This cased involved a challenge by the K’omoks First Nation (“FN”) with respect to the granting of four aqua-culture licences issued to non-members of the FN in its claimed traditional territory in 2010 shortly after the Federal Government took over jurisdiction for regulating aqua-culture following the Morton decision. It also involved a challenge to the Minister of renewal of these four licences in 2012 by the Minister of Fisheries.
With respect to the issuance of the 2010 licences, the court held that given the immense task faced by the Department of Fisheries and Oceans (“DFO”) in taking over jurisdiction for the regulation of aquaculture, it was reasonable for it to limit its consultation to the conditions of licences as opposed to their very issuance. The Crown acted reasonably and honourably and could not be expected to have completed an assessment of the strength of the Band’s claim before issuing the licences.
In September of 2011 DFO agreed to consider the issue of whether the four licences should renewed. As a result it started a strength of claims analysis that was complicated somewhat by the fact that some of the shellfish species at issue are not native to B.C. As a result the strength of claim analysis was not complete and the four licences were renewed in 2012 for another year.
It was not until after the release of Kwicksutaineuk Ah-Kwa-Mish Fsrst Nation v. Canada (A.G.), 2012 FC 517 http://canlii.ca/t/frv2c that DFO formally admitted that it had a duty to consult with the FN.
After reviewing all of the evidence the court found that: (1) The Crown acted reasonably and discharged it duty to consult, except that it should have admitted earlier that it had a duty to consult; (2) The Crown acted reasonably in not assessing the strength of the Band’s claim before did; (3) the Crown is under an ongoing duty to continue consultations in good faith, and if appropriate, offer accommodation.