April 17, 2015

Duty to consult: Nunatsiavut v. Canada (Attorney General)


In relation to the Muskrat Falls generation facility, which was at Phase 5 of a five-phase assessment process, the Nunatsiavut Government sought judicial review of a decision of the Department of Fisheries and Oceans’ (“DFO”) to issue an authorization under the Fisheries Act to permit impacts to fish and fish habitat. The project was not on Labrador Inuit lands or in the Labrador Inuit settlement area, but the project could affect the zone where the applicants had harvesting rights codified under the Labrador Inuit Land Claims Agreement. The Nunatsiavut Government participated in a multi-phase environmental assessment. During Phase 5, Nalcor received an authorization for the project. The Nunatsiavut Government believed the conditions of the authorization, specifically the environmental effects monitoring plan, did not remedy downstream effects. Nunatsiavut Government asserted that the Crown did not properly consult, and that concerns of Labrador Inuit were not fully and fairly considered or adequately accommodated by the Crown.

The court dismissed the application. The court reasoned that the Crown’s consultation obligations were met through the joint review panel process in Phases 1-4. The court reasoned that scope of the Crown’s duty to consult was determined primarily by the text of the Agreement. [177] Among other findings, the court declined to find any breach of the duty to consult as a result of DFO not circulating a draft of the authorization prior to its issuance, since the agreement did not require that drafts be circulated. During Phase 5 of the assessment process (regulatory permitting) the petitioner took the position that the JRP had required a comprehensive downstream effects assessment. In response, DFO required that Nalcor add certain details to a plan. The court decided that the consultation requirements under the Agreement were met, as their views had been considered. It reasoned that Phase 5 was concerned with the preparation of monitoring plans “not designed or implemented to study environments or overall changes to them.” [267]

Nunatsiavut v. Canada (Attorney General), 2015 FC 492

Lisa C. Fong, Michael Ng and Siddharth Akali