis for judicial deference to tribunal findings regarding Aboriginal rights.