Aboriginal Rights – Aboriginal Consultation Office – Authority to Represent Community – Metis Rights – Duty to Consult and Accommodate – Judicial Review Denied
ACO Decision re Consultation
Fort Chipewyan Métis Nation of Alberta, Local 125 (“Local 125”) sought to assert on behalf of the Fort Chipewyan Metis Community (the “FCM Community”) an aboriginal right of consultation regarding the proposed Teck Frontier Oil Sands Mine (the “Project”).
In a January 2015 letter to Local 125, the Alberta Aboriginal Consultation Office (the “ACO”) concluded that the Crown’s duty to consult Local 125 about the Project had not been triggered (the “ACO Consultation Decision”).
Application for Judicial Review
Local 125 applied to the ABQB seeking judicial review of the ACO Consultation Decision.
In the ABQB decision, Justice Goss denied Local 125’s application for judicial review. She held that Local 125 failed to provide sufficient information to the ACO that established it was authorized to represent the FCM Community, who held the aboriginal rights being asserted.
The ABQB held that both the ACO’s decision and process were within the range of reasonable and acceptable outcomes.
Standard of Review
The ACO submitted that the applicable standard of review was one of reasonableness. The ACO submitted that it acted reasonably in its determination that the GoA would not be requiring consultation with Local 125 based on the information it had provided.
Local 125 submitted that the question as to whether the duty to consult is triggered is a question of law and reviewable on a standard of correctness.
Justice Goss held that the applicable standard of review was reasonableness. She noted that the question as to whether the duty to consult has been triggered is a question of law, generally reviewable on the correctness standard. However, where such a legal issue cannot be considered in isolation from issues of fact, the applicable standard is reasonableness. In this context, a review focuses not on the outcome of the decision, but that all reasonable efforts are made to inform and consult in discharging the Crown duty.
ABQB Denies Judicial Review Application
Justice Goss reviewed the jurisprudence regarding the representation of a Metis community in enforcing its aboriginal right to consultation. She concluded that the applicable test includes the requirement that the organization seeking to enforce an aboriginal claim must demonstrate that it has been authorized to do so by the community it claims to represent.
Justice Goss held, that from the information the Local 125 provided to the ACO, the ACO’s determination that consultation was not required was reasonable. Specifically, Justice Goss held that the information provided by Local 125 was insufficient to establish that the organization had authority to represent the aboriginal rights-bearing community, on whose behalf Local 125 sought to assert the community’s aboriginal right to consultation.
Justice Goss noted that in addition to Local 125, there were other groups simultaneously seeking to assert the rights of the same Metis community that FCM 125 claimed to represent. The ABQB noted that Local 125 only included about 1/5 of the total members of the FCM Community. The ABQB concluded that on an objective basis, Local 125 failed to establish it was authorized to bring its claim on behalf of the FCM Community.
Further, the ABQB held that the ACO Consultation Decision was made in accordance with a reasonable process that met the procedural fairness obligations required for the Crown to discharge its duty to consult.
The application for review was therefore dismissed.
