Date: 20080612
Docket: A-313-07
Citation: 2008 FCA 212
CORAM: NOËL
J.A.
NADON J.A.
RYER
J.A.
BETWEEN:
The AHOUSAHT INDIAN
BAND, The DITIDAHT INDIAN BAND,
The EHATTESAHT INDIAN
BAND, The HESQUIAHT INDIAN BAND,
The HUPACASATH INDIAN
BAND, The HUU-AY-AHT INDIAN BAND,
The
KA:’YU:K’T’H/CHE:K’TLES7ET’H’ INDIAN BAND,
The MOHAWCHAHT/MUCHALAHT
INDIAN BAND,
The NUCHATLAHT INDIAN
BAND, The NUCHATLAHT INDIAN BAND,
The TLA-O-QUI-AHT INDIAN
BAND, The TOQUAHT INDIAN BAND,
The TSEHAHT INDIAN BAND,
The UCHUCKLESAHT INDIAN BAND
And
The UCLUELET INDIAN BAND
Appellants
and
THE
MINISTER OF FISHERIES AND OCEANS
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
This is an
appeal from a judgment of Mr. Justice Blais of the Federal Court (as he then
was) dated May 29, 2007 (2007 FC 567), who dismissed the appellants’
application for judicial review of a decision of the Minister of Fisheries and
Oceans (the “Minister” or the “respondent”) to implement a three-year plan for
the management of the Pacific coast commercial groundfish fisheries (the
“Fisheries”) effective April 2006 (the “Pilot Plan”).
[2]
Before the
Applications Judge, the appellants, fourteen First Nations (the “Nuu-chah-nulth
First Nations” or “the appellants”), whose lands are located on the west coast
of Vancouver Island, argued that the Minister had failed to uphold the honour of
the Crown and to meet his constitutional duty to consult and accommodate them before
implementing the Pilot Plan.
[3]
In
dismissing the appellants’ judicial review application, Blais J. concluded that
the Minister had not breached his constitutional duty to consult pursuant to
subsection 35(1) of the Constitution Act, 1982, being Schedule B to the Canada
Act, 1982 (U.K.), 1982, c.11 (the “Constitution”).
THE FACTS
[4]
In the
Reasons which he gave in support of his decision, Blais J. carefully and
thoroughly reviewed the facts relevant to the issues before him. Although the
Judge’s summary of the evidence is somewhat lengthy, it is essential to a
proper understanding of the issues raised in the appeal. Before reproducing the
relevant paragraphs of the Judge’s Reasons, a few words concerning the reasons
which led the Minister to introduce the Pilot Plan will be useful.
[5]
There are over sixty different species of fish
on the Pacific coast, with seven different fleets. Because the nature of the Fisheries
is that species intermingle, this leads to what is referred to in the industry
as a “bycatch”. In effect, although fishers may be licensed to catch one
species of fish, for example halibut, they may well catch a number of other
fish, i.e. the bycatch, while attempting to catch halibut. In such a situation,
because fishers can only retain the fish that they are licensed to catch, the
non-licensed fish must be returned to the water and, depending on the type of
fish so returned, there is a high probability that the fish will die when
returned to the water. This is clearly the situation in the case of rock fish.
[6]
In 2001, the Minister determined that changes in
the Fisheries had to be made, failing which significant curtailment thereof would
be necessary. The proposed changes were meant to address conservation and
protection issues pertaining to endangered and at risk rock fish species,
bycatch mortality and to allow the Department of Fisheries and Oceans (“DFO”) to
assess stocks by improving the monitoring and catch reporting for all species.
[7]
In June 2003, the Species at Risk Act,
S.C. 2002, c. 29, was enacted, resulting in the classification of Boccaccio
rock fish as a threatened species and the identification of 11 other rock fish
species as high priority for possible listing as “species at risk” under the
Act.
[8]
In March 2005, DFO decided that commencing with
the 2006 fishing season, 100% electronic monitoring of catch would be required
for all commercial groundfish fishing trips. Monitoring was deemed necessary in
order to accurately account for all catch by a fishing vessel, be it landed or
at sea releases. Through this means, DFO believed that it would have more
accurate information to determine whether total allowable catches (“TAC”)
within a given commercial groundfish Fishery were being exceeded. With more
accurate information, the early closure of the Fisheries became a real prospect
once TACs were reached.
[9]
As a result, a system of individual quotas
(“IQs”) became essential so to avoid the early closure of the Fisheries, which
would, it goes without saying, lead to a severe disruption to fishers and communities
that depend on the Fisheries. In order to effectively manage commercial fisheries,
the support of stakeholders, including the appellants, was crucial to the
success of DFO’s management plans. It is in this context that the consultation
process with stakeholders took place.
[10]
I now
reproduce paragraphs 6 to 23 of the Judge’s Reasons:
[6]
Discussions between DFO and industry associations commenced in March 2003, and
resulted in discussion papers being prepared and in the formation of the
Commercial Groundfish Integrated Advisory Committee (CGIAC), which had
representatives from the commercial fishing industry, including the four major
industry associations in groundfish fisheries, as well as the Province of British
Columbia and DFO. The CGIAC also included representatives of coastal
communities, of the Marine Conservation Caucus, of the Sports Fish Advisory
Board and of the B.C. Aboriginal Fisheries Commission (BCAFC). It should be
noted that the BCAFC designated someone from the NTC as their representative in
2004 and in 2005. While the designated representative failed to attend the four
meetings of the CGIAC in 2004, the BCAFC was represented at the 2005 meetings,
first by an NTC commercial fisher and, subsequently, by an employee of the NTC.
[7] The
CGIAC created a committee comprised of sixteen of its members, known as the
Commercial Industry Caucus (CIC), which prepared the proposal that later became
the Pilot Plan. There was no aboriginal representative on this committee.
