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.
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.
Fasken Martineau’s Kevin O’Callaghan (Aboriginal) and Katey Grist acted as counsel for Mainstream Canada on this judicial review.