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Not All Takings Up of Land Within Treaty Territory Trigger the Crown’s Duty to Consult

Fasken
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Indigenous Law

On October 22, 2019, a majority of the Alberta Court of Appeal (the Honourable Madam Justices Jo'Anne Strekaf and Ritu Khullar), issued its ruling in Athabasca Chipewyan First Nation v. Alberta, 2019 ABCA 401, which was accompanied by concurring reasons by the Honourable Madam Justice Rowbotham.

The Alberta Court of Appeal upheld the Aboriginal Consultation Office’s (ACO’s) existing policy of identifying lands affected by a given project, and identifying Indigenous groups that must be consulted. The Court also confirmed that the ACO is part of the Ministry of Indigenous Relations, and acts as the Crown on behalf of the Minister in making its determinations on matters properly before the Alberta Energy Regulator (AER).

Consistent with the Supreme Court of Canada’s earlier finding in Mikisew, the majority reiterated that the duty to consult is not triggered with all Treaty signatories by any taking up of land within a Treaty area. Instead, a contextual analysis must be conducted in each instance to determine if an adverse impact will be suffered by a First Nation such that the duty to consult is triggered in that case. Additional details regarding the case are provided below.

Factual Background

Athabasca Chipewyan Prairie First Nation (ACFN) is a Treaty 8 First Nation. This case involved the appeal of an order of the Alberta Court of Queen’s Bench stating that the duty to consult ACFN had not been triggered by a joint venture owned by TransCanada PipeLines Limited and Phoenix Energy Holdings Limited (Proponent), in a proposed pipeline project that traversed Treaty 8 territory (Project).

On August 30, 2013, prior to applying to the AER for approval, the Proponent consulted with the ACO’s predecessor to determine which Indigenous groups it should consult with. In Alberta, while the AER decides whether to approve pipeline projects, it is prohibited by its governing statute from assessing the adequacy of the Crown’s consultation with Indigenous peoples, which is a task carried out by the ACO.[1] The ACO advised the Proponent that consultation was required with 8 Indigenous groups in the affected area, which did not include ACFN. Despite this determination, the Proponent consulted with ACFN, along with 32 additional Indigenous groups.

In December 2013, ACFN filed a Statement of Concern in relation to the Project with the AER, which was shared with the ACO. The AER decided to hold an oral hearing for the Project, giving standing to 54 participants, including ACFN.

On June 6, 2014, after reviewing ACFN’s Statement of Concern, the ACO issued a preliminary report to the AER confirming there was no duty to consult ACFN in relation to the Project.

On July 17, 2014, after reviewing ACFN’s pre-hearing submissions, attending portions of the hearing in which ACFN participated, and reviewing the transcripts of the remainder of the hearing, the ACO issued its final report to the AER. The final report confirmed that the Project was outside of the geographic area in which the ACO ordinarily requires consultation with ACFN. The ACO went on to note that ACFN was aware of the ACO’s consultation area for it, and was open to modifying this area if ACFN used the proper channels.[2]

On October 9, 2014, the AER approved the Project with conditions.

The Majority ABCA Decision

The majority confirmed that the Minister of Indigenous Relations is a part of the Crown, and exercises the Crown’s executive authority on its behalf. The majority stated that while the Crown is empowered to create a formal legal process providing a legal body specific powers to carry out the Crown’s duty of consultation and to decide whether the duty is triggered, it does not have to do so.[3]

The majority disagreed with ACFN’s argument that any taking up within Treaty 8 lands reduces the overall available land to signatory First Nations in which to exercise their rights to hunt, trap and fish, which in turn triggers the duty to consult. The majority held that a contextual Haida analysis must be conducted on a case-by-case basis as to whether the “Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or titles and contemplates conduct that might adversely affect it”.[4] The type of Crown conduct that triggers a duty to consult must have an “appreciable adverse effect” on an Indigenous group’s section 35 rights, and cannot be merely speculative.[5] The majority confirmed that a taking up of lands anywhere within an 840,000 sq km area does not necessarily trigger a duty to consult.

The Court determined that the signatories to Treaty 8 were made aware that land would be taken up when it was put to a “visible use that was incompatible with hunting”[6] which implies a relationship between the taking up and the impact on a given First Nation. This was confirmed by the Supreme Court of Canada in Mikisew which highlighted that location is significant in this type of dispute.[7] The majority held:

[60] The Supreme Court rejected these arguments outright, finding that the proposed road would adversely affect the Mikisew’s existing hunting and trapping rights and that the Crown’s duty to consult was triggered. It was not realistic to say that the Mikisew people could exercise their treaty right to hunt in Jasper (800 km away) or near Edmonton (785 km away). The Court said these arguments ignored the “significance and practicalities of a First Nation’s traditional territory” (para 47). Location is important and much of the Treaty 8 negotiations concerned continuity of traditional patterns of activity on the land. Ultimately, Mikisew held, at para 48, that:

The ‘meaningful right to hunt’ is not ascertained on a treaty-wide basis (all 840,000 square kilometres of it) but in relation to the territories over which a First Nation traditionally hunted, fished, and trapped, and continues to do so today.

[61] By analogy, it cannot be presumed that a First Nation suffers an adverse effect by a taking up anywhere in the treaty lands. A contextual analysis must occur to determine if the proposed taking up may have an adverse effect on the First Nation’s rights to hunt, fish and trap. If so, then the duty to consult is triggered.

Here, the majority stated that in the Treaty context, unless there is an impact within the traditional territory of a First Nation, then there is no duty to consult that First Nation - despite that impact occurring within a larger Treaty area. As such, the majority dismissed ACFN’s appeal.

Concurring reasons

Madam Justice Rowbotham agreed in her concurring reasons that the appeal should be dismissed but felt that it should be dismissed on the basis of mootness.

Madam Justice Rowbotham noted that ACFN participated in the regulatory process, and did not: challenge the AER’s decision to approve the Project; request that the matter be returned to the ACO for reconsideration; or seek direction that it be further consulted on the Project. As such, she concluded that the appeal was moot since a decision of the court would “not have the effect of resolving a controversy which affects the rights of the party or will have no practical effect on such rights”.[8] She then highlighted concern for judicial economy and that “expenditure of scarce judicial resources was not warranted in this case”.[9]

Conclusions

This decision provides support for the ACO’s current practice of assessing Indigenous groups’ traditional territories as the basis for identifying which Indigenous groups must be consulted in respect of a project.  The taking up of any land within a Treaty area will not automatically trigger the duty to consult all Treaty First Nations. Instead, a contextual analysis must be conducted in each case to determine when the duty to consult is triggered.  The decision also confirms that in making such determinations, the ACO acts on behalf of the Crown.  Practically, the dissent of Madam Justice Rowbotham demonstrates that the Court of Appeal may be reluctant to provide legal opinions in matters where an appellant has not otherwise taken procedural steps to identify and address project-related concerns that it may have.



[1] This is prescribed in Ministerial Order 141/213 (the “Ministerial Order”)

[2] The ACO noted that the proper channel would be through the GeoData Mapping Project, which is a cross-ministry initiative aiming to create standardized maps which are continually updated with input from First Nations of areas in which they exercise their treaty rights

[3] ABCA Decision, para 39

[4] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, para 35 [Haida]

[5] Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43, paras 46 and 48

[6] R v Badger, [1996] 1 SCR 771, para 58

[7] Mikisew Cree First Nation v Canada, 2005 SCC 69, para 48 [Mikisew]

[8] ABCA Decision, para 67

[9] ABCA Decision, para 68

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