Kai Nation and al v. Canada (Fisheries, Oceans and Coast Guard)

We Wai Kai Nation v. Canada (Fisheries, Oceans and Coast Guard)
Court (s) Database
Federal Court Decisions
Date
2024-06-07
Neutral citation
2024 FC 876
File numbers
T-552-23, T-554-23, T-555-23, T-556-23
Decision Content
Date: 20240607
Dockets: T-554-23
T-556-23
T-552-23
T-555-23
Citation: 2024 FC 876
Ottawa, Ontario, June 7, 2024
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
WE WAI KAI NATION AND WEI WAI KUM FIRST NATION,
MOWI CANADA WEST INC., CERMAQ CANADA LTD.,
AND GRIEG SEAFOOD B.C. LTD.
Applicants
and
THE MINISTER OF FISHERIES, OCEANS
AND THE CANADIAN COAST GUARD
Respondent
and
KWIKWASUT’INUXW HAXWA’MIS FIRST NATION, ‘NAMGIS
FIRST NATION, ST’ÁT’IMC CHIEFS COUNCIL, STÓ꞉LŌ TRIBAL
COUNCIL, MUSQUEAM INDIAN BAND, THE UNION OF BRITISH
COLUMBIA INDIAN CHIEFS, ALEXANDRA MORTON, DAVID
SUZUKI FOUNDATION, GEORGIA STRAIT ALLIANCE, LIVING
OCEANS SOCIETY, AND WATERSHED WATCH SALMON SOCIETY
Interveners
JUDGMENT AND REASONS
I. Overview [1] This application for judicial review involves a consideration of competing interests and issues related to the licensing of open-net pen Atlantic salmon fish farms in the Discovery Islands in British Columbia.
[2] The applicants in this matter are We Wai Kai Nation and We Wai Kum First Nation [together, the Nations], Mowi Canada West Inc. [Mowi], Cermaq Canada Ltd. [Cermaq], and Grieg Seafood B.C. Ltd. [Grieg] [all collectively referred to as Applicants]. Mowi, Cermaq, and Grieg [collectively, Operators] operate Atlantic salmon fish farms in British Columbia.
[3] The Applicants seek judicial review of the February 17, 2023 decision [Decision] of the Minister of Fisheries, Oceans and the Canadian Coastguard [Minister] declining to renew 15 aquaculture licences for Atlantic salmon fish farms in the Discovery Islands in British Columbia. The Minister is the sole Respondent in this matter.
[4] Each of the Applicants filed separate applications for judicial review of the Decision in court files T-554-23, T-556-23, T-555-23, and T-552-23. On April 14, 2023, Associate Judge Milczynski ordered the consolidation of the proceedings.
[5] Seven aquaculture licences situated in the following locations are located within the traditional territories of the Nations: Hardwicke Island, Lees Bay, Chancellor Channel, Sonora Point, Venture Point, Brent Island, and Barnes Bay. The Decision affected 11 Mowi aquaculture sites, 3 Cermaq aquaculture sites, and 1 Grieg aquaculture site in the Discovery Islands.
[6] Two coalitions were granted intervener status. The first coalition consists of Kwikwasut’inuxw Haxwa’mis First Nation, ‘Namgis First Nation, St’át’imc Chiefs Council, Stó꞉lō Tribal Council, Musqueam Indian Band, and the Union of British Columbia Indian Chiefs [collectively, the First Nations Coalition]. The second coalition consists of Alexandra Morton, David Suzuki Foundation, Georgia Strait Alliance, Living Oceans Society, and the Watershed Watch Salmon Society [collectively, the Conservation Coalition].
[7] The Nations assert that the Minister did not meet her heightened duty to consult with them in arriving at the Decision. The Operators assert that the Minister breached their rights to procedural fairness in arriving at the Decision. All Applicants assert that the Decision is unreasonable. The Minister disputes all of these assertions. The specific submissions of the parties will be summarized in more detail later in this Judgment and Reasons.
[8] The applications for judicial review are dismissed.
II. Regulatory Backdrop [9] The Minister is responsible for regulating aquaculture operations through the Fisheries Act, RSC, 1985, c F-14 [Fisheries Act]. The Department of Fisheries and Oceans [DFO] is responsible for issuing all aquaculture licences for marine finfish, shellfish, and freshwater operations in British Columbia.
