Aboriginal Consultation – Judicial Review – Aboriginal Consultation Office (ACO) – ACO Policies and Procedures – Use of Maps for Determining Consultation Requirements
In this decision, the Alberta Court of Queen’s Bench (“ABQB”) considered an application for judicial review of a decision of the Aboriginal Consultation Office (“ACO”), dated July 17, 2014 (the “ACO Decision”). The ACO Decision found that a duty to consult with the Athabasca Chipewyan First Nation (“ACFN”) was not triggered in relation to a pipeline project. The pipeline project, entitled Grand Rapids, (the “Project”), was proposed in Treaty 8 territory, and the ACFN is a Treaty 8 First Nation. The Project was proposed by TransCanada Pipelines Limited and Phoenix Energy Holdings Limited (“TransCanada”).
The ABQB noted that this judicial review was novel. ACFN sought to quash the ACO Decision that the duty to consult was not triggered, but did not ask for the matter to be returned to the ACO for reconsideration, nor did it challenge the decision of the AER to approve the Project.
Rather, ACFN was dissatisfied with the ACO’s policies and procedures in determining whether a duty to consult is triggered, and in particular its use of maps in making that determination. Accordingly, ACFN sought the following declarations:
(a) the ACO had no authority to make the decision whether the duty to consult was triggered;
(b) the ACO’s decision that there was no duty to consult was incorrect; and
(c) the manner in which the ACO made its decision that there was no duty to consult was procedurally unfair and in violation of the honour of the Crown.
The ABQB declined to exercise its discretion to make a bare declaration with respect to whether the duty to consult the ACFN was triggered or what evidence was needed to trigger it.
The ABQB did grant the following declarations:
• The ACO has the authority to decide whether the duty to consult is triggered.
• The mere act of taking up of land by the Crown in a treaty area is not adverse conduct sufficient to trigger the duty to consult.
• Procedural fairness is engaged in the determination of whether a duty to consult is triggered.
Preliminary Issue – Mootness
The ABQB found that given the nature of the declarative relief requested, this judicial review raised the issue of mootness and whether the Court should exercise its discretion to give “bare declarations,” with the parties taking opposing positions on this point.
The ACFN did not seek any determination with respect to the content of a duty to consult nor whether the consultation that did take place was adequate. Rather, ACFN took issue with the ACO’s process and policies in deciding whether a duty to consult was triggered and was especially concerned with the ACO’s reliance on a map to make this determination.
The ABQB found that this was not a case where the Court should exercise its discretion to make a bare declaration. While a declaration would add to the body of law with respect to when a duty is triggered, a declaration based on the facts of this case would not avoid future litigation. Whether a duty was triggered in future cases will depend on their own specific facts and the application of well-established legal principles.
In coming to this conclusion, the ABQB set out the following principles guiding the Court’s discretion to grant declarations:
• A court may exercise its discretion to make a declaration if there is a real, not a fictitious, academic or theoretical issue raised by a party with an interest in raising it and someone with a true interest to oppose the declaration sought (Solosky v The Queen, [1980] 1 SCR 821 (“Solosky”)).
• A declaration regarding the future must be approached with considerable reservation (Solosky).
• The practical utility that will support granting a declaration was illustrated by Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 (“Daniels”), where the Court held that a declaration deciding which government had jurisdiction would end a “jurisdictional tug of war” and would guarantee certainty and accountability (Daniels at para 15).
With respect to mootness, as a general policy or practice, a court may decline to decide a case that raises merely a hypothetical or abstract question (citing Borowski v Canada (Attorney General), [1989] 1 SCR 342 (“Borowski”)). The three rationales set out in Borowski that a court should consider when deciding whether to exercise its discretion to hear a moot matter are as follows:
(a) the adversarial nature of the case;
(b) the concern for judicial economy; and
(c) the need for the court to be sensitive to its adjudicative role and not intrude on the legislative branch of government.
Questions Warranting Consideration
Even though the ABQB declined to make bare declarations on the specific (and now moot) facts of this case, the ABQB found that the following questions relating to the duty to consult warranted consideration, as they were live controversies that could benefit from the Court’s guidance:
(a) Does the ACO have the authority to determine whether the Crown’s duty to consult is triggered?
(b) Is the Crown’s taking up of land in a treaty area adverse conduct sufficient to trigger the duty to consult?
(c) Is the Crown allowed to exclusively rely on the Government of Alberta’s GeoData Maps in determining whether a duty to consult is triggered?
(d) Is procedural fairness engaged in the determination of whether a duty to consult arises?
Issue 1 – Does the ACO have the authority to determine whether the Crown’s duty to consult is triggered?
The ABQB found that the question of whether the ACO had the authority to make the decision that consultation with the ACFN was not triggered raised an issue of true jurisdiction. The issue was therefore reviewable on a standard of correctness.
