This decision of the Federal Court of Appeal (FCA) dealt with the question of whether a federal agency, the Canadian Nuclear Safety Commission, owed a duty to consult with the Fond du Lac First Nations (Fond du Lac) in respect of, amongst other things, the renewal of a mining and milling licence held by AREVA Resources Canada Inc. for its McLean Lake operations in the Athabasca Basin in northern Saskatchewan.
Fond du Lac advanced the argument that the constitutional duty to consult is triggered by the presence of an existing Aboriginal or treaty right of which the Crown had actual or constructive notice, and that the duty requires that an inquiry to be made as to whether the proposed action might adversely affect the right.
The FCA rejected this argument, stating that a duty to consult only arises when there is evidence of a possibility that the proposed action may harm an Aboriginal or treaty right.
This decision is entirely in line with the classic formulation of the test for a duty to consult found in Haida Nation v. British Columbia (Minister of Forests) and is also consistent with recent appellate decisions in British Columbia. The burden is squarely on the First Nation to lead evidence of a potential harm before the duty to consult will be triggered. Moreover, the decision makes it clear that the potential harm must be of a non-trivial nature before the duty to consult will be engaged.
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