Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta

Court of Queen’s Bench of Alberta

Citation: Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta,

2016 ABQB 713

Date: 20170124

Docket: 1503 06412

Registry: Edmonton

Between:

Fort Chipewyan Métis Nation of Alberta Local #125

Applicant

- and -

Her Majesty the Queen In Right of Alberta

(As Represented by the Minister of Aboriginal Relations)

Respondent

Corrected judgment: A corrigendum was issued on January 24, 2017; the

corrections have been made to the text and the corrigendum is appended to this

judgment.

_______________________________________________________

Reasons for Judgment

of the

Honourable Madam Justice J.H. Goss

_______________________________________________________

Table of Contents

Introduction..................................................................................................................................... 4

Background..................................................................................................................................... 4

Page: 2

A. The Parties .......................................................................................................................... 4

B. The Facts............................................................................................................................. 5

C. The Relevant Law............................................................................................................. 21

The Duty to Consult .............................................................................................................. 21

The Honour of the Crown ..................................................................................................... 22

Aboriginal Rights.................................................................................................................. 23

Which Group Holds Those Rights......................................................................................... 23

Interference with that Right .................................................................................................. 24

Potential Claims.................................................................................................................... 25

The Scope and Content of the Duty to Consult and Accommodate ...................................... 26

The Reciprocal Duty ............................................................................................................. 28

Métis Communities................................................................................................................ 29

Regulatory Schemes.............................................................................................................. 29

D. The Standard of Review.................................................................................................... 30

E. The Issues.......................................................................................................................... 32

Discussion..................................................................................................................................... 33

Is Judicial Review Premature?.................................................................................................. 33

The Alberta Crown’s Submissions............................................................................................ 33

The FCM Local’s Submissions ................................................................................................. 35

Analysis and Conclusion – re Availability of Judicial Review ................................................. 36

Was There A Breach Of Procedural Fairness By The Alberta Crown? ................................... 37

The FCM Local’s Submissions ................................................................................................. 37

The Alberta Crown’s Submissions............................................................................................ 41

Analysis and Conclusion – re Procedural Fairness ................................................................. 43

Was The Duty To Consult Triggered?...................................................................................... 45

I. The Applicable Legal Test............................................................................................ 45

II. The Powley Criteria ...................................................................................................... 46

III.

The Alberta Government Response to Powley ......................................................... 53

A. Test Part 1 – Real Or Constructive Knowledge of An Actual Or Potential Claim Or Right

To Resource or Land................................................................................................................. 54

The FCM Local’s Submissions ................................................................................................. 54

Duty Already Acknowledged by the Alberta Crown ............................................................. 55

Page: 3

The Trigger ........................................................................................................................... 56

The Right Being Claimed...................................................................................................... 56

Historic Métis Community .................................................................................................... 57

Contemporary Métis Community.......................................................................................... 59

Determination of Whether the Practice Is Integral to the Claimants’ Distinctive Culture .. 60

No Independent Investigation of the Facts by Alberta Crown.............................................. 61

The Alberta Crown’s Submissions............................................................................................ 61

Identifying the Existing Rights Holding Collective and Who to Consult With ..................... 61

Establishing Métis Claims .................................................................................................... 62

Alberta’s Métis Harvesting Policy........................................................................................ 62

Insufficient Information to Establish Aboriginal Rights....................................................... 63

Alternative Argument – Problem with the Establishment of the Required Indicia of Métis

Identity .................................................................................................................................. 71

Confusing Information from FCM Local on Assertion of Aboriginal Rights ....................... 74

No Previous Acknowledgment of Duty to Consult by Alberta Crown .................................. 75

The Federal Crown............................................................................................................... 76

Powley Criteria...................................................................................................................... 77

Analysis and Conclusion – re Test Part 1: Crown’s Real or Constructive Knowledge of a

Claim......................................................................................................................................... 77

Identifying Membership in the Rights-Bearing Community ..................................................... 77

Was Information Provided by FCM Local on Community Membership Sufficient?................ 78

Conclusion on Sufficiency of Information ................................................................................ 80

Does the FCM Local Represent the Rights-Bearing Community?........................................... 82

Who Can Trigger the Duty to Consult for Métis?................................................................. 82

Is FCM Local the Legal Representative of the Fort Chipewyan Métis Community?........... 87

Estoppel................................................................................................................................. 90

Privacy issue ......................................................................................................................... 91

Conclusion on FCM Local’s Representation............................................................................ 92

B. Test Part 2 – Contemplated Crown Conduct That Engages Aboriginal Claim Or Right . 92

Analysis and Conclusion – re Test Part 2: Contemplated Crown Conduct ............................. 92

C. Test Part 3 – Adverse Impact on Asserted Métis Rights .................................................. 93

The FCM Local’s Submissions ............................................................................................. 93

The Alberta Crown’s Submissions........................................................................................ 94

Page: 4

Analysis and Conclusion – re Test Part 3: Adverse Impact on Asserted Métis Rights ............ 96

Adequacy of Reasons................................................................................................................ 98

The FCM Local’s Submissions ............................................................................................. 98

The Alberta Crown’s Submissions........................................................................................ 99

Analysis and Conclusion – re Adequacy of Reasons.............................................................. 100

What is the effect of the Federal Crown’s decision that the duty to consult FCM Local was

triggered?................................................................................................................................ 101

Disposition.................................................................................................................................. 101

Introduction

[1]

This is an application by Fort Chipewyan Métis Nation of Alberta Local 125 [FCM

Local] for judicial review of the decision of the Crown in Right of Alberta [Alberta Crown or

Crown] that a duty to consult about the Teck Frontier Oil Sands Mine [Project] had not been

triggered. The Alberta Crown took the position that its decision that the duty to consult was not

triggered was reasonable because the FCM Local provided insufficient information regarding

who it represents for the purposes of asserting Aboriginal rights, its authority to act, the scope

and nature of the rights asserted and any potential adverse impacts of the Project upon the

asserted rights. The FCM Local argues that the FCM Local was led to believe that the Alberta

Crown understood its duty to consult had already been triggered, that it had provided sufficient

information to trigger the duty to consult and that the Alberta Crown’s decision – that the duty to

consult was not triggered – was unreasonable and incorrect.

Background

A.

The Parties

[2]

The FCM Local is an Alberta non-profit society incorporated, pursuant to the Societies

Act, RSA 2000, c S-14 [Societies Act]. The Fort Chipewyan hamlet is located in the Regional

Municipality of Wood Buffalo, approximately 220 km north of Fort McMurray, Alberta. It is a

fly-in community with no all-weather road access.

[3]

Alberta Indigenous Relations is a Government of Alberta Ministry [AR]. The Aboriginal

Consultation Office [ACO] is a department of the Ministry. The ACO was established on

November 1, 2013 “[t]o strengthen the [Government of Alberta’s] role in the First Nations

consultation process.” The ACO provides “consultation management services to meet the needs

of [Government of Alberta] ministries, First Nations, the [Alberta Energy Regulator] and project

proponents.”

[4]

Teck Resources Limited [Teck] is a federal corporation registered to operate in Alberta.

For the purposes of this judicial review, Teck is described as the proponent of the proposed

Project, an open pit oil sands mine located 110 km north of Fort McMurray, Alberta and 130

km south of Fort Chipewyan in the Athabasca oil sands region of northeastern Alberta. The

Page: 5

Project has a total capacity of approximately 260,000 barrels of bitumen per day. Some of the

physical features of the Project include two pits; tailings ponds, tailings pipelines and tailings

management facilities; a froth treatment plant; tailings preparation and management facilities; a

cogeneration and heat integration facility; steam and hot water generation facilities; earth

structures and supporting infrastructure; containment ponds for recycle water, river water and

a fish habitat compensation lake; landfills, hazardous waste storage, chemical storage; and

access roads, administration and support buildings and a bridge across the Athabasca River. Teck

will also drain muskegs and divert water from the Athabasca River at an annual volume of up to

98 mm3/a (cubic millimetre per annum). The Project is to be developed in two phases. Phase 1

includes two process trains with planned start-up in 2026 and 2027, respectively. Phase 2

includes a third process train and has a planned start-up in 2037. Teck has chosen not to

participate in this judicial review application.

B.

The Facts

[5]

During the time period at issue in this judicial review application, the Alberta Crown

Ministry’s name changed from Alberta Environment to Alberta Environment and Sustainable

Resource Development [AENV], and later to the current Alberta Environment and Parks. Alberta

Environment originally had jurisdiction over the environmental assessment process

(Environmental Protection and Enhancement Act, RSA 2000, c E-12, Part 2 (as it read on

January 1, 2008) [EPEA]; and the Energy Resources Conservation Board [ERCB] had

jurisdiction over development of energy resources in Alberta (Energy Resources Conservation

Act, RSA 2000, c E-10, s 2(c), and Oil Sands Conservation Act, RSA 2000, c 0-7, s 10 (as they

read on January 1, 2008). They are referred to as named at the relevant time or collectively as the

Alberta Crown.

[6]

In July 2007, AENV issued a Métis Harvesting in Alberta Policy [Métis Harvesting

Policy or Policy] identifying the criteria that an individual must establish in order to qualify as a

Métis harvester, when and where harvesting can take place and the regulations that apply to such

harvesters. It was updated in June 2010. The Policy replaced an Interim Métis Harvesting

Agreement that was earlier entered into with the Métis Nation of Alberta [MNA] in 2004, which

provided that members of the MNA could hunt, fish and trap for subsistence purposes including

provisions related to the timing and location of those harvesting activities. The Métis Harvesting

Policy allows a Métis harvester to hunt for food at all times of the year within that person’s

community harvesting area. The community harvesting area consists of the unoccupied Crown

land or other land to which the Métis harvester has a right of access within 160 km of the

community. Fort Chipewyan has been formally recognized as a historical and modern Métis

community for the purposes of Métis harvesting in the Métis Harvesting Policy.

[7]

Teck informed AENV of its plans to develop the Project in November 2007. In February

2008, AENV advised Teck that the Project is a mandatory activity under the EPEA and therefore

Teck was required to prepare and submit an Environmental Impact Assessment [EIA] report. An

EIA must include a description of potential negative environmental, social, economic and

cultural impacts of a proposed project, plans to mitigate those impacts and the manner in which

the proponent intends to implement a program of public consultation. AENV advised Teck that

the Alberta Crown’s guidelines for consultation with First Nations would apply to the Project

and Teck would be required to submit a First Nations Consultation Plan for review and approval.

Page: 6

[8]

Teck publicly disclosed the Project in March 2008. In the Public Disclosure Document,

Teck stated its intention to commence consultation with neighbours and communities of interest,

including First Nations and Métis, well before filing its regulatory application, and to continue

consultation throughout the application, regulatory, construction and operation stages of the

Project.

[9]

Teck submitted a draft Aboriginal Consultation Plan for the Project for AENV’s review,

which included a Community Inclusion List identifying the First Nations and Aboriginal

organizations that Teck would consult, as well as the planned level of consultation. Teck

included the FCM Local in Group l, indicating the FCM Local would receive the fullest extent of

consultation efforts (including face-to-face meetings, telephone, email and open houses). Teck

also included Fort McKay First Nation, Athabasca Chipewyan First Nation, Mikisew Cree First

Nation and Métis Local # 63 (Ft. McKay) in Group 1 of the list. Teck determined full

consultation was required with these Aboriginal communities based on their proximity to the

Project area and the potential impact on Aboriginal rights and traditional uses.

[10] AENV reviewed the draft Consultation Plan and advised Teck of the need to be clear that

Métis are included in relation to potential or asserted rights, and not because a Métis group has

legally established rights. Teck amended and resubmitted its draft Consultation Plan for

approval.

[11] The revised plan states that although Métis consultation requirements have yet to be

clarified by the Government of Alberta, Teck has included potentially affected Métis

communities in the consultation plan as a matter of best practice and desire to develop mutually

beneficial relationships with all Aboriginal communities in the region. On June 10, 2008, the

Consultation Plan was approved by AENV.

[12] Pursuant to the Consultation Plan, Teck was required to submit a report to AENV on the

process of consultation every two months. AENV also stated that it may require Teck to

undertake further consultation at any time during the regulatory approval process based on the

receipt of new or additional information. Bi-monthly reports were provided regularly to the

Alberta Crown from February 2008 to February 2015. Every consultation report or supporting

consultation log included a summary of specific consultation activities between Teck and FCM

Local.

[13] On September 21, 2009, Teck and two Alberta Ministries met with FCM Local in

Fort Chipewyan regarding healthcare, housing and economic development.

[14] On November 24, 2011, Teck submitted its Integrated Application [Teck’s Application]

to AENV, the Canadian Environmental Assessment Agency [CEAA] and the ERCB seeking

various federal and provincial approvals for its proposed Project. Teck’s Application includes a

section specifically addressing Teck’s Aboriginal and Public Stakeholder Consultation. In that

section, Teck repeats the statement from its Consultation Plan about the basis for its consultation

with potentially affected Aboriginal communities and indicates its intent to continue consultation

throughout Project construction, operation and closure. Teck further states that consultation has

influenced the Project design and is expected to continue to do so.

[15] The Teck Application confirms that Teck is consulting the FCM Local at the highest

level and has provided the FCM Local with capacity funding. Teck’s Application also describes

some of the adverse effects to the exercise of treaty and Aboriginal rights expected to arise from

Page: 7

the Project, including impacts in the following categories: acoustics, air quality, groundwater,

hydrology, surface water quality, fish and fish habitat, terrain and soils, vegetation, wildlife,

human health, paleontology, historical resources, resource use, visual aesthetics, traditional land

use, Peace-Athabasca Delta and socio-economics.

[16] On March 5, 2012, CEAA, AENV and the ERCB issued a joint Notice of Teck’s

Application inviting any person who may be directly affected by the EPEA application or the

Water Act application to submit a written statement of concern pursuant to those statutes. The

FCM Local, as well as Mikiswew Cree First Nation GIR, Athabasca Chipewyan First Nation

IRC, Métis Nation of Alberta, Region 1, the Community of Fort McKay including Fort McKay

First Nation & Fort McKay Métis Community and the Métis Nation of Alberta Association,

Lakeland Local Council 1900 all filed statements of concern in relation to the Project. Teck

advised AENV, CEAA and the ERCB of its intention to provide responses to all statement of

concern filers.

[17] The May 28, 2012 Statement of Concern [SOC] submitted by the FCM Local explained

that its members are an Aboriginal people practicing traditional lifeways on the land on which

the Project development is proposed. FCM Local advised that it has Aboriginal rights to hunt,

fish, trap and gather in the Project area and that the Project would impact those rights. In

addition, the FCM Local advised that because mining will occur over at least 30 to 40 years and,

even with best practices, reclaimed landscapes will render some areas inaccessible and

unavailable for traditional uses and will alter traditional travel routes. As well, the Project is

located on the trap line of one of FCM Local’s members (Barb Hermansen), and would prevent

her from carrying on trapping in that area forever. Furthermore, the impact on waterways will

affect members who use them for harvesting, travel and commercial activities.

[18] On June 7, 2012, CEAA advised FCM Local that it had done a preliminary assessment

that shows that there are potential adverse impacts to FCM Local’s Aboriginal rights as a result

of the Project and confirmed that the Duty to Consult had been triggered for consultation with

Canada.

[19] The Record reflects that on June 14, 2012, the Alberta Crown indicated that there were

“Métis Issues” associated with the Project and recommended that Teck fund a Project specific

Métis Traditional Ecological Knowledge study and technical review.

[20] On June 28, 2012, AENV responded to a query from the FCM Local’s representative, C.

Bertolin. AENV confirmed receipt of the SOC and advised that it would be reviewed by the

Designated Director under EPEA and the Water Act who would decide to accept or reject it

based on certain criteria. The criteria identified included “whether there is a relationship

between the concerns and the application, whether the concerns are related to the Director’s

authority under [EPEA and the Water Act] and whether the majority of the people represented

through the submission are directly affected by the project application.” AENV’s Approvals

Program Policy provided that any organization that had a portion of its members living in the

geographic vicinity of the activity would be considered directly affected. In response, Ms.

Bertolin forwarded AENV copies of the Métis Harvesting Policy and a prepared schematic of

what she termed the buffer zone (a 160 km circle around Fort Chipewyan) to assist in the

Director’s submission regarding FCM Local’s standing.

[21] On July 5, 2012, FCM Local President, Jumbo Fraser, wrote jointly to the Premier of

Alberta and the Prime Minister of Canada about potential additions to First Nations’ reserves in

Page: 8

Fort Chipewyan and described issues with Métis harvesting and Métis consultation. In his letter,

he referenced Powley [culled from the Supreme Court of Canada’s decision in R v Powley, 2003

SCC 43, [2003] 2 SCR 207] and the Métis’ Harvesting Policy, asked for written confirmation

that no action would be taken without consulting the Fort Chipewyan Métis, and suggested that

the Alberta Crown enact a Métis consultation policy. He further sought to have both the federal

and provincial Crowns address Métis organizational capacity through a Memorandum of

Understanding, to inform industry that the Fort Chipewyan Métis have Aboriginal rights and the

Crown has a duty to consult and to cause the formation of a multi-party working group to

address Fort Chipewyan Métis’ capacity [July 5, 2012 Premier Letter]. On the same date,

President Fraser wrote to the federal Minister of Aboriginal Affairs as well as the Alberta AR

Minister asking them to disclose all information and research the two Crowns had commissioned

or were aware of about the Fort Chipewyan Métis.

[22] On July 16, 2012, President Fraser wrote to the Premiers of British Columbia,

Saskatchewan and the Northwest Territories (copying the Prime Minister, Alberta Premier and

others) providing notice that Fort Chipewyan Métis occupies territory that extended into their

jurisdictions while being vested with Aboriginal and constitutionally protected rights, and asking

that the governments uphold their duty to consult. He advised that the FCM Local would be

sending letters to everyone operating in its territory and beyond, to engage them about industrial

projects and their impacts.

[23] In a July 19, 2012 letter to President Fraser, the Designated Director asked for further

information to determine whether the FCM Local’s submission would constitute a SOC under

EPEA and the Water Act [July 19, 2012 SOC Letter] as follows:

a.

