On May 3, 2012, the Federal Court decided that Canada had sufficiently consulted with the Petitioners, the Kwicksutaineuk/Ah-Kwa-Mish First Nation (KAFN), before issuing aquaculture licences to Mainstream Canada and Marine Harvest Canada in the Broughton Archipelago. In an earlier decision. the BC Supreme Court had found that the authority to regulate aquaculture was federal and not provincial, and as a result Fisheries and Oceans Canada (DFO) had to take responsibility for over 680 BC provincial aquaculture licences that were set to expire on December 18, 2010. In his decision, Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Attorney General of Canada et al., 2012 FC 517, Mr. Justice de Montigny held that in light of the circumstances surrounding Canada’s assumption of regulatory authority, the consultation undertaken by DFO with the Kwicksutaineuk/Ah-Kwa-Mish First Nation was sufficient to meet the honour of the Crown.
Kevin O’Callaghan and Katey Grist of Fasken Martineau’s Vancouver office were counsel for Mainstream Canada on this judicial review.
In Morton, the Court held that the regulation of aquaculture was within the federal government’s jurisdiction – not the provincial government’s jurisdiction – and therefore DFO should be regulating aquaculture in British Columbia. The effect of that decision was originally stayed until February 10, and later extended to December 18, 2010. The Morton decision required DFO to issue new regulations under the Fisheries Act and to draft new aquaculture licences pursuant to its new regulations.
DFO undertook extensive consultation regarding the new regulatory regime and the common terms and conditions that would go in each new licence. These efforts are described by the Court in detail over 10 pages in the Reasons for Judgment (paras. 20-47).
From the outset, DFO made it clear that the new licences would essentially be a re-issuance of the existing licences. DFO provided all potentially interested Aboriginal groups (and specifically KAFN) with information, opportunities to discuss that information and several opportunities to voice their concerns. These opportunities included numerous meetings, solicitation of comments on draft regulations and licences, and the provision of significant capacity funding to Aboriginal groups. Additionally, DFO offered to and did meet specifically with KAFN to discuss the new regulations and licences.
The practical reality that faced DFO was that it had over 680 new licences to issue in one day in order to avoid a legal vacuum. The strategy undertaken by DFO in response to this was to consult regarding the regulatory regime and the draft licence terms generally, while offering to meet more specifically with any Aboriginal groups that expressed a desire for further discussion. This approach allowed DFO to provide enough information to reasonably balance potential impacts and concerns with competing societal concerns, bearing in mind the practical impediments to consult individually on each and every licence it had to re-issue.
The Court found that the KAFN is an “Aboriginal group, and an Indian Band within the meaning of the Indian Act, RSC 1985, c 1-5, whose traditional territory is within the Broughton Archipelago near Johnstone Strait between mainland British Columbia and Vancouver Island.” Of the 680 new licences issued by DFO, 28 were issued in the Broughton Archipelago; however, the KAFN chose to challenge only two: the Burdwood Site (operated by Mainstream Canada) and the Blunden Pass Site (operated by Marine Harvest Canada). The KAFN claimed that the DFO’s consultation was insufficient.
The Court held that there were three issues to decide in this case:
1) Does the KAFN have the requisite standing to bring this application for judicial review?
2) Did Canada, as represented by DFO, have a duty to consult with the KAFN about the issuance of the aquaculture licences, and more specifically the Burdwood and Blunden licences? If so, what was the extent of the Crown's duty?
3) Were DFO's efforts at consultation reasonable under the circumstances?
The Court had little difficulty resolving the argument that the KAFN did not have standing to bring the application, as the KAFN had previously been applicants in similar cases involving the Broughton. The Court declined to rule on the evident conflict on the evidence between Chief Chamberlain of the KAFN and the Sewid family claiming that their ancestors actually occupied the area at the time of sovereignty. Additionally, the Court was clear that it was not a fatal flaw that the application was brought by the KAFN and not by a member of the Aboriginal group in a representative capacity.
