Introduction

This federal court decision concerns an application by several First Nations and municipal groups ("Applicants") to overturn the Canadian Nuclear Safety Commission ("Commission") decision to renew the operating licence ("McClean Licence") for Areva Resources Canada Inc.’s ("Areva") McClean Lake Uranium mine and mill, and incorporate the care and maintenance activities at Areva’s Midwest Uranium Mine ("Midwest Site") in the renewed McClean Licence ("Areva Application").

The Applicants’ appeal of the Commission’s decision was based in part on whether the Commission had jurisdiction to consider whether the Crown’s duty to consult was owed, and if owed, whether the duty to consult was met.2 The Court dismissed all three of the Applicants’ claims. This update focuses on the two issues pertaining to the Crown’s duty to consult Aboriginal peoples.

Background

Areva applied to the Commission to obtain a 10-year renewal of its McClean Licence beginning May 31, 2009 and to incorporate the care and maintenance activities at the Midwest Site in the McClean Licence. At the time of the Commission’s decision, the Midwest Site was not operating, but was undergoing an environmental assessment regarding its future development.

The Commission scheduled a public hearing ("Hearing") to decide the Areva Application. The Applicants, who had been granted intervener status, requested an adjournment in order to receive and review disclosure of information and make fully informed submissions and develop a response. The Commission denied the adjournment request, and the Hearing took place as scheduled.3 At the Hearing, the Applicants were granted an extension of time to file written submissions in order to provide the Applicants with additional time to review any new information that had been brought forward at the Hearing.

The Applicants also expressed concern that the goal of Areva’s public information program did not include meaningful consultation, but rather was an information session. The Applicants also argued that, as an agent of the Crown, the Commission’s role is to consider whether the Crown had satisfied its constitutional duty to consult Aboriginal peoples and there was no evidence of Crown consultation at the Hearing. The Commission stated that, as an agent of the Crown, it had a duty to ensure that the decision relating to the Areva Application accords with the honour of the Crown.4 The Commission was satisfied that, to the extent that the duty to consult was engaged, it had been met with respect to the Areva Application by way of the Commission process itself and by the opportunities that were afforded for consultation within that process.5

The Commission subsequently approved the Areva Application and the Applicants applied to the Court for judicial review of the Commission’s decision. On appeal, the Applicants sought, as their principal remedy, a Court-ordered and Court-supervised negotiation process whereby the Province, the federal Crown and the Applicants would establish a consultative protocol to govern any aspect of development in the Athabasca basin. The secondary, alternative remedy proposed by the Applicants was to quash the Commission’s decision renewing the McClean Licence.

The Decision

The Court dismissed the Applicants’ request for judicial review. Regarding the Applicants’ principal remedy, the Court held that the Applicants had established neither a legal nor factual basis for such an extraordinary remedy. The Court noted that, in requesting such a remedy, the Applicants were seeking to assert a general right to consultation, and to control development in the Athabasca region irrespective of whether section 35 rights under the Constitution Act, 1982 were engaged. The Court held that the present jurisprudence does not support such a right.6

With regard to the alternative remedy requested, the Court noted that to quash the Commission’s decision would force Areva to cease operating the McClean Lake mine, which it had been operating for years and upon which community development as well as individual livelihoods depended.7 The Court also referred to a letter of support from the Athabasca Basin Development Limited Partnership ("ABDLP") that formed part of the written submissions at the Hearing that spoke to the regional importance of the mine and supported the Areva Application wholeheartedly. Furthermore, the Court noted that several of the Applicant First Nations were also part of the ABDLP. In the Court’s view, in wearing these two hats, the Applicants were now impugning a decision they also endorsed as members of the ABDLP so as to advance a broader objective.