The ABQB found that the ACO does have authority to make the determination whether there is a duty to consult. In coming to that conclusion, the ABQB found that:
(a) the Government of Alberta is the Crown and acts through its ministers and their departments;
(b) the Crown’s duty to consult arises from the treaties and section 35(1) of the Constitution Act, 1982 and the ultimate responsibility for consultation rests with the Crown;
(c) the ACO is a Crown servant or agent and acts for the Crown in discharging the Crown’s obligations to consult with First Nations; and
(d) the ACO does not need a statute formally empowering it to discharge the Crown’s duty to consult. The legislative branch is entitled to proceed “on the basis that its enactments ‘will be applied constitutionally’ by the public service” (Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 at para 71).
Issue 2 — When is a duty to consult triggered?
ACFN posed two questions relating to the triggering of the duty to consult:
(a) whether the duty is triggered once there is a taking up of land in the treaty area; and
(b) whether the Crown can rely exclusively on government consultation maps when determining whether the duty is triggered.
The ABQB found that ACFN was incorrect in asserting that a duty to consult arises solely because of the taking up of land in the treaty area. Specifically, the ABQB found as follows:
(a) the signatories to Treaty 8 contemplated that portions of the surrendered land would be “taken up” by the Crown resulting in the First Nations no longer having treaty rights to hunt, fish, and trap on portions of the lands; and
(b) when the “taking up” process occurs, such as with a pipeline development, the question is whether the taking up may adversely impact a First Nation’s exercise of its treaty rights in that particular area:
(i) If so, a duty to consult will arise; or
(ii) If there is no potential impact, the duty to consult is not engaged.
The ABQB, therefore, concluded that there is no “at large duty to consult” whenever development is proposed in treaty territory.
The ABQB did agree with the ACFN, however, on their second submission that a consultation map would not necessarily be determinative of whether a duty to consult was triggered.
The ABQB found that:
(a) whether or not the duty to consult is triggered depends on the legal test identified in Haida Nation and Rio Tinto applied to the facts in each case, not on what the Government’s internal maps indicate;
(b) the Government of Alberta is permitted to create policies for consultation so long as they are carried out in a manner consistent with the Constitution;
(c) consultation maps are an advisory tool to assist the Government in discharging its duty to consult; and
(d) reliance 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.
In this case, the ABQB found that the ACO did not rely exclusively on the consultation map in making its ultimate decision. In addition to mapping, the ACO considered the Statements of Concern and the ACFN’s hearing materials and submissions to the AER in coming to its decision.
Ultimately, because the ACFN and the Government of Alberta agreed that the map was only one tool to be used in determining if there is a duty to consult, the ABQB found that a declaration on the matter was unnecessary. In the ABQB’s view, a declaration could thwart the years of work on the mapping project. The ABQB noted that the mapping project was an attempt by the Government to be pro-active in addressing its consultation obligations and represented a step toward reconciliation. The project was going through various phases meant to improve the accuracy of the mapping with First Nations’ input. It was a project aimed at assisting both the Government and the First Nations with what could be onerous requirements relating to consultation.
As discussed below, however, the ABQB held that when the use of the map results in a dispute between the Government and a First Nation over the duty to consult on a project, then the ACO must engage the First Nation to assess its claim independently of the map.
Issue 3 – Is procedural fairness engaged?
The ABQB found that, as with the declaration concerning whether the duty to consult was triggered, a declaration about the way in which the Crown made its decision would not affect the Project. For that reason, the ABQB declined to consider whether a duty of procedural fairness was breached in this case.
Despite this, the ABQB acknowledged that the broader question of whether such a duty exists was an area of disagreement between the parties which would benefit from some clarity to help in future similar cases.
The ABQB found that the duty of procedural fairness is engaged when a branch of the Crown, such as the ACO, determines if a duty to consult is triggered.
In the context of the ACO deciding whether the duty to consult is triggered, the duty of procedural fairness requires the following:
• Communication must occur between the ACO and the First Nation when a contested triggering decision arises. A contested triggering decision will arise when it is apparent that the ACO and a First Nation disagree over whether the duty to consult is triggered. The ACO will then be required to make a determinative decision on whether the duty is triggered.
• The ACO must 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.
• Finally, 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.
Conclusion
In conclusion, the ABQB declined to exercise its discretion to make a bare declaration with respect to whether the duty to consult the ACFN was triggered or what evidence was needed to trigger it.
The ABQB granted the following declarations:
1. The Aboriginal Consultation Office (ACO) has the authority to decide whether the duty to consult is triggered.
2. The mere act of taking up of land by the Crown in a treaty area is not adverse conduct sufficient to trigger the duty to consult.
3. Procedural fairness is engaged in the determination of whether a duty to consult is triggered.