[8] In March
2005, all hook/line and trap commercial groundfish fisheries licence
eligibility holders and vessel owners were informed, in a letter sent by DFO,
that mandatory 100 percent at-sea monitoring would be implemented starting in
2006. Also in March 2005, the Commercial Industry Caucus Pilot Integration
Proposal (the Reform Proposal) was submitted to the CGIAC and to DFO.
[9]
Stakeholder consultation on the Reform Proposal began in June 2005, first with
the creation of a website by DFO, providing information on the Reform Proposal
and the various policies that led to this proposal, and second, by sending a
letter, along with a consultation guide, to all groundfish fisheries licence
holders, through which they were invited to send their comments to DFO on the
Reform Proposal. Letters and consultation guides were also sent to all British
Columbia
coastal First Nations, seeking their input. The second stage of the stakeholder
consultations took place in October and November 2005, when representatives
from DFO travelled to four cities in the province to engage in discussions with
stakeholders. The final stage of the consultation process consisted of
bilateral discussions with affected First Nations. That being said, the
applicants were not included in these planned bilateral discussions as the
respondent did not consider their asserted aboriginal rights to be adversely
impacted by the Reform Proposal.
[10] The
applicants note that the notion of bilateral consultation with the
Niu-chah-nulth First Nations was first raised by the applicants in January
2005, and then again at the CGIAC meetings of April 15, 2005 and May 30, 2005.
[11] The
first meeting between DFO representatives and representatives of the applicants
where the Reform Proposal was to have been discussed was the JTWG meeting that
was to have been held in September 2005. However, this meeting was cancelled by
the NTC as the head of the NTC Fisheries Department, Dr. Hall, was not
available.
[12] The
meeting was rescheduled on November 18, 2005, at which time Ms. Trager [Diana
Trager, the Regional Resource Management Coordinator for the Groundfish
Management Unit], representing DFO, met with NTC officials to discuss various
fisheries issues, including the Reform Proposal. A further meeting took place
between DFO representatives and representatives of the applicants on November
28, 2005, where Ms. Trager provided a presentation on the Reform Proposal and
answered questions.
[13]
Another meeting of the JTWG was held on November 29, 2005, but the discussion
was limited to the draft consultation protocol proposed by the applicants in a
letter dated November 23, 2005, which would allow consultation to proceed on a
number of fisheries issues, including the Reform Proposal. There were six
stages to this consultation protocol:
1.
Identification of policy proposals
2.
Explanation and initial discussion of the policy proposals
3.
Provision and consideration of further information
4.
Nuu-chah-nulth response
5.
DFO response
6.
Accommodation
[14] The
respondent agreed to take the consultation protocol under advisement and, in a
letter dated December 20, 2005, Mr. Sprout [Paul Sprout, the Regional Director
General for DFO in the Pacific Region] noted that they were still awaiting
comments from their colleagues in Ottawa, but that DFO was essentially in
agreement with the first five stages of the consultation protocol, and
suggested that they should proceed immediately with these stages.
[15] A
subsequent meeting was held on January 23, 2006, but discussion was limited to
the consultation protocol, since the applicants maintained that they were not
prepared to discuss the Reform Proposal until DFO committed to the proposed
consultation protocol. At this meeting, Mr. Kadowaki [Ronald Kadowaki, the Lead
Director for Pacific Fisheries Reform] advised the applicants’ representatives
that DFO was essentially in agreement with the first five stages of the
consultation protocol, but that the sixth stage would depend on what happened
in the first five stages. Additionally, Mr. Kadowaki notes in his affidavit
that he stressed the urgency of the groundfish initiative, as one of the major
groundfish fisheries would be opening in March 2006, and thus that it was
imperative that the consultations be undertaken on an urgent basis. He also
indicated that DFO was not prepared to agree to the timeline proposed in the
consultation protocol for this initiative.
[16]
Another attempt was made to schedule a meeting for the first week of February
2006 to move on to stage 3 of the consultation protocol, which was rebuked by
the applicants, stating again that they were not prepared to engage in
substantial consultations until there was an agreement on the consultation
protocol. Dr. Hall stated that the preparation of questions for stage 3, while
underway, had not been a high priority “pending agreement on the Consultation
Protocol and in relation to other higher priority activities in recent weeks”.
[17] In
a letter dated February 16, 2006, Mr. Kadowaki wrote that “DFO is in agreement
with many aspects of your proposed consultation protocol and we believe that it
can provide the basis of a useful and practical framework for consultations”.
Mr. Kadowaki also reiterated the urgency of consultations on the Reform
Proposal, as implementation was being considered for the 2006 fishing season.
[18]
While the applicants submit that, through this letter, DFO agreed to be bound
by the consultation protocol, the respondent maintains that there was no such
commitment by DFO. The respondent also notes that this letter must be read in
light of the previous letter sent by Ms. Trager dated January 16, 2006, where
she indicated to the applicants that DFO was considering implementing the
Reform Proposal for the 2006 fishing season, and in light of Mr. Kadowaki’s
affidavit where he states that it was made clear to the applicants that DFO did
not agree with the proposed timeline.
[19] On
February 20, 2006, the applicants indicated that they were prepared to move
forward with the consultations and proceed with stage 3 of their consultation
protocol. As such, they forwarded 102 questions to Ms. Trager.
[20] On
February 24, 2006, another meeting was held at which DFO provided draft answers
to some of the questions submitted. Responses were later provided by DFO on 94
of the 102 questions in an email sent March 13, 2006.
[21] No
further meetings were held after that, but correspondence continued to be
exchanged between the parties, including letters from the applicants objecting
to the lack of consultation and voicing their opposition to the Reform
Proposal. A letter was also sent seeking a meeting with the Minister during his
visit to the region in March 2006. While the Minister did not meet with them on
that occasion, the respondent notes that there was a meeting between the
Minister and the Nuu-chah-nulth First Nations in January 2006.
