January 12, 2015

Duty to Consult: Nunatsiavut v. Newfoundland and Labrador (Department of Environment and Conservation)


In 2012, Canada and Newfoundland and Labrador allowed the Muskrat Falls hydroelectric facility project to proceed after a joint environmental assessment process. The province then decided to issue a ‘Permit to Alter a Body of Water’ to Nalcor Energy for the project. Nunatsiavut Government, representing the Inuit of Labrador, sought judicial review of the decision to issue a permit, based on a breach by the province of its duty to consult and accommodate the rights of the Innuit.

The court rejected the application on the basis the Innuit’s concerns around mercury accumulation had already been addressed in the environmental review process. The court reasoned that a duty to consult does not keep “reappearing every time a regulatory decision must be made or issued” if the “decision involve[s] a matter that has previously been the subject of an appropriate level of consultation.” The court also noted that unlike some modern land claims agreements, the Nunatsiavut’s land claim agreement was “a complete code governing consultation” and excluded the possibility of any additional common law/constitutional duty to consult.

Nunatsiavut v. Newfoundland and Labrador (Department of Environment and Conservation), 2015 CanLII 360 (NL SCTD)

Lisa C. Fong, Michael Ng, and Siddharth Akali