In August, the Federal Court of Appeal issued its decision in Squamish First Nation v Canada (Fisheries and Oceans), 2019 FCA 216. The Court held that the Department of Fisheries and Oceans Canada’s decision denying a request by the Squamish Nation to increase its allocation of Fraser River salmon was unreasonable and in breach of the duty to consult.
The Court issued a declaration requiring that the Department engage in a fresh round of consultation with Squamish, and went on to take the unusual step of providing specific advice to the Department and Squamish on how the consultation process should proceed.
What it is about
The Department sets annual limits on the amount of Fraser sockeye salmon which can be harvested by First Nations for food, social and ceremonial purposes. The abundance of Fraser sockeye has declined in recent decades, such that in several of the past years the sockeye return has been insufficient to meet the existing fishery allocations for First Nations, including Squamish.
In 2011, Squamish sought an increase in the annual catch limit on the basis that its population had substantially increased since the 1990s, when the allocation was established. The Department increased Squamish’s allocation in part but denied the remainder of the request.
The Federal Court Decision
Squamish brought an application for judicial review of the Department’s decision. The Federal Court dismissed the application on the basis that Squamish had failed to establish that the Department’s decision adversely affected Squamish’s asserted right to fish for Fraser sockeye, and that the decision was substantively reasonable, taking into account competing factors within the complex nature of fisheries management. Squamish appealed the Federal Court’s decision.
What the Court said
In a unanimous decision, the Federal Court of Appeal found that the Department’s decision was unreasonable and in breach of the duty to consult.
The Department’s Failure to Consult
The Court held that contrary to the Federal Court’s decision, the basis of Squamish’s asserted right was not the federal fishery allocation program – it was the fact that prior to European contact, Squamish had relied on Fraser sockeye salmon as a principal source of food.
The Court further affirmed that the duty to consult is triggered at a low threshold, and as such, the information provided by Squamish was sufficient to put the Department on notice that the decision could affect Squamish’s asserted constitutional right to fish. The Court noted that it would be “illogical and impractical” to require Squamish to provide specific evidence, in advance of the decision, of the nature of the adverse impacts on its asserted rights.
The Court also found that the lower court erred in its conclusion that the Department was only required to consult at the low end of the Haida spectrum. The Court held that in all circumstances, the Crown is“required to make a meaningful effort to act in a manner consistent with the honour of the Crown.” Instead of fulfilling this obligation, the Department had passively accepted information without engaging in meaningful dialogue or responding to Squamish’s concerns.
Finally, given the complexity of the decision and a number of competing interests, the Court held that the Department was required to provide written reasons showing that Squamish’s concerns had been considered and taken into account.
Because the Department’s decision had increased the allocation, the Court decided that it should not be quashed despite the fact that it was made in breach of the duty to consult. Instead, a new consultation process was required.
In the obiter (non-binding) portion of its decision, the Court provided specific guidance on how further consultation should be conducted, including cautioning the Department that it must manage the fishery as a “caretaker” on behalf of various groups, including Squamish, who claim a constitutionally protected right to fish.
Why it matters
In the seminal 2004 decision in Haida, the Supreme Court held that the duty to consult is grounded in the honour of the Crown and exists to advance the process of reconciliation. At the same time, the Court introduced the concept of a “spectrum” of consultation, wherein the scope of the duty will be proportionate to the strength of the claimed right and the seriousness of the potential impacts.
While approaching consultation based on a spectrum can be useful, too often questions of whether the Crown’s obligations have been fulfilled are reduced to disputes about what precise level of consultation was required in the circumstances. In declining to focus on the level of consultation, the Court’s decision in Squamish reaffirms what is required to discharge the duty to consult and uphold the honour of the Crown – namely, that in all cases, the Crown must consult in good faith with the intention of substantially addressing the First Nation’s concerns. The passive receipt of information and the issuance of generic responses can never be characterized as meaningful consultation, regardless of whether the consultation is at the low or high end of the spectrum.
The decision further confirms that the duty to consult is a constitutional imperative that must be met even in the context of complex, policy-related matters which affect a number of groups and stakeholders, such as the allocation of a declining resource like the Fraser sockeye salmon fishery.
Lastly, the decision is notable for the Court’s decision to set out specific guidelines intended to facilitate further consultation between the Department and Squamish. While non-binding, the guidelines provide important insight into the Court’s perspective on what would constitute a meaningful consultation process consistent with the honour of the Crown and the overarching goal of reconciliation.
Kate Gunn, lawyer, is an associate at First Peoples Law Corporation. Kate recently completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review last year.
Jesse Donovan is an associate at First Peoples Law Corporation.
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