In a 2-1 decision, the Alberta Court of Appeal in Cold Lake First Nations v. Alberta (Tourism, Parks and Recreation), 2013 ABCA 443 reversed the decision of a judge who failed to adequately assess whether the Alberta government (Alberta) had fulfilled its duty to consult the Cold Lake First Nations (CLFN).
Background
Alberta sought to redevelop a campground and expand a recreation area on the western shore of Cold Lake. The land in question was not on the CLFN’s reserve land, but adjacent to it. Part of the affected land had historically been used by the CLFN for hunting, fishing, trapping, picking berries, and ceremonial purposes.
In June 2006, Alberta began to clear the land without notifying or consulting with the CLFN. When Alberta was informed that the expansion would affect archeological sites, mainly Aboriginal graves, the construction ceased. This prompted meetings and correspondence between Alberta and the CLFN, ending in July 2010 when Alberta informed the CLFN that the consultation process was complete.
The CLFN sought judicial review of the July 21, 2010 decision to end the consultation and the November 8, 2010 decision to commence construction. In Cold Lake First Nations v. Alberta (Tourism, Parks and Recreation), 2012 ABQB 579, the reviewing judge concluded that Alberta had not properly exercised its constitutional duty to consult and accommodate, but made no express findings regarding the level of the duty to consult. The judge ordered that the decision to proceed with construction be set aside and the consultation process continue.
Appeal Decision
Alberta appealed the decision and a majority of the Court allowed the appeal.
However, once the duty to consult is triggered, the content of the duty must be assessed with a view to the strength of the Aboriginal right and the potentially adverse effects on the asserted right. In this case, the Court determined that the reviewing judge’s reasons did not adequately explain what level of consultation was required, nor how the judge arrived at that degree of consultation.
Consequently, the Court of Appeal performed the necessary analysis. The majority concluded that the CLFN had a strongly asserted right to the land in question and that the proposed development would have some adverse impacts on traditional fishing rights. Consequently, the Court concluded that the circumstances merited a lower- to mid-level of consultation, where Alberta was required to give notice to the CLFN, provide information, arrange meetings, seriously consider their concerns, and make adjustments to address some of those concerns.
The majority ultimately determined that Alberta’s consultation was adequate, using a standard of reasonableness. Although Alberta had initially commenced construction without consulting the CLFN, once it became apparent that consultation was necessary construction immediately stopped. Further, Alberta undertook studies, met with the CLFN, listened to their concerns, and made changes based on those concerns. As a result, the majority found the duty was discharged and the development should proceed.
The dissenting judge disagreed and would have dismissed the appeal. In his view, the reviewing judge’s decision was not unreasonable and should have been afforded deference. Although he agreed that the judge’s reasons were deficient, he found that they still demonstrated that she was aware of the need to assess both the strength of the rights asserted by the CLFN and the seriousness of the potential impacts on those rights by the project proposed by Alberta.
He suggested that the reviewing judge’s missing analysis may have been driven by her finding that Alberta did not consider consultation to have been adequate when consultation was terminated. Namely, Alberta had attempted to arrange another meeting with the CLFN, and when that meeting could not be arranged because the CLFN was in the middle of an election, Alberta unilaterally terminated consultation. Accordingly, the judge’s missing analysis may be attributable to her finding that the consultation was not complete and therefore, by implication, inadequate. This would have made the prescribed analysis unnecessary.
Implications
This decision serves as a refresher on the content of the duty to consult with Aboriginal people in Alberta, and particularly reinforces the importance of assessing the level of consultation that is attributable to a given project.
It is also noteworthy that this decision clarifies the applicable standard of review in determining the adequacy of consultation. Some recent case law has suggested that the Supreme Court in Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 may have changed the standard of review from reasonableness to correctness. For instance, the British Columbia Court of Appeal in Halalt First Nation v. British Columbia (Minister of Environment), 2012 BCCA 472 suggested that deference may be appropriate on findings of fact where there is a neutral tribunal assessing the consultation process, but where the decision-maker is a representative of the Crown and a party to the dispute, less deference is warranted.
Here in Cold Lake First Nations v. Alberta (Tourism, Parks and Recreation), 2013 ABCA 443, the Court of Appeal notes that this distinction has not been articulated by the Supreme Court and confirms that reasonableness is the appropriate standard when determining the adequacy of consultation, regardless of the impartiality of the decision-maker. The Court states that there is significant flexibility in how the duty to consult is met and an assessment of its adequacy will necessarily involve factual determinations. This makes reasonableness the suitable standard and greater deference to decision-makers necessary.