Please identify how many members of the [FCM Local] are directly and

adversely affected by the proposed project. Please reply with particular

reference to the nature and location of their individual activities relative to

the location of the proposed project.

b.

c.

Please identify how you anticipate the proposed project will directly affect

specific members of the [FCM Local].

Please provide a breakdown of the [FCM Local] membership in terms of

communities that the members currently live in (e.g. how many reside in

Fort McMurray, Fort Chipewyan, Fort McKay, etc.). Please include

documentation allowing us to verify the information provided.

[24] On July 19, 2012, President Fraser also wrote to CEAA and the ERCB (again copying

various other federal and provincial officials) requesting that the bodies rule, both retroactively

and prospectively, on the adequacy of consultation with the rights-bearing Métis community as it

relates to any projects currently before or in their continuing jurisdictional mandates.

[25] On August l, 2012, the Alberta AR Minister responded to President Fraser’s request for

information and research indicating that he would be pleased to ask officials to look into the

request, but asked for more specificity about the information sought. On August 20, 2012, the

Premier responded to the July 5, 2012 Premier Letter, advising that Alberta administers its duty

to consult Métis on a case-by-case basis when credibly-asserted rights may be potentially

Page: 9

impacted by Crown land management and resource development decisions. The Premier further

advised that Alberta does not administer a Métis consultation capacity funding program.

[26] Following receipt of Teck’s EIA, a federal-provincial team consisting of the ERCB,

CEAA and government departments, including AENV’s consultation advisors, started their

technical review of the EIA against both the regulatory requirements as well as the Aboriginal

concerns identified in the statement of concern process. As a result, the ERCB, AENV and

CEAA provided Teck with a set of Supplemental Information Requests on August 15, 2012

[SIRl]. The Alberta Crown requested information about the FCM Local during this process,

asking for a status update of the traditional land use study that Teck agreed to fund for the FCM

Local. In the Technical Review process, the Alberta Crown noted the MNA Region 1’s request

for a project-specific Métis environmental knowledge study. Alberta recommended that Teck

fund the study as well as a technical review.

[27] On August 27, 2012, President Fraser responded, asserting that the Project would impact

the entire community and its Aboriginal rights, and asked for confirmation that the FMC Local’s

SOC was official [August 27, 2012 SOC Letter]. President Fraser specifically stated:

a.

In FCM Local’s view, all members are affected by the Project because of

the communal nature of FCM Local’s Aboriginal rights. FCM Local

members are avid harvesters and will be impacted by the conversion of

290 km2 of boreal forest to mining, with associated tailings ponds and

water withdrawals. The Project falls within FCM Local’s traditional

territory, which is deemed by the Alberta Crown to be a 160 km radius

around Fort Chipewyan.

b.

FCM Local members Barb Hermansen (trapper) and Elder Ray Ladouceur

(bushman) will be specifically impacted by the Project. Ms. Hermansen’s

trap line is located within the Project area and will disappear as a direct

result of the Project. Mr. Ladouceur, and other FCM Local members, hunt

moose and waterfowl, fish, harvest medical and food plants, trap and

travel to Fort McMurray within the Project area. These activities will be

impacted by the downstream effects of the Project on the region, in

particular, water quantity and quality. Additionally, three FCM Local

members’ commercial barging operations will be impacted as will all

FCM Local members who use the Athabasca River to travel upstream to

visit relations and friends in Fort McKay or Fort McMurray and to obtain

annual domestic supplies. Finally, FCM Local advised that traditional

activities practiced in Wood Buffalo National Park (FCM Local members

have more than 20 active trap lines in the Park) will be affected due to

impacts to the Athabasca River and the Delta.

c.

There are 173 members of FCM Local, of which 156 reside in Fort

Chipewyan and 17 have seasonal presence. FCM Local advised that it

does not have consent under privacy legislation to provide further

information on the details of each of FCM Local member.

[28] On August 28, 2012, at the request of the Premier, the AENV Minister further responded

to President Fraser specifically addressing his concern about Métis harvesting rights in Alberta

Page: 10

[August 28, 2012 Letter]. She advised that the Supreme Court of Canada established the criteria

for recognizing Métis Aboriginal rights in Powley and confirmed that Alberta accommodates

Métis harvesting rights through its Métis Harvesting Policy and application of the Powley

criteria. The Minister indicated that she was copying the AR Minister to allow him to address the

consultation issues the FCM Local raised.

[29] In September 28, 2012, a consultation staff member, in the Sustainable Resource and

Environmental Management [SREM] Aboriginal Affairs Branch [SAAB], sent a further follow-

up to the July 5, 2012 Premier Letter referencing President Fraser’s statement that he is the

official Métis representative for FCM Local and therefore must be engaged in discussions,

including resource development discussions, on behalf of the membership [September 28, 2012

Letter]. The Alberta Crown stated that it needed to understand who President Fraser represents

and the area and nature of the rights asserted. To this end, AENV asked for the following

information:

a.

How many members does the FCM Local have? Please provide

documentation that demonstrates the number of persons officially

belonging to your Local Association.

b.

How does one become a member of the FCM Local? Please explain and

document the FCM Local registration requirements and the membership

approvals process. We are interested in learning whether your membership

process requires any ancestral connection to a specified community.

c.

d.

Please provide a breakdown of FCM Local membership in terms of the

communities where your membership live (e.g. X% reside in Fort

Chipewyan, X% reside in Lac La Biche, X% reside in Fort McMurray,

etc.) and include documentation allowing us to verify the breakdown.

Within what geographical area does FCM Local claim to represent Métis

and what is the nature of the rights you are asserting? Please advise if

there are any documents supporting these assertions.

[30] On October 10, 2012, the Designated Director advised President Fraser that the project-

specific environmental concerns raised would be considered in the review of the applications.

The Designated Director specifically noted the FCM Local’s assertion of Aboriginal rights to

harvest, navigate or use the waters in the region. He advised that “[t]he statement of concern

process does not allow me or my Department to take any position on the asserted claims

presented in your letter” and he encouraged the FCM Local to contact AR if it wanted to pursue

those assertions. The Designated Director also confirmed that the SOC was considered official

pursuant to EPEA and the Water Act and, as such, the FCM Local would be advised of his

decision on the applications [October 10, 2012 SOC Letter].

[31] On October 16, 2012, Ms. Bertolin responded to the SAAB advising that the FCM Local

had endeavoured to provide answers, but some of what was requested might violate Alberta’s

privacy laws. Rather than answer the questions asked, Ms. Bertolin referenced the October 10,

2012 SOC Letter as well as an attached email from CEAA and stated that the FCM Local had

been officially recognized by both Alberta and Canada. Ms. Bertolin further referenced the

former Interim Métis Harvesting Agreement in asserting that AR had signed off on the veracity

Page: 11

of the Métis Registry in 2004 (i.e. the MNA’s Registry), and that the FCM Local follows the

process set out in the provincial MNA registry. She stated that “the numbers of Métis don’t

[matter] it’s the recognition of the community and its evidence of section 35 rights. [FCM Local]

simply point[s] to Alberta’s Harvesting Policy creating a case of prima facie asserted harvesting

rights and the territory.” She also referenced the Métis Harvesting Policy – issued in July 2007,

and updated in June 2010 – as the “policy recognizing [the FCM Local] as both a ‘contemporary

and historic rights-bearing community.’” Ms. Bertolin concluded her letter by stating that when

Alberta and Canada funded a Traditional Knowledge Study [TKS] or Traditional Land Use

Study [TLU], the FCM Local would redefine the scope and shape of its territory. She also

advised that the MNA had filed a Notice of Question of Constitutional Law [NQCL] with the

ERCB in the Shell Jackpine Hearing.

[32] On November 7, 2012, the FCM Local requested a meeting with the AR Minister and

identified an initial list of issues for discussion, including the request for disclosure of

information and research about the Fort Chipewyan Métis, the Métis consultation policy, the

capacity for the Fort Chipewyan Métis to engage with industry, and the issue about Alberta

Crown’s informing industry that they do not have to consult with the FCM Local. On November

30, 2012, Ms. Bertolin emailed the AR Minister’s Office, the Designated Director and other AR

staff and again requested a meeting with the Minister. In this email, she stated as clarification

that in referring to President Fraser as representing the Métis who trace the origin of their rights

to Fort Chipewyan, the FCM Local was talking about signing off on impacts, not the issue of

Métis governance and representation (which she described as an internal Métis matter). Ms.

Bertolin stated that when Fort Chipewyan is able to commission studies about the effects of

development on its Aboriginal rights, that is when the issue of who can sign off on impacts arises

(consultation, mitigation, accommodation) as it is possible that many Métis communities

are/may be affected. Ms. Bertolin referenced the Métis National Council, the Métis Nation of

Alberta and the Métis Nation Region 1 and asserted that the only entity that can sign off on

impacts is the FCM Local.

[33] On December 3, 2012, the AR Minister wrote to President Fraser and Ms. Bertolin

thanking them for their letters and agreed to meet and discuss their concerns regarding

consultation and harvesting. On January 14, 2013, the AR Minister again wrote to President

Fraser indicating that he was looking forward to meeting later in the month to discuss the FCM

Local’s concerns relating to resource development, along with other issues. Ms. Bertolin

provided an updated agenda for the meeting with the AR Minister, including as additional points

of discussion: the prospect of a Métis consultation policy, the request for capacity funding and

the Métis Harvesting Policy.

[34] On January 15, 2013, Teck submitted its SIR responses, which included an update on its

stakeholder engagement activities. Teck answered specific questions about its engagement with

First Nations and Métis, and confirmed that it was providing funding to the FMC Local for a

TLU as well as an oral history project for a Fort Chipewyan Métis elder [Hermansen Biography].

Teck also provided an appendix entitled “Potential Impacts to Identified Aboriginal and Treaty

Rights” summarizing specific concerns raised by the participating Aboriginal groups, including

the FCM Local, along with Teck’s responses to those concerns.

[35] The FCM Local met with the AR Minister on January 23, 2013.

Page: 12

[36] On January 25, 2013, Ms. Bertolin responded via email to a query the AR Minister had

posed at the meeting about an estimation of the numbers of those who may be included in a

possible Métis Harvesting Policy version if the door was open to only Métis who could trace an

ancestral connection to a recognized historic and contemporary Alberta Métis Community. Ms.

Bertolin responded that the FCM Local had been pondering a similar matter, and indicated that

the issue became real when ESRD asked “who Local 125 speaks for and how many people

would be affected by a project.” Ms. Bertolin enclosed with her email the August 27, 2012 SOC

Letter as well as a 2009 historic report entitled “Research Findings: Key or Leading Métis

Families in the Wood Buffalo/Fort McMurray Region,” commissioned by the Fort McMurray

Métis Local 1935. She further attached a Scope of Work for a $94,000 genealogy project, which

she asked the Alberta Crown to consider funding. Ms. Bertolin indicated that the FCM Local

would like to undertake the genealogy project “to assess the question of ‘Who’ the Fort

Chipewyan Métis Community speaks for in respect to collective rights.”

[37] In response to Ms. Bertolin’s January 25, 2013 email, the AR Minister sent an undated

letter indicating that he had forwarded her information package to the Assistant Deputy Minister

of Consultation and Land Claims [ADM] for his consideration. The Minister confirmed, as

discussed at their meeting, that AR does not currently have consultation capacity or traditional

use study funds available for Métis.

[38] Following the meeting with the AR Minister, the AR’s Executive Director sent an email

to the FCM Local identifying outstanding issues and asking for input on those issues. The FCM

Local responded in a memorandum dated February 21, 2013, indicating that its priority issue was

a consultation policy between the Alberta Crown and the Fort Chipewyan Métis and

commensurate resources. The FCM Local further reiterated its requests for disclosure of

research, studies and papers that impact, discuss or affect the Fort Chipewyan Métis and for

Alberta to fund its genealogy study so that it could answer the Minister’s questions.

[39] On February 27, 2013, the FCM Local wrote to CEAA identifying its concerns with

Teck’s SIR responses and reiterating the environmental concerns previously identified in its

SOC. On February 28, 2013, Teck provided its SOC responses to the FCM Local, CEAA, the

ERCB and AENV. Teck indicated that it was made aware of the environmental concerns

expressed in the SOC during consultations and those concerns were summarized and responded

to throughout the EIA. Teck further stated that, during the public comment period for the Project,

communities identified Aboriginal and Treaty rights that could be affected by the Project, and

that Teck addressed those concerns, including those expressed by the FCM Local, in responding

to SIRs in the technical review process for the EIA. Teck affirmed its commitment to discussing

the Project’s potential effects with the FCM Local and exploring acceptable mitigation measures,

including long-term commitments.

[40] On April 11, 2013, the ADM replied to Ms. Bertolin advising that Alberta would begin

the process of developing a consultation policy for Métis once the new First Nations consultation

policy was released. In the interim, Alberta would continue to consult with Métis on a case-by•

case basis where there is a credible assertion of Métis Aboriginal rights. The ADM reiterated that

there was no capacity funding available for Métis and no funding available for a genealogical

study. He indicated that those topics would be discussed as Métis consultation is explored

further. In reference to the FCM Locals’ request for disclosure of research, the ADM referred to

the AR Minister’s previous August 3, 2012 letter to President Fraser and reiterated that AR

would look into the request, but again asked the FCM Local to provide specifics of the

Page: 13

information sought. On May 8, 2013, Ms. Bertolin responded, advising that the FCM Local’s

research request was withdrawn for now and asking that the Alberta Crown reconsider funding

the study.

[41] On June 6, 2013, Teck received a second set of Supplemental Information Requests

[SIR2], after the federal-provincial team reviewed Teck’s SIR responses. Again in this SIR2, the

Alberta Crown requested information about the FCM Local, including:

a.

an update on Teck’s consultation activities;

b.

a list of all potential adverse impacts of the project and environmental

effects of the project on rights, specifically identifying potential impacts to

the Métis and to each First Nation;

c.

d.

e.

a plan addressing how Teck plans to engage with each First Nation or

Métis group potentially affected by this project;

evidence that Teck has discussed reclamation with each Métis group

for which a concern on this topic has been expressed; and

information regarding impacts on FCM Local’s rights, use and/or

occupancy, and an assessment of the effects of the Project on a trapline

that is held by an FCM member.

[42] On October 23, 2013, Teck provided its SIR2 responses, which included an update on its

consultation activities; and identified how Aboriginal community concerns continued to shape

the Project’s development and environmental assessment. Teck’s SIR2 responses included an

updated appendix of potential impacts listed by Aboriginal communities and Teck’s

corresponding responses. In its SIR2 responses, Teck confirmed that it made an early decision to

include Métis in the consultation plan despite AENV not requiring consultation with Métis

groups. Teck advised that it was sending its bi-monthly consultation logs to the FCM Local and

was also funding a Fort Chipewyan Métis community-wide genealogy study.

[43] The FCM Local had received federal funding to support an EIA review and held a focus

group to discuss the Project. In the November 2013 EIA review, the FCM Local criticized the

traditional land use information relied on by Teck and indicated that a biography of one member

(Hermansen Biography) could not be utilized in place of a comprehensive TKS.

[44] As indicated earlier, the ACO was created in November 2013, five months following the

creation of the AER. In June of 2013, the Responsible Energy Development Act, SA 2012, c R-

17.3 [REDA] came into force creating the Alberta Energy Regulator [AER], and dissolved the

ERCB. The transitional provisions of REDA provide that all previous applications to the ERCB

continue under the AER: see, REDA, ss 3, 4, 8l-113; and the Responsible Energy Development

Act Transition Regulation, Alta Reg 92/2013, s 2. The Minister of Energy issued a Ministerial

Order, pursuant to REDA, providing direction to the AER to ensure that it would make decisions

in respect of energy applications in a manner consistent with the Alberta Crown’s work to meet

its consultation obligations. The Ministerial Order requires the AER to share with the ACO all

submissions filed by First Nations and other Aboriginal groups.

Page: 14

[45] On December 16, 2013, the FCM Local wrote to the Minister of Aboriginal Relations and

advised that it was dissatisfied with the Alberta Crown’s consultation process for the Project to

date. [December 16, 2013 Letter]. In the letter, Ms. Bertolin advised that the FCM Local had

received and completed review of Teck’s SIR responses. She referred to the SOC and the FCM

Local’s official status and asked that the Alberta Crown make no decisions on any regulatory or

other matters on any of Teck’s applications until the Fort Chipewyan Métis had been consulted.

Ms. Bertolin asked that Alberta create, on an expedited basis, a consultation process and provide

capacity resources so that the FCM Local could engage in meaningful consultation. On

December 17, 2013, Ms. Bertolin forwarded the December 16, 2013 Letter to CEAA and the AR

and AENV Ministers, copying the FCM Local’s legal counsel, Ms. Lambert (Ms. Bertolin and

Ms. Lambert acted as the FCM Local’s legal counsel at the Teck Winter Drilling Hearing [Teck

Winter Drilling Hearing]. Ms. Bertolin acted as one of the legal counsel for the Métis Nation of

Alberta Region 1, representing the FCM Local and President Fraser amongst others, at the Shell

Jackpine Hearing. She enclosed the Hermansen Biography, and portions of transcripts from two

separate ERCB hearings – Teck’s 2013 application for approval of its 2012/2013 Project winter

drilling program, as well as the 2012 Shell Jackpine Hearing application to expand a

neighbouring project.

[46] On January 16, 2014, Teck responded to the FCM Local’s SIR concerns addressing each

of the issues raised by the FCM Local and advising that it had recently agreed to fund the FCM

Local’s Project-specific TLU.

[47] On January 27, 2014, the Minister of Aboriginal Relations responded to the FCM Local’s

December 16, 2013 Letter. The Minister confirmed that the Alberta Crown recognizes a duty to

consult with some Métis communities when Crown land management and resource development

may adversely impact their rights. The Minister further advised that AR would begin the process

of developing a consultation policy for Métis once the new First Nations consultation policy was

implemented. In the interim, the Alberta Crown would continue to consult with Métis

communities on a case-by-case basis when there is a credible assertion of Métis Aboriginal

rights. The Minister encouraged the FCM Local to continue to work with AR staff on the Alberta

Crown’s approach to Métis consultation.

