Existence of the Duty to Consult or Accommodate. 2008 FCA 212 (CanLII) [35] The Crown’s duty to consult and accommodate, as explained in Haida, supra, arises when the Crown “has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” (Haida, supra, para. 35) (See also: Halfway River First Nation v. British Columbia (Ministry of Forests), [1997] 4 C.N.L.R. 45 (B.C.S.C.), at p. 71). As a corollary to this proposition is the one that the duty to consult is triggered at a low threshold (see Mikisew, supra, at para. 55). [36] In the present matter, the Minister does not dispute the fact that he had knowledge of the appellants’ claimed Aboriginal rights. However, the Minister does not concede that the appellants have a strong claim and, in support of that view, relies on the Supreme Court’s decision in R. v. NTC Smokehouse, [1996] 2 S.C.R. 672, where the Supreme Court held that two of the appellant First Nations did not have commercial rights to sell fish. [37] The appellants say that rights other than their right to fish commercially might be affected by the implementation of the Pilot Plan. Firstly, with respect to the potential impact on treaty settlements and socioeconomic impacts on First Nation communities, I agree entirely with the Applications Judge that since treaty settlements constitute a discrete process, such impact would not trigger a duty to consult. With respect to their FSC rights, the Judge found, and I agree entirely with him, that the appellants did not adduce any evidence to support their contention that these rights “might” be adversely impacted. Even if the duty to consult is triggered at a low threshold (see Mikisew Crew First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, at 2008 FCA 212 (CanLII) para. 55), mere submissions are not, in my view, sufficient to demonstrate that the Pilot Plan might have negative impacts upon the Aboriginal right to fish for FSC purposes. [38] Hence, I am of the view that Xxxxx J. did not err in finding that the respondent correctly determined that the appellants’ right to fish commercially was the only right which might be adversely affected by the Pilot Plan. Although the Judge did not say what standard of review he applied, it is clear from his Reasons that he did not show any deference and thus he applied the standard of correctness.
