The Saskatchewan Court of Queen’s Bench dismissed a judicial review application brought by an Aboriginal group in relation to the posting and sale of oil sands exploratory permits in an area covered by Treaty 10. The Court held that the duty to consult was not triggered in this case. The Crown’s decision to post and sell the permits would have no adverse impacts on the petitioner’s treaty rights, since further authorizations were needed before any physical work could be undertaken on the lands. The Crown’s decision was not a “high-level planning decision” as described in Haida Nation, as no planning was involved.

In September 2012, the respondent Minister posted oil sands exploration permits for sale by sealed bid. The permits extended to lands covered by Treaty 10. In December 2012, the Minister issued two permits to Scott Land & Lease Ltd. to areas that included Treaty 10 lands.

The petitioner Buffalo River Dene Nation is a successor to the Clear Lake Indian Band, a signatory of Treaty 10. The respondent Minister did not consult with the petitioner prior to the posting of the permits for sale in September 2012, or the issuance of the permits in December 2012. The petitioner subsequently filed an application for judicial review of these decisions.

As a preliminary matter, the Court struck out affidavit evidence filed by the respondent Minister concerning correspondence with the petitioner (in 2007) about oil sands exploration. The respondent asserted that such evidence was relevant, since the materials filed by the petitioner left the impression that the petitioner had never agreed to development in the past. The Court held that such evidence was irrelevant since the duty to consult exists independently of the Aboriginal group’s support for, or opposition to, a particular development.

Whether a duty to consult was triggered is reviewed on a standard of correctness. The petitioner alleged that the Crown decision was the sort of “high-level planning decision” described in Haida Nation that will significantly influence future decisions, and is the first step in a process that will inevitably lead to further exploration. Currie J. commented:

Of course, just saying so does not make it so. There must be a reason for concluding that this is an accurate characterization of the decision to issue the permits. The nature of these permits – what they allow, how they could be used, what effect they could have – must be understood.

Currie J. reviewed the regime for exploration under Saskatchewan’s Crown Minerals Act. The type of permit issued to the respondent Scott Land & Lease does not authorize the permit holder to actually go onto the land and do anything. Further authorizations are needed to engage in physical exploration work. The Court rejected the petitioner’s arguments about the significance of regulations that require a permit holder to undertake certain works, such as drilling wells, or the permits will be forfeited. The Court noted that such steps would require further authorizations, and that many permit holders in fact conduct no activities and forfeit their permits.

The Court rejected the argument that the Crown decision was the type of “strategic high-level” planning decision discussed in the Haida Nation case. The decision was made at the administrative level, not the Ministerial level, and involved no planning. When the Ministry receives a request to post permits in certain areas, a decision will be made to post permits for sale. No planning is involved in the decision. The administrative decision to post permits is not automatic, and may be declined. The government official has no information about exploration plans. Currie J. stated:

Posting permits for sale and issuing permits are relatively straightforward processes that accommodate persons who are considering the possibility of oil sands exploration. Neither process in any way is part of the Crown beginning a strategic or planning process. Both processes simply facilitate persons who wish to gather information in considering what those persons might wish to pursue and request in the future. Neither decision was a strategic, higher‑level decision.

The permit holder would need an authorization from the provincial Ministry of Environment before conducting any physical activities on the land. The decision of this Ministry is made without reference or regard to the existence of an exploratory permit issued by the respondent Minister. Currie J. held that the issuance of an exploratory permit does not bind the Ministry of Environment when considering whether to issue a further authorization. The duty to consult “may well be engaged” at that stage.

The Court held that the duty to consult did not arise in this case, as the respondent Minister did not make a decision that could affect the use of the land. Only a decision of the Ministry of Environment allowing physical work at the lands would impact the lands and likely engage the duty to consult. Currie J. stated:

… neither the posting for sale nor the issuance of permits has the potential to adversely impact BRDN’s rights, because the posting and issuance can have no effect on the use of the land unless a later, necessary and independent step is taken. That step is the acquisition of authorization to go onto the land.

The Court referred to a statement of the BC Court of Appeal in Halfway River First Nation (1999), adopted by the Supreme Court of Canada in Mikisew (2005), that an aspect of the duty to consult involves ensuring that the interests and concerns of Aboriginal groups are “demonstrably integrated into the proposed plan of action”. Currie J. stated:

Here, there is no proposed plan of action. There is nothing to consult about.

Currie J. also reiterated that, based upon Rio Tinto, the duty to consult is only triggered when there is a causal relationship between the proposed government conduct and the potential for adverse impacts on Aboriginal rights. There is no such causal relationship here.

The judicial review application was therefore dismissed with costs.

http://www.canlii.org/en/sk/skqb/doc/2014/2014skqb69/2014skqb69.html

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law