[22] A
series of memoranda to the Minister were sent on February 17, 2006, March 17,
2006, March 31, 2006 and April 5, 2006, in which the concerns expressed by
First Nations are clearly noted. In particular, the first memorandum goes into
much detail about the opposition from First Nations, including the NTC.
[23]
When the final proposal was released in April 2006, it largely reflected the
CIC proposal to the CGIAC, although some changes were made, including the
implementation of the proposal as a pilot plan for a three-year period, the
fact that quota reallocation between licences within a groundfish fishery were
to take place on a temporary basis for the current fishing year only, and a
commitment by DFO that additional lingcod and dogfish catch history would be
made available to First Nations as lingcod and dogfish quotas.
THE DECISION OF THE FEDERAL COURT
[11]
After
setting out the issues before him, namely, the scope of the Minister’s duty to
consult with the appellants, whether the steps taken by the Minister were
sufficient to meet his duty to consult and what appropriate remedy the Court should
order, if necessary, the Judge turned to the Supreme Court’s decision in Haida
Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, for
guidance with respect to the relevant principles. Specifically, he referred to
paragraphs 16, 20, 27 and 35 of Haida, supra, where the Supreme Court
held that (i) in defining rights guaranteed under section 35 of the
Constitution, the Crown must act honourably and, in so doing, must consult and,
where appropriate, accommodate Aboriginal peoples; and that (ii) a duty to
consult will arise when the Crown has knowledge, real or constructive, of the
existence of an Aboriginal right that might be affected by the Crown’s conduct.
[12]
The Judge
then proceeded to determine the nature of the Aboriginal right at issue, which
he found to be a right to fish commercially. This led him to note that although
the Minister did not dispute the fact that he had knowledge of the appellants’
claim to a right to fish commercially, he did not concede that the conduct
contemplated under the Pilot Plan would affect the appellants’ right in
question.
[13]
With
regard to the appellants’ contention that their food, social and ceremonial
rights (“FSC rights”) were also at issue, the Judge found that since no adverse
impacts on these rights had been shown by the appellants, it followed that the
Minister did not have a duty to consult in regard thereto.
[14]
The Judge
then turned his attention to the scope of the Minister’s duty to consult insofar
as the appellants’ right to fish commercially was concerned and sought to
determine where that duty was located on the spectrum discussed in Haida,
supra. He began his analysis with the proposition that determining the Aboriginal
right which gave rise to the duty to consult was a necessary precondition to
the determination of the scope and content of that duty and, in support of that
proposition, he referred to paragraphs 43 to 45 of Haida, supra. As I
have already indicated, the Judge found the right at issue to be the right to
fish commercially.
[15]
The Judge
then reviewed the arguments put forward by both sides with regard to the scope
of the Minister’s duty in the light of the evidence and of a number of Supreme
Court decisions, namely: Haida, supra; Mikisew Cree First Nation v.
Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388; R. v. Nikal,
[1996] 1 S.C.R. 1013; and R. v. Gladstone, [1996] 2 S.C.R. 723. This led
him to the conclusion that any infringement or adverse effects on the
appellants’ right to fish commercially would be limited and that, as a result,
the Minister’s duty to consult was located at the lower end of the spectrum. At
paragraph 46 of his Reasons, the Judge stated his conclusion in the following
terms:
[46]
Having carefully considered the submissions from both parties in light of the
applicable jurisprudence, I am satisfied that any infringements or adverse
effects on the rights of the applicants to fish commercially resulting from the
Pilot Plan would be limited, particularly in light of the fact that the
respondent was pursuing a compelling and substantial objective of conservation
of the resource in question for the benefit of all Canadians, including the
applicants. As such, it is my conclusion that the duty to consult and accommodate
the interests of the applicants would have been located on the lower end of the
spectrum.
[16]
The Judge
then went on to examine whether the steps taken by the Minister were sufficient
to meet his duty to consult. First, he addressed the period during which the
Reform Proposal was being developed. In his view, bilateral consultations were
not warranted during that period of time because the respondent’s duty to
consult was located at the lower end of the spectrum, so that the appellants’
involvement in the multilateral process through the CGIAC was such that the
Minister was not required to take additional steps to consult with the
appellants.
[17]
Second,
the Judge addressed the period of time commencing once the Reform Proposal was
submitted to the Minister. He found that while the appellants had only received
a formal copy of the Reform Proposal in June 2005, they had been aware since
January 2005 of the general direction that was being pursued by reason of the participation
of their representative in the CGIAC. The Judge noted that once the Reform
Proposal was submitted, DFO began a process of stakeholder consultations in
which the appellants were invited to participate by way of completion of a
written questionnaire seeking their comments and of stakeholder meetings. The
Judge further noted that the appellants were well aware of the key proposal
contained in the Reform Proposal, i.e. the imposition of IQs which were a fact
of life in most commercial groundfish fisheries since 1997 and to which they
were, as a matter of principle, opposed. The Judge continued by observing that
although the Minister did not, at the outset, intend to conduct bilateral
consultations with the appellants, believing that multilateral consultations
were sufficient to meet their concerns, he eventually did engage in bilateral
consultations with the appellants. The Judge then noted that the appellants’ main
complaint was that the bilateral consultations had not been completed before
the Minister made the decision to implement the Pilot Plan and that, in their
opinion, the failure to complete these consultations resulted from the fact
that DFO was delinquent in commencing the consultations, thus leaving insufficient
time to complete them.
[18]
After
pointing out that the Minister took the position that the failure to complete
the bilateral consultations was the result of the appellants refusal to engage
in meaningful discussions of the substantial issues arising from the Reform
Proposal, the Judge indicated that although there could be no doubt that DFO
should have begun the bilateral consultation process earlier than it did, i.e.
in November 2005, he expressed the view that DFO “could not do everything at
once” (paragraph 59). He also indicated that the appellants were partly responsible
for the delays which had occurred during the course of the bilateral
consultations.
