This was an application for judicial review that was a direct consequence of the Morton decision that held the provincial regulatory regime over fin fish aquaculture was constitutionally invalid. As a result of this decision, the federal government was given one year to consider and put into place a regulatory regime over aquaculture in B.C. This meant approximately 680 provincial aquaculture licences would expire on 18 December 2010 and not be renewed by the province.
The applicant First Nation brought an application for judicial review of the decision of the Department of Fisheries and Oceans (“DFO”), to issue fin fish aquaculture licences to two companies with salmon farms in the Broughton Archipelago on the north east coast of Vancouver Island. One of the sites had been licenced by the provincial government since 1992. The other site at issue had been licenced since 1993.
The applicant argued that the abundance and quality of its fishery is in decline and that the decline was being caused, in part, by the presence of salmon farms.
In deciding this application, the court examined the following issues:
(1) Did the applicant have standing;
(2) Did Canada have a duty to consult with the applicant regarding issuance of the licences;
(3) Were DFO’s efforts at consultation reasonable?
It was argued by the AG that rather than bring the application in the name of the Indian Band, the application should have been brought by an individual member of the aboriginal collective pursuant to Federal Court Rule 114(1). Since the language of s. 114(1) is permissive and not mandatory and since evidence was led establishing a connection between the band and the pre-sovereign group, the court held that the Band had standing.
DUTY TO CONSULT
The court reviewed the tests as set out in Haida Nation and in Rio Tinto (99) and held that the first two elements of the test were clearly made out. The more difficult question for court was the third requirement that there be “potential that the contemplated conduct adversely affect an Aboriginal claim or right” (99). After reviewing jurisprudence regarding change in governance, the court concluded that the “fundamental shift in the management of the aquaculture industry” created an obligation for the federal government to consult. In addition, although Haida states the duty to consult only applies to new potential adverse impacts, the court held that the “re-issuance of a licence, even if it is similar to the one it is replacing, is certainly sufficient to meet the third requirement underlying the duty to consult (110). The extent of changes brought about by the renewal will be a crucial factor in assessing the extent of the duty to consult.
With respect to evidence that fish farms adversely impact the claimed aboriginal fishing rights, after reviewing the evidence the court concluded that “there is still a lot to be learned regarding the causes of the decline of some salmon stocks in some rivers of the Broughton Archipelago (115). As a result the court held the “seriousness of the impact caused by the impugned licences on KAFN’s asserted Aboriginal right remains open to question; far from being firmly established . . . at least for now speculative.” It held that the consultation required was neither at the upper end of the spectrum nor the lower end.
WERE DFO EFFORTS REASONABLE?
After reviewing all of DFO’s consultation efforts, the court concluded its efforts were adequate. In doing so, it noted the following:
1) DFO was in a very difficult position as a result of the Morton decision;
2) DFO did in fact consult extensively over a 22 month period (119);
3) The applicant’s proposal to, in essence implement a fallowing strategy for the entire Broughton region, would have required DFO to undertake broad multilateral consultation involving all First Nations potentially involved as well as other interested parties; and
4) The applicant’s request to not issue the licences for the sites at issue did not come until one day before the expiry of the provincial licences.