Federal Court decision on the issue of Aboriginal consultation

Re: Athabasca Regional Government (ARG) v. A.G. Canada and AREVA Resources Canada Inc. (Respondents) and Canadian Nuclear Safety Commission and A.G. Saskatchewan (Intervenors)

Summary

On September 22, 2010, the Federal Court of Canada released its decision in the matter of an application by the Athabasca Regional Government (ARG) for judicial review of the decision by the Canadian Nuclear Safety Commission (CNSC) to renew AREVA's McLean Lake uranium mine and mill operating licence. The Honourable Mr. Justice Russell dismissed the application. The ARG had raised a number of issues relating to the insufficiency of Aboriginal consultation and the legal authority of the CNSC to fulfill the duty to consult on behalf of the federal government.

The Court determined that the Commission had the authority in accordance with its legislation to deal with Aboriginal consultation on behalf of the Crown and that such issues properly fell within the Commission's statutory mandate and expertise in accordance with section 35 of the Constitution Act (1982).

Background

On June 30, 2009 the Commission issued its decision on renewal of the licence for an eight-year term. At the same time and in the same decision, AREVA's Midwest Uranium Mine site preparation licence was revoked and the care and maintenance activities authorized under this licence were incorporated into the McLean Lake licence. In the course of the Commission hearing the issue of the duty on the Crown to consult aboriginal people was raised. In particular, seven Northern Saskatchewan communities, collectively the "Athabasca Regional Government" (ARG), made submissions before the Commission to the effect that a duty to consult was applicable, and that there had been insufficient consultation. In its decision, the Commission provided its conclusions on this issue as follows:

• "The Commission is satisfied that its process has provided an invitation to the intervenors to make submissions and participate in the regulatory process, and the Commission hearing process provided a forum in which concerns could be expressed and dealt with. In this matter, in response to concerns about the licensing action and knowledge gaps with respect to the information provided and understanding of the matters in issue, the Commission granted an extension of time to the ARG [Athabasca Regional Government] to provide it with time to seek, obtain and make submissions on the matters before the Commission. This has also provided the possibility of more discussions and engagement by the CNSC staff and AREVA, with the ARG in particular."

• "The Commission is satisfied that its process has been adequate to address the concerns expressed relating to the impact communities receiving the information required and being able to speak to the matters in issue regarding the scope of this specific hearing. The Commission is satisfied that the intervenors have been informed of the Commission process and of the licensing action at issue, and have had a full opportunity to express their concerns and identify issues. The Commission has heard the intervenors, and has considered all of the submissions in making its decision. In this context, the Commission is satisfied that, to the extent that a duty to consult was engaged, it was fulfilled in this case respecting the licensing action, by the Commission process and by the opportunities that were afforded for consultation within that process."

After the licensing decision was issued, the ARG sought judicial review of the decision, with the Attorney General of Canada and AREVA being named as respondents. The CNSC and the Attorney General for Saskatchewan both intervened in the matter, which was heard on June 8, 2010.

The Federal Court ruled that the ARG had provided no evidence of any reviewable error in the Commission's decision, and dismissed the application. The Court found: "At the very most, given the low threshold for triggering the duty to consult, any duty triggered was minimal in scope and at the lower end of the spectrum, and it was discharged to the process that took place in this instance."

The decision of the Federal Court is considered by the Commission to be a confirmation of its approach to the issue of Aboriginal consultation and its practices in this regard, when the Commission exercises its authority under the Nuclear Safety and Control Act.

For more information

• Government-wide forward regulatory plans
• The Cabinet Directive on Regulatory Management
• The Red Tape Reduction Action Plan
• The Canada-United States Regulatory Cooperation Council

To learn about upcoming or ongoing consultations on proposed federal regulations, visit the Canada Gazette and the Government of Canada’s Open Government website under the "Find a Consultation" option.