Aboriginal Rights – Aboriginal Consultation Office – Metis Rights – Duty to Consult and Accommodate – Judicial Review Granted on Natural Justice Grounds
In Fort McMurray Metis, Local 1935 v. Alberta (Minister of Aboriginal Relations), 2016 ABQB 712 (a companion decision to 2016 ABQB 713, summarized above), Justice Goss issued her reasons for granting judicial review of an ACO decision regarding whether the Crown’s duty to consult had been triggered.
The question before Justice Goss in this case was very similar as in the previous decision. Specifically, the application for judicial review requested the ABQB review a decision of the ACO, in which the ACO determined that the Crown’s duty to consult with Fort McMurray Metis, Local 1935 (“Local 1935”) had not been triggered in respect of certain projects in and around the Fort McMurray Metis’ traditional territory.
ACO Information Requests and Extension Refusal
On November 24, 2014, the ACO requested further information from Local 1935, including detailed genealogical information about its members.
The ACO requested that Local 1935 respond by December 9, 2014.
On December 1, 2014, the ACO requested a two-week time extension to provide the requested information. On December 5, 2014, Local 1935 provided responses to some of the information requested by the ACO, and requested clarification regarding the requested extension.
On December 9, 2014, the ACO advised that it would not grant the requested extension.
On December 10, 2014, the ACO issued its decision in which it determined that the Crown’s duty to consult Local 1935 had not been triggered.
Local 1935 provided information in response to the ACO’s request on December 15, 2014, including a large volume of information in electronic form.
The AER issued the licences in February 2015, without requiring further consultation and without holding a hearing.
Application for Judicial Review
Local 1935 applied for judicial review of that ACO decision on the grounds that:
a) The ACO erred in law when it applied an inappropriately high threshold in assessing whether the duty to consult Local 1935 had been triggered; and
b) The ACO erred in law in violating the principles of natural justice and procedural fairness, by:
(i) failing to consider all the evidence provided by Local 1935;
(ii) imposing arbitrary and unreasonable timelines on Local 1935 to provide information responses;
(iii) failing to clarify timelines, failing to respond in a timely manner to extension requests, and refusing to grant reasonable time extensions requested in respect of information requests.
ABQB Decision Granting Judicial Review
Justice Goss held that where there has been a breach of substantive procedural fairness, a court is not to speculate as to how things may have unfolded had the decision maker complied with its duty of procedural fairness. A decision reached by way of an unfair process is rendered void without regard to the correctness or reasonableness of the decision itself.
Justice Goss held that the ACO had breached its duty of fairness by:
a) failing to provide Local 1935 sufficient time to respond to the information it requested;
b) failing to meet its duty in providing clear deadlines within its process; and
c) failing to demonstrate that it fully and fairly considered the information and evidence submitted to it by Local 1935.
The ABQB quashed the ACO decision and remitted the matter back to the ACO.
