Buffalo River Dene Nation v. Saskatchewan (Energy And Resources), 2015 SKCA 31
In this case, the Saskatchewan Court of Appeal held that the duty to consult will only be triggered where a Crown decision will have an "appreciable and current potential" to adversely impact a treaty or Aboriginal right. The duty will not be triggered where adverse impacts are merely speculative.
Buffalo River Dene Nation is a signatory of Treaty 10. The treaty obligates the Crown to consult with the First Nation before authorizing activities that could interfere with treaty rights. In this case, the Ministry of Energy and Resources granted an exploration permit in respect of subsurface oil sands minerals located under Treaty 10 lands without consultation. The First Nation applied for judicial review, and asserted that the Crown had breached its duty to consult.
The Saskatchewan Court of Appeal reviewed the underlying decision on a correctness standard. After an extensive review of the law, the Court of Appeal determined that on its own, the issuance of an exploration permit did not have any meaningful impact on treaty rights and therefore, the duty to consult was not triggered. The exploration permit itself did not give the recipient the right to enter Treaty 10 lands or to engage in mineral extraction; it granted no more than an inchoate interest in the minerals lying beneath the lands. Any adverse impact would be the result of a subsequent, independent administrative decision — governed by a "well-defined and linear regulatory process" — such as a decision to grant the permit-holder the right to commence mineral exploration or a lease to extract the mineral.
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