Tribunal administration and the duty to consult: A study of the National Energy Board

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.