Released in May, this case involved a decision of the federal Minister of Fisheries and Oceans under the Fisheries Act to implement a commercial groundfish pilot plan on the Pacific Coast of British Columbia to include, among other things, new terms of licences and the assignment of individual transferable quotas to commercial fishermen. The Nuu-chah-nulth First Nations sought judicial review of the Minister’s decision claiming that the Minister failed to fulfill his duty to consult and accommodate their interests before implementing the three year pilot plan.
The Department of Fisheries and Oceans (DFO) had conducted an extensive, multi-lateral stakeholder consultation program that included the formation of an advisory committee with representation from the B.C. Aboriginal Fisheries Committee. The Nuu-chah-nulth First Nations were given the opportunity to participate in this multi-lateral consultation process; however, they took the position that only bilateral consultation was acceptable. While efforts were made to consult bilaterally with the First Nations, that process was not yet complete when DFO made its decision to proceed with the pilot plan.
In its decision, the Federal Court found that the First Nations’ asserted treaty right to fish commercially in the area of the pilot plan gave rise to the duty to consult. However, the Court found that any infringement or adverse effects on the rights of the First Nations to fish commercially would be minimal, particularly given the fact that DFO was pursuing a compelling and substantial objective of resource conservation for the benefit of all Canadians, including the applicants. As such, the Court found that the duty to consult and accommodate fell on the lower end of the spectrum. With respect to the appropriate form of consultation, the Court was satisfied that the Minister’s decision to proceed without waiting for the bilateral consultations to conclude was justified and did not constitute a failure to abide by the duty to consult.
This case is significant in that it demonstrates that when the potential impact to the Aboriginal or treaty right in question is minimal, general government consultations may be sufficient to satisfy the duty.