[48] On February 10, 2014, Teck responded to the FCM Local’s EIA review outlining its

plans to address each concern expressed and confirming its commitment to fund a Project-

specific TLU. Teck further confirmed its continuing commitment to consult with the FCM Local

through regulatory review, project construction and operation.

[49] In March 2014, the AER took jurisdiction over the EPEA and Water Act approvals for the

Project. The relevant sections of REDA came into force on March 29, 2014.

[50] On May 1, 2014, AER sent a copy of FCM Local’s SOC to the ACO, pursuant to the

Ministerial Order 141/2013 (replaced by Energy Ministerial Order 105/2014, on October 31,

2014). The Ministerial Order required the AER to provide the ACO with copies of all Statements

of Concern filed by a First Nation or Aboriginal group together with any evidence and

information. The AER sent a letter to the FCM Local acknowledging receipt of the SOC, and

confirming that AENV had previously advised the FCM Local in 2012 that the SOC was official.

The AER indicated it would consider the SOC concerns in accordance with its Rules of Practice.

[51] In June of 2014, the AER contacted the ACO indicating that a process needed to be

developed to deal with Métis statements of concern on AER applications. In responding, the

Page: 15

ACO referenced the Ministerial Order and its requirement that the AER share with the ACO all

submissions filed by First Nations and other Aboriginal groups so that the ACO may assess

whether a Crown duty to consult is triggered by a non-status or Métis group’s submissions. The

ACO created charts to track the statements of concern received from the AER and, in October

2014, senior ACO staff confirmed that the Alberta Crown would continue to assess Métis

consultation on a case-by-case basis. A template letter was created for responding to Métis SOCs

received from the AER, asking eight questions. The template letter was to be sent to each Métis

community for each project for which the group submitted a Statement of Concern.

[52] On November 10, 2014, the Premier, who was also the AR Minister, met with the FCM

Local. The FCM Local indicated that the first item on its agenda was Métis consultation.

[53] In November 2014, Teck advised the FCM Local that it had submitted its response to the

third round of SIRs [SIR3] and provided a portion of its response outlining planned changes to

the Project. Teck also provided the FCM Local with an updated map depicting a new project

disturbance area 118 hectares smaller than originally planned. On December 4, 2014, Teck asked

the FCM Local for comments on Teck’s proposed methodology for assessing effects on

traditional land use. Teck confirmed that the proposed approach was not intended as a substitute

for an independent Cultural Impact Assessment the FCM Local was conducting with Teck’s

support. On January 12, 2015, the FCM Local’s consultant provided comments and

recommendations to Teck.

[54] The ACO reviewed the FCM Local’s SOC, inputting the information on an internal chart.

In November 2014, the ACO sent out letters, based on the template, to Métis groups who had

filed statements of concern that were forwarded to the ACO, pursuant to the Ministerial Order.

President Fraser received a template letter from ACO in relation to the Project, as well as a

CNRL Program and the Imperial Aspen Project [the Three Projects], with a demand that the

questions be answered within two weeks [the Information Request].

[55] In the November 20, 2014 Letter that the FCM Local received about the Project, the

ACO asked only six of the eight template questions, based on information it had already

ascertained from the SOC. The ACO asked the FCM Local to answer the following questions by

December 4, 2014 and provide supporting documents:

1.

How does one become a member of the FCM Local? Please explain and

document the FCM Local registration requirements?

2.

Please identify how many members of the FCM Local are directly affected

by the proposed project with particular reference to the nature and location of

their individual activities relative to the location of the proposed project.

3.

Within what geographical area does FCM Local claim to represent Métis

and where is that documented?

4.

You mention that the proposed project will impact critical wildlife habitats

and habitation sites. Please identify the areas and the specific environmental

concerns that members of the FCM Local have with the proposed project.

Page: 16

5.

Is there one or more historic Métis communities that the members of the

FCM Local claim an ancestral connection to? If so, please describe that

community or communities including location(s). Please provide a breakdown of

membership ties to those communities.

6.

You indicate that the project is proposed on lands used by members of the

FCM Local for activities such as hunting, trapping and fishing. Please specify

how those activities may be impacted by the proposed project.

[56] On November 21, 2014, Ms. Bertolin called the ACO about the November 20, 2014

Letter and indicated that the FCM Local’s SOC had been accepted in 2012, that the FCM Local

was not expecting the need to provide further information. She stated that the FCM Local

believed a detailed response was not necessary because Crown had already determined it was

affected by the Project when it accepted FCM’s SOC. A consultation advisor indicated that he

would get back to her about the need for a response.

[57] On November 26, 2014, the FCM Local responded to the ACO’s November 2014 letters

in relation to the CNRL Program providing responses to the template questions and advised that

it was in the process of preparing a genealogy study to assess how many people could trace their

section 35 rights to Fort Chipewyan and to verify their other assertions [November 26, 2014

CNRL Response Letter].

[58] On December 5, 2014, the FCM Local emailed the ACO asking for an extension to reply

to the November letters about the Project and the Imperial Aspen Project. The FCM Local also

requested an extension of time for responding to the request for information.

[59] On December 13, 2014, Ms. Bertolin, on behalf of the FCM Local, wrote to the ACO

stating that the FCM Local was perplexed by the ACO’s request as it had been given official

standing on all matters pertaining to the Project. The FCM Local provided a copy of the Alberta

Crown’s July 19, 2012 SOC Letter (from the Designated Director) and the FCM Local’s August

27, 2012 SOC Letter response, which asks and answers, respectively, many of the questions

the ACO asked in its November 20, 2014 Letter. Ms. Bertolin also provided a copy of the

October 10, 2012 SOC Letter and stated that she trusted it would address each and every

question the ACO has. In her correspondence, Ms. Bertolin also acknowledged the receipt of the

November 20, 2014 Letter in relation to the Project and referenced the extensions requested. She

indicated that the November 20th Letter was received after the requested December 4th due date

for a response. On December 18, 2014, Ms. Bertolin followed up by email indicating that she

had not received a response to her correspondence about the Project or the Imperial Aspen

Project.

[60] On January 2, 2015, the ACO emailed a letter to President Fraser addressing the Three

Projects [First Decision Letter]. It reads:

This letter is in response to your written correspondence addressed to the

Aboriginal Consultation Office (ACO) dated November 26 and December 5 (two

emails from Ora Campbell and Cynthia Bertolin), 2014 regarding the Projects

[Teck Resources Frontier Project; Imperial Oil Resources Ventures Ltd. Aspen

Project; and CNRL OSE Winter Drilling Program] and other [matters].

Page: 17

The Government of Alberta acknowledges the information that Fort Chipewyan

Métis Local 125 (ML 125) has provided in response to information requests from

the ACO regarding the Projects.

You have provided one report:

1. Historical Métis Communities in Region One of the Métis Nation of

Alberta, 1881-1916, Jonathan Anuik and Frank Tough, with the Métis

Archival Project (MAP) Lab, No Date.

In your correspondence, you have indicated that a genealogy study is

currently underway to verify assertions of historical ancestry and support

findings of the MAP. No completion date was listed.

At this time, the Government of Alberta does not have enough information to

determine whether there is a credible assertion that ML 125 is a rights-bearing

community. In addition to the information you have already provided, you will

need to provide the anticipated genealogical study and that has been requested by

the ACO before the Government of Alberta will be in a position to further

consider this matter.

We understand that ML 125 received notification from the Alberta Energy

Regulator and Alberta Environment and Sustainable Resource Development about

the Teck Frontier Project in April, the Imperial Oil Aspen Project in June and

CNRL OSE Program in October, 2014. Given the unknown state and completion

date of your genealogical study, a further delay in the ACO’s process to

December 17 and 18, 2014 as you requested in ML 125’s correspondence dated

December 5, 2014 with reference to EPEA Application No. 001-00247548 and

No. 001-00336673, is not warranted and the Government of Alberta will not be

requiring consultation with ML 125 based on the information that has been

provided.

The ACO confirms that the following deadlines apply to the following ACO

information requests:

1. ACO Information Request re: Imperial Oil Resource Ventures Ltd.

Aspen Project, AER Application No. 1782988; EPEA Application

Number 001-00336673: Letter sent to ML 125 on November 19, 2014

and deadline was December 3, 2014;

2. ACO Information Request re: Teck Resources’ Frontier Project, EPEA

Application No. 001-00247548, Water Act file No. 00303079: Letter

sent to ML 125 on November 20, 2014 and the deadline was December

4, 2014.

The Ministry of Aboriginal Relations will consider the information that has been

received from ML 125, as well as any information your local may provide in the

Page: 18

future in the context of further policy discussions regarding consultation

processes. To discuss the issue outside the project specific consultation process,

please contact [the] Executive Director, Aboriginal Consultation Policy and

Capacity. When the referenced genealogical study becomes available, you may

forward it to his attention.

The Government of Alberta encourages you to participate in the Alberta Energy

Regulator’s process, as it provides a venue in which project specific concerns

associated with the Projects can be considered and assessed.

[61] On January 23, 2015, Ms. Bertolin emailed the ACO advising that the FCM Local was

assembling a package to respond to the points raised in the First Decision Letter. She again

referenced the October 10, 2012 SOC Letter of the Designated Director, and asserted that the

FCM Local had received official standing relating to all matters regarding Teck and was going to

challenge Alberta/ACO’s changing of a decision that was formally communicated to the Fort

Chipewyan Métis. (The email appears to contain a date error; and the reference to the August 27,

2012 Letter should have been a reference to the October 10, 2012 SOC Letter from the

Designated Director). Ms. Bertolin acknowledged that her client was attending the AER hearing

as a full participant, having been granted standing as being directly and adversely affected. She

asked that the Alberta Crown not take any arbitrary action.

[62] The FCM Local submitted a request for reconsideration to the Alberta Crown on

February 16, 2015 [the Reconsideration Request]. In the February 16, 2015 letter to the Alberta

Crown, President Fraser responded to the November 2014 letters as well as the First Decision

Letter [February 2015 Letter]. He indicated that the ACO could have applied the FCM Local’s

November 26, 2014 CNRL Response Letter to all Three Projects and that answering the same

questions three separate times was redundant. President Fraser also provided an overview of the

FCM Local’s correspondence about consultation and referenced a number of documents and

reports as well as a book by P. A. McCormack, Fort Chipewyan and the Shaping of Canadian

History, 1788-1920. The FCM Local requested that Alberta review all the materials and reports

being submitted, including appropriate consideration of the McCormick book and the letter from

Minister McQueen to reverse the decision regarding FCM Local’s credible assertion of rights.

[63] On that same day (i.e. February 16, 2015), Ms. Bertolin emailed the ACO, Teck, CNRL

and Imperial Oil copying FCM Local’s counsel, Ms. Lambert, and attaching two separate letters

– one to AR and one to the proponents – indicating that large files would be arriving. The letter

to the project proponents simply notified them of the FCM Local’s attached response to the

Alberta Crown. Along with the February 2015 Letter, Ms. Bertolin forwarded to the ACO seven

separate links to large Dropbox files. The FCM Local stated that it required Alberta’s response in

thirty days or it would explore other legal remedies.

[64] On March 19, 2015, Ms. Bertolin again emailed the ACO attaching the February 2015

Letter and the October 10, 2012 SOC Letter.

[65] The ACO responded to Ms. Bertolin the next day on March 20, 2015, confirming that it

was reviewing the information submitted. Ms. Bertolin replied March 21, 2015 stating that she

had informed her clients and litigation team that the Alberta Crown was reconsidering and

inquired when they could expect to receive a decision. That same day, Ms. Bertolin again

emailed the ACO attaching a chain of emails and attachments and stating that the FCM Local

Page: 19

wanted to include that information in support of its February 2015 Letter. On April 1, 2015, Ms.

Bertolin emailed the ACO stating that she recognized that the issues were complicated, but that

the FCM Local needed to hear from the Alberta Crown and requested a timeline.

[66] On May 1, 2015, the FCM Local filed its Originating Application challenging the First

Decision Letter.

[67] The ACO emailed Ms. Bertolin on May 14, 2015 indicating that the Alberta Crown was

reviewing all of the information submitted by the FCM Local, however, the Dropbox links had

expired. The ACO asked Ms. Bertolin to resend the links. Ms. Bertolin emailed the ACO and

Ms. Lambert advising that she had resent links to the Dropbox materials and inquired about AR’s

timing.

[68] On June 15, 2015, Teck submitted a Project Update to CEAA and the AER incorporating

an updated EIA reflecting changes resulting from changes to its oil sands lease as well as

feedback from regulators and stakeholders. In its Project Update, Teck reviewed its Aboriginal

community engagement to date and provided a summary of the FCM Local’s Interim Cultural

Impact Assessment, received April 20, 2015. Teck confirmed that the FCM Local’s Community

Impact Assessment was expected to be completed that month and that the FCM Local had

completed a Project-specific TLU.

[69] On July 10, 2015, the ACO emailed Ms. Bertolin, attaching a letter (dated July 9, 2015)

[Second Decision Letter], which advised as follows:

Thank you for your February 16^th, 2015 letter requesting the Government of

Alberta’s reconsideration of its decision on the applications [re the Three

Projects]. The Government of Alberta acknowledges the information that Fort

Chipewyan Métis Local 125 (FCM) has provided in response to information

requests from Aboriginal Relations’ Stewardship and Policy Integration Branch

(SPI) regarding [the Three Projects]. You have provided the following reports:

1. Jonathan Anuik and Frank Tough, with the Métis Archival Project Lab,

“Historical Métis Communities in Region One of the Métis Nation of

Alberta, 1881-1916.” Edmonton, University of Alberta, 2009.

2. Alberta. Office of the New Democrat Opposition. “Research summary

dated December 6, 2006, summarizing the status of research being

conducted on Métis historical issues, prepared by Neil Reddekopp.”

Government of Alberta Sessional Papers, 2007.

3. Gwyneth Jones. “Historical Profile of the Great Slave Lake Areas’ Mixed

European-Indian Ancestry Community.” March 31, 2005.

4. Labour & Hermansen, “Barb Hermansen: Her Story.” June 2011.

5. Mark of the Métis – Research proposal for Heritage Land Occupancy

Relationship Study in Fort McMurray and Wood Buffalo Region, June

2009. (including maps)

6. Neil Reddekopp, “Conklin as an Aboriginal Community: Legal Analysis”.

7. Select Committee of the Senate Appointed to Inquire into the Resources of

the Great MacKenzie Basin, Session 1888, Queen’s Printer 1888.

Page: 20

8. Stantec, “A Historical Profile of the Northeast Alberta Area’s Mixed

European-Indian or Mixed European-Inuit Ancestry Community:

Department of Justice – Canada.” Ottawa: Department of Justice, 2005.

In your correspondence you also identified other sources, which you would like

Alberta to consider as part of your assertion. The Government of Alberta has

reviewed the following additional information:

9. Patricia A. McCormack. “Fort Chipewyan and the Shaping of Canadian

History, 1788-1920s: We like to be free in this country.” UBC Press, 2011.

The ACO has also reviewed all information that you provided to our offices via

DropSend box on May 15, 2015. From this review, the ACO has reached the

conclusion that the Government of Alberta does not possess sufficient information

to determine whether there is a credible assertion that FCM is a rights-bearing

community. The ACO therefore confirms that consultation with FCM will not be

required in connection with the applications referenced above.

Alberta has previously requested information to determine whether there is a

credible assertion that FCM is a rights-bearing community; however, the FCM

has not provided it. The ACO requires detailed information about the FCM’s

current membership list, internal membership criteria, and genealogy of the

current membership, including copies of primary documents and birth records. In

addition we require information about your current members’ harvesting

activities.

We note that Alberta’s consultation process and the Alberta Energy Regulator’s

(AER) regulatory process have different scopes and requirements for

participation. The AER may allow a First Nation and/or aboriginal group to

participate in the AER’s process even when Alberta has not directed consultation

with those groups for that same proposed activity. For example, an aboriginal

group may be accepted as a Statement of Concern filer in the AER process. In

addition, as part of their effort to cultivate good relationships with local

communities, industry proponents regularly engage and/or consult with Métis as

well as First Nations. The AER regulatory processes as well as proponent

engagement are a way for concerns to be heard and action taken to avoid and

mitigate impacts. We encourage the FCM to continue to engage with the

proponents in the appropriate AER regulatory processes for the above noted

applications.

The Ministry of Aboriginal Relations is willing to enter into policy discussions

with the FCM regarding consultation processes and to consider your Local’s

assertion of aboriginal rights in light of the criteria identified in the case law. We

invite FCM to contact [the] Director, Aboriginal Consultation Policy and

Capacity [in] this regard.

In these policy discussions, Aboriginal Relations will consider the information

received from FCM to date, as well as any additional information provided by

FCM in the future, including the requested membership, genealogical and

harvesting information. When the anticipated genealogical study becomes

Page: 21

available, please forward it to his attention. We confirm that these policy

discussions will take place separate and apart from project-specific consultation

matters.

[70] On August 24, 2015, the FCM Local filed an Amended Originating Application adding

the Second Decision Letter to its judicial review. The FCM Local has not included the CNRL

Program or Imperial Aspen Project in its application although both the First Decision Letter and

Second Decision Letter apply to those projects as well.

C.

The Relevant Law

[71] In this section of the Judgment, I have set out the relevant constitutional and legislative

provisions, as well as common law concepts that are material to my analysis.

[72]

Section 35 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK),

1982, c 11, proclaimed in force on April 17, reads:

35. (1) The existing Aboriginal and treaty rights of the Aboriginal peoples of

Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and

Métis peoples of Canada.

(3) For greater certainty, in subsection (1) treaty rights includes rights that now

exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the Aboriginal and treaty

rights referred to in subsection (1) are guaranteed equally to male and female

persons.