[10] The operation of aquaculture sites requires multiple federal and provincial authorizations. First, operators require a marine finfish aquaculture licence issued under section 7 of the Fisheries Act:
Fishery leases and licences
7 (1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.
[11] Second, operators require introduction and transfer licences to transfer fish into or between aquaculture sites. The Minister or her delegate issues transfer licences pursuant to section 56 of the Fisheries (General) Regulation, SOR/93-53:
Licence to Release or Transfer Fish
56 The Minister may issue a licence if
(a) the release or transfer of the fish would be in keeping with the proper management and control of fisheries;
(b) the fish do not have any disease or disease agent that may be harmful to the protection and conservation of fish; and
(c) the release or transfer of the fish will not have an adverse effect on the stock size of fish or the genetic characteristics of fish or fish stocks.
[12] Third, operators require a licence of occupation authorizing the tenure for the site issued by the Province of British Columbia pursuant to the Land Act, RSBC 1996, c 245:
Licence of occupation
39 The minister may issue a licence to occupy and use Crown land, called a "licence of occupation", subject to the terms and reservations the minister considers advisable.
[13] Furthermore, the Fisheries Act specifies the following considerations for the Minister:
Duty of Minister
2.4 When making a decision under this Act, the Minister shall consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.
Considerations for decision making
2.5 Except as otherwise provided in this Act, when making a decision under this Act, the Minister may consider, among other things,
(a) the application of a precautionary approach and an ecosystem approach;
(b) the sustainability of fisheries;
(c) scientific information;
(d) Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister;
(e) community knowledge;
(f) cooperation with any government of a province, any Indigenous governing body and any body — including a co-management body — established under a land claims agreement;
(g) social, economic and cultural factors in the management of fisheries;
(h) the preservation or promotion of the independence of licence holders in commercial inshore fisheries; and
(i) the intersection of sex and gender with other identity factors.
[14] The Fisheries Act makes clear that licensing decisions require a consideration of public interest factors that extend beyond the private interests of license holders and which are assessed on polycentric criteria (Shelburne Elver Limited v Canada (Fisheries, Oceans and Coast Guard), 2023 FC 1166 at para 76; Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at paras 28-29).
III. Background [15] In 2012, the Cohen Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River [Cohen Commission] released its final report “The Uncertain Future of Fraser River Sockeye” [Final Report]. The Final Report made several recommendations, including:
19. On September 30, 2020, the minister of fisheries and oceans should prohibit net-pen salmon farming in the Discovery Islands (fish health sub-zone 3-2) unless he or she is satisfied that such farms pose at most a minimal risk of serious harm to the health of migrating Fraser River sockeye salmon. The minister’s decision should summarize the information relied on and include detailed reasons. The decision should be published on the Department of Fisheries and Oceans’ website.
20. To inform the decision under Recommendation 19, the minister and the Department of Fisheries and Oceans should take the following steps:
Conduct the research and analysis recommended in Recommendation 68 and publish the results of this research.
Assess any relationships between salmon farming variables compiled in the fish health database and Fraser River sockeye health or productivity.
Invite from the salmon-farming industry and from other interested parties written submissions respecting the risk that net-pen salmon farms pose to the health of migrating Fraser River sockeye salmon.
Publish on the DFO website the full text of all submissions received.
Provide to submitters a reasonable opportunity to respond in writing to other submissions and publish such responses on the DFO website.
[16] In 2019, the Prime Minister mandated then-Minister Jordan to work with the Province of British Columbia and Indigenous communities to create a plan to transition away from open-net pen aquaculture in British Columbia by 2025 [Transition Plan].
[17] On September 28, 2020, the Canadian Science Advisory Secretariat [CSAS] announced that it completed nine scientific peer-reviewed risk assessments in accordance with the Final Report [CSAS Risk Assessments]. The CSAS determined that “[a]ll of the assessments concluded that the pathogens on Atlantic salmon farms in the Discovery Islands area pose no more than a minimal risk to Fraser River Sockeye salmon abundance and diversity under the current fish health management practices” [emphasis in original].
