August 19, 2019

The duty to consult about inadequate fishing allocations: Squamish Nation v. Canada, 2019 FCA 216


Squamish First Nation recently succeeded on its appeal of a lower court decision (2017 FC 1182) upholding a DFO decision to allocate only five sockey salmon per person per year. While the lower court found no duty of DFO to consult about its decision, the Federal Court of Appeal held that the nation’s request for an increase in its allocation triggered the duty to consult, which DFO did not reasonably and adequately discharge: Squamish Indian Band v. Canada (Minister of Fisheries and Oceans),2019 FCA 216.

In 2011, Squamish requested an increase in its food, social and ceremonial (FSC) allocation of sockeye salmon in the Fraser River, from 20,000 pieces to 70,000 pieces. DFO ultimately creased allocations for 2014 from 20,000 to only 30,000 pieces. Squamish challenged that decision based on a failure of Canada to consult. We blogged about the Federal Court decision (here), where the lower court (per McDonald J.) decided that no duty to consult was engaged, reasoning that Squamish had not proven how not being able to fish for 70,000 pieces of sockeye salmon had an adverse impact on its asserted right to fish, e.g., why 5 sockeye per person was not enough for social and ceremonial purposes. Despite a species-specific Aboriginal right, the lower court commented that, “Beyond a stated preferencefor sockeye salmon, the Squamish Nation did not address why other fish cannot satisfy the food needsof the community” (emphasis added). The court further held that if a duty to consult was engaged, the duty was at the “low end” of the spectrum.

In contrast, the Federal Court of Appeal concluded that a duty to consult arose.

First, the Court of Appeal recognized that when a strong prima faciecase for an Indigenous claim is established, and the potential infringement is of high significance to Indigenous peoples, the duty of consultation lies “at the high end of the spectrum” and may requires an opportunity to make submissions, and formal participation in the decision-making process [36].

Second, the Court of Appeal found that a duty to consult was triggered, and that the lower court specifically erred in concluding that Squamish had failed to show adverse effects on their asserted right to fish, for purposes of triggering a duty to consult. [44] In particular, it erred by requiring that Squamish show it was adversely affected by receiving an allocation of 30,000 pieces, when the duty to consult was procedural, and arose prior to any decision by DFO to allocate any specific amount. [50] The information that Squamish provided, about the existing allocation being insufficient for food, social and ceremonial purposes, was enough to trigger a duty to consult. [53]

Third, the Court of Appeal held that the lower court erred in concluding that any duty to consult was at the low end of the spectrum. Given the undisputed evidence about the importance of sockeye salmon, [61] and the impacts of DFO’s allocation, [62] the duty to consult required, at least

(a) “…a meaningful two-way dialogue in which the Department did more than passively request and receive information from Squamish” [63];

(b) that DFO “provide responses that were responsive, considered and meaningful in response to the concerns Squamish expressed and the information it provided” [63]; and

(c) that DFO provide “written reasons to show that Squamish’s concerns were considered and how its concerns were taken into account when reaching the final decision” [64].

The Court of Appeal noted, however, that nowhere did DFO “meaningfully discuss the merits or frailties of Squamish’s request, or alternative means of meeting the needs of the Squamish people” [67]. While various meetings focused on “reiterating the complexities of allocation requests,” [68] the meetings did not involve any “interaction between the parties in which they grappled in good faith with Squamish’s concerns and preferences and the legitimate concerns of the Department as manager of a complex fishery” [69]. The court ultimately commented on “how bereft of meanigful dialogue the process was…” [73]. DFO did not explain how it concluded that 30,000 pieces would be an appropriate allocation.

Accordingly, the Court of Appeal set aside the Federal Court decision, and declared that the allocation decision was made in breach of the Crown’s duty to consult with Squamish.

Squamish Indian Band v. Canada (Minister of Fisheries and Oceans),2019 FCA 216.

Lisa C. Fong and Michael Ng