The Duty to Consult

[73] Section 35 represents a promise of rights recognition which is realized through the

process of honourable negotiation. It is a corollary of s 35 that the Crown act honourably in

defining the rights it guarantees and in reconciling them with other rights and interests. This, in

turn, implies a duty to consult and, if appropriate, accommodate. It is a doctrine that applies

independently of the expressed or implied intention of the parties: Haida Nation v British

Columbia (Minister of Forests), 2004 SCC 73 at para 20, [2004] 3 SCR 511 [Haida]. The duty

to consult is both a legal and a constitutional duty: Haida at para 10, 16; R v Kapp, 2008 SCC 41

at para 6, [2008] 2 SCR 483; Behn - Moulton Contracting Ltd v British Columbia, 2013 SCC

26 at para 28, [2013] 2 SCR 227 [Moulton]; Little Salmon/Carmacks First Nation v Yukon

(Director, Agriculture Branch, Department of Energy, Mines & Resources), 2010 SCC 53 at

paras 42, 61, [2010] 3 SCR 103 [Little Salmon]; Manitoba Métis Federation Inc v Canada

(Attorney General), 2013 SCC 14 at paras 69-72, [2013] 1 SCR 623 [Manitoba Métis

Federation]; Enge v Mandeville, 2013 NWTSC 33 at para 164, [2013] 8 WWR 562 [Enge].

[74] The fundamental purpose and objective of the modern law of Aboriginal and treaty rights

is the reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective

claims, interests and ambitions in a mutually respectful long-term relationship: Little Salmon at

Page: 22

para 10; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69

at para 1, [2005] 3 SCR 388 [Mikisew].

[75] The duty to consult exists to protect the collective rights of Aboriginal peoples; and as

such, is owed to the Aboriginal group that holds the s 35 rights, which are collective in nature.

Nonetheless, an Aboriginal group can authorize an individual or an organization to represent it

for the purpose of asserting its s 35 rights: Moulton at para 30.

The Honour of the Crown

[76] The phrase honour of the Crown refers to the principle that servants of the Crown must

conduct themselves with honour when acting on behalf of the sovereign: Manitoba Métis

Federation at para 65. The Crown’s duty of honourable dealing toward Aboriginal peoples arises

from the Crown’s assertion of sovereignty over Aboriginal people and de facto control of land

and resources that were formerly in the control of that people: Haida at para 32. As stated in

Manitoba Métis Federation:

66

In Aboriginal law, the honour of the Crown goes back to the Royal Proclamation

of 1763, which made reference to the several Nations or Tribes of Indians, with whom

[they] are connected, and who live under [Crown] Protection: ...

The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing

Aboriginal societies with the assertion of Crown sovereignty. ...

....

68

The honour of the Crown imposes a heavy obligation, and not all interactions

between the Crown and Aboriginal people engage it. In the past, it has been found to be

engaged in situations involving reconciliation of Aboriginal rights with Crown

sovereignty.

…

73 The honour of the Crown is not a mere incantation, but rather a core precept that

finds its application in concrete practices and gives rise to different duties in different

circumstances: Haida Nation, at paras. 16 and 18. It is not a cause of action itself; rather,

it speaks to how obligations that attract it must be fulfilled. ...

....

75 By application of the precedents and principles governing this honourable conduct,

we find that when the issue is the implementation of a constitutional obligation to an

Aboriginal people, the honour of the Crown requires that the Crown: (1) takes a broad

purposive approach to the interpretation of the promise; and (2) acts diligently to fulfill it.

[77] With respect to section 35, the honour of the Crown requires that consultation and

appropriate accommodation take place when a proposed government action threatens to

adversely affect Aboriginal peoples. The test is broad and sensitive to differing factual

circumstances: Tsuu T’ina Nation v Alberta (Minister of Environment), 2010 ABCA 137 at

para 46, 482 AR 198 [Tsuu T’ina]. In all its dealings with Aboriginal peoples, the Crown must

act honourably, in accordance with its historical and future relationship with the Aboriginal

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peoples in question: Taku River Tlingit First Nation v British Columbia (Project Assessment

Director), 2004 SCC 74 at para 24, [2004] 3 SCR 550 [Taku River].

Aboriginal Rights

[78] Courts considering a claim to the existence of an Aboriginal right must focus specifically

on the traditions, customs and practices of the particular Aboriginal group claiming the right.

Aboriginal rights are not general and universal; their scope and content must be determined on a

case-by-case basis. The existence of the right will be specific to each Aboriginal community: R v

Van der Peet, [1996] 2 SCR 507 at para 69, 137 DLR (4th) 289 [Van der Peet].

[79] The onus is on the claimant to prove that he or she benefits from an existing Aboriginal

right: Van der Peet at para 132.

[80] The claimant group bears the onus of establishing Aboriginal title, that they are rights

holders. The task is to identify how pre-sovereignty rights and interests can properly find

expression in modern common law terms. In asking whether Aboriginal title is established, the

general requirements are: (1) sufficient occupation of the land claimed to establish title at the

time of assertion of European sovereignty; (2) continuity of occupation where present occupation

is relied on; and (3) exclusive historic occupation. In determining what constitutes sufficient

occupation, one looks to the Aboriginal culture and practices, and compares them in a culturally

sensitive way with what was required at common law to establish title on the basis of occupation.

Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement, but

extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting

resources and over which the group exercised effective control at the time of assertion of

European sovereignty: Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 50, [2014] 2

SCR 257 [Tsilhqot’in Nation SCC].

Which Group Holds Those Rights

[81] In Tsilhqot’in Nation, at the trial level Vickers J of the British Columbia Supreme Court

stated that when making a declaration of Aboriginal rights, the court must identify which present

group or community holds those rights. In that case the Tsilhqot’in Nation Gwet’in First Nations

and Federal Crown asserted that the proper rights holder was the community of Tsilhqot’in

people. The Provincial Crown said that the proper rights holder was the community of

Tsilhqot’in Nation Gwet’in people: Tsilhqot’in Nation v British Columbia, 2007 BCSC 1700 at

para 43, 65 RPR (4th) 1 [Tsilhqot’in Nation (BCSC)], aff’d 2012 BCCA 285, rev’d 2014 SCC

44 [Tsilhqot’in Nation (SCC)]. The British Columbia Supreme Court stated that this inquiry is

primarily a matter of fact to be determined on the whole of the evidence relating to the specific

society or culture: Tsilhqot’in Nation (BCSC) at para 439, citing the Supreme Court of Canada

decision in Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 115, 153 DLR (4th)

193 [Delgamuukw]; Tsilhqot’in Nation (SCC) at paras 14-17.

[82] Aboriginal title cannot be held by individual Aboriginal persons; it is a collective right to

land held by all members of an Aboriginal nation. As stated in Powley, verifying membership is

crucial, since individuals are only entitled to exercise Métis Aboriginal rights by virtue of their

ancestral connection to and current membership in a Métis community. Identification as a

member of an Aboriginal community is not external; an Aboriginal community determines its

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own membership: Tsilhqot’in Nation (BCSC) at para 444. Aboriginal people, like people in

societies everywhere, typically belong to more than one group that helps to define their

identities. In both historical and contemporary times, an individual can simultaneously be a

member of a family, a clan or descent group, a hunting party, a band, and a nation: Ibid at para

446.

[83] The use of a small decision-making body for one particular purpose is not necessarily the

hallmark of a community: Tsilhqot’in Nation (BCSC) at para 451. The BC Supreme Court notes

that in setting out the test for Aboriginal title in Delgamuukw, the Supreme Court of Canada

made no reference to the need to find an organized society: Ibid at para 454. Bands are defined

by the Indian Act, RSC 1985, c I-5, but are not expressly made legal persons by that statute.

While they have an existence separate from that of their members, they lack many of the abilities

of natural persons, corporations, municipalities and even unincorporated associations:

Tsilhqot’in Nation (BCSC) at para 455.

[84] Vickers J concluded that there is no legal entity that represents all Tsilhqot’in people. The

Tsilhqot’in National Government, a federally incorporated legal entity, only represented five of

the seven Tsilhqot’in communities. It does not represent either the Toosey/Tletinqox-tin Band or

Tsilhqot’in people who are members of the Ulkatcho Band at Nagwentl’un (Anahim Lake). The

court concluded that the search for a legal entity did not assist in the effort to define the proper

rights holder: Tsilhqot’in Nation (BCSC) at para 456. Their political structures may change

from time to time. Self-identification may shift from band identification to cultural identification

depending on the circumstances. What the court found remains constant are the common threads

of language, customs, traditions and a shared history that form the central self of a Tsilhqot’in

person. The court concluded that the Tsilhqot’in Nation is the community with whom Tsilhqot’in

people are connected by those four threads: Ibid at para 457. The court noted that the Tsilhqot’in

people make no distinction amongst themselves at the band level as to their individual right to

harvest resources. The evidence in that case was that, as between Tsilhqot’in people, any person

in the group can hunt or fish anywhere inside Tsilhqot’in territory. The right to harvest resides in

the collective Tsilhqot’in community. Individual community members identify as Tsilhqot’in

people first, rather than as band members: Ibid at para 459.

[85] The BC Supreme Court concluded that the proper rights holder, whether for Aboriginal

title or Aboriginal rights, is the community of Tsilhqot’in people. Tsilhqot’in people were the

historic community of people sharing language, customs, traditions, historical experience,

territory and resources at the time of first contact and at sovereignty assertion. The Aboriginal

rights of individual Tsilhqot’in people or any other subgroup within the Tsilhqot’in Nation are

derived from the collective actions, shared language, traditions and shared historical experiences

of the members of the Tsilhqot’in Nation: Ibid at para 470.

Interference with that Right

[86] To determine whether Aboriginal rights have been interfered with, such as to constitute a

prima facie infringement of s 35(1), certain questions must be asked. First, is the

limitation/restriction unreasonable? Second, does the limitation/restriction impose undue

hardship? Third, does the limitation/restriction deny to the holders of the right their preferred

means of exercising that right? The onus of proving a prima facie infringement lies on the

individual or group challenging the legislation. The test involves asking whether either the

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purpose or the effect of the restriction unnecessarily infringes the interests protected by the

Aboriginal right: R v Sparrow, [1990] 1 SCR 1075 at para 70, 70 DLR (4th) 385.

[87] The appellant would bear the burden of showing that the restriction constituted a prima

facie infringement of the collective Aboriginal right. If an infringement were found, the onus

would shift to the Crown, which would have to demonstrate that the limitation is justifiable. To

that end, the Crown would have to show that there is no underlying unconstitutional objective.

Further, it would have to show that the restriction sought to be imposed is required to accomplish

the needed limitation: Sparrow at para 87.

Potential Claims

[88] Where claims affecting potential but yet unproven Aboriginal interests are being

seriously pursued, the honour of the Crown may require it to consult with and reasonably

accommodate Aboriginal interests pending resolution of the claim: Haida at paras 20, 25. This

approach is consistent with the concept of reconciliation and reduces the risk that when

Aboriginal people’s rights are finally recognized, they are not rendered meaningless by

intervening actions and the passage of time: Haida at paras 27, 32-34; Enge at para 164. A duty

to consult arises when the Crown has knowledge, real or constructive, of the potential existence

of the Aboriginal right or title and contemplates conduct that might adversely affect it: Haida at

para 35; Taku River at para 25. Knowledge of a credible but unproven claim suffices to trigger a

duty to consult and accommodate. The law is capable of differentiating between tenuous claims,

claims possessing a strong prima facie case, and established claims. The absence of proof and

definition of claims are addressed by assigning appropriate content to the duty, not by denying

the existence of a duty: Haida at para 37.

[89] In Acadia Band v Minister of National Revenue, 2007 FC 259 at para 22, 310 FTR 109,

aff’d 2008 FCA 119 [Acadia], the Federal Court reviewed the applicable legal principles for

assessing the strength of an asserted claim. The Supreme Court in Van der Peet, set out a

number of general principles for determining whether an Aboriginal practice, custom or tradition

qualifies as a right pursuant to section 35 of the Constitution Act, 1982, summarized by the court

as follows:

• Section 35 is to be given a purposive interpretation (para. 21);

• Section 35 is to be given a generous and liberal interpretation in favour of

Aboriginal peoples (paras. 23-24);

• Since 1982, Parliament has not been capable of extinguishing Aboriginal rights

(para. 28);

• In order to be an Aboriginal right an activity must be an element of a practice,

custom or tradition integral to the distinctive culture of the Aboriginal group

claiming the right (para. 46);

• In order to determine whether a claim meets the test of being integral to the

distinctive culture of the Aboriginal group claiming the right, the court must first

correctly determine what it is that is being claimed (para. 51);

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• The court must bear in mind that the activities may be the exercise in a modern

form of practice, custom or tradition that existed prior to contact, and should vary

its characterization of the claim accordingly (para. 54);

• The time period that a court should consider in identifying whether the right

claimed meets the standard of being integral to the Aboriginal community

claiming the right is the period prior to contact between Aboriginal and European

societies (para. 60).

[90] Consultation and accommodation before final claims resolution is an essential corollary

to the honourable process of reconciliation that s 35 demands. It preserves the Aboriginal interest

pending claims resolution, and fosters a relationship between the parties that makes negotiations

possible. Precisely what is required of the government may vary with the strength of the claim

and the circumstances. But at a minimum, it must be consistent with the honour of the Crown:

Haida at para 38. The threshold to trigger the duty is low, even very low: Mikisew at para 34;

Carrier Sekani Tribal Council v British Columbia (Utilities Commission), 2010 SCC 43 at para

40, [2010] 2 SCR 650 [Rio Tinto]; Tsuu T’ina at para 67.

[91] The function of the duty to consult is to protect those rights while they are in the process

of proof. However, the low threshold must remain a meaningful threshold. The applicant has to

establish some sort of appreciable or discernible impact flowing from the impugned Crown

conduct before a duty to consult in relation to that impact will arise. This is both logical and

practical because there has to be something for the Crown and the Aboriginal group to consult

about. It makes little sense for the duty to consult to arise where there is nothing to consult about,

i.e., nothing to reconcile: Buffalo River Dene Nation v Saskatchewan (Minister of Energy and

Resources), 2015 SKCA 31 at paras 91, 104, [2015] 7 WWR 82.

The Scope and Content of the Duty to Consult and Accommodate

[92] The content of the duty to consult and accommodate varies with the circumstances. In

general terms, the scope of the duty is proportionate to a preliminary assessment of the strength

of the case supporting the existence of the right or title, and to the seriousness of the potentially

adverse effect upon the right or title claimed: Haida at para 39.

[93] The honour of the Crown may require different kinds of duties in different situations,

along a spectrum. At one end of the spectrum lie cases where the claim to title is weak, the

Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on

the Crown may be to give notice, disclose information, and discuss any issues raised in response

to the notice: Haida at para 43. At the other end of the spectrum lie cases where a strong prima

facie case for the claim is established, the right and potential infringement is of high significance

to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep

consultation, aimed at finding a satisfactory interim solution, may be required. While precise

requirements will vary with the circumstances, the consultation required at this stage may entail

the opportunity to make submissions for consideration, formal participation in the decision-

making process, and provision of written reasons to show that Aboriginal concerns were

considered and to reveal the impact they had on the decision. This list is neither exhaustive nor

mandatory for every case: Haida at para 44.

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[94] Between these two extremes of the spectrum just described will lie other situations. Every

case must be approached individually. Each must also be approached flexibly, since the level of

consultation required may change as the process goes on and new information comes to light.

The controlling question in all situations is what is required to maintain the honour of the Crown

and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the

interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and

Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be

required to make decisions in the face of disagreement as to the adequacy of its response to

Aboriginal concerns. Balance and compromise will then be necessary: Haida at para 45.

[95] Regarding potential or pre-proof claims the Supreme Court in Haida at para 40, reiterated

that:

The nature and scope of the duty of consultation will vary with the circumstances.

In occasional cases, when the breach is less serious or relatively minor, it will be

no more than a duty to discuss important decisions that will be taken with respect

to lands held pursuant to Aboriginal title. Of course, even in these rare cases when

the minimum acceptable standard is consultation, this consultation must be in

good faith, and with the intention of substantially addressing the concerns of the

Aboriginal peoples whose lands are at issue. In most cases, it will be significantly

deeper than mere consultation. Some cases may even require the full consent of

an Aboriginal nation, particularly when provinces enact hunting and fishing

regulations in relation to Aboriginal lands.

[96] In Haida, the chambers judge found a number of conclusions to be inescapable regarding

the Haida’s claim, some a reasonable probability, others a reasonable possibility, still others a

substantial probability, and that overall, the Haida claim went far beyond the mere ‘assertion’ of

Aboriginal title: Ibid at paras 69-70. The chambers judge’s findings grounded the Court of

Appeal’s conclusion that the Haida claims to title and Aboriginal rights were supported by a

good prima facie case which goes to the extent of the duty that the Province was required to

fulfill. The Supreme Court of Canada confirmed that the evidence clearly supported a conclusion

that, pending a final resolution, there was a prima facie case in support of Aboriginal title, and a

strong prima facie case for the Aboriginal right to harvest red cedar.

[97] When the Crown is required to provide notice to an Aboriginal group and to engage

directly with them, this engagement should include the provision of information about the project

addressing what the Crown knew to be Aboriginal interests and what the Crown anticipated

might be the potential adverse impact on those interests. The Crown is required to solicit and to

listen carefully to the Aboriginal concerns, and to attempt to minimize adverse impacts on the

Aboriginal rights: Mikisew at para 64. The Crown’s duty to consult imposes on it a positive

obligation to reasonably ensure that Aboriginal peoples are provided with all necessary

information in a timely way so that they have an opportunity to express their interests and

concerns, and to ensure that their representations are seriously considered and, wherever

possible, demonstrably integrated into the proposed plan of action: Ibid; Halfway River First

Nation v British Columbia (Ministry of Forests), 1999 BCCA 470 at para 160, 178 DLR (4th)

666).

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[98] In Tsuu T’ina at para 136, O’Brien JA confirmed that the duty of the Crown to consult

may be satisfied by providing notice, information and thorough discussion of any issues raised in

response to the notice. In that case the Samson Cree were provided with information and

opportunity to express their concerns. Alberta Environment had sent the draft Water

Management Plan [Plan] for the South Saskatchewan River Basin [SSRB] and a related

information package to the Samson Cree, and invited input. The Samson Cree did not attend a

subsequent meeting with Alberta Environment and other Treaty 6 First Nations, at which time

they would have had opportunity to raise concerns or express the need for assistance, as did the

Treaty 7 First Nations: Ibid at para 135.

