Digests

Liidlii Kue First Nation v. Canada (Attorney General)

T-22-00

Reed J.

21/7/00

30 pp.

Judicial review of Land Use Administrator's decision to issue land use permit to drill 12 holes with helicopter supported diamond drills to respondent Maureen Bernier pursuant to Territorial Land Use Regulations--Application seeking order quashing decision; declaration constitutional, fiduciary duty to adequately consult with applicant before permit issued; mandamus compelling consultation with respect to scope, nature, extent of impact issuance of permit might have on applicant's treaty rights; order prohibiting issuance of permit until consultation complete; order retaining jurisdiction over application for land use permit to allow any party to return to Court for disposition of issues arising out of implementation of Court's orders--Copy of land use application sent to applicant, among others, with request for comments--Processing of application delayed to allow further consultation with applicant--Decision maker requesting details from actual hunters, trappers as to how operation will affect them--Attorney General conceding permit should be quashed--Commitment applicant would be paid $5,000 to enable it to consult with members directly affected by issuance of permit not kept--Reasonable expectations doctrine requiring honouring of commitment and decision should be set aside--(1) Attorney General arguing remainder of judicial review application moot--Applicant arguing resolution of issues not moot, unresolved aspects of judicial review application should not be converted to action--Applicant's position, as initiator of proceeding, should be accorded some deference with respect to procedure to be followed--Most economical use of time for all parties to determine unresolved issues in context of present proceeding--(2) Not open to applicant to challenge Canada Mining Regulations in this proceeding--Decision under review pursuant to Territorial Land Use Regulations--Not involving Canada Mining Regulations--Also, Federal Court Rules, 1998, r. 302 stating only one decision may be subject of judicial review proceedings in application--Importing review of decisions under Canada Mining Regulations would offend r. 302--(3) Applicant relying on R. v. Adams, [1996] 3 S.C.R. 101 for proposition Territorial Land Use Regulations ultra vires because not containing explicit guidance as to how treaty rights in question to be accommodated--Adams not relevant to legislation herein--(4) Much of information contained in affidavits filed in support of judicial review application not before decision maker--Requirement decision must only be reviewed on basis of material before decision maker applies when decision challenged on ground based on erroneous finding of fact made in perverse or capricious manner or without regard to material before decision maker--Challenge to decision herein not based on those grounds, but on allegation obligation to adequately consult applicant, which obligation not met--Challenges to decisions on ground lack of procedural fairness because affected party not given adequate opportunity to present case likely to involve adducing of information not before decision maker--Herein, evidence relating to status of applicant, whether duty to consult and scope of duty, relevant--To extent new evidence relating to those issues, properly part of application records even though not before decision maker--(5) Applicant arguing Bernier should be required to file new application to Mackenzie Valley Land and Water Board--Mackenzie Valley Resource Management Act, establishing Board, making it clear Board having jurisdiction over applications filed after March 31, 2000--Applications filed prior to that time disposed of in accordance with Territorial Land Act Regulations--(6) Land to which drilling permit will apply within area covered by Treaty No. 11--Present case concerning Crown's obligations with respect to land for which treaty signed extinguishing Aboriginal title, granting Indians right to pursue hunting, trapping, fishing, except on land "as may be required or taken up from time to time for . . . mining", and with respect to which Indians given assurances lifestyle would not be changed--Treaty right qualified or conditional right to hunt, trap or fish on unoccupied Crown land, until Crown seeking to use it--Limitations on extent of "taking-up" in which Crown may engage not considered because use contemplated extremely limited, both in time, geographical extent--(7) Court accepting constitutional obligation to consult with those exercising right to hunt, trap, fish on unoccupied Crown land, pursuant to treaty, when decision made to occupy land--Recognition and affirming of treaty rights by Constitution Act, 1982, s. 35(1) carrying with it constitutional duty on Crown to consult with those holding treaty rights to hunt, trap and fish on unoccupied Crown land in circumstance such as present--Decision maker recognized duty to consult--As practical matter, only purpose in identifying legal source of duty to consult, as constitutionally based, for present purposes, because Court agreed to consider remedies sought by applicant in application and because constitutional basis may have relevance to scope of duty to consult--(8) Scope of duty to consult varying with (i) nature of Aboriginal rights in question, (ii) scope and nature of obligations on Crown arising as result of nature of right, (iii) nature of prospective infringement--Given nature of right herein, consent of Indians to taking of lands for one of purposes not required--When treaty entered into, commitments made that right to hunt, trap, fish would not be taken away or curtailed--Given limited use proposed by permit under consideration, not serious consideration in this case--Obligations on Crown expressed in Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 (B.C.C.A.): Aboriginal peoples must be provided with all necessary information in timely way so that have opportunity to express interests, concerns, and to ensure representations seriously considered--Analysis in accordance with R.v. Sparrow, [1990] 1 S.C.R. 1075 criteria not required to justify land use contemplated--Even if applicable, assurances to ensure minimal impact of drilling activity on those holding treaty rights satisfying requirements--Potential infringement minimal, temporary--No camp; no drilling through cultural, burial sites--Applicants having constitutional right to be consulted about proposed use, but consent not required--Scope or content of consultation directly related to nature of Aboriginal right as well as nature of alleged infringing activity--In seeking specific information from those whose traplines, etc. might be directly affected to minimize impact on them, appropriate, sufficient to meet constitutional obligations--Detailed environmental impact study applicant sought to require not reasonable--Although not necessary to issue declaration constitutional, fiduciary duty to adequately consult, offer to consult adequate herein--Not necessary to issue either mandamus to compel consultation or order prohibiting issuance of order until consultation complete--Territorial Land Use Regulations, C.R.C., c. 1524--Mackenzie Valley Resource Management Act, S.C. 1998, c. 25--Canada Mining Regulations, C.R.C., c. 1516--Federal Court Rules, 1998, SOR/98-106, r. 302--Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.