Two recent decisions, Métis Nation of Alberta Association of Fort McMurray Local Council 1935 v Alberta, 2016 ABQB 712 and Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, 2016 ABQB 713, highlight continuing uncertainty with Alberta’s process for consulting with Métis regarding Crown actions that could impact asserted Métis rights.

Background

The Métis Nation of Alberta (“MNA”) is a democratic government of the Métis Nation, representing over 35,000 registered citizens who reside within the geographic bounds of Alberta, but do not live on the Métis Settlements. Governance for the MNA is divided into a Provincial Council, Regional Councils (“Regions”), and Local Councils (“Locals”). The MNA, each MNA Region and each MNA Local are separately incorporated under the Alberta Societies Act. Fort McMurray Local Council 1935 (“Local 1935”) and Fort Chipewyan Métis Nation of Alberta Local #125(“Local 125”) are both located in MNA Region 1.

Unlike other Aboriginal governance structures in Canada, where membership is maintained at the local or Band level, the MNA maintains a centralized registry for citizenship at the provincial level. The MNA’s bylaws require individuals to demonstrate that they self-identify as Métis (as distinct from other Aboriginal peoples), are of historic Métis Nation ancestry, and are accepted by the Métis Nation in order to become registered. The MNA’s registration process requires the collection of the information needed to ensure that all MNA members connect ancestrally to an historic, rights-bearing Métis community. When Métis people apply to the MNA for citizenship they voluntarily authorize the MNA to represent their collectively-held rights throughout Alberta, in accordance with the MNA’s bylaws.

At this time, the Alberta Crown has no formal policy to guide consultation with the rights-bearing Métis communities affiliated with the MNA – whether at the provincial, regional or local level. Instead, the Alberta Crown consults with Métis groups on a case-by-case basis if the Aboriginal Consultation Office (“ACO”) concludes that a Crown decision might potentially impact credibly asserted Métis rights. In recent litigation brought by each of Local 1935 and Local 125, the central issue was whether ACO had properly decided that the duty to consult had not been triggered, even before deciding what level of consultation and accommodation may be necessary.

Métis Nation of Alberta Association of Fort McMurray Local Council 1935 v Alberta

In 2014, Local 1935 asserted Métis rights in relation to five energy resource projects. Local 1935 provided ACO with research reports focussing on the Métis presence in the vicinity of Fort McMurray produced by third party consultants and university researchers. ACO responded by requesting further information to assess whether Local 1935 was a rights-bearing Métis community capable of meeting the Powley test. ACO initially gave Local 1935 two weeks to respond. While ACO later appeared to extend some deadlines upon request, it refused to extend others without explanation.

After receiving Local 1935’s information responses, ACO concluded that the information provided was insufficient to trigger duty to consult due to a lack of information about: who Local 1935 represented for the purposes of asserting Aboriginal rights; its authority to act; essential elements of the Powley test; and finally, potential adverse impacts of the projects upon Local 1935’s asserted rights. ACO subsequently approved each of the five projects and Local 1935 sought judicial review.

4 approvals quashed

The Court quashed four approvals citing various flaws in ACO’s assessment procedure. The Court found that certain deadlines imposed by ACO were unfair based on the time and expertise required for Local 1935 to answer ACO’s information requests. Other deadlines appeared to be imposed arbitrarily. When Local 1935 requested time extensions, ACO granted some belatedly and in unclear terms. When ACO rendered its final decision to exclude the Local 1935 from consultation, it did so less than five hours after receiving Local 1935’s extensive information responses. This led the Court to conclude that Local 1935’s information responses were either not reviewed or only reviewed cursorily in the time between the receipt of responses and the rendering of the decision.