[99] At all stages of the duty to consult, good faith on both sides is required. The common

thread on the Crown’s part must be the intention of substantially addressing Aboriginal concerns

as they are raised, through a meaningful process of consultation. Sharp dealing is not permitted:

Haida at para 42. Meaningful consultation may oblige the Crown to make changes to its

proposed action based on information obtained through consultations: Haida at para 46.

However, there is no duty to agree; rather, the commitment is to a meaningful process of

consultation. Mere hard bargaining will not offend an Aboriginal people’s right to be consulted:

Ibid at para 42. Accommodation requires that the Crown must balance Aboriginal concerns

reasonably with the potential impact of the decision on the asserted right or title and with other

societal interests: Haida at para 50; Taku River at paras 2, 42. Good government requires the

rights and reasonable expectations of members of the Aboriginal community, as well as the

rights and expectations of other residents in that jurisdiction, be respected: Little Salmon at para

34. This process does not give Aboriginal groups a veto over what can be done with land

pending final proof of the claim: Haida at para 48; Mikisew at para 66; Little Salmon at para 14.

[100] The Aboriginal consent is appropriate only in cases of established rights, and then by no

means in every case. Rather, what is required is a process of balancing interests, of give and take.

The test is not “a duty to accommodate to the point of undue hardship” for the non-Aboriginal

population: Haida at para 48; Little Salmon at para 81.

[101] Aboriginal claimants must not frustrate the Crown’s reasonable good faith attempts, nor

should they take unreasonable positions to thwart government from making decisions or acting

in cases where, despite meaningful consultation, agreement is not reached. Consultation can be

shaped by agreement of the parties, but the Crown cannot contract out of its duty of honourable

dealing with Aboriginal people. It is a doctrine that applies independently of the expressed or

implied intention of the parties: Haida at para 42.

The Reciprocal Duty

[102] Both parties have reciprocal duties to facilitate an assessment of the strength of the

asserted rights and to outline concerns with clarity: Cold Lake First Nations v Alberta (Minister

of Tourism, Parks and Recreation), 2013 ABCA 443 at paras 14, 29, 566 AR 259 [Cold Lake].

[103] Claimants must outline their claims with clarity, focusing on the scope and nature of the

Aboriginal rights they assert and on the alleged infringements. (Haida at para 36). There is some

reciprocal onus on Aboriginal groups to carry their end of the consultation, to make their

concerns known, to respond to the government’s attempt to meet their concerns and suggestions,

and to try to reach some mutually satisfactory solution: Mikisew at para 65; Fort McKay First

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Nation v Alberta (Minister of Environment and Sustainable Resource Development), 2014

ABQB 32 at para 19, 581 AR 124 [Fort McKay].

[104] The Crown should not ordinarily be required to conduct research into the location and

frequency of Aboriginal traditional activities, practices and historic uses of the land in lieu of

Aboriginal groups, as the Aboriginal groups should be in a much better position to ascertain their

own historical practices: Cold Lake at para 29. The Aboriginal group cannot remain silent and

rely upon the Crown’s duty to inform itself. It must give notice of its concerns and reference the

documents and factors they wish considered: Fort McKay at para 19.

Métis Communities

[105] Members of Métis communities also enjoy the constitutionally protected Aboriginal

rights under the provisions of s 35 of the Constitution Act, 1982; Powley at para 1. The inclusion

of the Métis in s 35 of the Constitution Act, 1982, arises from their special status as peoples that

emerged between first contact and the effective imposition of European control. The framers of

the Constitution Act, 1982 recognized that distinctive Métis cultures, which grew up in areas not

yet open to colonization, can only survive if the Métis are protected along with other Aboriginal

communities: Powley at para 17. Section 35 requires that we recognize and protect those

customs and traditions that were historically important features of Métis communities prior to the

time of effective European control, and that persist in the present day: Ibid at para 18.

Regulatory Schemes

[106] It is open to governments to set up regulatory schemes to address the procedural

requirements appropriate to different problems at different stages, thereby strengthening the

reconciliation process and reducing recourse to the courts; however, the government may not

simply adopt an unstructured discretionary administrative regime, which risks infringing

Aboriginal rights in a substantial number of applications in the absence of some explicit

guidance: Haida at para 51.

[107] In Tsuu T’ina at para 104, the Alberta Court of Appeal confirmed that the duty to engage

separately is not absolute. The Court quotes from Brokenhead Ojibway Nation v Canada

(Attorney General), 2009 FC 484 at para 25, [2009] 3 CNLR 36 [Ojibway Nation], where the

Federal Court observed that in determining whether and to what extent the Crown has a duty to

consult with Aboriginal peoples about projects or transactions that may affect their interests, the

Crown may fairly consider the opportunities for Aboriginal consultation that are available within

the existing processes for regulatory or environmental review. Those review processes may be

sufficient to address Aboriginal concerns, subject always to the Crown’s overriding duty to

consider their adequacy in any particular situation. This is not a delegation of the Crown’s duty

to consult but only one means by which the Crown may be satisfied that Aboriginal concerns

have been heard and, where appropriate, accommodated.

[108] The duty to consult and accommodate flows from the Crown’s assumption of sovereignty

over lands and resources formerly held by the Aboriginal group. The Crown alone remains

legally responsible for the consequences of its actions and interactions with third parties that

affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to

industry proponents seeking a particular development; as is often done in environmental

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assessments. Third parties may be mandated to specify measures that it would take to identify

and consult with Aboriginal people claiming an Aboriginal interest in or to the area. However,

the ultimate legal responsibility for consultation and accommodation rests with the Crown. The

honour of the Crown cannot be delegated: Haida at para 53.

D.

The Standard of Review

[109] The primary issue on this judicial review is whether or not the Alberta Crown’s duty to

consult was triggered with respect to the Project. The Court is not being asked to determine the

existence of Aboriginal rights, whether rights were infringed nor the scope or adequacy of

consultation.

[110] The FCM Local argues that the determination of the existence and extent of the duty to

consult or accommodate is a question of law and reviewable on a standard of correctness:

Nunatukavut Community Council Inc v Canada (Attorney General), 2015 FC 981 at paras 72,

74, 80 and 92, 96 CELR (3d) 211 [Nunatukavut Community]. In such case, no deference is

owed to the Crown in determining whether the duty to consult was triggered.

[111] The Alberta Crown argues that the applicable standard of review in this case should be

reasonableness as assessing the credibility of a claim to Aboriginal rights and the authority of an

organization to represent a group asserting rights are questions of mixed fact and law. The

ACO’s determination was highly fact-dependent, as it required the application of the legal tests

to the information provided by the FCM Local.

[112] In Haida at paras 62-63, the Supreme Court stated that:

[62] The process [for discharging Crown’s duty to consult and accommodate]

itself would likely fall to be examined on a standard of reasonableness. Perfect

satisfaction is not required; the question is whether the regulatory scheme or

government action “viewed as a whole, accommodates the collective Aboriginal

right in question”: [What] is required is not perfection, but reasonableness…. [In]

“information and consultation the concept of reasonableness must come into play.

[So] long as every reasonable effort is made to inform and to consult, such efforts

would suffice.” The government is required to make reasonable efforts to inform

and consult. This suffices to discharge the duty.

[63] Should the government misconceive the seriousness of the claim or impact of

the infringement, this question of law would likely be judged by correctness.

Where the government is correct on these matters and acts on the appropriate

standard, the decision will be set aside only if the government’s process is

unreasonable. The focus, as discussed above, is not on the outcome, but on the

process of consultation and accommodation.

[113] Thus, the existence or extent of the duty to consult or accommodate is a legal question in

the sense that it defines a legal duty and the decision-maker must generally be correct. Where the

issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness.

However, where the issue is not one of pure law and cannot be isolated from the issues of fact, a

degree of deference to the assessment and findings of fact of the initial decision-maker may be

appropriate. As stated in Tsuu T’ina at para 27, deference is owed to the fact findings upon

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which such a duty might be premised. The need for deference will depend on the nature of the

question the decision-maker was addressing and the extent to which the facts were within the

expertise of the decision-maker. In such a case, where the issues of law and fact are inextricably

entwined, the standard will likely be reasonableness.

[114] In Labrador Métis Nation v Newfoundland & Labrador (Minister of Transportation &

Works), 2007 NLCA 75, 288 DLR (4th) 641, leave to appeal to the SCC dismissed, 2008

CarswellNfld 142 [Labrador Métis Nation], the Labrador Métis Nation (LMN), a nation of

6,000 members of mainly mixed Inuit and European descent in 24 communities, had participated

in a public environmental assessment process relating to construction of a highway. When the

Minister of Transportation and Works and Minister of Environment and Conservation denied

LMN’s requests to be provided with applications for all wetland and watercourse crossings, and

adequate time to comment on them, LMN applied to quash the Minister’s decisions. An

individual, Carter Russell [Russell], claimed the right to act as a representative plaintiff for

individuals of Inuit descent in southern and central Labrador in asserting the claim. The

application’s judge found that the Crown had an ongoing duty to engage in meaningful

consultation with LMN during construction of the highway, and quashed the ministerial

decisions. The Crown appealed; and LMN and Russell cross-appealed on the basis that there

were sufficient Inuit rights to sustain a duty to consult.

[115] The Newfoundland & Labrador Court of Appeal in Labrador Métis Nation at para 35,

addressed the standards of review for each of the questions it was addressing as follows:

Issue (i), the necessity of ethnic identification, is a pure question of law and the

standard of review is correctness. Issue (ii) concerning identification as Métis,

would normally be a mixed question of law and fact; if the issue were properly

before him, the applications judge would have to apply the Powley legal standard

to the facts of this case. But whether the issue was properly before him is a

question of law. Issue (iii), assessing the credibility of the respondents’ claim, is

also a mixed question of law and fact; the legal principles earlier discussed had to

be applied to the facts. Issue (iv), the matter of standing, is another mixed

question of law and fact; legal questions of agency and entitlement to be a

representative plaintiff must be applied to the circumstances of the LMN and

Carter Russell. Issue (v), the scope of the duty to consult, depends on (a) legal

principles relating to the extent and scope of the Crown’s duty to consult; (b) the

potential strength of the LMN communities’ claim to Aboriginal rights; (c) the

extent of the potential adverse effects the construction of the [Trans-Labrador

Highway] may have; and (d) whether the Crown failed in its constitutional duties

to consult and accommodate. Question (a) is a pure question of law, (b) and (d)

mixed questions of law and fact, and (c) a pure question of fact.

[116] In Little Salmon at para 48, the Supreme Court of Canada stated:

In exercising his discretion under the Yukon Lands Act and the Territorial Lands

(Yukon) Act, the Director was required to respect legal and constitutional limits. In

establishing those limits no deference is owed to the Director. The standard of

review in that respect, including the adequacy of the consultation, is correctness.

A decision maker who proceeds on the basis of inadequate consultation errs in

law. Within the limits established by the law and the Constitution, however, the

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Director’s decision should be reviewed on a standard of reasonableness:

Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and Canada

(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. In

other words, if there was adequate consultation, did the Director’s decision to

approve the Paulsen grant, having regard to all the relevant considerations, fall

within the range of reasonable outcomes?

[117] In that case the adequacy of the consultation was the subject of the First Nation’s cross-

appeal. The court stated that the adequacy of what passed (or failed to pass) between the parties

must be assessed in light of the role and function to be served by consultation on the facts of the

case and whether that purpose was, on the facts, satisfied: Little Salmon at para 72.

[118] In Nunatukavut Community at para 85, the Court stated that, although it has been

suggested that the effect of these paragraphs from Little Salmon is to alter the standard of review

with respect to the adequacy of the consultation process from reasonableness to one of

correctness, the Court did not understand this to be the case. In other words, the Federal Court

opined that reasonableness remains the review standard applicable to adequacy of the

consultation process.

[119] The Supreme Court of Canada in Dunsmuir v New Brunswick (Board of Management),

2008 SCC 9 at para 47, [2008] 1 SCR 190, explains that a court conducting a review for

reasonableness must inquire into the qualities that make a decision reasonable, referring both to

the process of articulating the reasons and to outcomes. Reasonableness is concerned mostly with

the existence of justification, transparency and intelligibility within the decision-making process.

However, it is also concerned with whether the decision falls within a range of possible,

acceptable outcomes which are defensible in respect of the facts and law.

[120] The issue on this judicial review is whether the Alberta Crown’s duty to consult the FCM

Local was triggered with respect to the Project. That issue involves a question of law in terms of

properly identifying the Powley criteria as the applicable legal standard or test, and the

appropriate standard of review for identifying that legal test is correctness. The issue concerning

identification as Métis involves application of the Powley legal standard to the facts and is

therefore a question of mixed law and fact to which the standard of reasonableness applies. The

issue regarding who the FCM Local represents for the purposes of asserting Aboriginal rights is

a question of fact and reviewable on a reasonableness standard. The necessity of first

establishing that the FCM Local has authority to speak on behalf of the collective it states it

represents (i.e. standing) is a question of mixed law and fact reviewable on a reasonableness

standard.

E.

The Issues

[121] For analytical purpose, the various issues that are engaged in this judicial review have

been categorized into four headings and three sub-headings. The summary of these headings and

sub-headings are as follows:

(i)

Is Judicial Review Premature?

(ii)

Was there a Breach of Procedural Fairness by the Alberta Crown (or the ACO)?

(iii) Was the Duty to Consult triggered?

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(a) Test Part 1: Real or Constructive Knowledge of an Actual or Potential Claim;

(b) Test Part 2: Contemplated Crown Conduct that engages Aboriginal Claim or

Right;

(c) Test Part 3: Adverse Impact on Asserted Métis Rights; and

Adequacy of Reasons.

(iv)

Discussion

[122] For convenience of analysis, I have adopted throughout this judgment a framework that

sets out the parties’ arguments, followed by my analysis of the various issues in the context of

the related law, with my conclusions on the distinct issues (or sub-issues) incorporated in the

relevant analysis.

Is Judicial Review Premature?

The Alberta Crown’s Submissions

[123] The Crown submits that the FCM Local admits in its Brief that Teck has been consulting

the FCM Local for over five years in nearly the same manner as it has with First Nations. Teck

advised the Alberta Crown in March of 2008 that it planned to fully consult with the FCM Local

about the Project. Teck identified the FCM Local as one of the Aboriginal groups that it intended

to consult at the highest level.

[124] Since 2008, Teck has provided the Alberta Crown with regular bi-monthly reports,

summary reports and, more recently, supporting documents which outline its consultation for the

Project, including its consultation with the FCM Local. The Alberta Crown has regularly

reviewed Teck’s consultation logs and, at times, commented generally on the entries regarding

Métis.

[125] The Alberta Crown argues that a review of the Record demonstrates ongoing consultation

between Teck and the FCM Local including:

•

Regular meetings to discuss the Project, provide project and regulatory

updates, and distribute written project information.

•

Regular meetings with the FCM Local’s advisory committee to discuss the

Project, concerns, the regulatory process, and to distribute written project

information.

•

Teck’s continued provision of written information and updates about the

Project and the regulatory process between meetings.

•

Teck’s continued provision of written information about the consultation

process including providing copies of meeting summaries, the consultation plans

and records of consultation (which were provided to the FCM Local for review,

comment and approval).

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•

Annual open houses to provide information (including written materials)

and solicit concerns.

•

Tours of the Project’s winter exploration programs as well as other Teck

programs/projects.

•

Organized flyovers of the Project area to allow the FCM Local to identify

areas of concern.

•

Teck agreeing to undertake an analysis of Métis membership, skills and

education levels to develop bursary/industry training support directory.

•

Meetings between Teck, CEAA, the Department of Fisheries, the FCM

Local and other Aboriginal communities to discuss a fish habitat compensation

plan (compensation lake) as well as a fisheries offsetting framework.

•

Teck providing capacity funding for the FCM Local’s office.

Teck funding the creation of the Hermansen Biography.

Teck and the FCM Local entering into negotiations for a long term impact

benefit agreement.

•

Teck funding a Cultural Impact Assessment report for the FCM Local.

Teck funding a project-specific TLU for the FCM Local.

Teck funding a genealogy study for the FCM Local.

[126] In addition to the above, the Teck Consultation Records demonstrate that Teck offered to

provide in-kind support to assist the FCM Local in increasing its capacity to engage in

consultation with resource developers and develop a community enhancement program .This

offer led to a two-day session in January 2010 involving the FCM Local, Teck and Alberta

Culture resulting in the creation of the FCM Local’s Community Strategic Plan as funded by

Teck.

[127] The Alberta Crown notes that in its IA and SIRs, Teck confirms that it has consulted

extensively with potentially affected Aboriginal communities and that consultation has

influenced the design of the Project and is expected to continue to do so. Since it announced the

Project in 2008, Teck has repeatedly confirmed its intention to consult and engage First Nations,

Métis and stakeholders throughout the development and operational life of the Project-starting

before filing of the regulatory application and continuing through the regulatory review phases of

the project and throughout construction and operations.

[128] The Alberta Crown contends that, as set out above, Teck is fully consulting with the

FCM Local in the ongoing regulatory process. The Alberta Crown continues to review the

Consultation Records submitted by Teck and no final determination has been made in relation to

the adequacy of consultation for this Project. As the process is ongoing, a judicial review at this

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time is unnecessary as the concerns of the FCM Local may be addressed in the ongoing process:

Cold Water Indian Band v Canada (Minister of Indian Affairs and Northerm Development),

2014 FCA 277 at para 14, 466 NR 145; Fort McKay First Nation v Alberta (Energy Regulator),

2013 ABCA 355 at paras 11-12, 3 Alta LR (6th) 422; Métis Nation of Alberta Region 1 v

Alberta (Joint Review Panel), 2012 ABCA 352 at para 21, 72 Alta LR (5th) 1, leave to appeal

dismissed, 2013 CarswellAlta 414, where Slatter JA held that “it would [be] inappropriate to

review this interlocutory decision prior to completion of the hearing.”

