Fond du Lac Denesuline First Nation et al. v. Canada (Attorney General) et al., (2010) 377 F.T.R. 50 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: June 08, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 377 F.T.R. 50 (FC);2010 FC 948

Fond du Lac Denesuline v. Can. (A.G.) (2010), 377 F.T.R. 50 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. SE.033

Fond du Lac Denesuline First Nation, Black Lake Denesuline First Nation, Hatchet Lake Denesuline First Nation and the Non-First Nation Aboriginal Provincial Communities of Camsell Portage, Uranium City, Stony Rapids and Wollaston Lake (known collectively as the "Athabasca Regional Government") (applicants) v. Attorney General of Canada and Areva Resources Canada Inc. (respondents) and Canadian Nuclear Safety Commission and Attorney General for Saskatchewan (intervenors)

(T-1234-09; 2010 FC 948)

Indexed As: Fond du Lac Denesuline First Nation et al. v. Canada (Attorney General) et al.

Federal Court

Russell, J.

September 22, 2010.

Summary:

The Canadian Nuclear Safety Commission decided to renew the operating licence for Areva Resources Canada Inc.'s McClean Lake Uranium mine and mill under s. 24 of the Nuclear Safety and Control Act and incorporated the care and maintenance activities at Areva's Midwest Uranium Mine into the renewed licence for McClean Lake. The applicants, a group of both First Nation and non-First Nation communities, applied for judicial review of the Commission's decision.

The Federal Court dismissed the application for want of standing on the part of the applicants. The court opined however that it would have dismissed the application on the merits in any event.

Administrative Law - Topic 9069.1

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Nuclear Safety Commission - The Canadian Nuclear Safety Commission decided to renew the operating licence for Areva Resources Canada Inc.'s McClean Lake Uranium mine and mill (Nuclear Safety and Control Act, s. 24) - The Commission also incorporated the care and maintenance activities at Areva's Midwest Uranium Mine into the renewed licence for McClean Lake (the incorporation decision) - The applicants, a group of both First Nation and non-First Nation communities, applied for judicial review of the Commission's decision - Issues raised were the Commission's jurisdiction to consider the constitutional duty to consult, and whether the Commission erred in concluding that, to the extent the duty to consult was owed, the duty was met, and whether the Commission erred in making the incorporation decision - The Federal Court dismissed the application because the applicants lacked standing, but would have dismissed the application on the merits too - The court opined that the Commission had jurisdiction to address rights under s. 35 (Constitution Act, 1982) and the Crown's obligations regarding consultation - Further, it was within the Commission's jurisdiction to decide on the adequacy of the consultation - The court opined that the duty to consult was not triggered in this case, and even if it was, any duty triggered was minimal in scope and was discharged through the process that took place in this instance, and thus the Commission's decision in this regard was correct - The applicants were attempting to assert a general right to consultation that existed irrespective of any specific s. 35 rights and impacts - The court stated that the jurisprudence made it clear that such a general free-floating right did not exist in Canadian law - As to the incorporation issue, the Act did not prohibit what occurred in this case.

Administrative Law - Topic 9069.1

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Nuclear Safety Commission - [See first Mines and Minerals - Topic 6035 ].

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decisions of federal boards, commissions or tribunals - [See second Mines and Minerals - Topic 6035 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - [See first Administrative Law - Topic 9069.1 and second Mines and Minerals - Topic 6035 ].

Mines and Minerals - Topic 6035

Operation of mines, quarries and wells - Licences and permits - Appeals or judicial review - The Canadian Nuclear Safety Commission decided to renew the operating licence for Areva Resources Canada Inc.'s McClean Lake Uranium mine and mill (Nuclear Safety and Control Act, s. 24) - The Commission also incorporated the care and maintenance activities at Areva's Midwest Uranium Mine into the renewed licence for McClean Lake (the incorporation decision) - The applicants, a group of both First Nation and non-First Nation communities, applied for judicial review of the Commission's decision - Issues raised were: (1) whether the Commission had the jurisdiction to consider whether a constitutional duty to consult was owed to the applicants and whether that duty was met on the facts before it; (2) if the Commission had such jurisdiction, whether the Commission erred in concluding that, to the extent the duty to consult was owed, the duty was met, and (3) whether the Commission erred in making the incorporation decision - The Federal Court discussed the standard of review, holding that whether the Commission had the jurisdiction to consider whether a duty to consult was owed to the applicants would be reviewed on a standard of correctness - If it was determined that the Commission had such jurisdiction, the review of the Commission's decision as to whether such a duty was owed to the applicants and whether this duty was properly discharged was reviewable on a standard of reasonableness - The final issue was one of statutory interpretation, in this case, reviewable on the standard of reasonableness - See paragraphs 35 to 43.

