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ARTICLE · 21 MARCH 2016

Buffalo River Dene Nation v. Saskatchewan (Energy And Resources), 2015 SKCA 31

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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.

CanadaEnergy and Natural Resources
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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.

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