A. Previous Decision [18] Four salmon farming fishing companies, including the Operators, filed for a judicial review of then-Minister Jordan’s December 17, 2020 decision to phase out salmon farms in the Discovery Islands [2020 Decision]. In Mowi Canada West Inc v Canada (Fisheries, Oceans and Coast Guard), 2022 FC 588 [Mowi], the Court allowed the applications for judicial review finding that Minister Jordan breached procedural fairness obligations by not providing the applicants with notice of the 2020 Decision, a meaningful opportunity to provide submissions or respond to concerns, and reasons for the 2020 Decision (at paras 194, 211, 228). The Court also found that the 2020 Decision was unreasonable as it was not justified, intelligible, or transparent due to the lack of reasons provided (at para 254).
[19] The Operators submit that Mowi applies directly to this matter and that the Court should similarly allow these applications for judicial review.
B. Events Leading to the Decision [20] On June 22, 2022, then-Minister Murray announced that she would not reissue the aquaculture licences in the Discovery Islands. Instead, the Minister would conduct further consultations regarding aquaculture in the Discovery Islands between June and December 2022 and announce a decision on reissuing expiring licences in January 2023.
[21] During the consultation period, DFO held four aggregate meetings with the Operators. Mowi held four bilateral meetings with DFO or the Minister, Cermaq met with DFO six times and had a bilateral meeting with the Deputy Minister, and Grieg had two bilateral meetings consisting of one with DFO and one with the Minister. Each of the Operators also submitted reports, presentations, and other information to DFO throughout the process.
[22] The Nations met three times with DFO or the Minister during the consultation period. The Nations also submitted documents and letters to DFO and the Minister. Most notably, the Nations submitted a proposal to the Minister on November 30, 2022, which the Nations created after discussions with the Operators [Proposal]. The Nations viewed the Proposal as an alternative path forward that would respect their sovereignty, protect wild salmon, develop Indigenous science and governance capacity, and explore innovative techniques and technology for minimizing interactions between farmed and wild salmon.
IV. Decision [23] On January 24, 2023, DFO submitted a memorandum to the Minister concerning the “Reissuance or Non-Reissuance of Salmon Aquaculture Licences in the Discovery Islands” [Memorandum]. The Memorandum is comprehensive and begins with a high-level summary of the consultation process then discusses relevant considerations, the precautionary principle, and science, including the Final Report, CSAS Risk Assessments, DFO research on pathogen risk assessments and stressors or threats to Pacific salmon. DFO also recommended that the precautionary approach should be applied in the Discovery Islands consistent with its application across British Columbia.
[24] DFO then discussed the varying First Nations perspectives who assert claims to the Discovery Islands, including the Nations and the Klahoose, Kwiakah, Homalco, K'ómoks and Tla’amin First Nations. DFO stated, “the Department recommends placing strong emphasis on the views of First Nations who support renewal.”
[25] The Memorandum identifies industry perspectives on the licences sought and their socio-economic impact, including from the Operators. Specifically, the Memorandum discusses the Nations’ engagement with and support for the Operators’ licences, as well as the local and provincial impact of these aquaculture sites. The Memorandum cautioned that industry would view the Minister’s decision as an indicator of the future direction of the Transition Plan.
[26] DFO provided four options on how to proceed: (1) approve all until June 2024; (2) approve nine and defer remainder until the release of the Transition Plan by spring or summer 2023; (3) defer all until the release of the Transition Plan by spring or summer 2023, except for Saltstream Engineering Ltd. [Saltstream]; or (4) deny all. Under each option, DFO outlined a summary of the recommendation, science considerations, First Nations’ views, industry views, public reaction, and a redacted category due to solicitor-privilege. DFO recommended that the Minister proceed with Option 1 and strongly recommended against Option 4.
[27] The Minister decided to proceed with a modification of Option 4 and denied licences to the Operators but approved the licence for Saltstream until June 30, 2024. On February 17, 2023, the Minister informed the Operators individually of the Decision by letters, which were substantially similar aside from details about the sites in issue and details of their respective consultations. The Minister outlined that the following considerations warrant taking a highly precautionary approach concerning the Atlantic salmon farms in the Discovery Islands: the Discovery Islands is a unique area, the decline of wild salmon stocks, the impact of the decline of wild salmon on First Nations, and scientific uncertainty. The Minister considered “all relevant circumstances and information including scientific research, environmental factors, socio-economic factors, Indigenous considerations and representations made by industry”, including the financial impact on industry by not reissuing the licences in the Discovery Islands. However, “[t]he considerations outlined above all point in the same direction: a high degree of precaution is warranted with respect to Atlantic salmon aquaculture in the Discovery Islands, which compels me to take strong, concrete measures to protect wild salmon.”
