April 2, 2015

Duty to consult: Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources)


The Buffalo River Dene Nation (“BRDN”) appealed a dismissal of its application for judicial review of a decision of the Minister of Energy and Resources to issue exploration permits for bitumen resources within BRDN’s traditional territory. BRDN asserted that the Crown did not consult. The Crown consultation policy was that the duty to consult is not triggered by the issuance of such permits because they do not provide the holder any rights to access the land. Under the Crown’s policy, consultation is however triggered by surface land use decisions related to mineral exploration and development, if and when a permit holder seeks to conduct surface activities.

The trial court dismissed BRDN’s application for judicial review on the basis that the permits at issue did not trigger the Crown’s duty to consult. BRDN appealed the lower court’s decision.

The Federal Court of Appeal found no duty to consult even though the Crown had notice of Treaty 10, to which BRDN is a party, and the Minister issuing the permit was Crown conduct. The low threshold of a demonstrated adverse impact for triggering a duty to consult was not met. The Court of Appeal relied on the lower court’s finding of “no obvious and immediate physical impact” arising from the sale of the permits, especially since the permits do not provide permit holders any automatic right to enter the permit lands, or to take any action that requires entry on the lands. The court reasoned that since there was no “appreciable or discernible impact” from the impugned Crown conduct, a duty to consult did not arise on the facts.

Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources), 2015 SKCA 31

Lisa C. Fong, Michael Ng, and Siddharth Akali