The Supreme Court of the Northwest Territories made an order that the Government of the NWT had failed to properly consult the North Slave Métis Alliance with respect to the annual harvest of the Bathurst caribou herd.

After a precipitous decline in the population of the caribou herd, the NWT closed the harvest in 2010. Subsequently, the territorial Department of Environment and Natural Resources (ENR) reached an agreement with the Tlicho Government that would allow the annual harvest of 300 caribou. This allocation of 300 caribou would be shared between the Tlicho and the Yellowknives Dene First Nation. The petitioner North Slave Métis Alliance (NSMA) participated in some of the meetings regarding the management of the Bathurst caribou herd but did not receive a share of the annual harvest. The ENR denied the NSMA’s request for such a share, and referred the NSMA to the Tlicho or Yellowknives Dene to make their own arrangements. The NSMA sought judicial review of this decision.

As a preliminary matter, the Court agreed with the NSMA that the record for this judicial review proceeding went beyond the record that was before the decision-maker. In a duty to consult case, the focus is on the process of consultation rather than the outcome. The Court is required to review evidence about the preliminary assessment of the strength of claim. If there is an allegation that the Crown failed to conduct a preliminary assessment, it is difficult to see how all of the relevant evidence could be included in the “record” filed by the government. Further, the duty to consult is a constitutional issue which should not be discussed in a factual vacuum.  It would be inconsistent with the honour of the Crown to limit the evidence which may assist the Crown in making these determinations.

The existence and extent of the duty to consult are questions of law which are reviewable on the standard of correctness. The process used for consultation and the results of the consultation are subject to the reasonableness standard. The focus is on the process, not the outcome.

The Court reviewed the plenary jurisdiction of the NWT government over wildlife management issues. The Tlicho Land Claims and Self-Government Agreement signed in 2003 provided for wildlife management proposals to be submitted to the Wek’eezhii Renewable Resources Board (WRRB). The WRRB must give priority to the Tlicho and “any other Aboriginal people” when making an allocation of a total allowable harvest level.

The NSMA is a society incorporated in 1996. It purports to represent the Indigenous Métis of the North Slave area of the NWT. Its status has not been formally recognized by Canada.

In regards to the Bathurst caribou issue, the NSMA had requested to be involved in the consultation process since 2007. The NWT government took the position that it did not recognize the NSMA since asserted rights had not been affirmed, and any discussions constituted “engagement” not “consultation”. In 2009, the NSMA requested funding to participate in the consultation process relating to the Bathurst caribou herd. Three representatives of the NSMA participated in a two-day workshop held in October 2009 hosted by the ENR. Following further discussions in 2010, the ENR concluded that the Métis would have to deal with the Tlicho and Yellowknives Dene for a share of the caribou tags. In a November 2010 letter, the Minister referred to the lack of recognition by Canada to the status of the NSMA as a distinct Aboriginal people, and that the ENR is not prepared to negotiate a harvest agreement with the NSMA.

The Court noted that the ENR took a different approach to the NSMA in regards to other aspects of wildlife management, such as bison management and other caribou herds. In 2008, the ENR agreed to consult with the NSMA in regards to a bison management strategy, and the allocation of bison tags. The NSMA was consulted with regards to the Bluenose-East Caribou herd.

Smallwood J. reviewed the law concerning when the duty to consult is triggered. When the duty is triggered, the Crown is required at the outset to make a preliminary assessment of the strength of the claim and the potential impact of the proposed Crown conduct. Citing Haida, the Court held that meaningful consultation and accommodation cannot take place if the Crown does not have some idea of the core of the right being claimed. The preliminary assessment informs the content of the duty to consult, and the Crown must then design a process that meets the needs of the duty.

The government respondents acknowledged that there was a duty to consult in this case. The NSMA had been involved in earlier agreements relating to the Bathurst caribou herd, and the NSMA wrote to the Minister in April 2007 asserting Aboriginal rights. The respondents also acknowledged that the restrictions on the harvest of the Bathurst caribou would adversely affect the NSMA.