[129] Courts have had the opportunity, in a variety of factual contexts, to consider the

appropriate time for a party to seek review of an interim administrative decision (whether by way

of judicial review or statutory appeal). Case law has confirmed that a review by the court of

ongoing administrative processes should not be permitted, absent exceptional circumstances:

Cold Water Indian Band at paras 9, 13. This rule is necessary to avoid piecemeal court

proceedings and delays, or litigation by installment: Syncrude Canada Ltd v Alberta (Human

Rights & Citizenship Commission), 2008 ABCA 217 at paras 8-9, 432 AR 333. The case law

provides a number of compelling reasons why a party should wait until after the process is

complete before seeking relief in the courts.

[130] The Alberta Crown has decided that, to date, a Crown duty to consult has not been

triggered in relation to the FCM Local for the Project. However, the Alberta Crown has clearly

communicated its willingness to consider further information from the FCM Local and that the

decision may be revisited. Rather than seeking judicial review, a more preferable course of

action would be for the FCM Local to provide further information – such as the outstanding

TLU, Cultural Impact Assessment and genealogical study – to the Alberta Crown for

consideration: Squamish Indian Band v Canada (Minister of Fisheries and Oceans), 2014 FC

884 at paras 20-24, 464 FTR 12; Alberta Crown’s Written Brief, at paras 9, 382.

[131] The Alberta Crown indicates that its decision that the duty to consult was not triggered

does not mean that the Alberta Crown will be unable to discharge any consultation obligations

that may be found to exist in the future. A consultation process is to be assessed in its entirety

and not in a piecemeal fashion. In structuring the process, the Alberta Crown may delegate the

procedural aspects of consultation to industry proponents, and may rely on existing regulatory

processes.

[132] The Alberta Crown observes that in the present case, the FCM Local is not actively or

seriously pursuing its asserted rights in a litigation or negotiation process. While there is no

formal treaty negotiation process for Métis in Alberta, the ACO has advised the FCM Local that

it should contact the Executive Director of Aboriginal Consultation, Policy and Capacity about

entering into policy discussions.

[133] The Alberta Crown then submits that this Court should exercise its discretion to refuse

the remedies sought by the FCM Local as the regulatory process is not yet complete and the

FCM Local is involved in ongoing consultation with Teck.

The FCM Local’s Submissions

[134] The FCM Local submits that the test for triggering the duty to consult is low. In this

regard, the FCM Local says that it submitted ample information to the Alberta Crown to

establish that the duty to consult was triggered in this case. The FCM Local argues that its claims

Page: 36

to represent a Métis rights-bearing community are more than dubious or peripheral. If the

Alberta Crown has any questions or concerns that need to be addressed, then those questions or

concerns should be addressed by determining the scope of the duty to consult, not by denying the

duty was triggered. It is dishonourable for the Alberta Crown to try to avoid its duty to consult

for the past 12 years by engaging in wilful blindness as to the legitimate claims of the Fort

Chipewyan Métis.

[135] Compounding this error, the FCM Local submits, it was dishonourable for the Alberta

Crown to mislead the FCM Local into believing the Alberta Crown had acknowledged its duty to

consult over the course of five years only to reveal its position at the last minute. The Alberta

Crown had multiple opportunities to work with the FCM Local and to make a proper

investigation into the strength of the FCM Local’s assertions. It chose not to.

[136] Finally, the FCM Local says the Alberta Crown’s opaque and unstructured decision-

making process was arbitrary and unfairly risked infringing Métis rights in the vast majority of

circumstances, including in this case. The constitutional promise of s 35 guaranteeing the

survival of Métis communities will not be achieved in Alberta until Métis communities can

trigger the duty to consult in a fair, transparent and consistent manner.

[137] For all of these reasons, the FCM Local requests this Honourable Court to:

a) Declare:

i. The Alberta Crown’s decision that the duty to consult was not triggered

with the FCM Local in relation to this Project was incorrect; and

ii. The Alberta Crown breached the honour of the Crown in making its

Decision.

And

b) Grant an Order that the Alberta Crown be required to consult, mitigate and

accommodate the FCM Local regarding the Project prior to the Project being

approved or constructed.

Analysis and Conclusion – re Availability of Judicial Review

[138] In terms of the suitability of this matter for judicial review, it is significant to note that the

ACO’s Second Decision Letter of July 9, 2015, inter alia, expressly “confirms that consultation

with FCM [Local] will not be required in connection with the [referenced] Projects.” In other

words, as far as the FCM Local was concerned, a decision had been made by the Alberta Crown

that the duty to consult with that legal entity was not triggered.

[139] A decision which concludes that a duty to consult an Aboriginal right claimant is not

triggered is, in my opinion, incapable of being described as an “interlocutory” decision. A

decision that the duty to consult is not triggered might as well be “an effective end-point” for the

Fort Chipewyan Métis Community, save for the fact that the Alberta Crown has repeated

throughout the within judicial review application that it “has clearly communicated its

willingness to consider further information from the FCM Local and the decision may be

revisited”: Alberta Crown’s Written Brief, at paras 9, 382; Gitxaala Nation v Canada (Minister

Page: 37

of Transport, Infrastructure and Communities), 2012 FC 1336 at para 54, [2013] 1 CNLR 69,

where Barnes J observed, among other things, that “there are a variety of remedies available for a

failure to consult not the least of which is the opportunity at later stages in the process to engage

in meaningful dialogue and, where necessary, to accommodate [Aboriginal] concerns.”

[140] Mere communication of Alberta Crown’s willingness or promise to FCM Local cannot

deprive it (or the Fort Chipewyan Métis Community) of the right to seek judicial review on a

substantive decision that threatens its constitutional entitlement to consultation regarding

asserted Aboriginal rights that are at stake.

[141] Additionally, and as conceded by the Alberta Crown, the ongoing administrative and

regulatory process being conducted under the provisions of the EPEA and the Water Act should

not (and cannot) be conflated with the constitutional duty of the Crown to consult with the Métis

where Aboriginal rights are engaged. While courts are generally reluctant to review “an interim

administrative decision” or an “interlocutory decision” prior to completion of the relevant

hearing or ongoing administrative process, the complaint of the FCM Local in the within

proceeding hinges on the ACO’s decision that the constitutional duty to consult was not

triggered. In my view, the ACO decision in this matter is distinctive from the decisions

emanating through the EPEA and the Water Act administrative proceeding. The October 10,

2012 SOC Letter from the Designated Director made this clear in stating that the SOC process

did not authorize him or his Department to make determinations on asserted claims. Therefore,

the impugned ACO Decision cannot be characterized as an interim “administrative” decision.

[142] I conclude that there exists a basis for this Court to exercise its discretion and entertain

the FCM Local’s application for judicial review, notwithstanding the fact that the regulatory

process in relation to the relevant Projects is ongoing.

Was There A Breach Of Procedural Fairness By The Alberta Crown?

The FCM Local’s Submissions

[143] The FCM Local argues that one key aspect of the Crown’s duty to act honorably is for

the Crown to reveal the test the FCM Local needed to meet to trigger the duty to consult early on

in the process and to provide its analysis of the FCM Local’s submissions in a clear and

transparent manner. It submits that the interests of justice, Aboriginal peoples and the Alberta

public are better served through a regular, transparent disclosure process designed to

eliminate the element of surprise and enhance the ability of the parties to address the issues to

be met during the consultation process: R v Stinchcombe, [1991] 3 SCR 326 at paras 10, 17, 8

CR (4th) 277 [Stinchcombe].

[144] The FCM Local says rights and interests protected by s 35 of the Constitution Act, 1982

provides the constitutional framework through which the fact that Aboriginals lived on the land

in distinctive societies, with their own practices, traditions and cultures, is acknowledged and

reconciled with the sovereignty of the Crown. Section 35 also recognizes and affirms existing

Aboriginal and treaty rights in order to assist in ensuring the continued existence of these

particular Aboriginal societies: Van der Peet at para 31; R v Sappier; R v Gray, 2006 SCC 54

at para 26.

Page: 38

[145] In this constitutional context, the Supreme Court stated that consultation is key to

achievement of the overall objective of the modern law of treaty and Aboriginal rights, namely

reconciliation. The FCM Local argues that meaningful consultation and reconciliation cannot be

achieved by surprise: Mikisew at para 63.

[146] The FCM Local argues that in criminal matters the role of the Crown prosecutor excludes

any notion of winning or losing; his function is a matter of public duty [of] which in civil life,

there can be none charged with greater personal responsibility. This is similar to the court’s

description of the relationship between the Crown and the Aboriginal peoples of Canada:

Sparrow at para 59. The relationship between the Government and Aboriginals is trust-like,

rather than adversarial, and contemporary recognition and affirmation of Aboriginal rights must

be defined in light of this historic relationship.

[147] The FCM submits that the role of the Crown in the duty to consult is to attempt to

reconcile the assertion of Crown sovereignty with the pre-existence of the Aboriginal peoples of

Canada. If the Aboriginal and Treaty rights recognized and affirmed by s 35 are not protected

with vigilance, all that may be left is an empty shell of a promise. Risking such an outcome

would not fulfill the honour of the Crown, nor would it be in the public interest.

[148] The FCM Local argues that issues regarding the Crown’s duty to disclose information or

to gather relevant information are frequent sources of disagreement between Aboriginal groups

and the Crown. Good faith, meaningful consultation is not possible if the Crown withholds from

the Aboriginal group its perspective on the level of consultation required and its basis for that

opinion: Jack Woodward, Native Law (Toronto: Carswell, 1989) at Ch 5.

[149] Moreover, as a matter of procedural fairness, Aboriginal groups should have the

opportunity to respond to any Crown evidence or opinions about its rights, claims and the extent

of potential infringement that differs materially from their own. Common law doctrines of

procedural fairness generally serve three important purposes: (a) to encourage better decision

making; (b) to legitimize decisions in the eyes of persons affected by decisions; and (c) to

promote society’s interest in knowing that its delegates are acting in accordance with principles

of fairness: Peter Carver, “Comparing Aboriginal and Other Duties to Consult in Canadian Law”

(2012) 49:4 Alta L Rev 855 at para 48 (WL); Knight v Indian Head School Division No 19,

[1990] 1 SCR 653 at para 32, 69 DLR (4th) 489.

[150] The FCM Local submits that the opportunity for Aboriginal communities to engage in a

process which meets the principles of natural justice is dependent upon the Crown’s early

decision-making about the trigger and the appropriate spectrum of activities required to meet the

Crown’s duty. It is only if the Crown has a duty to: (a) disclose key components of its threshold

decision making; and (b) make this disclosure early in the consultation process, will Aboriginal

communities know with confidence that the entire consultation process is not incorrectly limited

or coloured by the Crown’s errors of law: Haida at paras 43-45; West Moberly First Nations v

British Columbia (Chief Inspector of Mines), 2011 BCCA 247 at paras 147-150, 333 DLR (4th)

31.

[151] The FCM Local argues that it is impossible for it to know what test the Alberta Crown

staff applied (if any) or what element of the test the Alberta Crown believes the FCM Local

failed to meet (if any). All that is revealed on the Record is that the Alberta Crown’s test appears

to be a moving target, and more troubling, the evidentiary threshold seems to increase every time

Page: 39

FCM Local clears a hurdle, giving the appearance that the Alberta Crown dishonourably

manufactured a test which could never be met.

[152] The FCM Local points to the following chronological events to demonstrates what it

describes as the “problematic moving target”:

a.

In 2008, Teck determined that full consultation was required with

Aboriginal communities, including the FCM Local, based on their

proximity to the Project area and the potential impact on Aboriginal rights

and traditional uses in its Aboriginal Consultation Plan;

b.

c.

In June 2008, Teck’s Aboriginal Consultation Plan was approved by the

Alberta Crown;

The FCM Local submitted a Statement of Concern to the Alberta Crown

on May 28, 2012. At that time, the Alberta Crown asked questions about

the FCM Local’s membership and how they might be affected by the

Project.

d.

e.

On August 27, 2012, the FCM Local provided a reply to those questions.

In the summer of 2012, the FCM Local wrote to the Premier of Alberta

regarding Métis harvesting and consultation issues.

f.

In September 2012 the Alberta Crown staff asked the FCM Local further

questions to which the FCM Local provided its answers on October 16,

2012.

On October 10, 2012, the FCM Local received the letter from the

Designated Director, which advised that the SOC was considered official

pursuant to EPEA and the Water Act, but does not allow his Department to

take any position on the asserted claims;

g.

h.

On November 7, 2012, the FCM Local requested a meeting with the

Minister of Aboriginal Relations. The AR Minister agreed to meet with

the FCM Local to discuss their concerns regarding consultation and

harvesting;

The Alberta Crown’s Supplemental Information Requests asked Teck

specific questions about the FCM Local during the regulatory review

process; and

j.

Two years after the FCM Local wrote to the Alberta Crown to

complain about the consultation process, Alberta Crown denied that it had

enough information to determine whether there is a credible assertion that

the FCM Local is a rights-bearing community.

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[153] The FCM Local argues that the Crown seemed to change the test and impose a new

evidentiary burden on FCM by demanding a genealogical study before the Crown would be in a

position to consider the matter further.

[154] According to the FCM Local, the demand for a genealogical study by the Alberta Crown

is one of the key examples of the incorrectly high expectations of the Crown. The issue of

preparing a genealogical study was raised by the FCM Local in 2012 in response to the questions

it received from the Alberta Crown after filing its SOC. According to the FCM Local, it was led

to believe that the Alberta Crown’s denial of funding (coupled with the acceptance of the SOC)

meant that no genealogical study was required to trigger the duty to consult. The FCM Local

argues that in 2015, the Alberta Crown made an about-face, both demanding the genealogical

study and denying any reasonable amount of time for the FCM Local to produce the same. If the

Alberta Crown is insistent on a high burden of proof, then it follows that the honour of the

Crown demands reasonable assistance be provided to answer the questions posed. To find

otherwise risks the Crown avoiding its duty to consult the most disadvantaged Aboriginal people

by unfairly imposing burdens which can never be met.

[155] The FCM Local contends that the Alberta Crown’s demand for a genealogical study is far

beyond the legal threshold to trigger the duty to consult. The FCM Local was surprised by the

Alberta Crown’s denial that the duty to consult had been triggered and it sought an immediate

reconsideration of the Alberta Crown’s position and provided the Alberta Crown with further

information. It took the Alberta Crown nearly six months to reply to the FCM Local’s request

for reconsideration.

[156] Instead of providing a reasoned basis for its decision or identifying how the FCM Local’s

submissions did not meet the appropriate legal test, the Alberta Crown’s final response makes

even more onerous information requests and appears to impose an even higher evidentiary

burden on the FCM Local by demanding detailed information about the FCM’s current

membership list, internal membership criteria, and genealogy of the current membership,

including copies of primary documents and birth records. The Alberta Crown’s final response

confirmed to the FCM Local that no matter what information they provided, the Alberta Crown

would never admit its duty to consult had been triggered.

[157] Consequently, the FCM Local argues that the Alberta Crown has failed to provide the

FCM Local with any explanation of what test it expected the FCM Local to meet and what issues

or concerns it had with the information submitted by the FCM Local; as a result, there was no

fair opportunity for the FCM Local to respond.

[158] The FCM Local further argues that if the Alberta Crown had a serious question about

whether its duty to consult the FCM Local was triggered, it should have clearly and openly

raised this issue in 2008 when it approved Teck’s Aboriginal Consultation Plan; or in 2012 when

it accepted the FCM Local’s SOC; or in 2012 when it determined the FCM Local was credible

enough to warrant an in-person meeting between President Jumbo Fraser and the Minister of

Aboriginal Relations and a subsequent meeting between President Fraser and then Premier Jim

Prentice. It was unfair and dishonourable to raise this issue for the very first time over five years

into the Project approval process.

[159] The failure of the Alberta Crown to disclose its test and its views on how the information

provided by the FCM Local failed to meet the test is in breach of the Alberta Crown’s

obligations to act honourably.

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[160] The FCM Local observes that the constitutional interests at stake in Aboriginal

consultation calls for clear measures of procedural fairness, including structuring processes to

ensure the appearance of impartial decision-making at an institutional level. In 2004, McLachlin

CJC called upon governments to establish regulatory schemes or policies to strengthen the

reconciliation process and to reduce recourse to courts, cautioning that government “may not

simply adopt an unstructured discretionary administrative regime which risks infringing a

substantial number of applications in the absence of some explicit guidance”: Haida at para 51.

[161] The FCM Local maintains that, given the Alberta Crown’s inconsistent decision-making,

lack of policy, and sliding scale of proof, the Métis have no way to predict if, how or when they

might ever trigger the duty to consult. This discretionary and arbitrary decision-making is

manifestly unfair and in breach of the honour of the Crown. The FCM Local should not have to

sue the Alberta Crown to find out what the Alberta Crown is thinking.

The Alberta Crown’s Submissions

[162] The Alberta Crown argues that only the FCM Local can know the rights it asserts, the

community it represents, how the community members exercise any asserted rights, and how the

Project may impact upon the exercise of such rights. This is not information that the Alberta

Crown can obtain other than through the FCM Local. As the Alberta Court of Appeal has stated

in Dene Tha’, when evidence is required about the exercise of asserted rights and potential

impacts on those rights, it is the Aboriginal group that should have that information or easily be

able to attain it. In this case, the Crown submits, the FCM Local has failed to meet its onus of

establishing a credible assertion of Aboriginal rights for the purpose of demonstrating that the

Project has the potential to adversely impact the exercise of such rights.

[163] The Alberta Crown notes that the FCM Local relies upon Stinchcombe, where the

Supreme Court set out the Crown’s disclosure obligations in a criminal prosecution. In that

context, there is a general duty on the Crown to disclose all material it proposes to use at trial and

all evidence that may assist the defence even if the Crown does not propose to adduce it.

