Federal Court

Aboriginal Peoples

Duty to consult mid-range not requiring deep consultations and serious accommodation

Applicant did not submit comments on Paramount’s application for Type A Water License allowing Paramount to use water for oil and gas exploration and development as part of project or on draft work plan. Applicant did not attend technical sessions or participate in pre-hearing conference. Dates for public hearing were advertised in newspaper indicating change in venue of hearing that was eight-hour drive away. Applicant registered as intervener. Applicant requested reasonable notice to allow applicant to prepare for hearing; that hearing be held in original location; and funding to assist applicant to participate in hearing. Board decided hearing would proceed in new location and refused to provide funding. Board advised applicant that applicant missed deadline to provide written submissions and presentation. Board was willing to hear argument from applicant but reserved right to rule inadmissible any new evidence applicant submitted. Applicant advised board applicant would not be participating in hearing. Applicant sent letter to Minister requesting parties enter into consultation and accommodation protocol for project. Minister relied on board’s process to discharge duty to consult. Applicant filed motion for ruling with board and submitted comments of draft Type A Water License. Board concluded process was fair and board had no authority to conduct consultation. Board recommended for minister to approve Type A Water licence. Minister approved Type A Water license. Application for judicial review was dismissed. Duty to consult was reasonably discharged. Applicant had reasonably arguable treaty and aboriginal rights in project area. Seriousness of potential adverse impact of Type A Water License on applicant’s asserted treaty and Aboriginal rights was moderate. There would be future opportunities for applicant to address effects of project during term of Type A Water License. Duty to consult was mid-range of spectrum not requiring deep consultations and serious accommodation. Applicant was provided with all necessary information in timely manner. Applicant had ample opportunity to express interests and impact prior to approval. Applicant’s concerns were reasonably considered and reasonably accommodated by Crown.

Katlodeeche First Nation v. Canada (Attorney General) (May. 2, 2013, F.C., James Russell J., File No. T-434-11) 228 A.C.W.S. (3d) 1.

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