Duty to consult not triggered, given lack of evidence of impact on First Nation's rights

Aboriginal and indigenous law - Indigenous rights to natural resources and environmental protections

Minister of Fisheries and Oceans (Minister) determined First Nations' food, social, and ceremonial (FSC) fishing allocations and total allowable catch quantities under authority of s. 4 of Department of Fisheries and Oceans Act (Act). Aboriginal Communal Fishing Licence Regulations (Regulations) were implemented pursuant to s. 43 of Act, providing licencing mechanism for Aboriginal fisheries for FSC purposes through grant of communal licences. Under s. 5 of regulations, minister could set conditions or restrictions on fishing through communal licences. Quantity and type of fish caught could be agreed as between First Nation’s and Fisheries and Oceans Canada (DFO) through comprehensive fishing agreements (CFAs), or unilaterally set by minister. First Nation (FN) entered into CFAs with DFO since early 1990s. FN made request to DFO for increase to its FSC allocation for sockeye salmon in Fraser River from 20,000 pieces to 70,000 however DFO increased FN’s allocation to 30,000 for FSC purposes. On FN’s judicial review application, it was held that FN failed to establish that decision adversely affected its asserted right to fish for sockeye or how existing allocation was insufficient for food, social and ceremonial purposes. Given lack of evidence of adverse impact on First Nation's asserted right to fish for food, social and ceremonial purposes, duty to consult was not triggered, or if it was, duty was at low end of spectrum and duty to consult that was owed was met. DFO's decision was substantially reasonable and there were no breaches of procedural fairness in process. FN appealed. Appeal allowed. FN's request for increase in its allocation of sockeye salmon triggered duty to consult, and that duty to consult owed was not at low end of consultation spectrum. Failure during consultation process to dialogue meaningfully with FN and to provide responses that were responsive, considered and meaningful in response to concerns of FN, and failure of reasons to show that FN's concerns were considered resulted in failure to reasonably and adequately comply with duty to consult.

Squamish First Nation v. Canada (Fisheries and Oceans) (2019), 2019 CarswellNat 3824, 2019 FCA 216, Eleanor R. Dawson J.A., Judith Woods J.A., and Marianne Rivoalen J.A. (F.C.A.); reversed (2017), 2017 CarswellNat 7430, 2017 CarswellNat 7860, 2017 FC 1182, 2017 CF 1182, Ann Marie McDonald J. (F.C.).

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