[28] On March 10, 2023, the Minister informed the Nations about the Decision by letter. In the letter, the Minister recognized the differing First Nations views, decline of wild salmon stocks, uniqueness of the Discovery Islands area, scientific uncertainty, and the Minister’s mandate to develop the Transition Plan, which all led to a need for a high degree of precaution to protect wild salmon.
V. Evidence A. The Nations [29] The Nations’ evidence on this application was in the form of an affidavit from Wei Wai Kum First Nation Chief Christopher Roberts [Chief Roberts], with the consent of We Wai Kai Nation Chief Ronnie Chikite. Generally, the evidence discusses that Wei Wai Kum First Nation, We Wai Kai Nation and Kwiakah First Nations were collectively known as the Laich-kwil-tach Nation and that seven sites in this application are within the core, unceded and exclusive traditional territory of the Laich-kwil-tach Nation over which they hold Aboriginal title. Chief Roberts also states that the Nations’ priority is protecting wild salmon that frequent their waters and they are not opposed to plans to transition away from fish farming.
B. Mowi [30] Mowi’s evidence on this application was in the form of affidavits from Councillor Isaiah Robinson, from the Kitasoo Xai’Xais Nation; Diane Morrison, Managing Director of Mowi; Richard Opala, Regulatory Affairs Manager for Mowi; Mia Parker, Director of Environmental Performance and Certification for Mowi; and Leanna McInally, Legal Administrative Assistant for Mowi’s counsel.
[31] Councillor Isaiah Robinson discusses Kitasoo Xai’xais’ historic and modern involvement with commercial fisheries. He focuses on Kitasoo Xai’xais’ relationship with Mowi in terms of Mowi’s employment of Kitasoo Xai’xais members, partnership with the Kitasoo Xai’xais on a smoker plant and its community support, as well as the impact of the Decision on the community.
[32] Diane Morrison discusses the business operation of Mowi in terms of its facilities, salmon farming process, the importance of the Discovery Islands, and relationships with local First Nations and communities. Ms. Morrison also discusses the factual context for the judicial review with a focus on the consultation process.
[33] Richard Opala discusses the regulatory background in terms of the requirements for licencing of aquaculture in British Columbia, conditions of licencing, licenses to transfer smolts from a hatchery to a fish farm and fish between fish farms, the regulation of the Hardwicke site, and area-based aquaculture management. Mr. Opala also discusses his involvement during the consultation process.
[34] Mia Parker discusses the factual context for the judicial review, including the 2020 Decision, federal engagement on aquaculture regulation and policy, the Minister’s mandate and engagement on the 2025 Transition Plan, the engagement process leading to the Decision, Mowi’s submissions, and the CSAS process.
[35] Leanna McInally provides a chart outlining the Applicants’ requests to revise the Certified Tribunal Record to include certain documents and the corresponding responses from the Respondent’s counsel.
C. Cermaq [36] Cermaq’s evidence was in the form of affidavits from David Kiemele, Managing Director for Cermaq; Peter McKenzie, Fish Health Director and Senior Veterinarian for Cermaq; and Chantelle deMontmorency, temporary articled student for Cermaq’s counsel.
[37] David Kiemele discusses information related to Cermaq’s sites in the Discovery Islands, the regulatory framework for aquaculture and licences, the production cycle for fish farming, and Cermaq’s agreements with First Nations. Mr. Kiemele also discusses the factual context for events leading to the Decision and afterwards, including the consultation process and the impact of the Decision.
[38] Peter McKenzie discusses the CSAS Risk Assessments completed in response to the Cohen Commission recommendations, the CSAS scientific review process generally, CSAS science responses, and other relevant DFO policies and procedures. Mr. McKenzie discusses Cermaq’s efforts to further research in response to requests from DFO, its proposals with respect to the Decision, and the Minister’s engagement with scientists.
