In August, the Federal Court held in favour of the Ka’a’Gee Tu First Nation (KTFN) in finding that the Crown failed to discharge its duty to consult and, if necessary, accommodate the KTFN when approving a recommendation for an oil and gas project in the Northwest Territories. For a detailed summary of this case, see our Osler Update.

In this case, the project proponent, Paramount Resources Ltd. (Paramount), sought land use permits and water licenses for an extension of its existing oil and gas project in the Cameron Hill sarea, a remote area in the Northwest Territories just north of theAlberta border. The KTFN, as signatory to Treaty No. 11, held treaty rights to hunt, fish and trap in the area. The KTFN were one of several aboriginal groups claiming aboriginal title to the area, and that claim had been accepted by the federal and NWT governments in a land claim process known as the “Deh Cho Process.”

In assessing the scope of the duty that was owed to the First Nation, the Court found that the contextual factors of the case, particularly the strength of the First Nations asserted Aboriginal claim and the seriousness of the potential impact of the proposed course of action mitigated in favour of a higher duty, one that involved formal participation in the decision-making process. The Court went on to find that the duty was satisfied during the environmental review process as the First Nation benefited from formal participation in the review process.

The difficulty arose when the Crown elected to avail itself of the “consult-to-modify” process provided by section 130 of the Mackenzie Valley Resource Management Act. Under the Act, when a Review Board issues its report and related recommendations, the Responsible Ministers may agree to adopt, reject, or adopt with modifications the recommendations, after consulting with the Review Board. In this case, the Responsible Ministers met with the Review Board and significantly modified many of the Review Board’s recommendations that concerned the KTFN. During this consult-to-modify process, the KTFN was not given an opportunity to provide input into the proposed changes, nor were they allowed to participate in the meeting.

In the Court’s view, the consult-to-modify process allowed the Crown to unilaterally change the outcome of what was arguably, until that point, a meaningful process of consultation. Therefore, in respect of the new proposals, the Crown’s duty to consult had not been met.