Federal Court

Aboriginal Peoples

Department of Fisheries and Oceans met duty to consult

Authorization was issued pursuant to ss. 32(2)(c) and 35(2)(b) of Fisheries Act and permitted impacts to fish and fish habitat arising from construction of hydro-electric generating station proposed by NE. Applicant members of First Nation community council brought application for judicial review to challenge decision of Minister of Department of Fisheries and Oceans (DFO) to issue authorization to NE. Application dismissed. Duty to consult was met and minister’s decision to issue authorization was reasonable. Process set out in Regulatory Phase Protocol was adequate to meet Canada’s duty to consult, was reasonable and was followed by DFO. While DFO’s response may have been less than perfect, perfection was not required so long as reasonable efforts have been made to consult and accommodate and if result was within range of possible, acceptable outcomes which were defensible in respect of facts and law, there would be no basis to intervene. While applicants were not satisfied with many of Canada’s responses, Minister’s decision to issue authorization was ultimately reasonable.

Nunatukavut Community Council Inc. v. Canada (Attorney General) (Aug. 18, 2015, F.C., Cecily Y. Strickland J., File No. T-1339-13) 260 A.C.W.S. (3d) 651.

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