According to the Supreme Court in that case, the rationale behind the Crown’s disclosure

obligation stems from section 7 of the Canadian Charter of Rights and Freedoms, Part 1 of the

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, and the

accused’s right to make full answer and defence. These circumstances are very different than

those in the consultation context. There is no principled reason to extend these requirements to

the current case: Stinchcombe at paras 17, 19, 29. The Crown is not required to assist the

defendant’s ability to establish an Aboriginal or treaty right or the infringement of such a right:

Tenascon c Quebec (Juge de la Cour du Quebec), 2007 QCCA 946 at paras 97-99, 103-112,

[2008] 3 CNLR 311, leave to appeal denied at 2008 CarswellQue 3557; Hirsekorn (PC).

[164] The Alberta Crown argues that in any event, there is no evidence that the Alberta Crown

withheld any information from the FCM Local about its asserted rights or any potential impacts

to the exercise of those rights. The Record demonstrates that after being asked twice to more

clearly identify what information it was seeking, the FCM Local never clarified its research

request and eventually advised that it was withdrawing the request.

[165] According to Alberta Crown, the burden of establishing that the Project has the potential

to impact the exercise of asserted rights falls to the FCM Local as it is the keeper of the

Page: 42

information about the scope and nature of the asserted rights, the community it says it represents,

the activities of that community and how it perceives the Project may impact upon the exercise

of rights.

[166] The Alberta Crown argues that a review of the Record does not support the FCM Local’s

version of events relating to a genealogical study. The issue of preparing a genealogical study

was raised by the FCM Local itself after it met with the Minister of Aboriginal Relations in

January of 2013. Following the meeting with the Minister, the FCM Local provided the Alberta

Crown with a Scope of Work for a genealogy project to assess who the FCM Local speaks for in

asserting rights and asked if it was a Project that AR would consider funding. The AR Minister,

as well as the ADM, responded to the FCM Local confirming that the Alberta Crown could not

provide the requested funding. Neither the Minister nor ADM’s correspondence can reasonably

be interpreted as advising the FCM Local that a genealogy was not required, as the FCM Local

asserts.

[167] The Alberta Crown notes that in the November 26, 2014 CNRL Response Letter,

President Fraser referenced the fact that the FCM Local was undertaking a genealogy study to

assess how many people can trace their section 35 rights to Fort Chipewyan. He indicated that

the FCM Local’s genealogy study would verify its assertions. In the First Decision, the ACO

referenced the November 26, 2014 CNRL Response Letter and the FCM Local’s indication that

a genealogy study was underway that would verify assertions of historical ancestry.

[168] In his February 2015 Letter, President Fraser again referenced the fact that the FCM

Local had undertaken a genealogy study and confirmed that no completion date had been

provided. He asserted, however, that even if the study was complete, it was private and it was

inappropriate for the Alberta Crown to withhold consultation over a Local-led study.

[169] The Alberta Crown submits that at no time did it make an about-face and demand a

genealogical study, as indicated by the FCM Local. The Record demonstrates that when asked

for information about its asserted rights, the FCM Local indicated that the forthcoming

genealogy would provide the necessary information. Based on this response, the Alberta Crown

asked the FCM Local to provide the genealogy once available. The Alberta Crown contends that

it is the FCM Local that appeared to make an about-face when it suddenly asserted that the

genealogical study was private and the Alberta Crown could not withhold consultation due to the

study.

[170] Based on the foregoing arguments, the Alberta Crown submits that there is no basis to the

FCM Local’s argument that the test the Alberta Crown applied was a moving target and that the

evidentiary threshold changed with each request for information. In assessing the FCM Local’s

asserted rights and requests for consultation, the Alberta Crown continually asked the FCM

Local to provide the same information based on the criteria identified in Powley as well as the

Supreme Court of Canada’s duty to consult cases. Furthermore, Alberta’s decision-making was

not arbitrary. The Record demonstrates that Alberta clearly communicated to the FCM Local

regarding information that was required for Alberta to consider its assertions. The case to be met

by the FCM Local is no secret – it is the leading case on Métis rights, Powley, which was

referenced by the FCM Local in its own correspondence.

Page: 43

Analysis and Conclusion – re Procedural Fairness

[171] The Alberta Crown draws this Court’s attention to the fact that the FCM Local redefined,

in its written brief, the relief it seeks in this application. The Crown says that the FCM Local

appeared to no longer seek the declaratory relief that Alberta breached a duty of procedural

fairness: Alberta Crown’s Written Brief, at para 123.

[172] This Court notes that the FCM Local’s Originating Application document, filed on May

1, 2015, challenging the First Decision Letter expressly sought a declaration that the Alberta

“Crown breached its duties of procedural fairness.” The Amended Originating Application, filed

by the FCM Local on August 24, 2015, which added the Second Decision Letter to its judicial

review, retained the FCM Local’s request for a declaration that the Alberta Crown breached its

duties of procedural fairness in making its decision. That issue dealing with breach of the duty of

procedural fairness made against the Alberta Crown was not expressly abandoned by the FCM

Local on this judicial review application.

[173] Nonetheless, on this Record, I am satisfied that there was no breach of natural justice or

procedural fairness by the ACO when it made its decision on the issue before it for the reasons

discussed below.

[174] On the issue of the test applied by the ACO, I note that on July 5, 2012, FCM Local

President, Jumbo Fraser, wrote jointly to the Premier of Alberta and the Prime Minister of

Canada about potential additions to First Nations’ reserves in Fort Chipewyan and described

issues with Métis harvesting and Métis consultation. In his letter, he referenced Powley and the

Métis’ Harvesting Policy, asked for written confirmation that no action would be taken without

consulting the Fort Chipewyan Métis and suggested that the Alberta Crown enact a Métis

consultation policy. Further, in the August 28, 2012 Letter, the AENV Minister responded to

President Fraser specifically addressing his concern about Métis harvesting rights in Alberta. She

advised that the criteria for recognizing Métis Aboriginal rights had been established by the

Supreme Court in Powley, and confirmed that Alberta accommodates Métis harvesting rights

through its Métis Harvesting Policy and application of the Powley criteria.

[175] It is also clear from the Record that on November 20, 2014, the ACO, as the decision-

maker, asked the FCM Local the following questions:

1.

How does one become a member of the FCM Local? Please explain and

document the FCM Local registration requirements?

2. Please identify how many members of the FCM Local are directly affected

by the proposed project with particular reference to the nature and location of

their individual activities relative to the location of the proposed project.

3.

Within what geographical area does FCM Local claim to represent Métis

and where is that documented?

4. You mention that the proposed project will impact critical wildlife habitats

and habitation sites. Please identify the areas and the specific environmental

concerns that members of the FCM Local have with the proposed project.

5.

Is there one or more historic Métis communities that the members of the

FCM Local claim an ancestral connection to? If so, please describe that

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community or communities including location(s). Please provide a breakdown of

membership ties to those communities.

6.

You indicate that the project is proposed on lands used by members of the

FCM Local for activities such as hunting, trapping and fishing. Please specify

how those activities may be impacted by the proposed project.

[176] While these questions are not exactly on all fours with the Powley criteria as enunciated

by the Supreme Court, they clearly define the test that the ACO used in considering the assertion

made by FCM Local. In addition, they encapsulate the spirit of the Powley criteria, if not the

verbatim letters of that test.

[177] The Record in this application indicates that on December 13, 2014, Ms. Bertolin, on

behalf of the FCM Local, wrote to the ACO expressing surprise and being “perplexed” by the

ACO’s request for answers to the same set of questions to which the FCM Local had earlier

responded pertaining to the Project. In that regard, the FCM Local provided a copy of the Alberta

Crown’s July 19, 2012 SOC Letter (from the Designated Director) and the FCM Local’s August

27, 2012 SOC Letter response, which respectively asked and answered many of the questions

the ACO asked in its November 20, 2014 Letter. Along with these documents, Ms. Bertolin

included a copy of the October 10, 2012 SOC Letter in order to ensure that each and every

question the ACO has were addressed.

[178] Further, regarding the argument that the test and evidentiary burden the Alberta Crown

was applying appeared to be a moving and increasing target, the Record does not support such a

conclusion in the context of the requirement of a genealogical study. I note that the FCM Local

stated that it was undertaking a genealogy study in its November 26, 2014 CNRL Response

Letter, and again in its February 2015 Letter, maintained that the genealogy study would verify

assertions of historical ancestry. In this context, the ACO stated in its First Decision Letter –

after concluding that it did not have enough information to determine whether there is a credible

assertion that FCM Local is a rights-bearing community – that the FCM Local would need to

provide the anticipated genealogical study before the Government of Alberta would be in a

position to further consider the matter. Similarly, in the Second Decision Letter, the ACO stated

that it required detailed information about the FCM’s current membership list, internal

membership criteria, and genealogy of the current membership, including copies of primary

documents and birth records as well as current members’ harvesting activities. The ACO once

again, in the decision letter, requested that when the anticipated genealogical study becomes

available, it should be forwarded to the ACO.

[179] I am not satisfied that the further description of the detailed information which the ACO

required was materially different from the information requested in the series of questions asked

on November 20, 2014 and earlier.

[180] As such, I conclude that there was no breach of procedural fairness by the Alberta Crown

(or the ACO) when it made the impugned decision that the duty to consult the FCM Local on the

relevant Project was not triggered.

[181] Consequently, this Court is left with the task of determining whether the ACO Decision

is reasonable when it concluded that the duty to consult with the FCM Local is not triggered. In

other words, was the ACO (or the Alberta Crown’s) decision not to consult with the FCM Local

reasonable?

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[182] Reiteratively, reasonableness, in the context of judicial review, “inquires into the qualities

that make a decision reasonable, referring both to the process of articulating the reasons and to

outcomes. [It] is concerned mostly with the existence of justification, transparency and

intelligibility within the decision-making process, [and] whether the decision falls within a range

of possible, acceptable outcomes which are defensible in respect of the facts and law”:

Dunsmuir at para 47.

Was The Duty To Consult Triggered?

I.

The Applicable Legal Test

[183] There are three elements that trigger the duty to consult. First, the Crown must have real

or constructive knowledge of a claim to the resource or land to which it attaches. Second, there

must be Crown conduct or a Crown decision that engages a potential Aboriginal right. Finally,

there must be a possibility that the Crown conduct may adversely impact on that claim or right:

Rio Tinto at paras 31, 40-46.

1. Real or Constructive Knowledge of an Actual or Potential Claim or Right to the

Resource or Land

[184] The threshold to trigger the duty to consult is low, even very low – might adversely affect

it: Mikisew at para 34; Rio Tinto at para 40. To trigger the duty to consult, the Crown must have

real or constructive knowledge of a claim to the resource or land to which it attaches: Haida at

para 35. Actual knowledge arises when a claim has been filed in court or advanced in the context

of negotiations, or when a treaty right may be impacted. In the case of a treaty the Crown, as a

party, will always have notice of its contents: Mikisew at para 34. Constructive knowledge arises

when lands are known or reasonably suspected to have been traditionally occupied by an

Aboriginal community or an impact on rights may reasonably be anticipated: Rio Tinto at para

40. The existence of a potential credible claim, a strong prima facie case, is essential but not

proof that the claim will succeed. Tenuous claims may attract a mere duty of notice: Haida at

para 37; Rio Tinto at para 40. The claim or right must be one which actually exists and stands to

be affected by the proposed government action: Rio Tinto at para 41.

2. Contemplated Crown Conduct that Engages that Aboriginal Claim or Right

[185] The Court must first consider process issues involved in the planned proposed measure

and whether the process contemplated is compatible with the honour of the Crown, whether or

not the facts of the case would otherwise support a finding of infringement of Aboriginal rights.

An Aboriginal group may be entitled to set aside a government decision on the basis that the

process leading to the decision was not reasonable: Mikisew at para 59.

[186] The Court is also required to assess whether the proposed Crown conduct, action or

decision may impinge on an Aboriginal right or engage a potential Aboriginal right: Rio Tinto at

paras 33, 42-44.

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3. A Possibility that the Crown Conduct may Adversely Impact on that Claim or Right

[187] The third element of a duty to consult is the possibility that the Crown conduct may affect

the Aboriginal claim or right. The claimant must show a causal relationship between the

proposed government conduct or decision and a potential for adverse impacts on pending

Aboriginal claims or rights: Rio Tinto at para 45. A generous, purposive approach to this

element is in order, given that the doctrine’s purpose is to recognize that actions affecting

unproven Aboriginal title or rights or treaty rights can have irreversible effects that are not in

keeping with the honour of the Crown. Mere speculative or non-appreciable impacts, however,

will not suffice: Rio Tinto at para 46; Hupacasath First Nation v Canada (Minister of Foreign

Affairs), 2015 FCA 4 at paras 2, 8, 379 DLR (4th) 737. There must be an apprehended,

evidence-based potential or possible impact on Aboriginal rights: Ibid at para 105.

[188] To trigger the duty to consult, actual foreseeable adverse impacts on an identified treaty

or Aboriginal right or claim must flow from the impugned Crown conduct. While the test admits

possible adverse impacts, there must be a direct link between the adverse impacts and the

impugned Crown conduct: Buffalo River at para 104.

[189] Past wrongs, including previous breaches of the duty to consult, do not suffice: Rio Tinto

at para 45. The adverse effect must be on the future exercise of the right itself; an adverse effect

on an Aboriginal group’s future negotiating position does not suffice: Rio Tinto at para 46.

[190] It is not correct to say that a duty to consult is engaged whenever the Government of

Canada makes any decision related to lands in traditional territory inside the boundaries of land

covered by a Treaty. There is no at-large duty to consult that is triggered solely by the

development of land for public purposes. There must be some unresolved non-negligible impact

arising from such a development to engage the Crown’s duty to consult: Ojibway Nation at para

34.

II.

The Powley Criteria

[191] The Supreme Court of Canada in Powley provided a framework for analyzing Métis

claims under s 35 of the Constitution Act, 1982. The court stated that the term Métis in s 35 does

not encompass all individuals with mixed Indian and European heritage; rather, it refers to

distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way

of life, and recognizable group identity separate from their Indian or Inuit and European

forebears: Powley at para 10; R v Blais, 2003 SCC 44 at para 9, [2003] 2 SCR 236.

[192] A Métis community can be defined as a group of Métis with a distinctive collective

identity, living together in the same geographic area and sharing a common way of life: Powley

at para 12; Enge at para 182. While the circumstances that may give rise to distinct Métis

communities are bound to vary from case to case, the requirement of proof of such a community

is not a matter of discretion: R v Vautour, 2015 NBQB 94 at para 85, 435 NBR (2d) 119

[Vautour]. As stated by Slatter JA in L’Hirondelle v Alberta (Minister of Sustainable Resource

Development), 2013 ABCA 12 at para 39, 542 AR 68 (WL) [L’Hirondelle], leave to appeal

denied, 2013 CarswellAlta 1043: [t]here is nothing ironic or improper about jealously guarding

entrenched constitutional rights, and ensuring that only those truly entitled are allowed to assert

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those rights. Those who do enjoy such rights are entitled to expect that their rights will not be

watered down by the recognition of unentitled claimants.

[193] The analysis in Powley established a ten-part test:

(1) Characterization of the Right;

(2) Identification of the Historic Rights-Bearing Community;

(3) Identification of the Contemporary Rights-Bearing Community;

(4) Verification of the Claimant’s Membership in the Relevant Contemporary

Community;

(5) Identification of the Relevant Time Frame;

(6) Determination of Whether the Practice is Integral to the Claimants’ Distinctive

Culture;

(7) Establishment of Continuity Between the Historic Practice and the Contemporary

Right Asserted;

(8) Determination of Whether or Not the Right was Extinguished;

(9) If There Is a Right, Determination of Whether There Is an Infringement; and

(10) Determination of Whether the Infringement Is Justified.

[194] The Supreme Court in Daniels v Canada (Minister of Indian Affairs and Northern

Development), 2016 SCC 12 at para 49, 481 NR 348, noted that the criteria in Powley were

developed specifically for purposes of applying s 35, which is about protecting historic

community-held rights. Failing to prove any one of the parts of the Powley test is fatal to a s 35

claim: R v Paquette, 2012 ONCJ 606 at para 8, 2012 CarswellOnt 12385 [Paquette]; R v

Hirsekorn, 2013 ABCA 242 at para 108, 556 AR 53, leave to appeal dismissed, 2014

CarswellAlta 87) [Hirsekorn]; Vautour at para 28.

(1) Characterization of the Right

[195] Aboriginal hunting rights, including Métis rights, are contextual and site-specific. In

Powley, the respondents shot a bull moose within the traditional hunting grounds of that Métis

community. They documented that the moose was intended to provide meat for the winter, and

the trial judge determined that they were hunting for food. Thus, the right being claimed was

characterized as the right to hunt for food, not just moose, within those traditional hunting

grounds. Several authorities have held that land based Aboriginal rights, like hunting and fishing,

should be described with some degree of geographical specificity. They are not abstract rights

that are exercisable anywhere: Hirsekorn at para 56.

[196] In Enge, the Applicant characterized the right as the right to hunt bush meat, more

specifically caribou, in the Great Slave Lake area. The Applicant provided evidence regarding

the historical land use of the area north of the Great Slave Lake by the Métis as well as evidence

regarding the historical and current importance of caribou to the Métis. The nature of the

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governmental action related to the restrictions imposed on the harvest of the Bathurst caribou

herd in wildlife management zone R/BC/02. The evidence provided by the Applicant

demonstrated that the members of the North Slave Métis Alliance [NSMA] clearly viewed their

traditional harvesting and land use areas as covering an area that overlapped significantly with

R/BC/02. The evidence provided by the Applicant also demonstrated that hunting and trapping

has been undertaken by Métis, both historically and in recent years, in the area north of Great

Slave Lake. The evidence of various members of the NSMA indicated that each of them had

hunted or trapped in the no hunting zone for many years. Historical evidence suggests that Métis

people, including a common ancestor of various members of the NSMA, travelled over a wide

geographic area, including within R/BC/02, and undertook activities such as hunting (which

included the hunting of caribou), fishing, guiding and trading: Enge at paras 185-193.

(2) Identification of the Historic Rights-Bearing Community

[197] In addition to demographic evidence, proof of shared customs, traditions, and a collective

identity is required to demonstrate the existence of a Métis community that can support a claim

to site-specific Aboriginal rights. The existence of an identifiable Métis community must be

demonstrated with some degree of continuity and stability in order to support a site-specific

Aboriginal rights claim: Powley at para 23.

