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.
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
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.
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.
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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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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