Smallwood J. again stressed that the Crown has an obligation to conduct a preliminary assessment of the strength of claim and the potential impact on asserted rights. The Crown is required to give the Aboriginal group an opportunity to comment on the preliminary assessment. No such preliminary assessment was performed, as the NSMA was not recognized as an Aboriginal rights-bearing organization. The Court held that the lack of recognition by Canada did not absolve the NWT of the responsibility to conduct a preliminary assessment. The duty to consult is a legal and constitutional duty. It is consistent with the concept of reconciliation and reduces the risk that when an Aboriginal group’s rights are finally recognized, they are not rendered meaningless by intervening actions.

The Crown respondents argued that, even though no preliminary assessment was conducted, there was consultation with the NSMA concerning the Bathurst herd. The Court gave little weight to these submissions. The evidence showed that the NWT did not recognize a duty to consult the NSMA, and that the meetings only constituted “engagement”. Smallwood J. stated:

Consultation cannot be considered consultation if the parties do not intend to consult.

Consultation cannot be meaningful if it is inadvertent or de facto. The inconsistent approach taken by the NWT during this process was due, in part, to the failure to conduct a preliminary assessment. ENR officials were unclear about their obligations, and it would not be surprising if the NSMA was confused as a result. Smallwood J. commented:

All of this underscores the necessity of completing a preliminary assessment prior to undertaking the consultation process so that all parties understand their obligations.

The Court held that in cases involving asserted (rather than proven) rights, it is “incumbent upon the Crown to conduct a preliminary assessment of the strength of the claim and provide the Aboriginal group an opportunity to comment on the preliminary assessment”. The NSMA were entitled as a matter of law and fairness to such a preliminary assessment conducted by the NWT.

The Court made its own preliminary assessment of the strength of the claim. The ten-part Powley test for Métis claims was applied, and the Court concluded that a prima facie Aboriginal claim to hunt caribou had been established. The Minister’s decision not to grant the NSMA an allocation of the 300 caribou had an adverse effect on the NSMA’s right to harvest caribou.  Applying the Haida test, Smallwood J. held that the extent and scope of the Crown’s duty to consult fell at the lower end of the spectrum.

In examining whether the consultation was reasonable, the focus is on the process of consultation. In light of the fact that the duty to consult fell at the lower end of the spectrum, the fact that the NSMA participated in workshops, meetings and high-level correspondence would raise few concerns. However, the failure to perform a preliminary assessment had an “inexorable effect” on the consultation process. The NWT had approached consultation with the NSMA without a clear understanding of what the NSMA’s rights were. The inconsistencies in approach cannot result in the process being ex post facto labelled consultation. The process could not have been reasonable or meaningful.

The Court held that the consultation process was not reasonable. While there were many opportunities for the NSMA to express their concerns, it is not apparent that the NWT understood those concerns or made an attempt to address them. A reasonable consultation process involves the exchange of information and an explanation for continuing on or altering the proposed course of action. The Court rejected the submission that the NSMA did not approach the consultation in good faith due to its repeated requests for funding. The issue of appropriate funding is essential to a fair and balanced consultation process, and a level playing field.

Due to the errors in the consultation process, it was unclear as to whether the respondents failed to fulfill their duty to accommodate. The Court made no determination about what would be a reasonable accommodation. Meaningful consultation can result in reasonable accommodation. The NSMA cannot unilaterally choose their form of accommodation.

The Court made various declarations about the duty to consult, and directed the Minister to consult with the NSMA about the management of the Bathurst caribou herd. The Court was not prepared to direct that the NWT accommodate the NSMA with an allocation of the harvest. The Court also held that it was not appropriate to suspend or set aside the Aboriginal harvest pending the consultation with the NSMA, as that would adversely affect the Tlicho and the Yellowknives Dene.

The applicant NSMA was entitled to its costs of the proceeding.

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver


Scott Kerwin


Aboriginal Law