Date: 20120305
Docket: A-402-10
Citation: 2012 FCA 73
CORAM: BLAIS C.J.
EVANS J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
FOND DU LAC DENESULINE FIRST
NATION,
BLACK LAKE DENESULINE FIRST NATION,
HATCHET LAKE DENESULINE FIRST NATION and
THE NON-FIRST NATION ABORIGINAL
PROVINCIAL COMMUNITIES OF
CAMSELL PORTAGE, URANIUM CITY, STONY
RAPIDS
and WOLLASTON LAKE (hereinafter referred
to as
the “Athabasca Regional Government”)
Appellants
and
ATTORNEY GENERAL OF CANADA
and AREVA RESOURCES CANADA INC.
Respondents
and
CANADIAN NUCLEAR SAFETY COMMISSION and
ATTORNEY GENERAL FOR SASKATCHEWAN
Intervenors
Heard at Saskatoon,
Saskatchewan, on March 5,
2012.
Judgment delivered from the
Bench at Saskatoon,
Saskatchewan, on March 5, 2012.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS
J.A.
Date: 20120305
Docket: A-402-10
Citation: 2012 FCA 73
CORAM: BLAIS
C.J.
EVANS
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
FOND DU LAC DENESULINE FIRST NATION,
BLACK LAKE DENESULINE FIRST NATION,
HATCHET LAKE DENESULINE FIRST NATION and
THE NON-FIRST NATION ABORIGINAL
PROVINCIAL COMMUNITIES OF
CAMSELL PORTAGE, URANIUM CITY, STONY
RAPIDS
And WOLLASTON LAKE (hereinafter referred
to as
the “Athabasca Regional Government”)
Appellants
and
ATTORNEY GENERAL OF CANADA
and AREVA RESOURCES CANADA INC.
Respondents
and
CANADIAN NUCLEAR SAFETY COMMISSION and
ATTORNEY GENERAL FOR SASKATCHEWAN
Intervenors
REASONS FOR JUDGMENT
(Delivered from the Bench at Saskatoon, Saskatchewan, on March 5,
2012)
EVANS J.A.
[1]
This is an
appeal by Fond du Lac First Nation and others (Appellants) from a decision of
the Federal Court, dated September 22, 2010 and reported at 2010 FC 948. In
that decision, Justice Russell (Judge) dismissed the Appellants’ application
for judicial review to set aside a decision of the Canadian Nuclear Safety
Commission (Commission), dated June 30, 2009.
[2]
In the
decision at issue in these proceedings, the Commission renewed for a period of
eight years the uranium mining and mill operating licence issued ten years
earlier to AREVA Resources Canada Inc. (AREVA), a Respondent in this appeal.
The licence related to AREVA’s McClean Lake operation, situated in the
Athabasca Basin of northern Saskatchewan. The Commission also revoked the
Midwest uranium site preparation licence and incorporated into AREVA’s McClean
Lake licence the maintenance and caretaking activities at the Midwest site.
AREVA owns the Midwest site, which is about fifteen kilometres from its McCLean
Lake site.
[3]
The
Appellants’ principal ground of appeal is that the Commission’s decision was
erroneous in law because it was made in breach of their constitutional right to
be consulted before any action was taken by the federal Crown that might harm
an Aboriginal or Treaty right protected by section 35 of the Constitution
Act, 1982.
[4]
The
Appellants also allege that the Judge denied them a fair opportunity to make
submissions before deciding not to recuse himself on the ground that his son
was an articling student at the firm representing AREVA. The Judge disclosed
the fact of his son’s employment at the start of the hearing and revealed that
he had discussed the issue with his Chief Justice, who shared his view that
recusal was not warranted.
[5]
We are all
of the view that the Judge acted entirely properly in deciding not to recuse
himself. Judges need not hear submissions from the parties before deciding
whether to recuse themselves on the basis of facts that they have themselves
disclosed. A dissatisfied party’s remedy is an appeal to this Court on the
ground of bias. However, an appeal by the Appellants on the ground that the
present facts constituted a reasonable apprehension of bias would have failed
for lack of merit. In any event, the Appellants failed to raise the issue of
bias at the earliest opportunity; they cannot delay their bias challenge in
this Court until they have seen how the Judge decided their application for
judicial review.
[6]
Nor are we
persuaded that the Judge made any error that would warrant the interference of
this Court when he held that the Appellants had not established that any of
them, including the three First Nations Appellants, had a right to be consulted
on the facts of this case before the Commission renewed AREVA’s licence under
the Nuclear Safety and Control Act, S.C. 1997, c. 9, and revoked
Midwest’s licence and incorporated it into AREVA’s.
[7]
This
appeal can be decided on relatively narrow grounds. First, we agree that before
exercising its licensing powers the Commission had implicit jurisdiction to
determine whether the Appellants had an Aboriginal right to be consulted on the
licence renewal and if they did, whether it had been satisfied. Parliament
should not be taken to have authorized the Commission to renew AREVA’s licence
if the First Nations’ constitutional right to be consulted had not been
satisfied. The Appellants agree with this first point.
[8]
Second, we
agree with the Judge that the Appellants did not establish that a duty to
consult arose on the present facts, because they failed to identify any potential
harm to an Aboriginal or Treaty right that might be caused by the Commission’s
decision to renew AREVA’s licence.
[9]
True, the
First Nations Appellants have existing Treaty rights to hunt and fish for food over
an area of land that includes the McClean Lake and Midwest sites. However, they
adduced no evidence that these Treaty rights might be harmed in some
non-trivial manner by the licence renewal.
[10]
It is
important to note that, at the time of the licence renewal for McClean Lake, AREVA
had been conducting mining operations at that site under a licence granted ten
years earlier and had complied with its terms, including those relating to the protection
of the environment. Neither the licence renewal, nor the revocation of the
Midwest licence and its incorporation into AREVA’s McClean Lake licence,
expanded the scope of AREVA’s permitted operations. It is mere speculation for
the Appellants to allege that the continuation of mining under the renewed
licence for another eight years, with a review after four, might so contaminate
the wildlife as to harm the Treaty rights to hunt and fish of the First Nations
Appellants.
[11]
As we
understand his argument, counsel suggests that the constitutional duty to
consult is triggered by an existing Aboriginal or Treaty right of which the
Crown had actual or constructive notice and that the duty requires that an
inquiry be made as to whether proposed action might adversely affect the right.
[12]
In our
view, this is not the law. A duty to consult only arises when there is evidence
of a possibility that the proposed action may harm an Aboriginal or Treaty
right. The Commission found no such evidence in this case and, like the Judge,
we can see no error in this conclusion. The brief discussion between
Commission members and witnesses during the Commission hearing to which counsel
referred us does not constitute evidence of potential harm that triggers a duty
to consult.
[13]
Since the
Appellants have not shown that, despite the low threshold, a duty to consult
was triggered by a demonstrated possibility of harm, cumulative or otherwise, to
an Aboriginal or Treaty right, it is not necessary for us to express an opinion
on any of the other issues decided by the Judge, and we decline to do so.
[14]
For these
reasons, the appeal will be dismissed with costs to the Respondents.
"John
M. Evans"
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