Federal Appeal


Aboriginal Peoples

CROWN RELATIONSHIP
Review board gave detailed reasons for concluding proposed development not likely to have significant adverse impact on environment

First Nation comprised of Aboriginal peoples who claimed treaty rights and rights under s. 35 of Constitution Act, 1982 in certain area. Individual respondent held mineral claim in area and he submitted land use permit application to respondent land and water board to conduct diamond exploration project that included up to 10 drill-holds over five-year period in area. Land and water board referred proposed development to review board for environmental assessment. Review board concluded that proposed development was not likely to have any significant adverse impact on environment or to be cause of significant public concern and environmental impact review of proposed development was not required. First Nation applied for judicial review. Application was dismissed. First Nation appealed. Appeal dismissed. Decision that proposed development was unlikely to have any significant impact on environment was reasonable. Review board did not rely on measures set out in decision in unrelated proposed development to resolve cumulative impacts crisis in area. Review board gave detailed reasons for concluding that proposed development was not likely to have significant adverse impact on environment. Review board’s findings of fact were reasonable open on evidentiary record and provided intelligible, transparent and justifiable basis for conclusion about adverse impact on environment. Decision that proposed development was not cause of significant public concern was reasonable. Review board did not rely on measures it previously recommended in order to conclude that there was no basis for public concern. Findings of review board were reasonably open to it on evidentiary record. Crown met its duty to consult. Level of consultation was proportionate to nature and extent that proposed development was likely to infringe aboriginal or treaty rights claim by First Nation. Consultation was adequate.

Yellowknives Dene First Nation v. Canada (Minister of Aboriginal Affairs and Northern Development) (Jun. 19, 2015, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and Johanne Trudel J.A., File No. A-411-13) Decision at 234 A.C.W.S. (3d) 658 was affirmed.  255 A.C.W.S. (3d) 801.

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