[39] Chantelle deMontmorency provided hyperlinks to pages on publically accessible websites for the Pacific Salmon Foundation, Wild First and EcoJustice, as well as an article that includes an interview with Tony Allard and his biography page for the Rivers Capital Group.
D. Grieg [40] Grieg’s evidence on this application was in the form of an affidavit from Jennifer Woodland, Managing Director of Grieg, who discusses the business operations, such as the regulation of aquaculture operations, the Barnes Bay site licencing, the salmon farming process, and Grieg’s relationships with local First Nations, including a memorandum of understanding with the Nations for the Barnes Bay site. Ms. Woodland also discusses the factual context for events leading to the Decision and afterwards, including the consultation process and the impact of the Decision.
E. Cross-examinations [41] Diane Morrison, Jennifer Woodland, David Kiemele, Chief Roberts, Peter McKenzie, Mia Parker, and Richard Opala, were cross-examined on their affidavits.
VI. Preliminary Issues A. Should the Applicants’ affidavit evidence be struck? [42] The Respondent takes issue with certain evidence contained in the Applicants’ affidavits, as set forth below.
(1) Mowi’s Evidence [43] In Mia Parker’s affidavit, the Respondent seeks to strike portions of paragraphs 20, 39, 46, 46(b), 54, 55, 61, 62, 66, 69, 70, 72, 76, 77, 79, 81, 83, 84(a), 84(c), 94 and the entirety of paragraphs 60, 63-64, 78, 85, 87-89, 102-103, and 106-111. After considering the Respondent’s submissions and after reviewing the paragraphs in question, I agree that the portions or paragraphs identified by the Respondent are argumentative or opinion evidence. Generally, much of the identified portions of the affidavit of Mia Parker go towards her views on the consultation and opinion on how CSAS functions.
[44] In Dianne Morrison’s affidavit, the Respondent seeks to strike portions of paragraphs 10, 46, 53, 55, 62(a), 64, 68, 99 and 107 and the entirety of paragraph 95. I agree that paragraph 95 contains hearsay and should be struck. I also agree that the identified portions of paragraphs 10, 46, 53, 55, 62(a), 64, 68, 99 and 107 should be struck as they contain either opinion or argument. Most of the impugned content contain Ms. Morrison’s opinion on the consultation or the Minister’s state of mind.
[45] In Richard Opala’s affidavit, the Respondent wishes to strike portions of paragraphs 40, 56, 63, 64, 69, 70, and 88. I agree that the impugned portions of these paragraphs should be struck as they are argumentative.
(2) Cermaq’s Evidence [46] In David Kiemele’s affidavit, the Respondent seeks to strike the entirety of paragraph 103 and portions of paragraphs 94 and 99(a). I agree with the Respondent that the identified portions of paragraphs 94 and 99(a) and the entirety of paragraph 103 are opinion or argumentative about the Minister’s engagement.
[47] In Peter McKenzie’s affidavit, the Respondent seeks to strike portions of paragraphs 11-14, 19, 21-22, 24, 33 and 35-36 and the entirety of paragraphs 31 and 35. I agree that portions of paragraphs 11, 13-14, 19, 21-22 and 35-36 and the entirety of paragraphs 31 and 35 contain either Mr. McKenzie’s opinion or calls for expert evidence. Most of the impugned content concerns his views on the CSAS process.
[48] However, the Respondent takes issue with the sentence “[t]his research document provides a review of the efforts made to maintain optimal fish health on farms” in paragraph 12 but the document referred to in Exhibit N states under Purpose of This Document that “[t]his document provides a summary of the legislative and regulatory requirements related to fish health management and describes the additional practices used by the Atlantic Salmon farming industry in the Discovery Islands.” I do not agree that the sentence in the affidavit is opinion evidence. Furthermore, I do not agree that paragraph 33 contains opinion evidence as Mr. McKenzie repeats comments that he heard from DFO representatives.
(3) Grieg’s Evidence [49] In Jennifer Woodland’s affidavit, the Respondent seeks to strike all of paragraphs 79, 102 and 106, and portions of paragraphs 73, 93 and 105. I agree that paragraphs 73, 79, 93, and 102 should be struck as it contains opinion and argument. I also agree that paragraphs 105 and 106 contain hearsay and should be struck. I note that paragraph 106 also contains opinion and the remainder of the paragraph should be struck for that reason.
