The Lax Kw’alaams Indian Band argued that the environmental plan endorsed by the government would effectively close commercial fishing areas that are economically and culturally. important to the community. The plan was endorsed by the federal minister of fisheries, oceans and the Canadian Coast Guard in January 2023.
But in a Sept. 6 decision in Lax Kw’alaams First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2024 FC 1400, Justice Glennys L. McVeigh ruled that the application is premature because discussions are continuing on the so-called network action plan (NAP) to establish and implement of marine protected areas (MPAs) in B.C.’s Northern Shelf Bioregion.
“The NAP itself is not justiciable, the Minister’s endorsement does not carry any legal consequences, and the consultation process has not yet run its course,” wrote Justice McVeigh.
Given that finding, she wrote, she declined to rule on whether the government’s duty to consult has been met.
According to facts detailed in the decision, the Lax Kw’alaams community comprises about 1,000 Coast Tsimshian people and 5,300 Band members. It relies primarily on commercial fishing for economic support, including a fish processing plant that employs about 100 people.
The federal government began working with the B.C. government and 17 First Nations in 2014 to develop non-binding recommendations for a network of marine protected areas (MPAs) in the Northern Shelf Bioregion. Lax Kw’alaams joined the process in 2018 but advised the federal Department of Fisheries and Oceans (DFO) by early 2021 that they did not support the proposed MPAs in their traditional territories.
Consultation planning, which included the community, began in late 2021. But by the early months of 2022, Lax Kw’alaams was already pursuing an injunction on the process, which was rejected as premature by Federal Court Justice Paul Favel in July of that year.
The consultations continued in early 2023. But during the application hearing for the case at bar, Lax Kw’alaams alleged the DFO conducted inadequate consultation and breached its duty to consult. It also asked the court to quash the minister’s endorsement of the NAP and set aside any actions taken to implement the minister’s decision.
Counsel for the respondents, the minister of fisheries and oceans and the Canadian Coast Guard argued, among other points, that the NAP is not the type of “strategic, higher level decision,” which could give rise to a duty to consult, it does not impose a certain course of conduct and allows for deviations from its recommendations.
While agreeing that there is a duty to consult, the respondent also argued that the consultations have “not yet reached their effective end-point” and should be evaluated when they are finished.
In finding the application premature, Justice McVeigh pointed to numerous examples where “the Federal Court of Appeal has consistently held that reports, which consist of non-binding recommendations to a decision-maker, are non-justiciable.”
“The NAP does not require the Minister or any other statutory decision-maker to follow the proposals laid out,” she wrote. “Additionally I find that the Minister’s endorsement does not carry any legal consequences.
“When further steps are taken, specifically when the regulatory and legislative process is engaged for designating MPAs, Lax Kw’alaams’ rights and interests will truly be at stake,” added Justice McVeigh.
But because the process is still at an early stage, she noted, “I agree with Justice Favel that any issues can be repaired with further consultation. Prior to any legislative or regulatory enactments, the Crown must consult with Indigenous groups.”
Counsel for the appellant were Ian M. Knapp and Kathrine E. Bellet of Vancouver-based MacKenzie Fujisawa LLP. They did not immediately reply to a request for comment.
Counsel for the respondent were Aileen Jones and Alicia Blimkie of Justice Canada.
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