[19]
At
paragraphs 64 to 66 of his Reasons , the Judge summarized his view of the
matter and expressed his conclusion to the effect that the Minister had not
breached his duty to consult the appellants in implementing the Pilot Plan
prior to completion of the bilateral discussions:
[64]
To sum up, a representative of the applicants was designated by the BCAFC to
attend meetings of the CGIAC, thus allowing the applicants to be kept informed,
however indirectly, of the work being done by the CIC on the Reform Proposal.
Once DFO was ready to proceed with stakeholder consultations, the applicants
were sent a letter explaining the situation, as well as a copy of the Reform
Proposal and a written questionnaire allowing them to submit comments to the
Minister. The applicants also participated in one of the stakeholder meetings
held in November 2005. Two bilateral meetings were also held with the
applicants in November 2005, at which the Reform Proposal was discussed. The
applicants then submitted to the respondent a proposed consultation protocol,
and refused to discuss substantive issues for the next two and a half months,
insisting that the Minister first agree to this protocol before proceeding any
further. Once the consultation process resumed in February, the applicants
forwarded over one hundred questions to DFO, many of which the respondent
insists were not clearly connected to any aboriginal interest that would give
rise to the duty to consult. Nonetheless, DFO endeavoured to provide as many
answers as possible within a very short timeframe. Meanwhile, a series of
memoranda to the Minister were prepared in respect of the Reform Proposal,
which outlined the opposition from First Nations, including the applicants.
Finally, when the Pilot Plan was adopted, it contained some important changes
meant to address concerns of stakeholders, notably the fact that it was now to
be a three-year pilot project. There was also a specific commitment to First
Nations that additional lingcod and dogfish catch history would be made
available to them as lingcod and dogfish quotas. That measure, according to the
respondent, was meant to address concerns raised by the NTC and other First
Nations regarding quota and non-target species, as well as to address any
additional costs incurred by the applicants as a result of the implementation
of the Pilot Plan. As such, it is clear that a measure was introduced in the
Pilot Plan to accommodate the potential adverse effects of the Reform Proposal
identified by the applicants.
[65]
While it is conceded by the respondent that bilateral consultations with the
applicants had not concluded prior to a decision being made by the Minister on
the Pilot Plan, I agree with the respondent that the applicants were provided
with sufficient opportunities to participate in the process to satisfy the duty
of the Minister to consult in this case, and that some of the delays that
prevented the consultations from concluding prior to the decision being made
were caused by the applicants.
[66]
Given the multilateral consultations that were held by DFO in which the
applicants took part, given the conservation issues at stake, given the
potential impact on groundfish fisheries of the introduction of the 100 per
cent monitoring of all catch for the 2006 fishing season without the
implementation of transferable IQs, and given that the plan was introduced as a
three-year pilot only, I am satisfied that the Minister’s decision to proceed
without waiting for bilateral consultations with the applicants to conclude was
justified, and did not constitute a failure to abide by his duty to consult
with the applicants.
[Emphasis
added]
SUBMISSIONS OF THE PARTIES
A. Appellants’ Submissions
[20]
The appellants
submit that since the implementation of the Pilot Plan “might” adversely affect
their Aboriginal rights, i.e. commercial and FSC rights, it triggered the respondent’s
duty to consult. They argue that the respondent’s rejection of consultations
with respect to impacts other than on their commercial right to fish was an
error of law that is reviewable on a correctness standard and that Blais J.
erred in law by failing to apply this standard when reviewing the respondent’s determination.
The appellants also say that the Judge made a patently unreasonable finding when
he found that they were not concerned about the effects of the Pilot Plan upon
their FSC rights.
[21]
With
respect to the scope of the duty to consult, the appellants say that Blais J.
erred in law in limiting the duty to consult to their commercial right to fish and
in finding that the duty fell at the lower end of the spectrum. On the basis of
R. v. Sparrow, [1990] 1 S.C.R. 1075 and R. v. Gladstone, [1996] 2
S.C.R. 723, the appellants submit that whether the respondent’s action was justified
depends on the degree of consultations rather than on whether the objective of
the action was conservation. Furthermore, they submit that the Judge erred in
law in failing to look at each aspect of the Pilot Plan in determining whether
it was justified and point to the fact that the transferable IQs found in the
Pilot Plan did not have conservation as their main objective.
[22]
The appellants
also submit that Blais J. erred in determining that the respondent had met his duty
to consult because he incorrectly determined the scope of consultations
required. Further, the appellants submit that the multilateral stakeholder
consultations, the nature of the Pilot Plan, the accommodation made by the respondent
and their behaviour did not and cannot serve to eliminate their right to be
meaningfully consulted.
[23]
With
respect to the issue of multilateral consultations, the appellants assert that
the Judge erred in finding that these consultations were sufficient to satisfy
the respondent’s duty to consult. In their view, such consultations were not
sufficient, even if the scope of the duty to consult is at the lower end of the
spectrum.
[24]
The
appellants further argue that it was wrong for the Judge to consider the
urgency of implementing the Pilot Plan and the fact that that plan was a
three-year pilot project only in determining whether the Minister had met his
duty to consult and accommodate. In their view, the duty to consult depends on
the strength of the claim at issue and the degree of infringement, and as a
result, even if the Pilot Plan was a pilot project, serious impacts on their
rights could still result from implementation of the Pilot Plan. With respect
to the accommodation made by the respondent, the appellants say that lingcod
and dogfish allocations in favour of First Nations were unilateral measures
that cannot satisfy the respondent’s duty to consult.
[25]
Finally,
the appellants submit that the Judge erred in finding that their conduct somehow
lessened their right to be consulted. They say that they should not be blamed
for the fact that they consistently requested bilateral consultations in
accordance with the proposed framework set out in Haida, supra.