(4) Nations’ Evidence [50] In Chief Christopher Roberts’ affidavit, the Respondent seeks to strike paragraph 36 and portions of paragraphs 30 and 73. I agree that the paragraphs are opinion or argumentative.
[51] Overall, while the affidavit evidence was extensive, the matter has been determined with limited assistance of this evidence.
B. Should the Nations’ standing in these proceedings be limited to making submissions on the duty to consult? [52] The Respondent submits that the Nations do not have standing to argue administrative law issues identified in the Nations’ amended notice of application since the Nations were not directly affected by the Decision as required under the Federal Courts Act, RSC 1985, c F-7 (s 18.1). After considering these submissions, the Nations’ written and oral submissions, and the Nations’ Amended Notice of Application, I note that the Nations abandoned the arguments on these issues.
VII. Issues and Standard of Review [53] After considering the submissions of the parties, this matter raises the following issues:
Did the Minister meet the duty to consult?
Was the Decision procedurally fair?
Was the Decision reasonable?
[54] Only the Nations and the Respondent made submissions concerning the Minister’s duty to consult, while only the Operators and the Minister made submissions on procedural fairness. All parties made submissions on the reasonableness of the Decision.
[55] On the first issue, the Nations submit that the existence, extent, and content of the duty to consult are legal questions reviewable on the standard of correctness while the question of whether the Minister met the duty to consult is reviewable on a standard of reasonableness (Ehattesaht First Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 849 at para 45, citing Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at paras 61-63 [Haida]; Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 at para 27 [Coldwater], citing Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 55 [Vavilov]). The Respondent submits that the adequacy of consultation is reviewable on the reasonableness standard (Haida at para 61). I agree that the correctness standard applies to the scope of the duty to consult and that the adequacy of the consultation is reviewable on a reasonableness standard (Mikisew Cree First Nation v Canadian Environmental Assessment Agency, 2023 FCA 191 at paras 16-17; Vavilov at para 55; Coldwater at para 27).
[56] On the second issue, the Applicants agree that procedural fairness is reviewable on a correctness standard. The Respondent submits that the standard of review is either correctness or no standard applies at all; the question is whether the procedure was fair having regard to all the circumstances (Canadian Pacific Railway Company v Canada (Transportation Agency), 2021 FCA 69 at para 46 [CP Railway]). I agree that the second issue attracts a standard of review akin to correctness (CP Railway at para 46; Mission Institution v Khela, 2014 SCC 24 at para 79). On a correctness review, no deference is owed to the decision-maker (Blois v Onion Lake Cree Nation, 2020 FC 953 at para 26). Rather, when evaluating whether there has been a breach of procedural fairness, a reviewing court must determine if the procedure followed by the decision-maker was fair, having regard to all the circumstances (CP Railway at paras 46-47; Vavilov at para 77; Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) at paras 21-28 [Baker]).
[57] On the third issue, the Applicants and the Respondent agree that the merits of the Decision is reviewable on a standard of review of reasonableness. I agree. This case does not engage one of the exceptions set out by the Supreme Court of Canada in Vavilov. Therefore, the presumption of reasonableness is not rebutted (at paras 16-17).
[58] A reasonableness review is a robust form of review that requires the Court to consider both the administrator’s decision-making process and the outcome of the decision (Vavilov at paras 83, 87; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 58 [Mason]). A reviewing court must take a “reasons first” approach to assess whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justifiable in relation to the relevant factual and legal constraints (Vavilov at paras 15, 99; Mason at paras 59-61). The onus is on the applicant to demonstrate the unreasonableness of the decision (Vavilov at para 100). A decision will be unreasonable where there are shortcomings in the decision that are sufficiently central or significant (Vavilov at para 100). If the reasons of the decision-maker allow a reviewing Court to understand why the decision was made and determine whether the decision falls within a range of acceptable outcomes, the decision will be reasonable (Vavilov at paras 85-86).
