Crown, Consultation, Form and Substance: Clyde River (Hamlet) v. Petroleum Geo‑Services Inc.,2017 SCC 40

In recognition of the National Day of Truth and Reconciliation, I am reproducing a short extract from a piece written this year for a conference in honour of Russell Brown, in which I try assess where Justice Brown stood in relation to the administrative state:

All told, I would place Justice Brown on the substance side of the form/substance fault line. Form certainly had its attractions for him. But he responded more readily to the sirens’ call of substance.

Perhaps the most striking example of this comes in his reasons, co-written with Karakatsanis J, in the Clyde River case.[1] The basic issue here was whether an arm of the administrative state can fulfil the duty to consult owed by the Crown to Canada’s Indigenous Peoples. The response was “yes” and the reasons why are revealing.

Formally speaking, Brown and Karakatsanis JJ recognize, the “Crown” in Canadian law “symbolizes and denotes executive power”.[2] It is the closest thing we have in Canada to a concept of the State. But administrative agencies are not the “Crown” and not even agents of the “Crown”, as they have significant operational independence.

Nonetheless, as a matter of substance – facts on the ground – agencies are the vehicles for “Crown” action:

As a statutory body holding responsibility under s. 5(1)(b) of COGOA, however, the NEB acts on behalf of the Crown when making a final decision on a project application. Put plainly, once it is accepted that a regulatory agency exists to exercise executive power as authorized by legislatures, any distinction between its actions and Crown action quickly falls away. In this context, the NEB is the vehicle through which the Crown acts.[3]

As a matter of form, the National Energy Board was not the “Crown”. But as a matter of substance, it was. And now, as a matter of constitutional law, the “Crown” is any statutory “vehicle through which the Crown acts”. This is the product of a striking focus on substance over form. As, indeed, is Karakatsanis and Brown JJ’s answer to the subsequent question of whether the Board was capable of fulfilling the duty to consult on behalf of the Crown: this “depends on whether the agency’s statutory duties and powers enable it to do what the duty requires in the particular circumstances”.[4] It is hard to think of a more substantive approach than that.

[1] Clyde River (Hamlet) v. Petroleum Geo‑Services Inc.,2017 SCC 40, [2017] 1 SCR 1069.

[2] Clyde River, at para. 28.

[3] Clyde River, at para. 29.

[4] Clyde River, at para. 30.

This content has been updated on September 29, 2025 at 22:45.