Court Confirms Power of Alberta Aboriginal Consultation Office to Decide Who Gets Consulted
April 23, 2018
The Alberta Court of Queen’s Bench (Court) provided much-needed clarity about the role of the Alberta Aboriginal Consultation Office (ACO) and the duty to consult in Alberta in its decision in Athabasca Chipewyan First Nation v. Alberta (ACFN Decision).
The ACFN Decision is one of a series of recent judicial review decisions that stem from questions about the role of the ACO in aboriginal consultation. Decisions have been issued in Métis Nation of Alberta Association and Fort McMurray Local Council 1935 v. Alberta and Fort Chipewyan Métis Nations of Alberta Local #125 v. Alberta on the scope of the ACO’s role relative to consultation with Métis communities.
The ACO was established in 2013 to strengthen the Alberta government’s role in the aboriginal consultation process. The ACO’s main functions are to:
- Develop aboriginal consultation policies
- Provide consultation management services through regulatory processes, including pre-consultation assessments, management and execution of the consultation process, and assessing the adequacy of consultation.
The ACO plays an important role in proceedings before the Alberta Energy Regulator (AER), which is expressly limited from assessing the adequacy of Crown consultation.
The ACO was asked to determine which First Nations needed to be consulted about a proposed pipeline project (Project) before the AER. The ACO determined that eight First Nations needed to be consulted, but that consultation did not need to take place with the Athabasca Chipewyan First Nation (ACFN).
Even though the ACO found that a duty to consult was not triggered for the ACFN, the ACFN was granted standing by the AER on the basis that it might be directly and adversely affected. Therefore, the ACFN participated in the regulatory process and was consulted extensively by the Project proponent before ultimately withdrawing from the AER proceeding. The Project was approved by the AER and the ACFN did not seek a review of the AER approval.
The ACFN sought judicial review of the ACO’s decision that it did not need to be consulted, asking for declarations that: (1) the ACO had no authority to decide whether the duty to consult was triggered; (2) the ACO’s decision that there was no duty to consult was incorrect; and (3) the manner in which the ACO made its decision was procedurally unfair. However, the ACFN did not ask that the matter be returned to the ACO, request that the court consider the content of any duty to consult with it or the adequacy of consultation, or challenge the AER’s approval.
Because of the narrow scope of relief requested by the ACFN, Justice K.D. Nixon declined to grant the particular declarations sought. She held that such declarations would have no practical effect and that it would be inappropriate to decide whether the duty to consult was triggered without an analysis of the content of the duty or whether the duty was met.
Justice Nixon did, however, consider the following questions that she characterized as “live controversies” related to the duty to consult analysis:
1. Does the ACO have the authority to determine whether the Crown’s duty to consult is triggered?
The Court confirmed for the first time that the ACO has the authority to decide whether the duty to consult is triggered. The ACFN argued that the ACO could not have the necessary authority because the ACO wasn’t created by statute; however, following previous decisions, the Court determined that formal statutory authority was not required for the ACO to discharge the Crown’s duty to consult.
2. When is a duty to consult triggered?
More specifically, Justice Nixon asked whether the taking up of land in a treaty area is sufficiently adverse conduct so as to trigger the duty to consult and whether the Crown may exclusively rely on the Government of Alberta’s GeoData mapping to determine if the duty is triggered.
The Court found that there is no “duty at large” to consult when development is proposed in treaty territory. A fact-based analysis must be undertaken and, if the taking up may adversely impact the exercise of treaty rights, a duty to consult arises; if not, the duty to consult is not engaged.
The Court further found that the legal test set out in Haida Nation v. British Columbia, and Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, as applied to the facts of each case, determines whether the duty to consult has been triggered. As acknowledged by the Crown, consultation mapping is only one tool that might assist in this analysis.
3. Is procedural fairness engaged when the Crown (as manifested in the ACO in this case) decides if a duty to consult is triggered?
Procedural fairness is engaged in the determination of whether the duty to consult is triggered. Relative to the ACO, procedural fairness requires communication between the ACO and the Aboriginal group in question so that the Aboriginal group has a meaningful opportunity to present evidence that is fully and fairly considered. The scope of procedural fairness will depend on the circumstances, but in this case, the Court held that it should have included notice to the ACFN, disclosure of the procedure and evidence required, and reasons for the decision.
The ACFN Decision provides answers to some of the questions that have faced the ACO since it was created. Key among these is whether the ACO even has the authority to fulfil a crucial aspect of its role in consultation on behalf of the Crown.
Challenges involving ACO decisions will be assessed in the context of the facts and the questions at issue. For questions regarding whether a duty to consult is triggered, this will include a consideration of whether the process in arriving at the ACO’s determination was fair.
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