Written by Deirdre Sheehan and Samuel Denstedt
In a decision released on October 22, 2019, the Alberta Court of Appeal addressed two questions raised by the Athabasca Chipewyan First Nation (ACFN) in an appeal of a judicial review of an Aboriginal Consultation Office (ACO) decision:
- Does the ACO have the authority to decide if the duty to consult has been triggered?
- Does taking up land within Treaty 8 automatically trigger a duty to consult all Treaty 8 Nations?
Upholding the Chamber Judge's decision, the Court of Appeal confirmed that the ACO has the authority to decide when the duty to consult is triggered and that taking up land in Treaty 8 does not automatically trigger the duty to consult all Treaty 8 Nations.
Chambers Judge's Decision
On July 17, 2014, ACFN sought judicial review of an ACO decision that the duty to consult was not triggered by the Grand Rapids Pipeline Project. ACFN appealed the Chambers Judge declarations that:
- The ACO has the authority to decide if the duty to consult is triggered; and
- The mere act of taking up land in a treaty area is not adverse conduct sufficient to trigger the duty to consult.
ACO Has Authority to Decide if Duty to Consult Triggered
ACFN argued that there was no grant of legal authority to the ACO delegating responsibilities related to the Crown's duty to consult. ACFN pointed out that no explicit legal authority, such as a statute, regulation, or rule, grants the ACO the authority to discharge portions of the Crown's duty to consult, including determining if the duty to consult is triggered. However, the Court of Appeal rejected that an express delegation was required and stated:
The Minister of Indigenous Relations is part of the Crown and exercises that authority as a representative of the Crown. The ACO exercises the Minister's authority in relation to consultation, guided by various written policies.
The Court acknowledged it is the Crown's responsibility to determine if consultation is triggered, and found that the ACO falls under the umbrella of "the Crown". As a part of the Crown, no delegation of authority is necessary; the ACO has the authority to decide if the duty to consult is triggered as a representative body of the Crown.
Taking Up Land Within Treaty Territory Does Not Automatically Trigger Duty to Consult
ACFN also argued that taking up Treaty 8 land automatically triggers the duty to consult because it causes adverse effect to all Treaty 8 Nations by reducing the total land available for exercising their treaty rights.
Referring first to the well known Supreme Court of Canada decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, the Court explained that the duty to consult attaches to Crown conduct that may have "appreciable adverse effect" on aboriginal or treaty rights, "speculative impacts" are insufficient. Alberta's Court of Appeal then turned to another leading Supreme Court decision, Mikisew Cree First Nation v. Canada, 2005 SCC 69 [Mikisew Cree]. In this case, the Supreme Court found it was not realistic to expect Mikisew Cree people to practice their treaty rights in disparate areas of Treaty 8 territory, such as Jasper, which was 800km from Mikisew Cree's traditional territory. Such arguments, according to the Supreme Court, ignored the "significance and practicalities of a First Nation's traditional territory", and the importance of addressing adverse effects to the First Nations continuity of traditional patterns of activity on the land.
Referring to the finding in Mikisew Cree, the Alberta Court of Appeal found by analogy that adverse effects to the rights of specific Treaty 8 Nations cannot be presumed by the taking up of lands anywhere within Treaty 8. A contextual analysis of adverse effects on the specific First Nation's traditional practices is necessary to determine if the duty to consult is triggered.
All three Justices agreed to dismiss the appeal. However, Justice Rowbotham issued a concurring opinion in which she would have dismissed the appeal for mootness.
Ultimately, the findings of the Court of Appeal provide some certainty. The decision to confirm the ACO's authority enables continued reliance on the ACO and its process to discharge consultation obligations. Further, confirmation that the mere taking up lands in Treaty 8 territory does not automatically trigger the duty to consult with all Treaty 8 First Nations provides some guidance on the limits of the duty to consult. The decision confirms that the requirement of an "appreciable adverse effect" on aboriginal treaty rights is meaningful and must be met before a duty to consult is triggered.