​The Alberta Court of Queen’s Bench recently issued two decisions, Métis Nation of Alberta Association Fort McMurray Local Council 1935 v. Alberta, 2016 ABQB 712 and Fort Chipewyan Metis Nation of Alberta Local #125 v. Alberta, 2016 ABQB 713 confirming the procedural fairness threshold required of the Aboriginal Consultation Office (ACO) and the scope of the information required of First Nations incorporated societies in determining whether the Alberta Crown’s constitutional duty to consult has been triggered in resource development applications. Both decisions are judicial reviews of ACO’s determination that the Alberta Crown’s duty to consult the Métis incorporated societies had not been triggered. The Court confirmed that a high level of procedural fairness is owed by the ACO as an administrative decision-maker to First Nations incorporated entities. The Court also confirmed that the incorporated entities are required to provide sufficient information to substantiate their claim as the representatives with authority to deal with the Alberta Crown in respect of the collective Aboriginal rights owned by the particular community.​

Métis Nation of Alberta Association Fort McMurray Local Council 1935 v. Alberta, 2016 ABQB 712 (Métis Nation)

Background

In this case, the ACO determined that a duty to consult the Métis Nation of Alberta Association Fort McMurray Local Council, also known as Fort McMurray Métis Local 1935 (FM Local or Applicant) was not triggered in respect of several energy resource development applications. This judicial review was heard together with the judicial review in the case discussed below. While FM Local adopted its argument in Fort Chipewyan Métis Nation, the facts of this case led to an entirely different result.

The energy resource development applications before the Alberta Energy Regulator (AER) in issue were three projects proposed by Canadian Natural Resources Limited (CNRL) on its existing oil sands leases, a renewal of CNRL’s Water Act diversion licence granted in 2004, and Imperial Oil Resources Ventures Limited’s (Imperial) Aspen Project application to construct, operate and reclaim a proposed in-situ oil sands commercial scheme development.

In the late Fall of 2013, FM Local received Notices of Resource Applications in the area and sent Statements of Concern (SOC) to the AER and the ACO. In response, FM Local received detailed information requests from ACO which was required to answer within a few weeks. ACO denied FM Local’s requests for an extension of time to provide further information with respect to 3 of the 4 project for which informa​tion requests had been issued, and a 5 business day extension was granted on only one file. Although the ACO had not reviewed all of the records FM Local had provided, ACO issued its decision letter to FM Local which determined that the Crown’s duty to consult had not been triggered.

The central issues were whether FM Local had provided sufficient information to trigger the duty to consult and ACO’s procedural fairness in requiring and assessing the information.

Decision

The Court assessed the degree of procedural fairness required of ACO as the administrative decision-maker in assessing the rights of FM Local. The spectrum of procedural fairness varies from a moderate level at one end, to a high level at the other end. The Court applied the factors from Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) (Baker) and determined that:

  • while discretionary decisions will generally be given considerable deference, in the context of constitutional Aboriginal rights the issues identified shift closer to the trial (or judicial) model of fairness;
  • given the Alberta Crown’s constitutional duty to consult Aboriginal people, greater procedural protection is required where the ACO is determining whether an applicant’s constitutional interests triggers the duty to consult;
  • a decision made by an administrative decision-maker that impacts constitutional rights will be of great importance to the individuals affected; and
  • the underlying purpose of ACO is to create and strengthen the Government of Alberta’s role in the First Nation consultation process. Where a “consultation process” is put in place by a decision-maker, it invites the conclusion that it has a regular practice which one can legitimately expect to be followed. That circumstance brings the duty of procedural fairness to a higher level in accordance with the prescribed consultation process.

In this case, there is a “Directive” that prescribes a process to be followed in determining whether consultation is required when a Métis community asserts an Aboriginal right. The Court determined that decisions of this nature require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.

The Court also found that the ACO was in breach of the principles of procedural fairness. The Court found that while the information requested of the FM Local was detailed and would presumably require some time and expertise to answer, the deadlines imposed by ACO were “extremely short, inflexible and appeared to be arbitrarily imposed.” The Court further held that the ACO, “does not have complete discretion to determine what evidence or information it will review […] The ACO must exercise its discretion to review evidence and information in a manner consistent with procedural fairness, and as already stated, disclose the information it relied upon.” The Court found that issuing decisions on the same day as having received FM Local’s responses was unacceptable and that the timing of the decisions indicated that FM Locals responses were either not reviewed or only given a cursory review. The Court concluded that ACO violated principles of procedural fairness by: failing to provide sufficient time to respond to the information it requested; failing to meet its duty in providing clear deadlines within its process; and failing to demonstrate that it fully and fairly considered the information and evidence submitted to it by FM Local. In the result, two of the ACO’s Decision Letters were quashed and the question of whether the duty to consult FM Local was triggered were remitted back to the ACO for reconsideration.

