Katlodeeche First Nation v. Canada (Attorney General) et al., (2013) 432 F.T.R. 77 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: March 19, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 432 F.T.R. 77 (FC);2013 FC 458

Katlodeeche First Nation v. Can. (A.G.) (2013), 432 F.T.R. 77 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. MY.008

Chief Roy Fabian suing on his own behalf and on behalf of all members of the Katlodeeche First Nation and the Katlodeeche First Nation (applicant) v. The Attorney General of Canada and Paramount Resources Ltd. (respondents)

(T-434-11; 2013 FC 458; 2013 CF 458)

Indexed As: Katlodeeche First Nation v. Canada (Attorney General) et al.

Federal Court

Russell, J.

May 2, 2013.

Summary:

The Katlodeeche First Nation (KFN), its Chief and members, applied for judicial review of the decision of the Minister of Indian and Northern Affairs Canada to issue a Type A Water Licence to Paramount Resources Ltd., pursuant to the Mackenzie Valley Resource Management Act and associated Regulations. The Type A Water Licence allowed Paramount to use water for oil and gas exploration and development as part of the Paramount Cameron Hills Project. The KFN asserted Treaty and Aboriginal rights in the Project area. The following issues were raised: (a) whether the Minister's duty to consult was appropriately discharged; and (b) whether the Board's process satisfied the Minister's duty to consult.

The Federal Court dismissed the application. The honor of the Crown had been upheld, and the duty to consult had been reasonably discharged.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Katlodeeche First Nation (KFN), its Chief and members, applied for judicial review of the decision of the Minister of Indian and Northern Affairs Canada to issue a Type A Water Licence to Paramount Resources Ltd., pursuant to the Mackenzie Valley Resource Management Act - The Licence allowed Paramount to use water for oil and gas exploration and development as part of the Paramount Cameron Hills Project - KFN asserted Treaty and Aboriginal rights in the Project area - The Federal Court dismissed the application - The honor of the Crown had been upheld, and the duty to consult had been reasonably discharged - KFN had nothing more than reasonably arguable Treaty and Aboriginal rights in the Project area, and the seriousness of any potential adverse impact of the Licence on those rights could be no higher than moderate - Thus, the court placed the duty to consult in the mid-range of the spectrum - "More than mere notice and information sharing were required, but the case is not one that requires deep consultation and serious accommodation" - In accordance with Haida Nation v. British Columbia (Minister of Forests) et al. (2004) (S.C.C.), KFN was provided with all necessary information in a timely way to allow it to understand how its Treaty and Aboriginal rights could potentially be impacted by the Licence - KFN was also given fair and adequate opportunity to express its interests and impact concerns, even though KFN did not always avail itself of those opportunities - Also, KFN's interests and impact concerns were seriously considered as part of the environmental assessment and Board process and by the Minister and, wherever possible and relevant, were demonstrably integrated into the terms of the Licence - Even though KFN did not always avail itself of the consultation opportunities, KFN's known concerns were, in any event, reasonably considered and reasonably accommodated by the Crown - See paragraphs 128 to 187.

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians - [See Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement (incl. requirement of consultation) - [See Indians, Inuit and Métis - Topic 3 ].

Pollution Control - Topic 9402

Appeals or judicial review - Scope of appeal or review - [See Indians, Inuit and Métis - Topic 3 ].

Cases Noticed:

Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al. (2012), 406 F.T.R. 229; 2012 FC 297, refd to. [para. 17].

Haida Nation v. British Columbia (Minister of Forests) et al. (2004), 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, appld. [para. 54].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al. (2010), 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, appld. [para. 56].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council.

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al. (2004), 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 58].

Yellowknives Dene First Nation et al. v. Canada (Attorney General) et al. (2010), 377 F.T.R. 267; 2010 FC 1139, refd to. [para. 60].

Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al. (2007), 315 F.T.R. 178; 2007 FC 763, refd to. [para. 62].

Paulette v. Canada, [1977] 2 S.C.R. 628; 12 N.R. 420, refd to. [para. 64].

Danyluk v. Ainsworth Technologies Inc. et al. (2001), 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 86].

Canada (Attorney General) v. Aéroport de Québec Inc. (2011), 384 F.T.R. 240; 2011 FC 195, refd to. [para. 86].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al. (2005), 342 N.R. 82; 2005 SCC 69, refd to. [para. 89].

Ahousaht Indian Band et al. v. Canada (Minister of Fisheries and Oceans) (2007), 313 F.T.R. 247; 2007 FC 567, refd to. [para. 101].

Cook v. British Columbia (Minister of Aboriginal Relations and Reconciliation, [2008] C.N.L.R. 1, refd to. [para. 107].

Louis v. British Columbia (Minister of Energy, Mines and Petroleum Resources) et al., [2011] B.C.T.C. Uned. 1070; 2011 BCSC 1070, refd to. [para. 116].

Manuel et al. v. British Columbia (Minister of Environment) et al., [2011] B.C.T.C. Uned. 388; 21 B.C.L.R.(5th) 81; 2011 BCSC 388, refd to. [para. 117].

Upper Nicola Indian Band v. British Columbia (Minister of Environment - see Manuel et al. v. British Columbia (Minister of Environment) et al.

Little Salmon/Carmacks First Nation et al. v. Beckman et al. (2010), 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [para. 117].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 1999 BCCA 470, refd to. [para. 146].

Statutes Noticed:

Mackenzie Valley Resource Management Act, S.C. 1998, c. 25, sect. 3, sect. 5(2), sect. 60.1(a), sect. 63(2), sect. 64(1), sect. 114(c), sect. 115(c) [para. 55].

Counsel:

Jennifer A. Duncan and John R. Rich, for the applicant;

Tracy Carroll and Ken Landa, for the respondent, the Attorney General of Canada;

Everett L. Bunnell, for the respondent, Paramount Resources Ltd.

Solicitors of Record:

McDonald & Company, Vancouver, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, the Attorney General of Canada;

Norton Rose Canada LLP, Calgary, Alberta, for the respondent, Paramount Resources Ltd.

This application was heard at Yellowknife, Northwest Territories, on March 19, 2013, before Russell, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated May 2, 2013, at Ottawa, Ontario.