1 approval upheld

The Court found no flaws with ACO’s assessment process with respect to the remaining approval issued by the Alberta Energy Regulator (“AER”). Prior to the issuance of the approval, ACO had notified the AER that the duty to consult had not been triggered because the information provided by Local 1935 failed to establish a sufficient connection between their asserted rights and the area impacted by the project. When AER issued the approval, the decision letter articulated that Local 1935’s concerns had been considered, that consultation was not required based on the ACO’s determination, and that the proponent had satisfied all applicable legislative and regulatory requirements. The AER also advised Local 1935 of their right to file a regulatory appeal of the ACO’s decision to exclude them from the consultation process. Since Local 1935 chose not to file a regulatory appeal, the Court refused to intervene, noting that Local 1935 had failed to exhaust an equally effective appeal process and the ACO’s decision demonstrated justification, transparency and intelligibility.

Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta

In 2010, the Alberta Crown recognized the Fort Chipewyan Métis as both a historic and contemporary Métis community in its Métis Harvesting Policy. In 2012, Local 125 asserted Métis rights in relation to an oil sands project. To back up their claim, Local 125 provided ACO with evidence relating to the ethnogenesis and current presence of the Métis community in the environs of Fort Chipewyan.

The Federal Crown and the project proponent each decided that the duty to consult had been triggered and consulted with Local 125. Conversely, ACO decided that the duty to consult had not been triggered because Local 125 failed to provide sufficient information to demonstrate a credible assertion that it represented a rights-bearing Métis community. Local 125 sought judicial review.

The Court dismissed Local 125’s application on the basis that it lacked standing and had failed to define its membership with objectively verifiable criteria.

No authority or standing

The Court found no positive evidence that Local 125 had been authorized to consult on behalf of Fort Chipewyan Métis Community. In fact, the record revealed conflicting claims by MNA, MNA Region 1 and Local 125 that each of them had the authority to represent the Fort Chipewyan Métis community. While the Métis Harvesting Policy provided some prima facie evidence that a rights-bearing community exists within 160km of Fort Chipewyan, the Policy did not confirm Local 125’s authority to speak on behalf of the Fort Chipewyan Métis Community in asserting rights and claiming Crown consultation. Local 125’s prior meetings and correspondence with Alberta politicians and Crown staff during the regulatory process did not establish Local 125’s legal standing by estoppel.

Membership imprecisely defined and unrepresentative

The Court further found that the membership information Local 125 provided to ACO failed to satisfactorily demonstrate that current members of Local 125 were ancestrally connected to the historic Fort Chipewyan Métis Community. In addition, Local 125 was unable to objectively demonstrate how many members it currently represented. At most, Local 125 appeared to represent one fifth of the community’s population. The court concluded that a corporate entity with a membership of less than one-fifth of the total population of a rights-bearing group could not claim to be representative of the entire Aboriginal collective for the purpose of asserting Aboriginal rights and seeking consultation.

Conclusion

The Alberta Crown has taken the position that the duty to consult will not be triggered until ACO decides that a rights-bearing Métis community exists, and that the modern day representative of that community has been authorized to consult its behalf. While the onus is on the Métis to provide sufficient evidence to convince ACO that they are authorized and represent a rights-bearing community whose membership is capable of clear definition and satisfies the required indicia of Métis identity, the amount of evidence required to meet ACO’s threshold test is not clear. The Court will be willing to intervene if ACO acts unfairly when assessing asserted Métis rights. However, so long as ACO’s approach to Métis consultation remains unstructured, industry participants bear the increased risk of project approvals being quashed if the ACO incorrectly determines the necessity for, or the scope of, consultation.

At the same time, ACO’s assessment process appears to be a change in the law of consultation. By attempting to resolve any uncertainty with respect to asserted Métis rights when assessing the trigger of the duty to consult, ACO’s approach contrasts with previous statements of the Supreme Court of Canada, where the Court made it clear that the honour of the Crown and goals of reconciliation require Crown engagement with Aboriginal people to be easily triggered, and that the Crown should address any uncertainty with respect to asserted rights when assessing the scope of the duty to consult – not the trigger. The decision seems to set a different test for triggering consultation in relation to asserted Métis rights than the test set out in Haida.