The Alberta Court of Appeal allowed an appeal brought by the provincial Crown in relation to whether it had fulfilled its duty to consult the Cold Lake First Nations in relation to the expansion and redevelopment of a campground area. The chambers judge had held that Alberta failed to meets its duty. A majority of the Court of Appeal concluded that the chambers judge erred by failing to adequately assess the scope of the Crown’s duty to consult. The scope of the duty in this case was at the lower end of the spectrum, slightly higher than the standard found in Mikisew, and the Crown had satisfied this duty.

The Cold Lake First Nations are signatories to Treaty 6. One of their reserves is adjacent to the English Bay Provincial Recreation Area on the western shore of Cold Lake. The recreation area contains an area that has been historically used by the Cold Lake FN for hunting, fishing, trapping and other traditional uses.

Approximately 44 acres of the recreation area has been a dedicated campground since 1959. An area of land directly north of the campground had been privately owned by the Doyle family, before being purchased by Alberta in the 1970s. Complaints about the degradation of the “Doyle land”, and unsupervised camping in that area, led to the land being transferred to Alberta Parks. The current litigation involves a plan by Alberta Parks to move the campsite away from the shoreline, and to use the Doyle land for the campground.

The Cold Lake FN was not initially consulted when the redevelopment plan commenced in 2006. When Alberta Parks determined in July 2006 that the expansion would affect archaeological sites, such as Aboriginal graves, the construction ceased. Consultations then took place between September 2006 and December 2009.

In December 2009, Alberta Parks received a clearance under the provincial Historical Resources Act to proceed with the expansion. The Cold Lake FN was invited to provide input on the project. A public open house was held in March 2010. The Cold Lake FN took the position that there should be a separate open house for First Nations. Alberta Parks made arrangements for such an open house, but there was no response from the Cold Lake FN.

In July 2010, Alberta Parks informed the Cold Lake FN that the consultation for the project was complete. At this point, the Cold Lake FN had not provided any further written comments about the process, despite being invited to do so. Alberta Parks advised the Cold Lake FN in November 2010 that construction would begin.

The Cold Lake FN sought judicial review of the July 2010 decision to end the consultation, and the November 2010 decision to begin construction. Their application was allowed by the Alberta Court of Queen’s Bench in September 2012: the decision is reported at 2012 ABQB 579.

The decision of the chambers judge was reversed by the Alberta Court of Appeal. The majority decision was written by Côté and Rowbotham JJ.A. The appellant Alberta identified three issues: (1) the scope of consultation required; (2) whether consultation was adequate; and (3) whether adequate reasons were provided. The majority noted that two different standards of review are engaged: (1) the standard which an appellate court applies to a decision of the chambers judge and (2) the standard the chambers judge applies to the Crown’s decision.

The majority held that the chambers judge failed to properly apply the Haida test to determine the scope of the duty to consult. There was no analysis of the strength of the Cold Lake FN’s claim, and the seriousness of the potential impacts. The majority held that the appellate court was therefore required to perform the analysis. Upon a review of the evidence, they concluded that the Cold Lake FN’s right should be treated as “strongly asserted”, but that the potential impact on such rights was “varied” and tempered by the fact that the recreation area was not bare, unoccupied Crown land. The land had been privately held by the Doyle family at one point, and the redevelopment would only have created increased  impacts in a relatively small area. The majority held that the duty to consult in this case fell at the lower end of the Haida spectrum, slightly higher than the duty articulated by the Supreme Court of Canada in the Mikisew decision.

In regards to the issue of the potential adverse effects on the project on the asserted rights, the Cold Lake FN argued that Alberta Parks had misunderstood the impact and that there is “silence on the record” regarding the impact. They submitted that there was inadequate specific information about use of the area. The Cold Lake FN submitted that the Crown had a duty to acquire information about Aboriginal activities and failed to do so. The majority rejected such arguments:

In our view this did not form part of the Crown’s obligation. Both parties have reciprocal duties to facilitate an assessment of the asserted rights and to outline their concerns with clarity. We do not view this as a gap in the record for which the Crown is responsible. … There is no suggestion here that the Crown had or withheld such information. In our opinion, the Crown should not ordinarily be required to conduct such research in lieu of the First Nations, as the First Nations should be in a much better position to ascertain their own historical practices.

