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K’ómoks First Nation v. Canada (Attorney General)

Country/Territory
Canada
Type of court
National - higher court
Date
Oct 1, 2012
Source
UNEP, InforMEA
Court name
Federal Court
Seat of court
Ottawa
Judge
Harrington.
Reference number
2012 FC 1160
Language
English
Subject
Fisheries
Keyword
Constitutional law Aquaculture Fishery management and conservation Indigenous peoples Traditional rights/customary rights
Abstract
The case concerns both the granting of the original short-term (two year) federal aquaculture licences in 2010 and the one-year renewals in 2012 of four shellfish aquaculture licences in British Columbia. The K’omoks First Nation argued that Canada had a constitutional duty to consult with it regarding both the issuance and the conditions of the licences and that Canada did not meet this duty. The Court held that it was reasonable for Canada to limit consultation to conditions of the licences, rather than their issuance. Citing Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at paragraph 45, “pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims”, the Court held that due to time constraints on the new scheme, Canada could not refuse to issue these licences that had been held by the licencees for decades. Regarding the renewals, the Court recognized that Canada should have commenced consultation regarding their issuance sooner than in September 2011. However, the Court described the consultation process as a two-way street between Canada and the Band. Here, the Minister had legitimately sought particulars of the needs of the band and its past harvesting history and had not yet received an answer. The Court stated that “[t]here is no principle that the world comes to a standstill during that process” and held that Canada should not be prevented from renewing the licences until the consultation process is complete.
Full text
COU-159828.pdf