On May 15, 2014, the Supreme Court of Canada dismissed an application for leave to appeal the Alberta Court of Appeal decision in Cold Lake First Nations v. Alberta (Tourism, Parks and Recreation), 2013 ABCA 443 (PDF).
In Cold Lake, the Court of Appeal was asked to review the decision of a judge who determined that the Alberta government (Alberta) failed to discharge its duty to consult the Cold Lake First Nations (CLFN). Alberta planned to expand a recreation area adjacent to the CLFN’s reserve land and, in 2006, began to clear the land without first notifying or consulting the CLFN. When Alberta was informed that the expansion would impact certain archeological sites, the construction was halted. In July 2010, after meetings and correspondence between Alberta and the CLFN, Alberta informed the CLFN that the consultation process was complete and construction would recommence. When the CLFN sought judicial review, the judge sided with the CLFN and ordered that consultation should continue.
This decision was reversed on appeal. The Court of Appeal focused on the fact that the reviewing judge’s reasons did not adequately explain what level of consultation was required in the circumstances or how the judge arrived at that particular level of consultation. Using a standard of reasonableness, a majority of the Court found that Alberta’s consultation with the CLFN was adequate and allowed the appeal. The Court also confirmed that the proper standard to assess the adequacy of consultation is reasonableness, and not correctness, despite certain recent decisions that suggested otherwise.