Federal Court

Aboriginal Peoples


Consultation regarding regulatory framework was not meaningless

Application by appellant First Nation for judicial review of issuance of aquaculture licenses to two fish farming companies. Provincial regulatory regime for aquaculture had been found to be constitutionally invalid on basis of exclusive federal jurisdiction. Federal government worked on enacting federal regulatory legislation within 22 months in order to maintain continuity. Department of Fisheries and Oceans (DFO) led extensive consultation process to obtain input from interested parties. DFO entered into agreements with Aboriginal Aquaculture Association and First Nations Fisheries Council (FNFC) to assist with consulting First Nations. FNFC expressed concern that DFO was not really interested in addressing concerns of First Nations. DFO prepared regulations and invited First Nations to comment on them. DFO made amendments based on feedback received. Amendments did not address any of appellant First Nation’s concerns. Appellant First Nation was particularly concerned about continuing existing licences without addressing adverse impacts of existing licences. Appellant First Nation accepted that consultation would be ongoing after new licences were issued but asked that certain licences not be issued. DFO proceeded to issue licences to all existing provincial licence holders. Appellant First Nation took exception to licences being issued to two particular fish farming companies operating in appellant First Nation’s traditional fishing territory. Application dismissed. Appellant First Nation had standing to bring application without proceeding in representative capacity but failed to establish breach of Crown’s duty to consult. Fundamental shift in management of aquaculture industry resulted in obligation to consult all First Nations present in region. Renewal of licences also resulted in duty to consult. In absence of renewal of licences, commercial activity authorized by licences would have to come to halt. Each renewal of licence could affect claimed right or title, if only incrementally. Extent of changes brought about by renewal of licence was crucial factor to consider when assessing extent of duty to consult. Seriousness of impact on appellant First Nation’s asserted aboriginal right caused by issuance of impugned licences remained open question. Consultation required in this case was clearly not at upper end of spectrum but it was not at lower end of spectrum either. Regardless of extent of consultation required, federal government had done what was required in circumstances of case to maintain honour of Crown and to effect reconciliation with respect to interests at stake. DFO had consulted extensively over course of 22 months. DFO then issued licences on transitional basis to allow for further review of licence conditions and opportunity for further consultations. Existing provincial restrictions on maximum production and permissible species had been maintained. When viewed as whole, DFO’s consultation regarding regulatory framework and issuance of licences was reasonable and certainly not meaningless.

Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General) (May 3, 2012, F.C., de Montigny J., File No. T-70-11) 217 A.C.W.S. (3d) 751 (58 pp.).

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