Nunatukavut Community Council Inc v Canada (Attorney General), 2015 FC 981 (CanLII)

This decision was heard in the Federal Court.

The applicants, Nunatukavut Community Council Inc and Todd Russel, were challenging a decision by the Minister of the Department of Fisheries and Oceans to issue authorization to the company Nalcor Energy to build a hydroelectric-generating station in the Lower Churchill River. This project had the potential to cause harmful alteration, disruption, and destruction of fish habitat in an area that is significant to the Nunatukavut Community Council and over which they had previously asserted a land claim. The applicants claimed that they had not been adequately consulted or accommodated, that the Minister had breached her duty of procedural fairness, and that the decision also represented an improper use of the Minister’s discretionary authority. 

In deciding on this issue, the Court noted that the duty to consult with and accommodate Indigenous groups did not extend to Indigenous groups having a veto over government decision making. It noted that the government can proceed in the face of Indigenous opposition as long as the consultation process and accommodations made are fair, reasonable, and consistent with the concept of the honour of the Crown. 

Based on the facts of the case, the Court decided that the duty to consult was at the medium to low end of the spectrum and that at those levels the duty had been fulfilled. The applicants had been provided with the relevant plans and their comments had been invited under the consultation process established for the project. The Court decided that this met the standard of reasonable efforts to consult and accommodate. 

The argument that the Minister had improperly used her discretionary authority was rejected as well. Specifically, the Court found that issues raised over monitoring potential contamination of the waters surrounding the project did not indicate unreasonable or uninformed decision-making on the part of the Minister because there were effective monitoring systems in place. The applicants had also argued that the Minister had ignored available scientific information and had knowingly adopted a plan she knew would not be effective for preserving the fish habitat. The Court rejected this, finding that the issue had already been dealt with as part of the process of authorizing the project and that the applicants had failed to raise the issue during the consultation process. 

For the reasons outlined above, the appeal was dismissed and the applicants were required to pay costs.

View the Decision on CanLII: https://www.canlii.org/en/ca/fct/doc/2015/2015fc981/2015fc981.html

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