B. Respondent’s Submissions
[26]
The respondent
submits that Blais J. was correct in finding that any adverse impacts on the appellants’
rights were limited and that the duty to consult pertained only to the
appellants’ commercial right to fish. With respect to the appellants’ FSC rights,
the respondent argues that the Pilot Plan does not impact these rights, as any
allocations for such rights were to be made before any allocations were made to
the commercial sector. Hence, the respondent submits that the Judge was correct
in concluding that the appellants’ FSC rights would not be impacted by the
implementation of the Pilot Plan because there was no “meaningful impact” on
these rights. Furthermore, the respondent submits that any impact on the treaty
process does not trigger a duty to consult.
[27]
With respect
to the scope of the duty to consult, the respondent submits that the Judge
correctly determined that that duty lies at the lower end of the spectrum, since
the adverse impacts on the appellants’ commercial right to fish were limited.
Indeed, according to the respondent, it was not shown that there would be any
alteration of the Fisheries or high risk of non-compensable damages resulting
from the Pilot Plan. The respondent says that the appellants incorrectly submit
that the Judge based his finding with respect to the scope of the duty on the
fact that a commercial right was at issue and that any impact was justified
because the goal of the Pilot Plan was conservation. Rather, the Judge based
his finding on the fact that the only alleged right impacted was a commercial
right and that the impacts on this right would be limited, because of, amongst
other things, the conservation aspect of the Pilot Plan.
[28]
While the
respondent admits that the consultations did not conclude to the satisfaction
of the appellants before the Minister made his decision, he submits that Blais
J. correctly concluded that there was no breach of the duty to consult,
pointing out that there was no requirement that the consultations conclude to
the satisfaction of the First Nations and that the reason why the consultations
had not concluded was due in part to the appellants’ conduct. The respondent
further submits that the appellants’ position on IQs had crystallized by the
time of the bilateral meetings in February 2006 and according to Taku, supra,
consultations can terminate at this point. The respondent also submits that the
urgency of making a decision in light of conservation concerns was also a
factor to be considered in determining the Minister’s duty to consult.
[29]
The
respondent argues that, in the end, the Judge rightly concluded that the appellants’
participation in the multilateral process coupled with the fact that any duty
to consult was at the lower end of the spectrum was sufficient to satisfy any
duty to consult while the Reform Proposal was being developed. However, the
appellants’ participation was only one factor, along with others, that led to
the conclusion that the Minister had satisfied his duty to consult.
[30]
On the
issue of accommodation, the respondent submits that for most of the period at
issue, the appellants did not consult with the Minister’s officials and
opportunities to discuss accommodation were limited. Moreover, although DFO
attempted to consult with the appellants about making extra quota available as
a means to accommodate them, the appellants were no longer interested in
consulting with DFO after they were advised that the Minister would be implementing
the Pilot Plan in April 2006.
[31]
In the
event that this Court finds that the Minister breached his duty to consult and
to accommodate the appellants, the respondent submits that the Court should
exercise its discretion and not quash the Pilot Plan. Rather, the Minister proposes
other remedies such as a declaration of the need for further consultation
between the parties, directions as to the scope, content and schedule of the
consultations and providing leave to the parties to seek further directions.
ISSUES
[32]
The appeal
raises the following issues:
1. Did the Judge err in finding that
the right at issue was the appellants’ right to fish commercially?
2. Did the Judge err in finding
that the scope of the Minister’s duty to consult lies at the lower end of the
spectrum?
3. Did the Judge err in finding
that the Minister met his duty to consult and accommodate?
ANALYSIS
A. Standard of
review
[33]
The
learned Judge did not determine what standard of review applied to the Minister’s
decision to introduce the Pilot Plan. In Haida, supra, the Supreme Court
offered the following guidance with respect to the standard of review applicable
to a decision of the Crown which gave rise to a duty to consult:
61 On
questions of law, a decision-maker must generally be correct: for example, Paul
v. British
Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585,
2003 SCC 55. On questions of fact or mixed fact and law, on the other hand, a
reviewing body may owe a degree of deference to the decision-maker. The
existence or extent of the duty to consult or accommodate is a legal question
in the sense that it defines a legal duty. However, it is typically premised on
an assessment of the facts. It follows that a degree of deference to the
findings of fact of the initial adjudicator may be appropriate. The need for
deference and its degree will depend on the nature of the question the tribunal
was addressing and the extent to which the facts were within the expertise of
the tribunal: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247,
2003 SCC 20; Paul, supra. Absent error on legal issues, the tribunal may
be in a better position to evaluate the issue than the reviewing court, and
some degree of deference may be required. In such a case, the standard of
review is likely to be reasonableness. To the extent that the issue is one of
pure law, and can be isolated from the issues of fact, the standard is
correctness. However, where the two are inextricably entwined, the standard
will likely be reasonableness: Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
62 The
process itself would likely fall to be examined on a standard of
reasonableness. Perfect satisfaction is not required; the question is
whether the regulatory scheme or government action "viewed as a whole,
accommodates the collective aboriginal right in question": Gladstone, supra, at para. 170.
What is required is not perfection, but reasonableness. As stated in Nikal,
supra, at para. 110, "in ... information and consultation the concept
of reasonableness must come into play... . So long as every reasonable
effort is made to inform and to consult, such efforts would suffice." The
government is required to make reasonable efforts to inform and consult. This
suffices to discharge the duty.
63 Should
the government misconceive the seriousness of the claim or impact of the
infringement, this question of law would likely be judged by correctness.
Where the government is correct on these matters and acts on the appropriate
standard, the decision will be set aside only if the government's process is
unreasonable. The focus, as discussed above, is not on the outcome, but on
the process of consultation and accommodation.
