The Federal Court decided that Canada had sufficiently consulted with the petitioners, the Kwicksutaineuk/Ah-Kwa-Mish First Nation (KAFN), before issuing aquaculture licences to Mainstream Canada and Marine Harvest Canada in the Broughton Archipelago.
In an earlier decision, the BC Supreme Court had found that the authority to regulate aquaculture was federal and not provincial, and as a result Fisheries and Oceans Canada (DFO) had to take responsibility for over 680 BC provincial aquaculture licences that were set to expire on December 18, 2010. In his decision, Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Attorney General of Canada et al., 2012 FC 517, Justice Yves de Montigny held that in light of the circumstances surrounding Canada's assumption of regulatory authority, the consultation undertaken by DFO with the KAFN was sufficient to meet the honour of the Crown.
The Court found that the KAFN is an “Aboriginal group, and an Indian Band within the meaning of the Indian Act, RSC 1985, c 1-5, whose traditional territory is within the Broughton Archipelago near Johnstone Strait between mainland British Columbia and Vancouver Island.” Of the 680 new licences issued by DFO, 28 were issued in the Broughton Archipelago; however, the KAFN chose to challenge only two: the Burdwood Site (operated by Mainstream Canada) and the Blunden Pass Site (operated by Marine Harvest Canada Inc.). The KAFN claimed that the DFO's consultation was insufficient.
The Court had little difficulty resolving the argument that the KAFN did not have standing to bring the application, as the KAFN had previously been applicants in similar cases involving the Broughton. Additionally, the Court was clear that it was not a fatal flaw that the application was brought by the KAFN and not by a member of the Aboriginal group in a representative capacity. The Court reviewed the practical realities facing the DFO in the circumstances of this case, and applied the “balancing and compromise” required in Haida. Although the Court held that licence renewals will trigger the duty to consult, in keeping with the Rio Tinto decision, “the scope of the duty to consult does not include past infringements or existing and ongoing impacts of past actions.”
The KAFN has filed a Notice of Appeal.
Kevin O'Callaghan and Katey Grist of Fasken Martineau DuMoulin LLP's Vancouver office were counsel for Mainstream Canada on this judicial review.
Krista Robertson of Robertson Law and Reidar Mogerman of Camp Fiorante Matthews Mogerman were counsel for the KAFN.
Steven Postman and Alex Semple of the Department of Justice were counsel for the Attorney General of Canada and the Ministry of Fisheries and Oceans Canada.
Chris Watson of MacKenzie Fujisawa LLP was represented Marine Harvest Canada Inc.