Standard of Review and Standing

With respect to the standard of review for consultation-related issues, the Court relied on Dunsmuir v. New Brunswick8 to hold that whether the Commission has the jurisdiction to consider whether a duty to consult was owed to the Applicants should be held to a standard of correctness. With respect to the issue regarding the Commission’s decision as to whether such a duty was owed and properly discharged, the Court relied on Brokenhead Ojibway Nation v. Canada (A.G.)9 to hold that this issue should be reviewed on a standard of reasonableness.10

The Court went on to deny standing to several northern communities on the basis that they did not prove that they had representative capacity for the Aboriginal members of their respective communities.11

The Court had difficulty reconciling s. 18 of the Federal Courts Act, which requires that an applicant must be "directly affected" in order to seek a judicial review, with the claims of some of the Applicants. The Court cited Williams v. Canada (Minister of Fisheries and Oceans)12 to hold that to be "directly affected" by a decision a party must be "suffering a direct, adverse impact" from the decision at issue. In the Court’s view, several Applicants had failed to provide any evidence that they would suffer a direct, adverse impact should Areva be successful in its Application. The fact that several of the Applicants were members of the ABDLP (a supporter of the Areva Application) indicated to the Court that such Applicants actually benefited from the Commission’s decision to approve the Areva Application. Specifically, the Court held that the Aboriginal Applicants had failed to show any Aboriginal or treaty right had been impacted by the Areva Application.13

Commission’s Jurisdiction – Consultation Generally

The Court held that, insofar as the Crown is required to consult with the Aboriginal Applicants respecting its conduct, the Commission may fulfill the duty as a component of the overall process of Crown consultation.14 The Court cited Taku River Tlingit First Nation v. British Columbia (Project Assessment Director)15 for the authority that the Crown can rely on existing regulatory processes to fulfill its duty to consult but need no do so if it chooses to employ other means.16 The Court further relied on Brokenhead to hold that so far as the focus of the consultation related to matters within the scope of the Commission’s legal mandate, the Commission is the appropriate body to address the duty to consult with Aboriginal communities on behalf of the Crown.17

Commission’s Jurisdiction – Adequacy of Consultation

The Court held that the Commission was the appropriate body to decide if the adequacy of the consultation was consistent with section 35 of the Constitution Act, 1982. The Court’s decision on this particular issue was based on the Court’s finding that the Commission had both the authority under its governing legislation to decide questions of law, and that the subject matter of consultation (i.e. nuclear safety issues) fell within the Commission’s mandate and expertise.18

Duty to Consult

The Court held that the duty to consult was not triggered in the present circumstances given that the Commission’s decision focused on the renewal of a licensing application for a mine and mill that had been in operation for over ten years with no new taking up of land or authorized activities. In coming to the conclusion that no duty existed, the Court cited Brokenhead as authority that no at-large duty to consult arises in the absence of an unresolved non-negligible impact. Applying this jurisprudence to the facts, the Court noted that the Aboriginal Applicants failed to identify or establish specific Aboriginal or treaty rights that could potentially be adversely affected by a decision to Areva Application despite having had the opportunity to participate in the Hearing.

The Court stated that in the event that the duty to consult was triggered, it was minimal and consisted of giving notice, disclosing information and discussing with the Applicants the issues raised by them in response to the Areva Application. The Court cited the Applicants’ numerous written submissions, the participation of their legal counsel in the public hearings and the dialogue and discussion between the Commission staff, Areva and the Applicants as factors that contributed to consultation and an ability to participate fully in the Commission’s process.19

Discussion

The Court’s decision is noteworthy in two respects: (i) the acknowledgment and subsequent refusal to accommodate the Applicants’ claim to a general right to consultation, and (ii) the finding that, had a duty existed, the Commission proceedings are an adequate means to discharge the duty to consult.

Regarding the general right to consultation, based on the facts as presented (and without the benefit of the submissions and Hearing transcripts) it is evident that the Aboriginal Applicants’ submissions did not indicate how, when or if the Areva Application would result in specific unresolved impacts on s. 35 rights. Had the Applicants’ proffered such evidence, the Court may have found that a duty to consult existed. However, the Court was clear that the Aboriginal Applicants could not use the Commission process to address general consultation issues with the federal and provincial Crown and that were unrelated to nuclear safety issues. The fact that several of the Applicants were also part of a group that had actively promoted and supported the renewal of the McClean Licence during the Hearing was also deeply troublesome for the Court and underscored the generality of the consultation claim.

The Court’s decision is also helpful in that it clarifies that, if the Commission’s processes are conducted diligently and take into account s. 35 rights, they can be relied on to form part of the Crown’s overall consultation efforts, consultation issues.