[Emphasis
added]
[34]
Thus, in
my view, the determination of the existence and extent of the duty to consult
or accommodate is a question of law and, hence, reviewable on a standard of
correctness. However, when the Crown has correctly determined that question,
its decision will be set aside only if the process of consultation and
accommodation is unreasonable. In my view, the Supreme Court’s recent decision
in Dunsmuir v. New
Brunswick,
2008 SCC 9, does not change the standard of review applicable in this case.
B. Existence of the
Duty to Consult or Accommodate
[35]
The
Crown’s duty to consult and accommodate, as explained in Haida, supra,
arises when the Crown “has knowledge, real or constructive, of the potential
existence of the Aboriginal right or title and contemplates conduct that might
adversely affect it” (Haida, supra, para. 35) (See also: Halfway
River First Nation v. British Columbia (Ministry of Forests), [1997] 4
C.N.L.R. 45 (B.C.S.C.), at p. 71). As a corollary to this proposition is the
one that the duty to consult is triggered at a low threshold (see Mikisew,
supra, at para. 55).
[36]
In the
present matter, the Minister does not dispute the fact that he had knowledge of
the appellants’ claimed Aboriginal rights. However, the Minister does not
concede that the appellants have a strong claim and, in support of that view,
relies on the Supreme Court’s decision in R. v. NTC Smokehouse, [1996] 2
S.C.R. 672, where the Supreme Court held that two of the appellant First
Nations did not have commercial rights to sell fish.
[37]
The
appellants say that rights other than their right to fish commercially might be
affected by the implementation of the Pilot Plan. Firstly, with respect to the
potential impact on treaty settlements and socioeconomic impacts on First
Nation communities, I agree entirely with the Applications Judge that since treaty
settlements constitute a discrete process, such impact would not trigger a duty
to consult. With respect to their FSC rights, the Judge found, and I agree
entirely with him, that the appellants did not adduce any evidence to support
their contention that these rights “might” be adversely impacted. Even if the
duty to consult is triggered at a low threshold (see Mikisew Crew First
Nation v. Canada (Minister of Canadian
Heritage),
[2005] 3 S.C.R. 388, at para. 55), mere submissions are not, in my view,
sufficient to demonstrate that the Pilot Plan might have negative impacts upon
the Aboriginal right to fish for FSC purposes.
[38]
Hence, I
am of the view that Blais J. did not err in finding that the respondent correctly
determined that the appellants’ right to fish commercially was the only right which
might be adversely affected by the Pilot Plan. Although the Judge did not say what
standard of review he applied, it is clear from his Reasons that he did not
show any deference and thus he applied the standard of correctness.
C. Scope of the Duty
to Consult
[39]
The scope
of the duty to consult depends not only on the strength of the case supporting
the existence of the right at issue, but also on whether the right is limited
and on whether there are potentially adverse effects upon the right claimed (Haida,
supra, paras. 39 and 68). The Supreme Court has made it clear that when the
Aboriginal right at issue is limited or the potential for infringement is minor,
the scope of the duty lies at the lower end of the spectrum. At paragraphs 43
to 45 in Haida, supra, the Court said:
¶ 43
Against this background, I turn to the kind of duties that may arise in
different situations. In this respect, the concept of a spectrum may be
helpful, not to suggest watertight legal compartments but rather to indicate
what the honour of the Crown may require in particular circumstances. At one
end of the spectrum lie cases where the claim to title is weak, the Aboriginal
right limited, or the potential for infringement minor. In such cases, the only
duty on the Crown may be to give notice, disclose information, and discuss any
issues raised in response to the notice. "'[C]onsultation' in its
least technical definition is talking together for mutual understanding":
T. Isaac and A. Knox, "The Crown's Duty to Consult Aboriginal People"
(2003), 41 Alta. L. Rev. 49, at p. 61.
¶ 44 At
the other end of the spectrum lie cases where a strong prima facie case for the
claim is established, the right and potential infringement is of high
significance to the Aboriginal peoples, and the risk of non-compensable damage
is high. In such cases deep consultation, aimed at finding a satisfactory
interim solution, may be required. While precise requirements will vary
with the circumstances, the consultation required at this stage may entail the
opportunity to make submissions for consideration, formal participation in the
decision-making process, and provision of written reasons to show that
Aboriginal concerns were considered and to reveal the impact they had on the
decision. This list is neither exhaustive, nor mandatory for every case. The
government may wish to adopt dispute resolution procedures like mediation or
administrative regimes with impartial decision-makers in complex or difficult
cases.
¶ 45 Between
these two extremes of the spectrum just described, will lie other situations.
Every case must be approached individually. Each must also be approached
flexibly, since the level of consultation required may change as the process
goes on and new information comes to light. The controlling question in all
situations is what is required to maintain the honour of the Crown and to
effect reconciliation between the Crown and the Aboriginal peoples with respect
to the interests at stake. Pending settlement, the Crown is bound by its
honour to balance societal and Aboriginal interests in making decisions that
may affect Aboriginal claims. The Crown may be required to make decisions in
the face of disagreement as to the adequacy of its response to Aboriginal
concerns. Balance and compromise will then be necessary.
[Emphasis
added]
[40]
The relevant
weight to be given to each of the factors mentioned in Haida, supra, will
depend upon the facts of the case. For example, one factor may be determinative
for locating on the spectrum the duty to consult. In Mikisew Cree First
Nation, supra, the Court found that the Crown’s duty to consult laws at the
lower end of the spectrum, notwithstanding that the rights at issue (treaty
rights to hunt and trap) were certain and that the impacts upon those rights were
clear, established and demonstrably adverse to the continued exercise of
hunting and trapping rights.
[41]
In the
present matter, even though the Judge appears to have accepted that the appellants
made a strong prima facie case with respect to their right to fish
commercially, he nonetheless found that the Minister’s duty to consult was located
at the lower end of the spectrum because “any infringements or adverse effects
on the rights of the [appellants] to fish commercially resulting from the Pilot
Plan would be limited, particularly in light of the fact that the [respondent]
was pursuing a compelling and substantial objective of conservation of the
resource in question for the benefit of all Canadians, including the [appellants]”
(Judge’s Reasons, paragraph 46).
