Federal Appeal

Constitutional Law

Duty to consult only arises when possibility that action may harm aboriginal right

Commission renewed for period of eight years uranium mining and mill operating licence issued ten years earlier to AREVA. Commission also revoked Midwest uranium site preparation licence and incorporated into AREVA’s McClean Lake licence maintenance and caretaking activities at Midwest site. Appellants’ principal ground of appeal was that commission’s decision was erroneous in law because it was made in breach of their constitutional right to be consulted before any action was taken by federal Crown that might harm aboriginal or treaty right protected by s. 35 of Canadian Charter of Rights and Freedoms. Appellants also alleged that judge denied them fair opportunity to make submissions before deciding not to recuse himself on ground that his son was articling student at firm representing AREVA. Judge disclosed fact of his son’s employment at start of hearing and revealed that he had discussed issue with his Chief Justice, who shared his view that recusal was not warranted. Appeal was dismissed. Judge acted entirely properly in deciding not to recuse himself. Judges need not hear submissions from parties before deciding whether to recuse themselves on basis of facts that they have themselves disclosed. Judge made no error warranting interference of when he held that appellants had not established that any of them, including three First Nations appellants, had right to be consulted on facts of this case before commission renewed AREVA’s licence under Nuclear Safety and Control Act (Can.), and revoked Midwest’s licence and incorporated it into AREVA’s. Duty to consult only arises when there is evidence of possibility that proposed action may harm aboriginal or treaty right. Commission found no such evidence in this case. There was no error in this conclusion.

Fond du Lac Denesuline First Nation v. Canada (Attorney General)

(Mar. 5, 2012, F.C.A., Blais C.J., Evans and Layden-Stevenson JJ.A., File No. A-402-10) Decision at 193 A.C.W.S. (3d) 1040 was affirmed. 213 A.C.W.S. (3d) 106 (8 pp.).

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