Case information

FIRST APPLICATION: Aboriginal peoples — Treaty rights — Duty to consult — Duty to accommodate — Relicensing of existing project — First Nations invited to consult on relicensing — Relevance of existing impacts in consultation on relicensing — Whether duty to consult and accommodate triggered by Crown conduct that continues into future or by projects or activities that violate or adversely affect Indigenous rights — Whether duty includes all impacts that may occur into future, even if they originated in past — Whether past and ongoing violations of Indigenous rights or adverse effects to Indigenous rights from project or set of activities for which no complete remedy may ever be available should inform accommodations required.

SECOND APPLICATION: Aboriginal peoples — Treaty rights — Duty to consult — Duty to accommodate — Relicensing of existing project — First Nations invited to consult on relicensing — Relevance of existing impacts in consultation on relicensing — Proper approach to cumulative effects when considering reasonableness of accommodation — How existing impact for which no complete remedy may exist affects accommodation — Whether compensation required to accommodate future effects when project cannot be readily altered to lower effects.

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In 2014, the Saskatchewan Power Company applied to the Water Services Agency to renew its licences to operate two dams on the Saskatchewan River, which drains into the Saskatchewan River Delta. Cumberland House Cree Nation (“CHCN”) and Opaskwayak Cree Nation (“OCN”) rely on the Delta for subsistence in the exercise of their Treaty and Aboriginal rights. The E.B. Campbell dam had operated it on a 50 year licence that expired in 2015. The Nipawin dam was constructed in 1986, and had operated under an interim lease that expired in 2019.

The Agency determined that the licensing decisions triggered a duty to consult with First Nation and Métis communities. In June 2015, letters were sent to the Chiefs of CHCN and OCN inviting them to consult and to identify potential adverse impacts on the exercise of treaty or Aboriginal rights and traditional uses. Consultation occurred over approximately three years. In a decision concerning the interpretation of The Water Power Regulation, R.R.S., c. W-6 Reg. 3, the Agency advised the affected First Nations and Métis communities of the applications and explained that regulatory changes meant that only new adverse impacts could be considered during the relicensing process. It acknowledged that the physical dams were impacting sediment, causing sediment starvation downstream, and adversely affecting treaty rights, they did not fall within the scope of the duty to consult because they were not new issues.

In October 2018, the Agency issued a final operating licence to continue to operate the Nipawin dam and a renewed licence to continue to operate the E.B. Campbell dam. The licencing conditions imposed include a requirement that SaskPower establish a Stewardship Committee to examine the prospective and retrospective impacts of the dams. CHCN and OCN each applied for judicial review. The applications were dismissed, as were the appeals from that decision.