[42]
It appears
that the Judge came to that view in part by reason of the Minister’s submission
that a government can legitimately pursue a broad range of objectives that can
justify an infringement of the Aboriginal rights at issue. Such justification
to the infringement would lead to a finding of a minimal duty to consult. This
conclusion raises the question of whether the doctrine of justification, as set
out in Sparrow, supra, and Gladstone, supra,
is applicable in cases where the scope of the duty to consult is at issue.
[43]
In Mikisew
Cree First Nation, supra, the Supreme Court discussed the application of Sparrow,
supra, in the context of the analysis of the Crown’s duty to consult:
56 In
summary, the 1899 negotiations were the first step in a long journey that is
unlikely to end any time soon. Viewed in light of the facts of this case, we
should qualify Badger's identification of two inherent limitations on Indian
hunting, fishing and trapping rights under Treaty 8 (geographical limits and
specific forms of government regulation) by a third, namely the Crown's right
to take up lands under the treaty, which itself is subject to its duty to
consult and, if appropriate, accommodate First Nations' interests before
reducing the area over which their members may continue to pursue their
hunting, trapping and fishing rights. Such a third qualification (not at issue
in Badger) is fully justified by the history of the negotiations leading to
Treaty 8, as well as by the honour of the Crown as previously discussed.
57 As
stated at the outset, the honour of the Crown infuses every treaty and the
performance of every treaty obligation. Treaty 8 therefore gives rise to
Mikisew procedural rights (e.g. consultation) as well as substantive rights
(e.g. hunting, fishing and trapping rights). Were the Crown to have barrelled ahead
with implementation of the winter road without adequate consultation, it would
have been in violation of its procedural obligations, quite apart from whether
or not the Mikisew could have established that the winter road breached the
Crown's substantive treaty obligations as well.
58 Sparrow
holds not only that rights protected by s. 35 of the Constitution Act, 1982 are
not absolute, but also that their breach may be justified by the Crown in
certain defined circumstances. The Mikisew rights under Treaty 8 are protected
by s. 35. The Crown does not seek to justify in Sparrow-terms shortcomings in
its consultation in this case. The question that remains, therefore, is whether
what the Crown did here complied with its obligation to consult honourably with
the Mikisew First Nation.
(3) Was the
Process Followed by the Minister Through Parks Canada in this Case
Sufficient?
59 Where,
as here, the Court is dealing with a proposed "taking up" it
is not correct (even if it is concluded that the proposed measure if implemented
would infringe the treaty hunting and trapping rights) to move directly to a Sparrow
analysis. The Court must first consider the process by which the "taking
up" is planned to go ahead, and whether that process is compatible with
the honour of the Crown. If not, the First Nation may be entitled to succeed in
setting aside the Minister's order on the process ground whether or not the
facts of the case would otherwise support a finding of infringement of the
hunting, fishing and trapping rights.
[Emphasis
added]
[44]
In light
of the above considerations, I am of the view that the learned Judge was wrong
to rely on the grounds put forward by the Minister to justify the infringement
of the appellants’ right to fish commercially at the stage of determining what
the scope of the Minister’s duty to consult was. Even if the Judge did not expressly
state in his Reasons that he was relying on Sparrow, supra, and on the Supreme
Court’s subsequent decision in Gladstone, supra, he nonetheless referred
to passages in those decisions in characterizing the Minister’s objective of
conservation as “compelling and substantial”. As appears clearly from its
decision in Mikisew Cree First Nation, supra, the Supreme Court views
the process followed and the duty to consult attached to it as a question distinct
from that of whether there is infringement of an Aboriginal right and whether
the infringement is justified. Thus, the conservation objective of the Pilot
Plan was, in my view, not relevant at this stage of the analysis, except to the
extent that the pursuit of conservation would lead to or result in minimal
impact on the Aboriginal right at issue.
[45]
The proper
approach required the Judge, in my view, to focus on whether the Aboriginal
claim was weak, limited, or whether the potential for infringement was minor. Although
the Judge erred in the approach that he took, I am nonetheless satisfied that
he was correct in finding that the Minister’s duty to consult was located at
the lower end of the spectrum. Like the Judge, I am satisfied that any impact
of the Pilot Plan on the appellants’ right to fish commercially would be
limited. On the evidence, it is unclear how exactly the Pilot Plan impacts
negatively upon the appellants’ right. It is clear, however, that the
implementation of the Pilot Plan does not result in either an alteration of the
Fisheries or create a high risk of non-compensable damages.
[46]
I
therefore conclude, as did the Judge, that the scope of the Minister’s duty
herein lies at the lower end of the spectrum. Again, although the Judge did not
mention what standard of review he applied, he does not appear to have shown
deference and therefore, in my view, he applied the correctness standard.
D. Was the Duty to
Consult Met?
[47]
Because he
found that the Minister had correctly determined the right which triggered the
duty to consult and the scope of that duty, the Judge then addressed the issue
of whether the process of consultation and accommodation implemented by the
Minister was reasonable. After reviewing the evidence and the authorities, he
concluded that “the Minister’s decision to proceed without waiting for
bilateral consultations with the applicants to conclude was justified, and did
not constitute a failure to abide by his duty to consult with the applicants”
(Judge’s Reasons, para. 66).
[48]
More
particularly, the Judge first dealt with the period during which the Reform Proposal
was being developed. He concluded that during this period, bilateral
consultations were not required and that the multilateral process through the
CGIAC was sufficient to satisfy the Minister’s duty. With respect to the period
during which the reform proposal was put forward for discussion by the Minister,
the Judge found that notwithstanding the fact that bilateral consultations with
the appellants had not run their full course, the Minister had nonetheless
fulfilled his duty to consult. In so concluding, the Judge observed that the
appellants’ conduct was responsible for some of the delays which had prevented
the bilateral consultation process from concluding prior to the Minister’s
decision.