With respect to whether a duty to consult arose in the circumstances, the Court looked to the test reiterated by the Supreme Court of Canada in Rio Tinto Alcan Inc v.Carrier Sekani Tribal Council, 2010 SCC 4, which states that the Crown has the duty to consult when these three elements exist:
(1) the Crown's knowledge, actual or constructive, of a potential Aboriginal claim or right;
(2) contemplated Crown conduct; and
(3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.
The Court concluded that the first two elements existed, but then considered the parties’ arguments on the third element. The Court did not agree with the extent of the KAFN’s submissions regarding the potential impact of the issuance of licences by DFO where similar licences had previously been issued by B.C. However, the Court found that the transition from provincial to federal jurisdiction and the change in the approach to licensing could have an effect, holding that in “recognition of this fundamental shift in the management of the aquaculture industry, I believe the federal government had an obligation to consult the Applicant and all of the other First Nations present in the region.”
In addition, the Court found that despite the licence only being in the nature of a renewal, there were potential incremental impacts, and that therefore there was a duty to consult:
 It is true that the purpose of consultation is to address concerns regarding new potential adverse impacts. As stated by the Supreme Court in Rio Tinto, above at para 49: "Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right". In other words, the scope of the duty to consult does not include past infringements or existing and ongoing impacts of past actions. For the duty to be triggered, there must be a new decision or conduct that may affect Aboriginal rights. The re-issuance of a licence, even if it is similar to the one it is replacing, is certainly sufficient to meet the third requirement underlying the duty to consult (see, for example, Upper Nicola Indian Band v British Columbia (Minister of Environment), 201 1 BCSC 388 at paras 103-1 14,21 BCLR (5th) 81). It is a fresh action, so much so that in the absence of the renewed licence, the commercial activity authorized by that licence would have to come to a halt. In my view, the duty to consult arises each time a licence is renewed, because each new licence may potentially affect the claim right or title, if only incrementally. Otherwise, the duty to consult would be spent once the initial licence has been granted, for however long a period it is renewed and irrespective of the impacts the renewed licences may have down the road. Such a reasoning would make a mockery of the duty to consult and of the honour of the Crown.
However, the Court made clear that the fact it was a renewal, rather than a new licence, would certainly have an impact on the nature of consultation that was required.
The Court correctly identified the two factors which impact the determination of the degree of consultation that is required: strength of claim and seriousness of potential impact on rights. The Court concluded the following on the spectrum:
 In the result, I come to the conclusion that the consultation required is clearly not at the upper end of the spectrum as advocated by the Applicant. I would also be inclined to think that it does not lie at the lower end of the spectrum either, considering the seriousness of the potential impact caused by fish farming on the Aboriginal fishing right claimed by the Applicant. At the end of the day, however, it does not matter where this case falls on the spectrum, as I find that the Government of Canada has done what was required in the circumstances, to maintain the honour of the Crown and to effect reconciliation with respect to the interests at stake.
The Court then reviewed the KAFN response to the DFO’s consultation efforts. The Court pointed to inconsistent responses and escalating demands on the part of the KAFN. These demands culminated in the suggestion, made for the first time the week before the licences were due to be issued, that six sites be phased out in their claimed territory. The Court was critical of this late suggestion, finding: “Not only did this request come only a week before the expiry of the provincial licence, but more importantly, it would have been impractical and unwarranted to take a decision on these farms in isolation, without consultation on an area management plan.” The Court then re-emphasised the role that a Crown decision maker plays in balancing Aboriginal and other societal interests, finding that in the context, the consultation was sufficient to meet the honour of the Crown.
The application for judicial review was dismissed and costs were ordered against the KAFN and in favour of each of the three respondents.
The Court reviewed the practical realities facing the DFO in the circumstances of this case, and applied the “balancing and compromise” required in Haida. The Court also implicitly recognized and applied the principle that consultation is a two-way street, although not referencing that principle explicitly, in the criticism of the KAFN’s approach to the DFO’s attempts to consult.
Although the court held that licence renewals may trigger the duty to consult, in keeping with the Rio Tinto decision, the consultation on the renewal will be limited to any incremental effect of the future action and not the effects of past decisions.
Morton v British Columbia (Agriculture and Lands), 2009 BCSC 136 (Morton)