VIII. Analysis A. Did the Minister meet the duty to consult? (1) Nations’ Position [59] The duty to consult exists to safeguard against infringements of Aboriginal rights, whether or not they have been proven in Court (Saik’uz First Nation and Stellat’en First Nation v Rio Tinto Alcan Inc, 2015 BCCA 154 at para 61). The central purpose of the duty is rooted in reconciliation (Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at para 1). It is not in dispute that the Minister owed a duty to consult the Nations, as the Crown had express knowledge of the Nations’ claim and contemplated a decision, which impacted the management of the Nations’ asserted territories and the future of the aquaculture industry in the region. (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 31 [Rio Tinto]). The Minister was also aware of the economic impact of the Decision on the Nations. The Minister had a heightened duty to consult the Nations and failed to do so.
[60] The scope of the duty to consult is at the high end of the spectrum because of the strength of the Nations’ asserted claim and because the potential infringement is of high significance due to the Decision’s impact on the Nations’ economic interests (Haida at paras 42-44; Ermineskin Cree Nation v Canada (Environment and Climate Change), 2021 FC 758 at para 105 [Ermineskin]) and jurisdiction. There is also a high risk of non-compensable damage, including harm to the Nations’ right to self-determination, loss of opportunity to build governance and scientific capacity, and loss of economic opportunities promised under the agreements with the Operators (Haida at para 44). The Minister also failed to conduct a strength of claim assessment, which is required unless the Minister concedes that deep consultation is owed (Sipekne’katik v Alton Natural Gas Storage LP, 2020 NSSC 111 at paras 119-121 [Sipekne’katik]). Accordingly, the parties must proceed as if the Minister had to engage in deep consultation.
[61] The bundle of rights encompassed by Aboriginal title includes not only the right to the physical integrity of lands but also a range of economical and governance rights (Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 73). The Proposal was grounded in these jurisdictional and economic rights.
[62] The Minister had an obligation to listen to the Nations’ concerns and meaningfully account for the impact of the Decision on the Nations’ rights (Coldwater at para 41). Specifically, the Proposal was more than an impact benefit agreement, as it was designed to facilitate the exercise of the Nations’ rights by bringing the seven sites at issue under the Nations’ supervision and control. The Proposal illustrates what meaningful reconciliation can look like.
[63] The duty to consult also finds harmony with the analysis of substantive reasonableness set out in Vavilov. These conceptual frameworks are intertwined (Coldwater at para 41). Accordingly, the Minister failed to fulfill the duty to consult and the Minister failed to meet the standard of responsive justification, therefore, the Decision is unreasonable.
[64] First, the Minister failed to demonstrate that she took the Nations’ asserted rights meaningfully into account or that she grappled with the consequences of the Decision on those rights. Instead, the reasons are exclusively concerned with the environmental considerations of the unique conservation value of the Discovery Islands area, scientific uncertainty about the impacts of fish farming on wild salmon populations, and government efforts to protect wild salmon. Second, the Minister failed to grapple with or address the specific submissions made by the Nations, including engaging substantively with the Proposal. This is similar to Sipekne’katik where the respondent failed to address the “proverbial elephant in the room”, which is the Proposal in this case (Sipekne’katik at para 122). Third, the Minister failed to justify her departure from the clear advice of DFO. Although the Minister is not required to follow the advice of DFO, the Minister had a heightened onus to justify her departure from the clear recommendation of her own department, which is presumed to have expertise in this area.
[65] Consultation incorporates both procedural and substantive elements (White River First Nation v Yukon Government, 2013 YKSC 66). The controlling question to determine what is reasonable and meaningful in a particular circumstance is “what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and Aboriginal peoples with respect to the interests at stake?” (Haida at para 45; Coldwater at paras 42-43). The Minister did not meaningfully and substantively engage with the Nations’ submissions in making the Decision.
(2) Respondent’s Position [66] The Respondent agrees with the Nations’ overview of the applicable principles related to the duty to consult and that there was a duty to consult in this case. However, Canada met its duty. The Nations’ right at issue is the right to manage and benefit from their asserted traditional territories, flowing from their territorial claims, which is not a standalone right.
