ATHABASCA CHIPEWYAN FIRST NATION V. ALBERTA, 2018 ABQB 262
In this case, the Alberta Court of Queen’s Bench judicially reviewed a decision of the Aboriginal Consultation Office (ACO) that the duty to consult with the Athabasca Chipewyan First Nation was not triggered in relation to the Grand Rapids pipeline project proposed in Treaty 8 territory. The Alberta Energy Regulator had approved the pipeline in 2014.
Athabasca, a Treaty 8 First Nation, sought to quash the ACO’s decision, but, novelly, neither asked for the matter to be returned to the ACO for reconsideration, nor challenged the regulator’s approval of the project. Instead, it sought declarations about the ACO’s policies and procedures applicable to whether the duty to consult is triggered, including the ACO’s use of “consultation maps” when making that determination. The ACO had found that the duty to consult was not triggered on the basis of the pipeline’s location on a map that identified areas where a duty to consult may, or may not, arise.
Due to mootness, the Court declined to make a declaration about whether the duty to consult was triggered. However, the Court did confirm that the ACO, as a Crown servant, has authority to decide whether the duty is triggered. The duty does not arise solely because of the taking up of land in a treaty area. Rather, when the “taking up” process occurs, the question is whether it may adversely impact a First Nation’s exercise of its treaty rights. If there is no potential impact, the duty is not engaged. With respect to consultation maps, the Court noted that a map alone cannot be used to determine whether a duty to consult is triggered. It is a tool, but the ACO must also engage the First Nation to assess its claim independently of the map.
The Court also held that procedural fairness is owed in the determination of whether a duty to consult is triggered. Here, once the ACO understood that Athabasca believed there was a duty to consult, the ACO should have provided notice that it would be making a final determination on the issue. The ACO should also have outlined the procedure it would undertake in making its determination, the evidence required to meet the trigger test, and the applicable deadlines. Finally, once the ACO made its decision, it should have provided reasons that show it fully and fairly considered the information and evidence submitted by the First Nation.