Canada: Does Every Resource Permit Trigger A Duty To Consult?

Are Crown consultations with First Nations are required in all circumstances where the Crown issues a resource-related permit? There is some guidance to be found in the March, 2014 decision of Justice Currie of the Saskatchewan Court of Queen's Bench in Buffalo River Dene Nation v. The Minister of Energy and Resources.

In 2012, the Ministry held a sealed-bid auctioned of oil sands exploration permits. Two Oil Sands Special Exploratory Permits were issued to a successful bidder for Crown land within the area covered by Treaty 10, to which the Buffalo River Dene Nation is a party.

The Minister had not consulted with the Buffalo River Dene before conducting the sale or before issuing the permits. Believing that there was a consultation duty owed to them, the Buffalo River Dene brought a court application challenging the process and the permits.

In its decision the Court focusses on whether issuing the permits had the potential to adversely affect an Aboriginal right or claim and also on whether the decision to have the sale of exploration permits constituted a type of "strategic, higher-level decision" that may have an impact on Aboriginal claims and rights. If either characterization applied, then the government decision might trigger the prior duty to consult.

The Judge looked closely at the rights granted under the Special Exploratory Permit. He noted that the underlying legislation specifically provided that neither the permit, nor any other Crown disposition of minerals, actually authorized the holder to enter on or use the surface of the Crown mineral lands. That required, at minimum, a further authorization from Saskatchewan Environment. The permits themselves contain a statement that reiterated that they did not include any right to enter or use the surface of the Crown mineral lands. The Court therefore characterized the permit as providing a bare right of exploration only and that other steps would have to be taken to secure entry for that purpose.

The Minister presented evidence from the Ministry of Environment that the additional permits required to access exploration lands were not automatically granted by that department. A separate application was required, and that application could trigger a consultation process.

The Buffalo River Dene pointed out that the regulations required the Special Exploratory Permit-holder to drill at least one well and conduct a certain dollar value of work annually in order to maintain the validity of the permit. They argued that those activities were potentially disruptive to hunting and fishing and damaging to the land itself. The Court pointed out, however, that further steps and approvals would be necessary before the permit-holder could carry out any of these activities. The Court noted, based on the evidence, that it was also fairly common for permit-holders to not to do any work in their permit areas for economic reasons, and to simply let the permits expire.

Although the Court commented on the subject, it did not make any specific finding as to whether Crown consultation with the Buffalo River Dene would be required when the additional approvals were applied for.

The Court also considered whether the decision to hold the permit sale required consultation with the First Nation. The Buffalo River Dene argued that the decision to offer the Special Exploratory Permits was a strategic, higher-level planning decision that would irrevocably set a pattern of development that would affect their Aboriginal rights. Based on the evidence that permits sales were routinely conducted whenever exploration rights were requested, the Court held that the decision to hold the permit sale was purely administrative. It was performed with little information and that there was no long-term planning involved or resulting from the process. It was the Court's opinion that the decision to sell the permits was not a long-term planning decision that triggered a duty of consultation.

What does this mean for resource developers? Well first, it focuses attention on the need to consider whether and when a government decision may adversely affect an Aboriginal right or claim and require consultation. In this case, a right to explore that did not also give any rights of access was found not to have any potential impacts. Focus on what is authorized by the approval and whether this can give rise to an adverse impact on Aboriginal rights or claims. Second, it confirms that not all government decisions are "strategic", "higher-level" or of a long-term nature that would potentially affect Aboriginal rights or claims and therefore trigger a duty to consult.

If, at the end of the day, seeking, obtaining and acting upon the series of permits and approvals necessary to operate a project or development will have the potential effect of impacting Aboriginal rights or claims, then a duty of consultation will definitely be triggered at some point. The triggering event will be the application for the licence and approval that, if issued, will permit the holder to carryout activities that may impact those rights or claims.

Until there is more judicial guidance developers may wish to encourage government to carry out some level of consultation as a preventative measure in order to avoid the prospect of litigation. Although the Minister was found to have acted appropriately in this case, the disagreement with the Buffalo River Dene cast a cloud over the validity of the permits until the Court made its decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions