[2012] 3 F.C.R. D-1
Aboriginal Peoples
Lands
Judicial review of Minister of Indian Affairs and Northern Development decision postponing consultations with Sambaa K’e Dene Band (SKDB), Nahanni Butte Dene Band (NBDB) until agreement in principle reached with Acho Dene Koe First Nation (ADKFN) regarding ongoing comprehensive land claims negotiations between Minister, ADKFN—SKDB, NBDB having long-standing boundary dispute with ADKFN regarding land in south-western corner of Northwest Territories (NWT)—SKDB, NBDB claiming that Minister breaching legal, constitutional duty to consult therewith by delaying consultation regarding overlapping land claims in NWT until after agreement in principle reached between Minister, ADKFN—Members of SKDB, NBDB, ADKFN Aboriginal peoples within meaning of Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(1), parties to Treaty 11—Timing, scope, content of Minister’s duty to consult at issue herein—Test regarding duty to consult, accommodate as established in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 applied herein—Duty to consult, accommodate grounded in honour of Crown; having substantive dimension, must be meaningful—Although Minister disputing soundness of SKDB, NBDB claims, having sufficient knowledge to trigger duty to consult regarding Treaty rights, Aboriginal claims—Minister’s actions with ADKFN potentially affecting SKDB, NBDB’s asserted rights, having potential adverse impact thereon—Scope, content of Minister’s duty to consult determined by strength of asserted SKDB, NBDB’s Aboriginal, Treaty claims—Since SKDB, NBDB establishing reasonably strong prima facie case based upon asserted Aboriginal rights to land, content of Crown’s duty to consult elevated—Decisions already made by Minister without consulting SKDB, NBDB likely significantly impacting, jeopardizing Treaty rights, Aboriginal claims thereof—Minister’s decision to delay consultation with SKDB, NBDB until after conclusion of agreement in principle with ADKFN not reasonable; constituting breach of duty; process followed incompatible with Crown’s honour—Therefore, Minister having legal, constitutional duty to engage in immediate, substantive discussions directly with SKDB, NBDB regarding land claims with ADKFN affecting, potentially affecting SKDB, NBDB’s asserted Aboriginal, Treaty rights—Application allowed.
Sambaa K’e Dene Band v. Duncan (T-1946-10, 2012 FC 204, Mactavish J., judgment dated February 10, 2012, 59 pp.)