[67] The level of consultation owed was at the middle to low end of the spectrum rather than the high end as submitted by the Nations. The Nations’ asserted rights do not have the strength of established rights or title nor asserted title as there are overlapping claims of other First Nations. The Nations submit that the duty to consult must be at the high end because no strength of claim analysis was done. However, it is a misinterpretation of the case law cited in Sipekne’katik, which simply stands for the proposition that a strength of claim analysis is not required when the Crown concedes that the depth of consultation is deep. Furthermore, it is not clear that the Decision had any adverse effect on the Nations’ ability to exercise their Aboriginal right but if there were any impact, it was temporary and/or minor. The Decision concerned whether to issue a one-year aquaculture licence pursuant to the Minister’s authority, which does not impact the Nation’s ability to assert control over other industries or future agreements in which the Nations could assert control over aquaculture. Similarly, the right claimed is not actively diminished or negatively impacted by the Decision, so the right is preserved and the status quo is maintained.
[68] The Nations conflate the principles related to the duty to consult with the reasonableness review of the Decision under administrative law. In the context of the duty to consult, the focus is on the process of consultation and whether reasonable efforts were made, and not on the substantive outcome (Roseau River First Nation v Canada (Attorney General), 2023 FCA 163 at para 34). The major project cases cited by the Nations are distinguishable by virtue of this matter not involving a major project. However, it is possible for a decision-maker not to issue reasons in duty to consult cases, even when the duty to consult is at the high end of the spectrum (Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 47; Coldwater at paras 41-42).
[69] In this matter, the Minister met the mid-level standard of the duty to consult. First, the process was reasonable. On June 22, 2022, the Minister notified the Nations by letter that there would be a six-month consultation period before she decides whether to relicense the Discovery Island sites and provided the Stated Considerations outlining the proposed Crown action, the Minister’s concerns, and the scope of consultation. During the six-month consultation period, and as outlined in the Background section of this Judgment and Reasons, the Nations had several engagements: a meeting with DFO on October 6, 2022 (along with Cermaq and the Coalition of First Nations for Finfish Stewardship); a visit from the Minister on the Nations’ claimed territory and touring some of the aquaculture facilities between October 11 and 14, 2022, including a meeting with the Minister on October 12, 2022; and a meeting with the Minister on January 9, 2023 (along with the Operators and Coalition of First Nations for Finfish Stewardship). The Nations also raised their views on the Decision during meetings with DFO on the Transition Plan. Furthermore, the Nations submitted the following documents to DFO and the Minister in support of their position: a November 15, 2022 letter indicating their consent for the Grieg licences; a November 29, 2022 letter reiterating their desire to control decision-making concerning the fish farms; and the November 30, 2022 Proposal. The Nations were supported by the Coalition of First Nations for Finfish Stewardship, which submitted letters to the Minister as well.
[70] Second, Canada considered the Proposal to the extent it was necessary. The Proposal fell into two categories: recurring issues that were already consulted on or new issues that were outside the scope of consultation. The recurring issues already consulted on were the potential economic benefit for the Nations stemming from relicensing, concern for wild salmon and the need for further research, and the desire to have the Decision rolled into the Transition Plan from fish farming in the Nations’ asserted territories. The new issues that went outside the scope of consultation were federal funding for the aquaculture companies to compensate for the 2020 Decision, and shift of decision-making power from the Minister to the Nations, to be informed by Nations-led scientific investigation. The Minister was not required to consider the new issues raised by the Proposal because it would have derailed DFO’s consultations and “the duty to consult is about the consideration of asserted rights and the potential adverse impacts on such rights as a result of the contemplated decision, not about the recognition or determination of rights on the merits.”
[71] Third, the Minister’s reasons listed submissions from the Nations, took into account all relevant facts and circumstances raised by the Nations, other First Nations and industry during the consultation period (including the Proposal), and provided an explanation that the Decision was based on the precautionary principle and efforts to protect wild salmon.
(3) Intervener First Nations Coalition’s Position [72] The Minister’s reliance on Indigenous peoples’ concerns about the ongoing detrimental impact of fish farms on vulnerable wild Fraser River salmon is reasonable, appropriate, and consistent with Canada’s obligations toward Indigenous peoples.
[73] The Decision had the potential to adversely affect the Aboriginal right to fish for many Indigenous peoples, both inside and outside the Discovery Islands. Similarly, the Decision had the potential to affect adversely Aboriginal title. The Minister was required to consider, weigh, and balance the impacts of the exercise of her discretion on the asserted Aboriginal title of Indigenous people along the entire migratory route o