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

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 to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers 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 article argues, through an examination of the Board’s process and recent decisions of the Federal Court of Appeal, that there is good reason to revisit the Supreme Court of Canada’s jurisprudence on the role of administrative expertise in effecting reconciliation in the NEB context. In particular, it submits that both reconciliatory and administrative objectives would be better served if the NEB were to perform a formal consultative role with Aboriginal claimants in accordance with prescribed constitutional standards. This would help to ensure that administrative actors reach rights-compliant decisions in the first instance and provide a more reliable basis for judicial deference to tribunal findings regarding Aboriginal rights