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DEH CHO
A judicial review in the federal court has concluded in favour of two First Nations in the Deh Cho.

Last November, the Nahanni Butte and Sambaa K'e Dene Bands jointly filed an application for a judicial review of the government of Canada's decision not to consult with them prior to signing a land claim agreement-in-principle with Acho Dene Koe First Nation (ADK).

Negotiations between the three First Nations to reach a boundary overlap agreement related to disputed traditional lands had broken down in June. That led Trout Lake and Nahanni Butte to send a written request to the minister of the Department of Aboriginal Affairs and Northern Development Canada asking for direct consultation prior to the signing of an agreement-in-principle with ADK.

In a reply, the minister said consultation would take place after, not before, an agreement is signed.

Trout Lake and Nahanni Butte argued that by delaying consultation until after an agreement had been signed, Canada was failing to comply with its legal and constitutional duty to consult with and properly accommodate the two bands.

In her judicial review on Feb. 10, Justice Anne Mactavish set aside the minister's decision and called on Canada to "engage in immediate and substantive discussions," directly with Nahanni Butte and Trout Lake with regards to parts of the lands claim with ADK that would affect or potentially affect the aboriginal and treaty rights of the two bands.

The sections include the determination of the lands and resources that will form ADK's settlement area in the land claim, the use of such lands and resources and the regulation and management of them.

Mactavish also ruled Canada can't sign a land claim agreement-in-principle with ADK until the consultations with Nahanni Butte and Trout Lake have been carried out.

In her reasons for judgment, Mactavish said the threat to the rights of the Nahanni Butte and Sambaa K'e Dene Bands was real. Mactavish wrote that Canada has breached its duty to consult with the two bands.

Mactavish also declared in her judgment that after the agreement-in-principle is signed, Canada will have to "engage in deep, meaningful and adequate consultation," with the two bands to develop measures to accommodate their concerns surrounding the traditional land overlap and the lands and resources ADK will be given as part of its settlement area.

Neither Chief Dolphus Jumbo nor Chief Fred Tesou returned calls for a comment about their community's reaction to the judicial review.

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