The Saskatchewan Court of Queen's Bench held in Buffalo
River Dene Nation v The Minister of Energy and Resources and Scott
Land & Lease Ltd, 2014 SKQB 69, that a decision of the
Minister of Energy and Resources to post for sale and subsequently
issue two oil sands special exploratory permits did not trigger the
duty to consult and accommodate, as the issuance of the permits did
not amount to a decision that could affect the use of the lands
covered by Treaty 10.
The question of whether the posting for sale and issuance of oil
and gas exploration permits triggers the duty to consult had
previously been undecided, although similar challenges by First
Nations groups to leases granted by a province for Crown-owned
mineral rights have previously been before the courts. See, for
example, Athabasca Chipewyan First Nation v Alberta (Minister
of Energy), 2009 ABQB 576, and Dene Tha' First Nation
v British Columbia (Minister of Energy and Mines), 2013 BCSC
In analyzing whether the duty to consult was triggered in this
case, the Court focused on two elements of the Crown's process:
(1) the specific nature of rights authorized by the permits; and
(2) the initial decision by the Minister to post the permits for
sale. With respect to the nature of the rights authorized by the
permits, the Court emphasized that the permits did not provide
authorization for the permit holder to go onto the land and conduct
exploration work. Rather, the permit holder must obtain separate
authorization from the Minister of Environment to conduct
exploration work, which is granted independent from the Minister
and without regard to the existence of the permits. As to the
process leading to the Minister's decision to post the permits
for sale, the Court found that the decision involved a
"relatively straightforward" administrative process as
opposed to a "strategic" or "high-level"
decision. In the result, the Court held that neither the posting or
issuing of the permits by the Minister engaged the duty to consult
because there was no decision that could affect the use of the land
that could potentially adversely impact the BRDN's rights.
However, the Court observed that a subsequent decision of the
Minister of Environment with respect to entering on to the lands
may engage the duty to consult.
Without further guidance from the courts, it is difficult to say
conclusively that the duty to consult is not triggered in every
circumstance involving the Crown's disposition of mineral
rights. While the application of the principles in this case to
other permit approval processes outside of Saskatchewan requires
further analysis, the decision highlights the relevance of the
process and degree of long-term planning involved in a Crown
decision to post for sale and issue oil and gas leases or permits
to the determination of the existence of the duty to consult. The
decision also reinforces the importance of determining the extent
of the specific rights granted by an oil and gas lease or permit
and whether those rights may be exercised by a permit holder
immediately, or whether they are subject to additional governmental
approvals that may subsequently trigger the duty to consult.
To date, the case has not been appealed.
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