Fort Chipewyan Métis Nation of Alberta Local #125 v. Alberta, 2016 ABQB 713 (Fort Chipewyan Métis Nation)

Background

In Fort Chipewyan Métis Nation, the ACO determined that a duty to consult regarding the Teck Frontier Oil Sands Mine (Project) had not been triggered. The Alberta Crown argued that its decision was reasonable because the Fort Chipewyan Nation of Alberta Local 125 (FCM Local) provided insufficient information regarding who it represented for the purposes of asserting Aboriginal rights, its authority to act, the scope and nature of the rights asserted and any potential adverse impacts of the Project upon the asserted rights. FCM Local argued that it was led to believe that the Alberta Crown understood that its duty to consult had been triggered. It also argued that it had provided sufficient information to trigger the duty to consult and that the Alberta Crown’s decision was unreasonable and incorrect.

The Court also had to determine whether the Alberta Crown was in breach of its duty of procedural fairness, whether the duty to consult had been triggered, and the adequacy of the reasons the Alberta Crown provided in support of its decision.

Decision

With respect to the question of procedural fairness, the Court was satisfied that there was no breach of procedural fairness by the ACO. The ACO posed questions to FCM Local which aligned with the criteria set out in the Supreme Court decision in R. v. Powley, 2003 SCC 43 (Powley).

With respect to the sufficiency of information, the Court found that the information provided by FCM Local was sparse and somewhat vague to support a claim to site-specific Aboriginal rights even at a prima facie level. FCM Local provided little to no information indicating shared customs, traditions, or a collective identity. Overall, the FCM Local was unable to establish that membership in the FCM Local is determinable by the three Powley factors of ancestral connection, self-identification, and community acceptance.

With respect to the issue of standing, the Court noted that an organization purporting to represent the rights-bearing community must be able to demonstrate that it had been authorized by the rights-bearing community to do so. The Court disagreed with the FCM Local’s position that it did not have to “prove” that it represents a community of rights-bearing Métis people, and that the only requirement was for it to make a credible assertion. The Court confirmed that while an incorporated society may be able to represent an Aboriginal group, it must first demonstrate that it has been authorized to do so for the specific purpose. The Court found conflicting claims among the FCM Local and other incorporated societies, that each of them has the authority to represent the Fort Chipewyan Metis Community, and held that FCM Local had not established its authority.

The Court also confirmed that in order for the duty to consult to be triggered, evidence must be provided to establish an adverse impact on Aboriginal rights. The Court found that the evidence provided by FCM Local fell short of demonstrating from a contemporary perspective how the Project would adversely impact the collective Aboriginal rights asserted by the whole Chipewyan Métis Community. While the federal Crown required the Applicant to consult with the FCM Local, the Court confirmed that this fact alone does not translate to an obligation on the Alberta Crown to follow suit. The Court noted the legal principle that the duty to consult is divisible between the federal Crown and the provincial Crown and held that the consultation undertaken by the federal Crown with the FCM Local does not deprive the Alberta Crown of its authority to conduct an independent evaluation as to whether or not the duty to consult with FCM Local is triggered. The Court concluded that the ACO’s decision that the duty to consult was not triggered amounted to an acceptable and defensible decision based on the facts and the applicable law. The Court dismissed FCM Local’s application for judicial review.

Implications

While the outcomes in Métis Nation and Fort Chipewyan Métis Nation are different, due to their facts, the principles provide a useful procedural guideline for administrative decision makers, as well as clarity for the Aboriginal communities with respect to their legitimate expectations and the scope of evidence required to establish that the Alberta crow’s duty to consult has been triggered:

  • It is now clear that the ACO will be held to a high standard of procedural fairness when dealing with potentially affected Métis Nations incorporated entities. It is also clear that in Alberta, Aboriginal right must be proved by sufficient evidence in order to trigger the Crown’s duty to consult. Mere credible assertion is no longer sufficient.
  • Alberta consults with Métis groups on a case-by-case basis where proven Métis rights may potentially be impacted by land management and resource development decisions.
  • The delay in project approval timelines is shown in both cases. Determining whether the Alberta Crown’s duty to consult is triggered within the project approval timelines will remain a challenge for ACO.
  • Given the high standard of procedural fairness imposed on the ACO, these decisions highlight the need for ACO and the AER to collaborate on project assessment timelines that will ensure that the high standard of fairness imposed on the ACO are met. It is beneficial to project proponents that ACO gets it right the first time to avoid further delays that will occasion from judicial review, ACO reconsideration, and perhaps a resulting Crown consultation period.
  • While the statutory test for acceptance of Statements of Concern in the regulatory approval process is different from the common law test for triggering the Crown’s duty to consult, these decisions highlight the need for early engagement and request for consultation decisions by project proponents to curb procedural delays.

BLG will continue to monitor and provide updates on these issues.