AB’s Aboriginal Consultation Office Must Be Procedurally Fair to First Nations

Published: May 22, 2018

Authors: Meaghan Conroy, Billie Fortier

Categories: Administrative & Public Law, Indigenous

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In Athabasca Chipewyan First Nation v. Alberta, 2018 ABQB 262, the Alberta Court of Queen’s Bench confirmed that province’s Aboriginal Consultation Office (“ACO”) must be procedurally fair to First Nations when deciding whether the duty to consult has been triggered. The Court also said that the government-created consultation maps (or GeoData Maps) are one tool, but not determinative of whether the duty is triggered.

Background

The Athabasca Chipewyan First Nation (“ACFN”) applied for judicial review of the ACO’s decision that there was no duty to consult the ACFN on a pipeline proposed by TransCanada.

The project was proposed in Treaty 8 territory, and the ACFN is a Treaty 8 signatory. Despite the ACO’s decision, TransCanada engaged with ACFN on its own initiative. As well, the ACFN was given standing to participate in the proceeding before the Alberta Energy Regulator (“AER”). The AER approved the project.

The Court described the judicial review as “novel” in that the ACFN did not ask for the matter to be returned to the ACO for reconsideration or for the project approval to be set aside. Rather, the ACFN sought to quash the ACO’s decision that the duty to consult was not triggered and sought certain declarations from the Court regarding the ACO’s authority and process.

Decision

The Court declined to quash the decision or make the specific declarations sought by the ACFN, but provided guidance on four issues:

  1. Does the ACO have the authority to determine whether the Crown’s duty to consult is triggered?
  2. Is the Crown’s taking up of land in a treaty area sufficient to trigger the duty to consult?
  3. Is the Crown allowed to exclusively rely on the Government of Alberta’s GeoData Maps in determining whether a duty to consult is triggered?
  4. Is procedural fairness engaged in the determination of whether a duty to consult arises?

After confirming that the ACO has the authority to determine whether the duty to consult is triggered, the Court considered the second issue and held that the taking up of land in a treaty area will not automatically trigger the duty to consult. It has to be shown that the taking-up be may adversely impact a First Nation’s exercise of its rights.

The ACO relies on mapping created through the provinces GeoData Mapping Project to assess which communities to consult on a particular project. The Court noted that these government-created maps were intended to be one just one tool among others to determine whether the duty to consult with a particular First Nation was triggered. The Court said that the GeoData Map is not determinative of whether a duty to consult is triggered. “[R]eliance solely on the map without consideration of the specific circumstances of a given project and its potential effects would be inappropriate, especially once the Government of Alberta has been notified that a First Nation believes there is a duty to consult.”[1]

In this case, the ACO did not rely exclusively on the government’s consultation map. The Court noted that “unfortunately, the fact that submissions beyond the map were considered by the ACO was not articulated to the ACFN in the ACO’s reasons, nor did the ACO engage the ACFN once it knew there was a dispute over whether a duty to consult was triggered to discuss what evidence ACO required and what procedure it would follow. It is also unfortunate that although ACFN filed its Statement of Concern and witness statements [with the AER] in early December 2013, those materials were not fully passed on to the ACO until late May 2014,”[2]

Of note is that the ACFN’s submissions were only provided to the ACO because of TransCanada’s independent initiative to engage with the AFCN despite the ACO’s decision the duty to consult was not triggered. If this voluntary consultation had not taken place, the ACO, it seems, would have relied solely on the Geodata Map in making its decision.

Finally, the Court rejected the Government of Alberta’s surprising argument that it did not have to be procedurally fair to First Nations when determining whether the duty to consult is triggered.

In this case, the Court said the scope of procedural fairness included the following:

  • once the ACO understood that, contrary to the ACO’s preliminary determination, the ACFN believed there was a duty to consult, the ACO should have provided notice to the ACFN that the ACO would be making a final determination on the issue;
  • the ACO is required to outline what procedure it would undertake in making its determination, what evidence is required to meet the trigger test, as well as to convey the deadlines applying to the ACO’s procedure; and
  • once the ACO has made its decision, the ACO would be expected to provide reasons for its decision that show it fully and fairly considered the information and evidence submitted by the First Nation.

The Upshot

Key takeaways from this case:

  • To avoid legal uncertainty and surprises, project proponents in Alberta would be wise to undertake an analysis, independent of the ACO, about whether the Crown’s duty is triggered by their project. But for the voluntary engagement by TransCanada, the decision may have been different in this case.
  • Likewise, diligent proponents will go beyond the level of transparency mandated by the ACO when engaging with Indigenous communities and for example, disclose and discuss their project consultation plans with communities, which the ACO does not require proponents to do.
  • The case, like others before it, show that Alberta courts as well as the AER and ACO expect First Nations to produce specific evidence of how their interests and rights may be impacted by a proposed project.
  • On projects where there is disagreement with the ACO on whether the duty is triggered, the affected party should advise the ACO, in writing, of its disagreement, ask for specific information on the process it used or will use to make a final determination, and ask for written reasons from the ACO on its decision.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

[1] Para 92

[2] Para 94