The Supreme Court of Canada dismissed a leave application filed by the Cold Lake First Nations, a Treaty 6 signatory, in relation to whether Alberta had fulfilled its duty to consult before approving the expansion and redevelopment of a campground area. In December 2013, the Alberta Court of Appeal reversed a chambers judge’s decision, and held that the provincial Crown had satisfied its duty: 2013 ABCA 443. The scope of the duty in this case was at the lower end of the spectrum, and Alberta had made considerable efforts over four years of consultation. The consultation process was therefore adequate.

The Alberta Court of Appeal decision was summarized in our e-Newsletter of 28 January 2014. A summary of the case found on the Court’s website was as follows:

Aboriginal law — Crown — Duty to consult — What is Crown’s obligation to make disclosure to First Nations during consultation process — What procedural safeguards are required to meet principles of natural justice and Honour of Crown where Crown is project proponent, engaged in consultation, and ultimate decision maker — What steps must Crown take to inform itself of facts or evidence necessary for its decision making?

The issue in this case is whether the Alberta government fulfilled its duty to consult the Cold Lake First Nations when Tourism, Parks and Recreation proceeded with a campground redevelopment and expansion at the English Bay Provincial Recreation Area. The Cold Lake First Nations sought judicial review of the decision to end the consultation and the decision to commence construction. The originating notice sought a declaration that the Minister had breached her duty to consult with Cold Lake First Nations and an order quashing the decision to proceed with construction.

The reviewing judge set aside the decision to proceed with construction and ordered that the consultation process continue. The majority of the Court of Appeal allowed the appeal and the decision to proceed with the development restored. The dissenting opinion at the Court of Appeal would have dismissed the Crown appeal, found the reviewing judge’s decision reasonable and accorded it deference.

The Supreme Court of Canada dismissed the leave application with costs.


Scott Kerwin


Aboriginal Law