[49]
The
determination of whether the Minister’s duty to consult and accommodate is
reasonable depends essentially on the scope of the duty to consult. Where the
scope of the duty is located at the lower end of the spectrum, as here, the
respondent’s duty may possibly be limited to giving notice of its intended
action, disclosing information and discussing issues raised in response to the
notice.
[50]
In the
present matter, there can be no doubt, in my view, that the respondent clearly demonstrated
an intention of substantially addressing Aboriginal concerns through a
meaningful process of consultation. I can see no basis to disagree with the
Judge’s finding that the Minister provided the appellants with sufficient
opportunities to participate in the process. The Judge also found, and I see no
reason to disagree with his view, that the appellants were partly to blame for
the delays which occurred during the course of the consultation process.
[51]
In R.
v. Douglas, 2007 BCCA 265, leave to appeal to S.C.C. refused, [2007]
S.C.C.A. No. 352 (QL), the British Columbia Court of Appeal dealt with the
question of whether multilateral consultations were sufficient so as to satisfy
the Minister’s duty to consult. The Court held that given the nature of the Fishery,
the number of First Nations involved and the lack of unanimity between them,
joint consultation was reasonable and appropriate as DFO had provided the First
Nations with the necessary information, technical assistance and opportunities
to express their concerns:
40 In
this case, DFO conducted extensive and detailed consultations with Fraser River
First Nations as to its conservation objectives. Given the nature of the Fraser River salmon
fishery, the number of First Nations involved, and the lack of unanimity
between them on important issues, DFO's emphasis on joint consultations was
reasonable and appropriate. DFO provided the necessary information and
technical assistance. DFO provided opportunities for the First Nations to
express their concerns and resources to facilitate the meetings. DFO adjusted
the escapement target and exploitation rate in response to First Nations'
concerns. In this way, DFO complied with the standard set out in Halfway River,
supra, and in Mikisew Cree First Nation v. Canada (Minister of Canadian
Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 at para. 64. Because the Cheam
refused to participate in the joint consultations, DFO attempted to consult
them separately. The trial judge found, and the appeal judge agreed, that DFO's
efforts to engage the Cheam in consultation were reasonable and in good faith.
[Emphasis
added]
[52]
In Douglas,
supra, the B.C. Court of Appeal also found that First Nations were
duty-bound to consult with the Minister in good faith and that they could not,
by their conduct, place unnecessary obstacles in the way of the consultation
process. The Court, at paragraph 39 of its Reasons, referred to the following
passage from Halfway River First Nation, supra, which identified a
reciprocal duty of First Nations in the consultation process:
161. … There is a
reciprocal duty on Aboriginal Peoples to express their interests and concerns
once they have had an opportunity to consider the information provided by the
Crown, and to consult in good faith by whatever means are available to them.
They cannot frustrate the consultation process by refusing to meet or
participate, or by imposing unreasonable conditions…
[53]
In Douglas, supra, the B.C. Court of Appeal
went on to find that the First Nations had not fulfilled their reciprocal duty
to carry out their end of the consultation process to the extent that its
members deliberately frustrated the Minister’s attempts to consult:
45
Finally, it is illogical to conclude that DFO failed to conduct adequate
consultations with the Cheam because DFO did not approach them on a minor
matter, when the trial judge found that the Cheam had failed to respond to
repeated requests to meet, consult or respond on the major issues.
Significantly, the Cheam failed to communicate their needs in concrete terms in
response to DFO's request that they do so. The Cheam did not fulfil their
reciprocal obligation to carry out their end of the consultation. To hold that
members of a First Nation who deliberately frustrated all of the government's
attempts to consult, and thereby failed in its own obligations should receive a
remedy for an infringement of its aboriginal right because the government did
not approach it on a minor issue goes far beyond what is required to justify
DFO's conduct. DFO's duty as described by the Supreme Court of Canada in
Sparrow was to uphold the honour of the Crown and conform to the unique
contemporary relationship between the Crown and aboriginal peoples. As the trial
judge held, "the refusal by the Cheam to meet, to communicate, and to
refuse to attend group discussions has direct implications on the assertion the
consultation efforts of government are flawed" (at para. 73).
[54]
It follows
from Haida, supra, that in determining whether the Minister has met his
duty to consult, perfect satisfaction is not required. To the extent that the
Minister makes reasonable efforts to inform and consult the First Nations which
might be affected by the Minister’s intended course of action, this will normally
suffice to discharge the duty. As McLauchlin C.J. said at paragraph 39 of her
Reasons in Haida, supra:
[39] The content of the
duty to consult and accommodate varies with the circumstances. Precisely what
duties arise in different situations will be defined as the case law in this
emerging area develops. In general terms, however, it may be asserted that the
general scope of the duty is proportionate to a preliminary assessment of the
strength of the case supporting the existence of the right or title, and to the
seriousness of the potentially adverse effect upon the right or title claimed.
[55]
In my
view, the Minister, in the present matter, took sufficient steps to discharge
his duty to consult. His efforts, while not perfect, were reasonable and
appropriate in the circumstances. DFO’s commitment to continue to consult with the
appellants and make extra lingcod and dogfish quota available as a means to
accommodate potential impacts of the Pilot Plan on the appellants’ commercial
right to fish shows good faith on its part. Indeed, the appellants do not take
the position that DFO acted in bad faith.
[56]
I
therefore conclude that Blais J. did not make a reviewable error in finding
that the Minister had met his duty to consult with the appellants.
DISPOSITION
[57]
For these
reasons, I would dismiss the appeal with costs.
“M.
Nadon”
“I
agree.
Marc
Noël J.A.”
“I
agree.
C. Michael Ryer J.A.”
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