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ABORIGINAL STATUS AND RIGHTS - Duties of the Crown - Consultation and accommodation

Tuesday, August 25, 2020 @ 6:09 AM  

Appeal by the First Nation from a decision dismissing its application for judicial review of the Minister of Fisheries and Oceans’ decision to issue a Salmonid Introductions and Transfer Licence (the Licence) to the respondent. At issue were the risk for wild Pacific salmon posed by PRV, a highly infectious virus and HSMI, an infectious disease found in farmed Atlantic Salmon. The appellant was convinced that PRV and HSMI posed a threat to the wild salmon stocks which it relied on for food, social and ceremonial purposes. The Minister viewed the threat level as very low. The respondent operated an open net salmon facility adjacent to the appellant’s territory. Several distinct wild salmon populations were found in this area were critically important to the appellant for food, social and ceremonial purposes. Restocking the respondent’s open-net facilities was at the heart of this litigation because it carried an as-yet uncircumscribed risk of introducing disease agents into the waters used by wild salmon. The appellant argued the Federal Court erred in finding that there was no breach of the duty to consult about the Licence and in not quashing the Licence.

HELD: Appeal allowed. When the Federal Court found that there had been a breach of the duty to consult about the PRV Policy, it should also have found that there was a breach of the duty to consult with respect to the Licence. It would offend common sense to hold otherwise. To the extent that the evolution of the science around PRV and HSMI was found to be a novel adverse impact with respect to the PRV Policy, that same evolution of science created a potential novel adverse impact with respect to the authorization to release untested fish, which was the operational result of the PRV Policy. The court could not dispose of this appeal by finding that the PRV Policy decision was wrongly decided. That would amount to a collateral attack on a decision that had not been appealed.

'Namgis First Nation v. Canada (Minister of Fisheries, Oceans and Canadian Coast Guard), [2020] F.C.J. No. 778, Federal Court of Appeal, J.D.D. Pelletier, J. Gauthier and J.M. Woods JJ.A., July 17, 2020. Digest No. TLD-August242020004