The majority held that the duty to consult in this case, somewhat further up the spectrum than the Mikisew duty, required Alberta Parks to give notice, provide information, meet with the First Nations, seriously consider their concerns, and adjust its plans to mitigate and address some of those concerns.

The review of the consultation process in this case engaged two aspects: (1) the adequacy of the consultation process itself and (2) the ultimate decision of Alberta Parks to end the consultation. The chambers judge applied a standard of correctness to the consultation process, and a reasonableness standard to the decision. The majority held that the chambers judge erred, since both the consultation process and the decision should have been reviewed on a standard of reasonableness. Citing the dissenting reasons of Garson J.A. in the West Moberly decision (2011 BCCA 247), the majority held that the Crown has a discretion as to how to structure the consultation process, and this process necessarily involves factual determinations that attract judicial deference.

The majority held that the record supported the conclusion that considerable efforts had been taken by both parties over the four years of consultation. Alberta Parks had commenced construction in 2006 without notifying the Cold Lake FN, but halted construction and worked with the FN. The record reveals that Alberta Parks attempted to hold an open house for the Cold Lake FN, but there was no response. The majority also noted many changes to the project such as the deletion of campsites near the location of purported graves, and the provision of access rights to the Cold Lake FN. The majority concluded:

We conclude that the consultation process was adequate. Once Parks realized that consultation was necessary, it stopped construction and commenced the consultation. In other words, it gave notice. It undertook the studies and shared that information. It met numerous times with the First Nations and involved them directly in the studies. More importantly, Parks listened to the concerns raised by the First Nations and was willing to and did make changes based upon the information it learned during the consultation. We find Parks' actions were reasonable and indeed we would find that the consultation met the correctness standard if that were the applicable standard.

In regards to the decision in July 2010 to end the consultation process, the majority found that it was reasonable. It was noted that further discussions took place in November 2010 and the Cold Lake FN did not raise any additional issues. Alberta Parks had already taken steps to address and mitigate those concerns. The majority noted: “At some point consultation has to come to an end”. It could not be said that Alberta Parks' decision was unreasonable. The Crown had adequately discharged its duty to consult.

Mr. Justice O’Ferrall provided dissenting reasons. He held that the decision of the chambers judge should be reviewed on a standard of reasonableness, and the Court of Appeal could not interfere with her decision unless there was a palpable and overriding error. He held that no such error could be found in this case. He disagreed with the views of the majority that the chambers judge had failed to properly assess the scope of the Crown’s duty to consult. A review of the decision as a whole indicates that she found the Cold Lake FN’s asserted rights to be of the “highest order”, and that there would be a significant impact on those rights. He noted that the chambers judge may also have been influenced by her finding that the Crown itself did not consider the consultation to be adequate, since it was trying to arrange another meeting with the Cold Lake FN at the time that it ended the consultation in July 2010.

Mr. Justice O’Ferrall disagreed with the decision of the chambers judge to exclude a traditional land use and occupancy study from the evidence in the proceeding. She had considered it to be inadmissible on the basis that it was not part of the record before Alberta Parks, and was “post-decision material”. O’Ferrall J.A. considered this ruling to be a misapplication of administrative law principles. The “record” is unduly one-sided, as it consists of the Crown’s evidence as to what transpired. Due to the insufficiency of the record, O’Ferrall J.A. disagreed with the views of the majority that the Court of Appeal could now make a determination of whether the Crown discharged its duty to consult. He stated:

In the voluminous record which was filed, one can find support for the conclusion that the Crown adequately discharged its duty to consult. But in that same voluminous record, one can also find support for the view that the Crown did not adequately consult, primarily because it did not appear to understand the magnitude of the potentially adverse impacts of a 185-site RV park on the Cold Lake First Nations use of the west shore of Cold Lake. In light of an ambiguous and, arguably, deficient record, I am of the view that this Court ought not to be the arbiter of adequacy.

O’Ferrall J.A. would have dismissed the appeal on the ground of appellate deference but, if there had been a reversible error, would have sent the matter back to the trial court.

The appeal was therefore allowed, and the decision of Alberta Parks to proceed with the development restored.
http://canlii.ca/en/ab/abca/doc/2013/2013abca443/2013abca443.html

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law