First Nation's Request For An Increased Allocation Of Sockeye Triggers The Duty To Consult

Introduction

On August 8, 2019, the Federal Court of Appeal overturned a decision of the Federal Court, finding that Squamish First Nation's request for an increased allocation of Fraser River sockeye salmon triggered the Crown's duty to consult. This case is another recent example of the Federal Court of Appeal's readiness to examine a government agency's consultation in detail and provide commentary to guide the Crown and Indigenous groups toward meaningful consultation.

Background

Around 1992, the Squamish First Nation (Squamish) was granted an allocation of salmon for food, social, and ceremonial purposes by the Department of Fisheries and Oceans ("DFO"). The allocation allowed Squamish to catch 20,000 pieces of Fraser sockeye salmon per year. In 2012, in recognition of the substantial increase in their population, Squamish requested an increase to 70,000 pieces of Fraser sockeye per year. DFO increased the allocation by 10,000 to 30,000 Fraser sockeye, and also increased Squamish's chum and pink salmon allocation.

Squamish sought a judicial review of this decision, challenging the adequacy of DFO's consultation and the reasonableness of the decision in regard to DFO policies. In its 2017 decision1, the Federal Court found that the duty to consult was not triggered because Squamish failed to establish a causal link between the allocation number and how the allocation number would adversely affect their asserted right. The court also found that Squamish failed to show how the existing allocation was insufficient for its food, social and ceremonial purposes. The Federal Court stated that even if the duty to consult had been triggered, the communication between the parties had been sufficient to satisfy that duty.

The Federal Court of Appeal Decision

In Squamish First Nation v Canada (Fisheries and Oceans)2, the Federal Court of Appeal found the Squamish's request for an allocation increase triggered the duty to consult, noting the Federal Court misapprehended the basis of Squamish's asserted right as the issuance of an allocation under an Aboriginal communal fishing licence. The basis of Squamish's asserted right to fish arises from their reliance on Fraser Sockeye prior to European contact. The Federal Court of Appeal also misapprehended the legal threshold Squamish needed to meet to show an adverse impact to its asserted right. The Federal Court of Appeal observed that requiring the Squamish to show how 30,000 pieces, rather than...