In September 2012, the respondent Minister of Energy and Resources posted oil sands exploration permits for sale by sealed bid, including lands covered by Treaty No. 10. In December 2012, as a result of this process, two exploratory permits were issued to the respondent company, Scott Land & Lease Ltd., for areas included within Treaty 10 territory.
Buffalo River Dene Nation (BRDN) is a Denesuline First Nation located in northwestern Saskatchewan. BRDN is a signatory to Treaty No. 10, which, among other things, entitles its members to hunt, fish and trap on Treaty 10 lands, including the lands at issue in this matter. According to BRDN Chief Lance Ben Byhette, in the areas covered by these permits the Denesuline people engage in the harvesting of berries and medicinal plants, as well as hunting and trapping, with many cabins and trails actively used by BRDN members for these purposes. Chief Byhette also asserted that places that are sacred to members of BRDN and of vital important to the Denesuline community are located in this area, such as a high concentration of ancestral burial sites, traditional campgrounds and settlements.
Chief Byhette provided evidence that BRDN shares kinship ties with Cold Lake First Nation and that he was aware of the general nature of bitumen leaks that occurred at a Canadian Natural Resources Limited operation taking place within Cold Lake First Nation’s traditional territory in northern Alberta, with an underground leak persisting for several months before being discovered and more than 8,650 barrels of bitumen needing to be removed from the site. The operation was close to BRDN’s traditional territory and Chief Byhette also provided evidence that he was aware of wildlife that had been killed by the bitumen leak and a lake, forest and muskeg that it contaminated. Chief Byhette stated that BRDN members were very concerned about the Crown permitting bitumen exploration in the area at issue without first consulting them as they believe such operations have the potential to negatively impact a very broad area.
The Minister did not consult with BRDN before deciding to post the permits for sale or before issuing the permits because the Crown has taken the policy position that the duty to consult is not triggered by the issuance of such permits. Saskatchewan’s First Nations and Métis Consultation Policy Framework states explicitly that the issuance of mineral dispositions is not subject to their consultation policy because they “do not provide the disposition holder with a right of access to lands for purposes of mineral exploration and development”. The policy would, however, apply if the Crown contemplates surface land use decisions related to mineral exploration and development that may impact “Treaty and Aboriginal rights and traditional uses”.
The Ministry of Energy and Resources had notified the public and First Nations when it posted the lands for public bidding, mailing a copy of this notice to BRDN in September 2012, and it had also forwarded BRDN the results of the public sale in December 2012. Subsequent surface exploration activities that may take place on the permit lands are regulated by the Ministry of Environment, rather than the Ministry of Energy and Resources, and the Ministry of Environment carries out consultation with Aboriginal groups when and if a permit holder seeks to conduct such surface activities. At this stage, the Ministry of Energy and Resources is no longer consulted or involved.
The Crown’s affidavit evidence also asserted that although an exploration permit has value in terms of the security of tenure it provides, there is no guarantee a permit-holder will actually carry out an exploration or development program in relation to the permit. The Crown also claimed that it is “very common” for such permits to revert to the Crown with little to no work being conducted on the permit lands and this reflects their “speculative nature”. Furthermore, the Crown asserted in both argument and its affidavit evidence that “no treaty or Aboriginal rights, or credible claim thereto, exist in relation to provincial Crown minerals in Saskatchewan”.
A Chambers judge of the Saskatchewan Court of Queen’s Bench dismissed BRDN’s application for judicial review on the basis that the Crown’s decision to post and issue permits to Scott Land & Lease Ltd. had not triggered the Crown’s duty to consult and that BRDN had not proven that the activities authorized under the permits had the possibility of adversely affecting any of its members’ treaty rights.
The “single issue” on appeal was whether the Crown’s posting and issuance of the permits triggered the Crown’s duty to consult.
Court of Appeal’s decision
The Court of Appeal held that since the facts in this case were largely uncontested, the standard of review on whether the duty to consult had been triggered was correctness.
Applying the test enunciated by the Supreme Court of Canada in Haida Nation v. British Columbia, the Court noted that the Crown always has notice of the contents of Treaty 10 as a party to it and properly acknowledged its treaty obligations to BRDN in this case. The Crown also conceded that the Ministry’s decision to post and issue the impugned permits constituted Crown conduct for the purposes of an analysis under Haida. The only issue the Court of Appeal needed to grapple with was whether the decisions at issue had the potential to adversely affect an Aboriginal claim or right.
The Court of Appeal acknowledged that Supreme Court of Canada jurisprudence has set a low threshold for finding an adverse impact sufficient to trigger the duty to consult and that actual infringement of an Aboriginal or treaty right is not necessary. It also cited a passage from the Supreme Court of Canada’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council where it was held that “high-level management decisions or structural changes to [a] resource’s management may also adversely impact Aboriginal claims or rights even if these decisions have no ‘immediate impact on land and resources’”. Nevertheless, the Court held that in this case the low threshold for demonstrating an adverse impact was not met because, as the Chambers judge found, there was “no obvious and immediate physical impact” arising from the sale of the permits. The Court stated that although the threshold may be low it must be a meaningful threshold in that “some sort of appreciable or discernible impact” must flow from the impugned Crown conduct before a duty to consult will arise.
While the Court accepted that BRDN was concerned about bitumen exploration within its territory hampering its members’ exercise of their treaty rights to hunt, trap and fish, it found no evidence that BRDN was concerned with potential impacts resulting from “the mere sale of mineral rights” as opposed to the impacts that might flow from a permit-holder actually attempting to access or exploit the minerals through the surface of the land. The Court cited academic commentary cautioning against a “permit-by-permit” approach to the duty to consult that might result in a “death by a thousand cuts” for First Nations that might not realize the significance of each permit and thereby might lose the opportunity to respond to the effect of an overall project. However, the Court held that the risk of this occurring ought to be eliminated by the fact that consultation is expressly contemplated at the second and later stages of Saskatchewan’s mineral rights scheme in this case.
The Court of Appeal also premised its view that sale of the permits did not trigger the duty to consult on the fact that BRDN had not advanced any Aboriginal or treaty right to subsurface resources or that any rights that would be exercisable in relation to the subsurface of Treaty 10 lands. As a result of this distinction between rights exercised on the land and the permittee’s rights to resources under the land, the Court held that there was “no conflict between the Crown’s assertion of sovereignty over the land by issuing the [permits] and the existence of Aboriginal peoples on the land”.
The Court of Appeal also found that the permit in this case did not provide the permittee with an automatic right to enter upon the permit lands or take any action that requires entry on the lands. Likewise, the Crown would not be forced to accede to any plans by the permittee to do so in the future. As a result, in the Court’s view, at this stage in the regulatory process it would be a “great waste of time, effort and public resources” to require the Crown to consult with BRDN on something that is “so terribly contingent and unquantifiable”. At most, the Court held that the Crown could give an interested Aboriginal group notice of the posting and sale of the permits at this stage, which it had in fact done; however, the Court held there was no obligation for the Crown to do so.Finally, the Court of Appeal found that although the Chambers judge misinterpreted the meaning of “strategic, higher level decisions” (as cited from Rio Tinto) when it found against the Crown having a duty to consult BRDN. However, the Court held that it was clear that the Chambers judge had fully considered the nature of the decision itself and its potential to adversely impact BRDN’s treaty rights. The Court found that this was not a case in which the Crown could be seen as deferring consultation until a project becomes a “fait accompli” since there was not yet any project at stake that was more than speculative or that might have anything more than a speculative impact on BRDN’s rights.