Canada: Crown's Duty To Consult Not Triggered By Subsurface Dispositions

Does the granting of subsurface mineral rights trigger the duty to consult with Aboriginal groups? In Saskatchewan, the short answer is "no". The possibility of impact on Treaty 10 rights from the disposition of subsurface oil sands exploration permits is determined to be "too speculative" by the Saskatchewan Court of Appeal in Buffalo River Dene Nation v. Saskatchewan (Energy and Resources), 2015 SKCA 31.

Background

This decision arose from an appeal of a lower court decision in which the judge found that the duty to consult had not been triggered when the Province of Saskatchewan granted subsurface exploration permits to a land agent company. The Buffalo River Dene Nation had asserted that the Crown's duty to consult had been triggered by the issuance of subsurface exploration permits, as this would affect their ability to practise their Treaty 10 rights, which include hunting, trapping, and fishing. The lower court found that the First Nation had not shown a connection between the granting of subsurface exploration permits and a potential adverse effect on the First Nation's treaty rights.

In Saskatchewan, the permitting process for mineral exploration rights is a two-stage process. First, a party interested in exploring for certain subsurface minerals submits a request to the Ministry of Energy. The Ministry may then choose to post the lands for public bid. Notice of the potential sale is then given to the public, including affected First Nations. In the case at hand, a copy of the Public Sale Notice was mailed to Buffalo River First Nation.

Once the subsurface exploration permit is granted, permission to enter onto the land requires a surface access permit, which can be obtained from the Ministry of Environment. In this case, the Crown took the position that the duty to consult could only be triggered by the application for a surface access permit as the potential to impact Treaty 10 rights, which are exercised on the surface, could arise only at this stage.

Outcome

The Saskatchewan Court of Appeal agreed with the lower court's finding that the duty to consult had not been triggered and dismissed the First Nation's appeal. In doing so, the Court acknowledged the First Nation's concerns about the potential adverse impacts of oil sands exploration and development on Treaty 10 lands resulting from attempting to access or exploit minerals underlying the land. However, the Court concluded that ultimately, the First Nation's concern was premature. The Court noted the Crown's argument that the First Nation had not advanced a treaty right or Aboriginal claim to subsurface rights, and that the Crown conduct complained of was in regard to subsurface activity only. The Court reasoned that the issuance of subsurface exploration permits would not impact surface rights, so the issuance of the permits could not impact the exercise of the First Nation's treaty rights. Further, although the issuance of a subsurface exploration permit is the first step in exploring mineral potential in a region, the permitting regime in Saskatchewan is such that, at this early stage in the process, it remained unknown as to whether a surface access permit would ultimately be issued. Given this level of speculation, the Court concluded that the issuance of the permits could have no meaningful impact on Treaty 10 rights without subsequent permitting decisions, and that at this stage there was no project at stake that was anything more than speculative that could have any impact on the First Nation's ability to exercise their treaty rights.

Implications

This decision confirms yet again that where there are no possible impacts resulting from the Crown's conduct or authorization of conduct that could potentially impact Aboriginal or treaty rights, then the duty to consult is not triggered.

In Alberta, where there is a very similar two-stage permitting process, the Alberta Crown has consistently taken the position that the duty to consult does not generally arise until the disposition of Crown land authorizing surface activities under the Public Lands Act. The permitting process in British Columbia is different, as consultation with affected stakeholders, including First Nations, occurs prior to the posting of subsurface rights for disposition.

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