On October 1, 2012, the Federal Court decided that Canada discharged its duty to consult with the Petitioners, the K’ómoks First Nation, in its issuance and renewal of four shellfish aquaculture licences on the coast of British Columbia. The situation that led to this judicial review results from a 2009 British Columbia Supreme Court ruling, Morton v. British Columbia (Minister of Agriculture and Lands), 2009 BCSC 136, in which the authority to regulate aquaculture was held to be federal rather than provincial, and as a result, Canada took responsibility for over 600 BC aquaculture licences that were set to expire on December 18, 2010.

In his decision, K’ómoks First Nation v. Canada (Attorney General), 2012 FC 1160, Mr. Justice Harrington follows and confirms the Federal Court decision in Kwicksutaineuk/ah-Kwa-Mish First Nation v. Attorney General of Canada et al., 2012 FC 517 dealing with finfish aquaculture, in which Fasken Martineau’s Kevin O’Callaghan acted as counsel for the Respondent, Mainstream Canada.

The judicial review concerns both the granting of the original short-term (two year) federal aquaculture licences in 2010 and the one-year renewals in 2012 of four shellfish aquaculture licences in British Columbia. The K’omoks First Nation argued that Canada had a constitutional duty to consult with it regarding both the issuance and the conditions of the licences and that Canada did not meet this duty.

The 2010 Licences

Considering the overall scheme of consultation undertaken by Canada, as described by Mr. Justice de Montigny in Kwicksutaineuk/ah-Kwa-Mish First Nation v. Attorney General of Canada et al., as well as the consultation specifically with the K’omoks First Nation, the Court held that Canada acted reasonably and discharged its duty to consult for the 2010 licences.

The Court held that it was reasonable for Canada to limit consultation to conditions of the licences, rather than their issuance. Citing Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at paragraph 45, “pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims”, the Court held that due to time constraints on the new scheme, Canada could not refuse to issue these licences that had been held by the licencees for decades.

The 2012 Renewals

Regarding the renewals, the Court recognized that Canada should have commenced consultation regarding their issuance sooner than in September 2011. However, the Court described the consultation process as a two-way street between Canada and the Band. Here, the Minister had legitimately sought particulars of the needs of the band and its past harvesting history and had not yet received an answer. The Court stated that “[t]here is no principle that the world comes to a standstill during that process” and held that Canada should not be prevented from renewing the licences until the consultation process is complete.

Conclusion

This judicial review is consistent with the Federal Court’s decision in Kwicksutaineuk/ah-Kwa-Mish First Nation v. Attorney General of Canada et al. In finding that Canada discharged its duty to consult, the Court considered the practical realities that Canada faced in issuing the federal aquaculture licences and emphasized that consultation is a two-way street. This case also reinforces the important principle that government decision makers can and must balance both societal and Aboriginal interests in their decisions.

Read the Court’s decision: K’ómoks First Nation v. Canada (Attorney General), 2012 FC 1160