[2012] 4 F.C.R. D-1
Aboriginal Peoples
Judicial review of decision by Fisheries and Oceans Canada (DFO) to issue finfish aquaculture licences to Mainstream Canada, Marine Harvest Canada Inc.—New regulatory regime by DFO direct consequence of British Columbia Supreme Court decision (Morton v. British Columbia (Agriculture and Lands), 2009 BCSC 136) finding provincial regulatory regime for aquaculture constitutionally invalid, activity of finfish farming matter of exclusive federal jurisdiction—Applicant, Indian band, claiming that abundance, quality of their fishery in decline, attributing decline in part to presence of salmon farms in their territory—Whether applicant having requisite standing to bring present application; whether Canada (DFO) having duty to consult with applicant about issuance of licences in question and if so, extent of that duty; whether DFO’s efforts at consultation reasonable in circumstances—Respondent Attorney General contending application could only be brought as representative proceeding pursuant to Federal Courts Rules, SOR/98-106, r. 114(1) by individual member on behalf of Aboriginal collective claiming to hold Aboriginal right—Language of r. 114 leaving no doubt as to intent—Framed as permissive, not mandatory—Not requiring all representative actions be brought thereunder—Indian bands legal, political entities that can themselves be sued, become subject of legal pronouncement—Here, Band itself the applicant, as opposed to representative acting on its behalf—Application not fatally flawed because not brought by representative on behalf of applicant—As to duty to consult, applicant submitting decision to issue licences having potential to impact fishing rights—Careful reading of Adams Lake Indian Band v. British Columbia (Lieutenant Governor in Council), 2011 BCSC 266, Gitxsan v. British Columbia (Minister of Forests), 2002 BCSC 1701 showing that indeterminacy of principles by which new governing entity intending to operate triggering Crown’s duty to consult—Here, only time will tell whether regulation of aquaculture will dramatically be impacted as a result of Morton decision—In recognition of this fundamental shift in management of aquaculture industry, federal government was obligated to consult applicant, all other First Nations present in region—Reissuance of licence also sufficient to trigger duty to consult, as each new licence potentially affecting claimed right, title—However, extent of changes brought about by renewal crucial factor to be considered when assessing extent of duty to consult—In case at bar, Canada did what was required in circumstances to maintain honour of Crown, effect reconciliation with respect to interests at stake—When viewed as whole, DFO’s consultation regarding regulatory framework, issuance of licences, reasonable—Application dismissed.
Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General) (T-70-11, 2012 FC 517, de Montigny J., judgment dated May 3, 2012, 56 pp.)