Digests

Aboriginal Peoples

Duty to consult—Judicial review of Mackenzie Valley Land and Water Board decision issuing land use permit to North Arrow Minerals Inc. to conduct mineral explorations—Applicants among Akaitcho Dene First Nations—Having constitutionally protected treaty rights—Claiming never consulted before Board issuing permit, contrary to Mackenzie Valley Resource Management Act, S.C. 1998, c. 25, related regulations—Real issue scope of Crown’s duty to consult, whether duty discharged—Board having delegated to Indian and Northern Affairs Canada (INAC) responsibility to determine duty to consult requirement—Crown may rely on actions of third parties in assessing whether duty to consult discharged—In present case, problem not that Crown, Board looking to “consultation” undertaken by North Arrow but that wrongly considering consultation adequate—Crown (INAC), Board relying on word of one party to “consultations”; accepting North Arrow’s assertion consultation complete, that First Nations had frustrated process—North Arrow cutting off negotiations, failing to follow Board’s guidelines on consultation—May do so with legal impunity since constitutionally obligated to First Nations—However, Crown cannot shelter behind North Arrow or absolve itself of obligations by having third party undertake negotiations—Crown, board impacted on North Arrow’s petard—So long as third party still seeking to conduct activities on First Nations’ land, Crown remaining obligated to at least consult, accommodate—In present case, no federal department or Board discussed project or mitigating measures with applicants nor did any department or board confirm with applicants statements of North Arrow—Insufficient to set up system to facilitate negociation, necessary to evaluate actual implementation, processes specific to case—INAC, Board not conducting independent inquiry, not giving applicants “opportunity to be heard”—Lack of actions contrary to Board’s obligations, principles of fairness—Application allowed.

Yellowknives Dene First Nation v. Canada (Attorney General) (T-1349-09, 2010 FC 1139, Phelan J., judgment dated November 12, 2010, 38 pp.)