Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al., 2007 FC 763

• Judge: Blanchard, J.
• Court: Federal Court (Canada)
• Case Date: January 23, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2007 FC 763;(2007), 315 F.T.R. 178 (FC)

Ka'a'Gee Tu First Nation v. Can. (A.G.) (2007), 315 F.T.R. 178 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. AU.002

Chief Lloyd Chicot suing on his own behalf and on behalf of all Members of the Ka'a'gee Tu First Nation and the Ka'a'Gee Tu First Nation (applicants) v. The Attorney General of Canada and Paramount Resources Ltd. (respondents)

(T-1379-05; 2007 FC 763)

Indexed As: Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al.

Federal Court

Blanchard, J.

July 20, 2007.

Summary:

The Ka'a'Gee Tu First Nation (KTFN) and its Chief applied for judicial review of a decision to approve a recommendation of the third phase of an oil and gas development project proposed by Paramount Resources Ltd. in the Northwest Territories. The project was located in the Cameron Hills, over which the KTFN claimed aboriginal and treaty rights. The KTFN stated that the project negatively impacted their established treaty rights and their asserted aboriginal rights and that the Crown had a duty to consult and accommodate before approving the project. The KTFN claimed that the Crown failed to meet that duty.

The Federal Court allowed the application. The court declared that the Crown breached its duty to consult with the KTFN before deciding to approve the project. The court ordered that the parties engage in a process of meaningful consultation with the view of taking into account the concerns of the KTFN and if necessary accommodate those concerns. The process was to be conducted with the aim of reconciliation in a manner that was consistent with the honour of the Crown and the principles articulated by the Supreme Court of Canada in the Haida and Taku cases.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - The Ka'a'Gee Tu First Nation (KTFN) and its Chief applied for judicial review of a decision to approve a recommendation of the third phase of an oil and gas development project proposed by Paramount Resources Ltd. in the Northwest Territories - The project was located in the Cameron Hills, over which the KTFN claimed aboriginal and treaty rights - The KTFN stated that the project negatively impacted their established treaty rights and their asserted aboriginal rights and that the Crown had a duty to consult and accommodate before approving the project - The KTFN claimed that the Crown failed to meet that duty - The Federal Court declared that the Crown breached its duty to consult with the KTFN before deciding to approve the project - With respect to the scope of the duty to consult, the court stated that "the contextual factors in this case, particularly the seriousness of the impact on the Aboriginal people, by the Crown's proposed course of action and the strength of the applicants' asserted aboriginal claim, militate in favour of a more important role of consultation. The duty must in these circumstances involve formal participation in the decision-making process" - See paragraph 119.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - The Ka'a'Gee Tu First Nation (KTFN) and its Chief applied for judicial review of a decision to approve a recommendation of the third phase of an oil and gas development project proposed by Paramount Resources Ltd. in the Northwest Territories - The project was located in the Cameron Hills, over which the KTFN claimed aboriginal and treaty rights - The KTFN stated that the project negatively impacted their established treaty rights and their asserted aboriginal rights and that the Crown had a duty to consult and accommodate before approving the project - The KTFN claimed that the Crown failed to meet that duty - The Federal Court declared that the Crown breached its duty to consult with the KTFN before deciding to approve the project - The applicants had participated in the decision making process up until the point where the Crown availed itself of the "consult to modify" process provided under the MacKenzie Valley Resource Management Act - The consult to modify process resulted in a substantial revision of certain key recommendations of the Mackenzie Valley Environmental Impact Review Board without consultation with the applicants or any input from them - At that stage the applicants were essentially shut out of the process - The manner in which the consult to modify process was implemented in this case failed to fulfil the Crown's duty to consult and was inconsistent with the honour of the Crown - See paragraphs 100 to 124.

Indians, Inuit and Métis - Topic 3.1

Judicial review of exercise of Crown's duty to Indians - The Ka'a'Gee Tu First Nation (KTFN) and its Chief applied for judicial review of a decision to approve a recommendation of the third phase of an oil and gas development project proposed by Paramount Resources Ltd. in the Northwest Territories - The project was located in the Cameron Hills, over which the KTFN claimed aboriginal and treaty rights - The KTFN stated that the project negatively impacted their established treaty rights and their asserted aboriginal rights and that the Crown had a duty to consult and accommodate before approving the project - The KTFN claimed that the Crown failed to meet that duty - The Federal Court held that the question of whether the regulatory process at issue and its implementation discharged the Crown's duty to consult and accommodate in the circumstances was to be examined on the standard of reasonableness - Questions concerning the existence and content of the duty were to be reviewed on the standard of correctness - See paragraphs 90 to 93.

Cases Noticed:

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, consd. [para. 78].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, consd. [para. 78].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; 13 D.L.R.(4th) 321, refd to. [para. 94].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 70 D.L.R.(4th) 385, refd to. [para. 94].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 94].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 178 D.L.R.(4th) 666; 1999 BCCA 470, refd to. [para. 116].

Counsel:

Louise Mandell, Q.C., Timothy Howard and Cheryl Sharvit, for the applicant;

Donna Tomljanovic, for the respondent, Attorney General;

Everett Bunnell, Q.C., and Jung Lee, for the respondent, Paramount Resources Ltd.;

Vickie Giannacopoulos and Ronald M. Kruhlak, for the respondent, Mackenzie Valley.

Solicitors of Record:

Mandell Pinder, Vancouver, British Columbia, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Edmonton, Alberta, for the respondent, Attorney General;

Macleod Dixon, Calgary, Alberta, for the respondent, Paramount Resources Ltd.;

McLennon Ross LLP, Edmonton, Alberta, for the respondent, Mackenzie Valley.

This application was heard on January 23, 2007, at Vancouver, British Columbia, before Blanchard, J., of the Federal Court, who delivered the following decision on July 20, 2007.