Federal Court

Aboriginal Peoples

Crown had ongoing duty to continue to consult in good faith

New regulatory regime had to be set up. Crown issued four fish licenses. Band considered licenses to be issued in traditional territory. There were general meetings with parties at interest and there was dialogue with applicant. Department did not provide preliminary assessment of applicant’s claim and what adverse impact would arise from issuance of licenses. Consultation continued after issuance of licenses. Application for judicial review was allowed in part. Crown acted reasonably and honourably with respect to applicant. Crown should have admitted earlier Crown had constitutional duty to consult. It was too much for applicant to expect preliminary assessment of strength of applicant’s claim. Crown had duty to consult with applicant and had ongoing duty to continue to consult in good faith and offer accommodation if appropriate. It was reasonable to limit consultation to conditions of license as opposed to issuance of licenses. It was not appropriate for court to assume control over ongoing consultation or as to what course consultations should take. Order would not issue prohibiting Minister from renewing licenses until consultation process was complete.

K’omoks First Nation v. Canada (Attorney General) (Oct. 1, 2012, F.C., Harrington J., File No. T-74-11) 222 A.C.W.S. (3d) 286.

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