On August 8, 2019, the Federal Court of Appeal overturned a decision of the Federal Court, finding that Squamish First Nation’s request for an increased allocation of Fraser River sockeye salmon triggered the Crown’s duty to consult. This case is another recent example of the Federal Court of Appeal’s readiness to examine a government agency’s consultation in detail and provide commentary to guide the Crown and Indigenous groups toward meaningful consultation.
Around 1992, the Squamish First Nation (Squamish) was granted an allocation of salmon for food, social, and ceremonial purposes by the Department of Fisheries and Oceans (“DFO”). The allocation allowed Squamish to catch 20,000 pieces of Fraser sockeye salmon per year. In 2012, in recognition of the substantial increase in their population, Squamish requested an increase to 70,000 pieces of Fraser sockeye per year. DFO increased the allocation by 10,000 to 30,000 Fraser sockeye, and also increased Squamish’s chum and pink salmon allocation.
Squamish sought a judicial review of this decision, challenging the adequacy of DFO’s consultation and the reasonableness of the decision in regard to DFO policies. In its 2017 decision, the Federal Court found that the duty to consult was not triggered because Squamish failed to establish a causal link between the allocation number and how the allocation number would adversely affect their asserted right. The court also found that Squamish failed to show how the existing allocation was insufficient for its food, social and ceremonial purposes. The Federal Court stated that even if the duty to consult had been triggered, the communication between the parties had been sufficient to satisfy that duty.
The Federal Court of Appeal Decision
In Squamish First Nation v Canada (Fisheries and Oceans), the Federal Court of Appeal found the Squamish’s request for an allocation increase triggered the duty to consult, noting the Federal Court misapprehended the basis of Squamish’s asserted right as the issuance of an allocation under an Aboriginal communal fishing licence. The basis of Squamish’s asserted right to fish arises from their reliance on Fraser Sockeye prior to European contact. The Federal Court of Appeal also misapprehended the legal threshold Squamish needed to meet to show an adverse impact to its asserted right. The Federal Court of Appeal observed that requiring the Squamish to show how 30,000 pieces, rather than 70,000, adversely affected their rights was illogical and impractical, as the duty arose prior to DFO’s decision to increase the allocation. It was unreasonable to require Squamish to provide evidence in advance of the decision that it was adversely affected by receiving an allocation of 30,000 pieces.
Overall, the Federal Court of Appeal found the DFO’s position was contradictory and failed to result in meaningful two-way dialogue. For example, DFO acknowledged that Squamish’s request for increased allocation triggered the duty to consult with other Indigenous groups, but failed to recognize this also meant the Squamish’s rights could be affected. In addition, the increase in Squamish’s allocation for pink and chum salmon when Squamish had not requested it, and was catching less than 25% of its existing chum allocation, indicated DFO did not meaningfully engage with the Squamish.
Given the importance and fundamental nature of the Squamish’s asserted right, the Federal Court of Appeal found that consultation required an interactive dialogue between the parties, not the passive receipt of information that was conducted. Due to the complex nature of fishery management where multiple Indigenous groups are involved, DFO would also be required to provide written reasons to show that Squamish concerns were considered and taken into account.
The Court declared DFO’s decision was made in breach of the duty to consult, but did not set aside the decision. However, if the Squamish remain of the view the allocation is inadequate, fresh consultation will be required. The Court then unconventionally offered commentary to facilitate future consultation. These comments included that: first, DFO staff should remember that they are caretakers, managing a resource for groups that claim constitutionally protected rights; second, DFO policy recognizes the priority of Indigenous fishers and therefore a strength of claim analysis may be unnecessary and unhelpful; third, the request for an increased allocation is complicated by claims of other Indigenous groups, requiring DFO to balance conflicting rights and collect information on a number of factors such as historical catch data and conservation concerns. The Court noted the Squamish should provide this information to DFO on a timely basis, which is part of Squamish’s obligation to consult in good faith.
Squamish was successful in demonstrating that their request for an increase in the allocation of Fraser sockeye triggered the Crown’s duty to consult and the DFO failed to fulfill that duty. The additional commentary of the court emphasizes the need for the Crown to take an active role in engaging Indigenous groups claiming constitutionally-protected rights in order to properly manage the Fraser River fishery.
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