June 19, 2015

Duty to Consult: Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and Northern Development)


The Yellowknives Dene First Nation (“YDFN”) appealed the dismissal of its application for judicial review of a decision by the Mackenzie Valley Environmental Impact Review Board (the “Board”). The Board allowed a mineral claims holder to engage in a diamond exploration project (the “Project”) in the Drybones Bay area (“Drybones”) without an environmental impact review. YDFN sought review on the basis that the Board’s decision was unreasonable, and the duty to consult had not been met. Drybones had strong cultural significance to the YDFN; YDFN was particularly concerned about impacts from the Project because there had been a previous study (the “Study”) which had determined that the cumulative cultural impacts in Drybones were at a critical threshold. As a potential solution, the Study had recommended land use planning with input from affected Aboriginal rights holders. However, the Study’s recommendations had not been implemented. While YDFN did have an opportunity to raise its concerns with the Board regarding the Project, YDFN’s position was that the duty to consult was not be met by the Board because the Board could not order land use planning as the previous study had recommended.

The Federal Court of Appeal upheld the dismissal below. The Board had acknowledged the Study and its recommendation, including the fact that the recommendations had not yet been approved or implemented, but still determined that the Project was unlikely to have any significant adverse impacts. The court decided YDFN had failed to prove that the Board’s decision was unreasonable. The court also reasoned that the depth of consultation offered to YDFN was consistent with the impact; since the Board had determined that the project was unlikely to negatively impact the environment, meaningful consultation did not require land use planning as an outcome.

Yellowknives Dene First Nation v. Canada (Aboriginal Affairs and Northern Development), 2015 FCA 148

Lisa C. Fong, Michael Ng and Siddharth Akali