Mines and Minerals - Topic 6035

Operation of mines, quarries and wells - Licences and permits - Appeals or judicial review - The Canadian Nuclear Safety Commission decided to renew the operating licence (Nuclear Safety and Control Act, s. 24) for Areva Resources Canada Inc.'s McClean Lake Uranium mine and mill in Saskatchewan - The Commission also incorporated the care and maintenance activities at Areva's Midwest Uranium Mine into the renewed licence for McClean Lake (the incorporation decision) - The applicants, a group of both First Nation and non-First Nation communities collectively known as the Athabasca Regional Government (ARG), applied for judicial review of the Commission's decision - One of the principal issues was whether the Commission had jurisdiction to consider the constitutional duty, if any, to consult with the applicants - The Federal Court held that all of the applicants lacked standing - The ARG was not a legal person, rather it was just a collective term for the individual applicants - The four non-aboriginal communities did not enjoy consultation rights under s. 35 of the Constitution Act, 1982, and otherwise failed to establish that they had standing - Further, the applicants were unable to show that they were "directly affected" by the decision (Federal Courts Act, s. 18.1(1)) - See paragraphs 44 to 180.

Mines and Minerals - Topic 7082

Regulation - Boards and Commissions - Standard of review - [See first Mines and Minerals - Topic 6035 ].

Mines and Minerals - Topic 7083

Regulation - Boards and Commissions - Jurisdiction - [See first Administrative Law - Topic 9069.1 and first Mines and Minerals - Topic 6035 ].

Words and Phrases

Directly affected - The Federal Court discussed the meaning of the phrase "directly affected" as it appeared in s. 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 - See paragraphs 172 to 180.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [para. 35].

Brokenhead Ojibway Nation et al. v. Canada (Attorney General) et al. (2009), 345 F.T.R. 119; 2009 FC 484, refd to. [para. 37].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 44].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271; 81 D.L.R.(4th) 121, refd to. [para. 45].

Québec (Procureur général) v. Office national de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 48].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 66].

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, refd to. [para. 67].

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, refd to. [para. 69].

Gitanyow First Nation v. British Columbia (Minister of Forests) et al., [2004] B.C.T.C. 1734; 2004 BCSC 1734, refd to. [para. 71].

Paul v. Forest Appeals Commission (B.C.) et al., [2003] 2 S.C.R. 585; 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1, refd to. [para. 83].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al. (2009), 266 B.C.A.C. 228; 449 W.A.C. 228; 2009 BCCA 67, leave to appeal granted (2009), 402 N.R. 397; 288 B.C.A.C. 318; 488 W.A.C. 318 (S.C.C.), refd to. [para. 85].

Standing Buffalo Dakota First Nation et al. v. Enbridge Pipelines Inc. et al. (2009), 395 N.R. 355; 2009 FCA 308, refd to. [para. 85].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 99].

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al. (2010), 397 N.R. 232; 2010 SCC 2, refd to. [para. 118].

Native Council of Nova Scotia et al. v. Canada (Attorney General) et al., [2002] F.T.R. Uned. 279; 2002 FCT 6, refd to. [para. 145].

Ahousaht Indian Band et al. v. Canada (Minister of Fisheries and Oceans) (2008), 379 N.R. 297; 2008 FCA 212, refd to. [para. 146].

R. v. Douglas (K.A.) et al. (2007), 242 B.C.A.C. 164; 400 W.A.C. 164; 2007 BCCA 265, refd to. [para. 146].

Alberta v. Canadian Wheat Board, [1998] 2 F.C. 156; 138 F.T.R. 186 (T.D.), refd to. [para. 172].

Friends of the Island Inc. v. Canada (Minister of Public Works) et al., [1993] 2 F.C. 229; 61 F.T.R. 4; 102 D.L.R.(4th) 696 (T.D.), refd to. [para. 172].

Irving Shipbuilding Inc. et al. v. Canada (Attorney General) et al. (2009), 389 N.R. 72; 2009 FCA 116, refd to. [para. 175].

Friends of the Athabasca Environmental Association et al. v. Alberta Public Health Advisory and Appeal Board et al. (1994), 153 A.R. 225; 24 Admin. L.R.(2d) 156 (Q.B.), refd to. [para. 176].

Endowed Schools Act, Re, [1898] A.C. 477 (P.C.), refd to. [para. 177].

Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada (Minister of Fisheries and Oceans) et al. (2003), 227 F.T.R. 96; 2003 FCT 30, refd to. [para. 178].

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. 220].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1) [para. 34].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18.1(1) [para. 164].

Nuclear Safety and Control Act, S.C. 1997, c. 9, sect. 8, sect. 9, sect. 24 [para. 33].

Authors and Works Noticed:

Newman, Dwight G., The Duty to Consult: New Relationships with Aboriginal Peoples (2009), p. 34 [para. 210].

Counsel:

Bruce Slusar, for the applicants;

Scott Spencer, for the respondent, Attorney General of Canada;

Marlon Miller, for the respondent, Attorney General of Canada;

Douglas C. Hodson, for the respondent, Areva Resources Canada Inc.;

Vanessa M. Enweani, for the respondent, Areva Resources Canada Inc.;

Michael A. James, for the intervenor, Canadian Nuclear Safety Commission;

James Fyfe, for the intervenor, Attorney General of Saskatchewan.

Solicitors of Record:

Bruce J. Slusar, Saskatoon, Saskatchewan, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This application was heard at Saskatoon, Saskatchewan, on June 8, 2010, by Russell, J., of the Federal Court, who delivered the following reasons for judgment on September 22, 2010.