Background
Yellowknives Dene First Nation is an Aboriginal people claiming Aboriginal and treaty rights in the Drybones Bay area on the north shore of Great Slave Lake in the Northwest Territories. The Court of Appeal found that “[w]ithout doubt, the Drybones area is of critical significance to Yellowknives Dene”, being “an area without parallel in terms of its importance to their culture”. The Court of Appeal further noted that “the First Nation’s historic and continued presence on the land is fundamental to its identity and well-being”.
The respondent, Alex Debogorski, holds a mineral claim in the Drybones Bay area. Debogorski submitted a land use permit application to the Mackenzie Valley Land and Water Board to conduct a diamond exploration project that would include up to 10 drill-holes to be completed over a five year period in the Drybones Bay area. The Land and Water Board referred Debogorski’s proposal to the Mackenzie Valley Environmental Impact Review Board for an environmental assessment.
The Review Board conducted an assessment and issued a report in January 2012, concluding that Debogorski’s proposal was not likely to have any significant adverse environmental impact on the environment or to be a cause of significant public concern. As a result, an environmental impact review was not required and the Review Board was of the view that the proposal should proceed to the regulatory phase for permitting and licensing. Its decision was forwarded to the responsible minister.
Yellowknives’ challenge to Debogorski’s proposal stems in part from the history of development in the Drybones Bay area.
In 2007, an environmental assessment of an unrelated proposed development in the area found that this earlier proposal was likely to cause significant adverse cultural impacts of a cumulative nature. In fact, the Review Board in that assessment found that cumulative cultural impacts were “at a critical threshold” in this area. Several measures were proposed including the production of a local “Plan of Action” with substantial input from Aboriginal parties. This plan would have to be considered in any future Land and Water Board decisions on developments in the bay’s shoreline zone. However, the measures prescribed as a result of that earlier environmental assessment were never implemented.
Yellowknives argued that the Review Board assessing Debogorski’s proposal had erred by relying on the measures from the earlier environmental assessment as having resolved the “cumulative impacts crisis” in Drybones Bay, in spite of the fact that these measures were never implemented.
Court of Appeal’s decision
The Court of Appeal rejected Yellowknives’ submission that the Review Board had incorrectly relied on the measures prescribed by the 2007 environmental assessment as having resolved the cumulative impacts issues for Drybones Bay. It noted that the Review Board had acknowledged that the measures were not in place and was clear that their utility depending on them being “approved and implemented”.
The Court also found that the Review Board had given detailed reasons for concluding that Debogorski’s proposal was not likely to have any significant adverse impact on the environment. The Court found that the First Nation had not seriously challenged the Review Board’s findings of fact or shown that they were not reasonably open to the Review Board on the evidentiary record before it. It also found the Board’s decision to be within the range of possible, acceptable and defensible outcomes.
In terms of the duty to consult, the Court found that Yellowknives was afforded a level of consultation “proportionate to the nature and extent that the Proposed Development was likely to infringe [its] Aboriginal or treaty rights claim”. Yellowknives was afforded the opportunity to adduce evidence and make submissions to the Review Board; and the Review Board provided comprehensive written reasons that demonstrated Yellowknives’ concerns were considered and factored into its decision.
Yellowknives argued that the duty to consult was not met because the Review Board could not mandate any land use planning over the Drybones Bay area. However, this was rejected by the Court of Appeal on the basis that the duty to consult need not lead to a single outcome. The Court found that the Review Board’s conclusion that the proposed development was unlikely to negatively impact the environment was “fatal” to the submission that meaningful consultation required land use planning as an outcome.