This case involved an application by group of First Nations for judicial review of a decision of the Minister of Fisheries to implement a three year pilot plan for individual transferable fishing quotas in the for rockfish, lingcod and dogfish. It was alleged by the First Nations that the Minister had failed to satisfy its duty to consult before implementing the pilot plan. With respect to the scope of the duty to consult the court concluded as follows:
In this case, we are not dealing with a claim to a specific piece of land where the government might be contemplating some development project, or even the issuance of a licence to exploit resources on said land which might substantially deplete the resource in question. Rather, we are dealing with a claim of an aboriginal right to fish commercially, in the context of a proposal by the government to implement a program of quotas with a view, first and foremost, to encourage conservation, as well as to meet a number of other objectives, such as achieving greater accountability and improving economic viability. As such, the respondent argues that, rather than infringing the applicant’s alleged rights, the Pilot Plan will help protect the groundfish fisheries, for the benefit of all Canadians, including the applicants.
In ruling that the Crown had satisfied the duty to consult the court said as follows:
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. [para. 66]
Editor’s note: This case was upheld on appeal for slightly different reasons. The decision is reported at 2008 FCA 212