[198] In Enge, the Applicant presented evidence that a broad Métis community emerged in the

Great Slave Lake area following contact with European explorers and traders. Northern Métis

developed independently in the MacKenzie Basin, including the Great Slave Lake area, albeit

with close and ongoing relationships of kinship and economic and political cooperation with

their First Nations Dene and Cree neighbors. Those who lived in the Great Slave Lake area,

including the Métis, subsisted on wildlife harvesting and the fur trade, and this population

travelled frequently throughout this larger area. Marriage networks were created between Métis

families and demonstrate that these families extended to all parts of the Great Slave Lake and

into nearby areas including Fort Simpson and Great Bear Lake. The community that developed

was a distinct community with shared customs, traditions and a collective identity. The historical

evidence also suggested that the Métis developed a collective identity: Enge at paras 196-199.

[199] In Enge, the Respondents had argued that the Applicant’s conception of community was

too broad and stretched the meaning of the term, but the court concluded that a Métis community

did not have to be located in one settlement or small geographic area. The evidence established

that the Métis were highly mobile and travelled over a wide area in the vicinity of Great Slave

Lake. It is possible to have a Métis community which is regionally based. In the circumstances,

the Court was satisfied that the Applicant had established on a prima facie basis that there was a

historic rights-bearing Métis community with shared customs, traditions and a collective identity

which developed following European contact with the local Aboriginal population: Enge at paras

200-201.

(3) Identification of the Contemporary Rights-Bearing Community

[200] Since Aboriginal rights are communal rights, they must be grounded in the existence of a

historic and present community, and they may only be exercised by virtue of an individual’s

ancestrally based membership in the present community. In determining whether there is a Métis

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community or whether the claimant belongs to a Métis community, courts must confirm that the

claimants belong to an identifiable Métis community with a sufficient degree of continuity and

stability to support a site-specific Aboriginal right. The continuity requirement puts the focus on

the continuing practices of members of the community, rather than more generally on the

community itself: Powley at paras 24-27.

[201] In Enge, the Applicant presented some evidence that he and other members of the NSMA

are part of a contemporary rights-bearing Métis community in the Great Slave Lake area who are

descended from the historic, rights-bearing Métis community which developed in the same area.

They are also all members of the NSMA which, by its Constitution, limited membership in the

NSMA to Indigenous Métis who are descendants of the Métis People of the Northwest

Territories that emerged prior to the Crown taking effective control of their traditional lands

including the North Slave area. The NSMA’s Constitution stated that the NSMA’s goals involve

promoting the interests and rights of the Métis in the North Slave area of the Northwest

Territories. This was different from the stated goals of the Northwest Territory Métis Nation,

whose goals involve the interests and rights of the Métis from the South Slave area of the

Northwest Territories. The court found that there was some evidence that established, on a prima

facie basis, that there is a contemporary rights-bearing Métis community in the Great Slave Lake

area of which the Applicant and other members of the NSMA are members: Enge at paras 203-

207.

(4) Verification of the Claimant’s Membership in the Relevant Contemporary Community

[202] Determining membership in the Métis community can be more difficult than verifying

membership in an Indian band. Until Métis communities organize themselves more formally and

membership requirements become more standardized, courts faced with Métis claims have to

ascertain Métis identity on a case-by-case basis. The inquiry must take into account both the

value of community self-definition, and the need for the process of identification to be

objectively verifiable: Powley at para 29.

[203] Three broad factors serve as indicia of Métis identity for the purpose of claiming Métis

rights under s 35: self-identification, ancestral connection, and community acceptance: Powley at

para 30).

[204] First, the claimant must self-identify as a member of a Métis community. This self-

identification should not be of recent vintage. While an individual’s self-identification need not

be static or monolithic, claims that are made belatedly in order to benefit from a s 35 right will

not satisfy the self-identification requirement: Powley at para 31. Claimants do not always have

to self-identify as either Inuit or Métis before the Crown’s duty to consult and accommodate is

triggered. It is sufficient to assert a credible claim that the claimants belong to an Aboriginal

people within s 35(1) of the Constitution Act, 1982: Labrador Métis Nation at para 36.

[205] Second, the claimant must present evidence of an ancestral connection to a historic Métis

community. This objective requirement ensures that beneficiaries of s 35 rights have a real link

to the historic community whose practices ground the right being claimed. There must be some

proof that the claimant’s ancestors belonged to the historic Métis community by birth, adoption,

or other means: Powley at para 32.

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[206] Third, the claimant must demonstrate that he or she is accepted by the modern

community whose continuity with the historic community provides the legal foundation for the

right being claimed. Membership in a Métis political organization may be relevant to the

question of community acceptance, but it is not sufficient in the absence of a contextual

understanding of the membership requirements of the organization and its role in the Métis

community. The core of community acceptance is past and ongoing participation in a shared

culture, in the customs and traditions that constitute a Métis community’s identity and

distinguish it from other groups. Other indicia of community acceptance might include evidence

of participation in community activities and testimony from other members about the claimant’s

connection to the community and its culture: Powley at para 33.

[207] Verifying membership is crucial, since individuals are only entitled to exercise Métis

Aboriginal rights by virtue of their ancestral connection to and current membership in a Métis

community: Powley at para 34.

[208] Membership in self-styled organizations does not make one Aboriginal for purposes of

constitutional exemptions. Until such time as the courts pronounce upon the application of s 35

of the Constitution Act, 1982 in any given case, it is inappropriate for an organization to

announce to the world at large that its members are clothed with such significant and weighty

constitutional rights. To do so constitutes an attempt to usurp the role of the courts on a

fundamental issue affecting all Canadians, including those with legitimate Aboriginal claims.

There must be evidence that the organizations are rights-bearing communities and there must be

proof that an Aboriginal community has accepted a claimant. The claimant must show shared

culture, customs or traditions with an Aboriginal community: R v Hopper, 2008 NBCA 42 at

para 18, 331 NBR (2d) 177.

[209] In Enge, the Applicant demonstrated by evidence that he had regularly participated in

community activities, such as Aboriginal Day, as a Métis person and had worn his Métis sash to

those events. He was an accepted member of the NSMA and had been the elected President of

the NSMA since 2004. The court was satisfied that the Applicant had presented prima facie

evidence that he is a Métis person through his long-term self-identification as a Métis, his

ancestral connection to a historic Métis figure, and community acceptance by other Métis people:

Enge at paras 212-213.

(5) Identification of the Relevant Time Frame

[210] While the fact of prior occupation grounds Aboriginal rights claims for the Inuit and the

Indians, the recognition of Métis rights in s 35 is not reducible to the Métis’ Indian ancestry. The

unique status of the Métis as an Aboriginal people with post-contact origins requires an

adaptation of the pre-contact approach to meet the distinctive historical circumstances

surrounding the evolution of Métis communities. The test for Métis practices should focus on

identifying those practices, customs and traditions that are integral to the Métis community’s

distinctive existence and relationship to the land. This unique history can most appropriately be

accommodated by a post contact but pre-control test that identifies the time when Europeans

effectively established political and legal control in a particular area. The focus should be on the

period after a particular Métis community arose and before it came under the effective control of

European laws and customs. This pre-control test enables us to identify those practices, customs

and traditions that predate the imposition of European laws and customs on the Métis. As long as

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the practice grounding the right is distinctive and integral to the pre-control Métis community, it

will satisfy this prong of the test: Powley at paras 36-38.

[211] In Enge, the Applicant provided evidence indicating that the Métis community emerged

prior to the Crown exerting effective control of the Great Slave Lake area. The involvement of

the government in the Great Slave Lake region was limited prior to 1890 and the presence of

European persons in the Northwest Territories was very limited prior to 1920. While it was

difficult to determine the exact point at which the ethnogenesis of the Métis community

occurred, reports submitted made it clear that outsiders recognized a half-breed group, of varying

characteristics, in the Great Slave Lake population from at least the second decade of the

nineteenth century. The court concluded that there was prima facie evidence of a distinct Métis

community which developed following contact with Europeans but also pre-dates the effective

establishment of control by the Crown in the Great Slave Lake area: Enge at paras 125-218.

(6) Determination of Whether the Practice is Integral to the Claimants’ Distinctive

Culture

[212] The practice of subsistence hunting and fishing was a constant in the Métis community,

even though the availability of particular species might have waxed and waned. The evidence

indicates that subsistence hunting, including hunting for food, was an important aspect of Métis

life and a defining feature of their special relationship to the land: Powley at para 41.

[213] In Hirsekorn, Paperny JA stated that the threshold question is: did the historic Métis

community include the disputed area within its ancestral lands or traditional hunting territory? In

other words, did they frequent the area for the purpose of carrying out a practice that was integral

to their traditional way of life? That threshold, in her view, better captures the territorial nature

of the practices and traditions of a nomadic people than the concept of a consistent and frequent

pattern of usage on a specific piece of land. The shift in focus, from asking whether the place is

integral to a culture, to asking whether an integral practice was carried out in the place, may

make a material difference to a nomadic people who may find it next to impossible to gather

evidence of frequent and consistent use of a specific tract of land: Hirsekorn at paras 95-96.

[214] The court then reviewed the evidence and the findings of fact of the trial judge through

this lens to assess whether the plains Métis frequented the area in question, and whether it was

part of their ancestral lands or traditional territory for hunting. The court took into account

several factors that may be considered indicia that a geographic area is within a group’s

traditional territory, although the list is certainly not exhaustive: whether the area is reasonably

capable of definition; the frequency with which the community traveled into or used the area; the

temporal duration of the presence; the number of people who lived on, used, or traveled through

the area; the ability of the community to use the area free of challenge from other groups; and

whether the area is subject to competing claims by other Aboriginal groups. The requisite

intensity and duration of use, and the relative weight to be placed on various factors, will vary

from case to case. For a people with less established use patterns or a more nomadic lifestyle,

something less may suffice. The assessment is, of necessity, heavily dependent on the historical

context: Hirsekorn at para 9.

[215] In Enge, the evidence presented by the Applicant demonstrated that caribou was an

integral part of the Métis culture. Archeological evidence suggests that a small Métis community

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lived in the area around Old Fort Rae in the late 1700’s and the evidence also suggests that the

community hunted caribou. Métis hunters were well-known for their ability to hunt for meat,

specifically caribou and were relied upon to supply meat to trading posts and expeditions. The

court was satisfied that there was prima facie evidence that the hunting of caribou was an

integral part of the Métis culture and a defining feature of their special relationship with the land:

Enge at paras 220-223.

(7) Establishment of Continuity Between the Historic Practice and the Contemporary

Right Asserted

[216] Although s 35 protects existing rights, it reflects a new promise: a constitutional

commitment to protecting practices that were historically important features of particular

Aboriginal communities. A certain margin of flexibility might be required to ensure that

Aboriginal practices can evolve and develop over time: Powley at para 45.

[217] In Enge, the Applicant presented evidence that caribou hunting continues to be important

to Métis hunters. Affidavits of various members of the NSMA stated that the hunting and

consumption of caribou had been important to them and their families. A report prepared by the

NSMA documented the importance of caribou to the Métis, and a number of Métis persons

spoke about the personal and historical significance of caribou to the Métis. Again, the court was

satisfied that there was prima facie evidence that there is continuity between the historic Métis

right to hunt caribou and the contemporary Métis right to hunt caribou: Enge at paras 225- 226.

(8) Determination of Whether or Not the Right was Extinguished

[218] The doctrine of extinguishment applies equally to Métis and to First Nations claims:

Powley at para 46. In order to find that an Aboriginal right has been extinguished, it must be

clear and plain that the Crown intended to do so: Sparrow at para 37; Enge at para 227.

[219] In Enge, the Respondents had not claimed that the Métis right to harvest caribou has been

extinguished. The court found that implicit in the Respondents’ acceptance of the Government of

the Northwest Territories’ [GNWT] duty to consult is an acknowledgement that the Métis right

to harvest caribou continues to exist. The court accepted that there was a prima facie basis for

concluding that the harvesting rights of the Métis had not been extinguished: Enge at para 228.

(9) If There Is a Right, Determination of Whether There Is an Infringement

[220] The lack of recognition of an existing Aboriginal right would infringe the relevant

Aboriginal right as a continuation of the protected historical practices of the affected Métis

community: Powley at para 47.

(10) Determination of Whether the Infringement Is Justified

[221] The main justification advanced by the appellant/Crown in Powley was that of

conservation. A subsidiary argument for justification was advanced based on the alleged

difficulty of identifying who is Métis. The Supreme Court of Canada stated that the difficulty of

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identifying members of the Métis community must not be exaggerated as a basis for defeating

their rights under the Constitution of Canada: Powley at paras 48-49.

III.

The Alberta Government Response to Powley

[222] The Alberta Government responded to the Supreme Court’s decision in Powley by

introducing an agreement, and later, a policy to provide greater certainty and clarity for the Métis

people by allowing some hunting, fishing and trapping by some Métis in certain communities

and defined areas.

Interim Métis Harvesting Agreement (2004 - 2007)

[223] In 2004, Alberta entered into an Interim Métis Harvesting Agreement [IMHA] with the

MNA. The IMHA provided that members of the MNA could hunt, fish and trap for subsistence

purposes and the IMHA included provisions related to the timing and location of those

harvesting activities. A similar agreement was entered into with the Métis Settlements General

Council. In R v Kelley, 2007 ABQB 41, 413 AR 269, the Court held that it is clear from art. 4 of

the IMHA that the agreement was not intended to reflect a determination as to Métis harvesting

rights. Presumably, the framework for such a determination would be taken into consideration in

the anticipated Long Term Agreement. The IMHA was a temporary accommodation intended to

provide some certainty with respect to hunting and other Métis rights by permitting some

harvesting until such time as the rights in question could be more accurately delineated through

consultation and negotiation. The IMHA was found by the court to constitute an exemption that

was not authorized under the Wildlife Act, RSA 2000, c. W-10 and Regulations. It was conceded

in that case by all parties that art. 6 of the IMHA may well be broader in some respects than

Métis s 35 rights in Alberta: R v Kelley at paras 43, 65, 69, 84.

[224] The IMHA was terminated on July 1, 2007.

Alberta Métis Harvesting Policy

[225] Following the termination of the IMHA, Alberta released the Métis Harvesting Policy

[Policy] which sets out the Alberta Crown’s interpretation of the Powley decision, and advises

that a person is a Métis harvester only if he or she meets the test set out in the Powley case. The

Policy also sets out which communities the Alberta Crown is prepared to consider, for the

purposes of Métis harvesting, as both historic and contemporary Métis communities. Fort

Chipewyan is included in the list of communities. The Policy defines areas within which

approved harvesters will be able to hunt and fish.

[226] The Policy states that to meet the Powley test, individual harvesters must produce

evidence that they: (i) self•identify as Métis; (ii) have an ancestral connection to an historic

Métis community in Alberta; (iii) belong to a contemporary Métis community in Alberta; and

(iv) reside in Alberta. The Métis Harvesting Policy states that membership in the MNA will not,

on its own, be sufficient to meet the Powley requirements.

[227] The Policy confirms that to qualify for Aboriginal rights, and as a Métis harvester, the

applicant must satisfy the criteria in Powley. The Policy clearly indicates that the government

puts the onus on the applicant to prove Métis status. Thereafter, the applicant can be issued a

Métis Domestic Fishing Licence. If there is a dispute between Alberta and the applicant over his

Page: 54

status, it is up to the applicant to go to court to establish a prima facie violation of his

constitutional rights. Being a member of a Métis Settlement is accepted as some evidence of

Métis status, but is not itself conclusive: L’Hirondelle at para 10, 40. The purpose of preparing

lists of Métis Settlement members is quite specific; it establishes certain statutory rights, such as

the right to vote in Settlement elections, and to reside on the Settlement. The Métis Settlement

lists establish membership requirements for Métis settlements for the purpose of establishing a

Métis land base. The Métis Settlements Act, RSA 2000, c M-14, does not purport to establish

eligibility or membership criteria for all or any other purposes. The resulting membership lists

cannot be universal, because not all Métis in Alberta are land-based, and there are many persons

with s 35 Métis Aboriginal rights that are not on those lists. Different Métis membership lists can

be set for different purposes: L’Hirondelle at para 37.

[228] The criteria for s 35 rights set out in Powley differ somewhat from the rights of

membership in a Métis Settlement. Powley specifically states that membership in a modern Métis

community is not equivalent to being a Métis for the purpose of s 35. While membership in a

contemporary Métis organization is recognized as being relevant, the contextual understanding

of the membership requirements of the organization is key.

[229] Powley confirms that s 35 requires an ancestral link to a historic Métis community,

something that is not a necessary requirement for membership in a Métis Settlement. There is not

a necessary overlap between membership in a Métis Settlement and the entitlement to s 35 rights.

For example, it is possible for non-status Indians to be members of a Métis Settlement, but that

might not entitle them to Métis Aboriginal rights. Such a member, while Aboriginal, might not

self-identify with the Métis cultural community as required by Powley. Membership in a Métis

Settlement requires five years of residency in Alberta, whereas Alberta Métis constitutional

status requires not just five years’ residency, but a connection to a historic Métis community, and

would arguably survive even if the Métis claimant became a non-resident of Alberta for a time. It

is a key factor in establishing Aboriginal constitutional rights in Canada that the claimant of

Aboriginal rights shows a historical connection to pre-European contact and control:

L’Hirondelle at paras 38-39.

[230] Slatter JA commented that the practice of issuing Métis domestic fishing licences was

intended to bring some order to the exercise of Aboriginal fishing rights by eliminating the

unsatisfactory procedure of trying to prove Aboriginal status in individual prosecutions for

breach of fishing regulations. It provides certainty to those who legitimately assert such rights,

and also those who mistakenly believe they may have such rights: L’Hirondelle at para 41.

[231] Based on the legal principles and policy responses articulated above, I will now turn to

assess the parties’ arguments in relation to each element of the test that would trigger the duty to

consult, and provide my analyses and conclusions respectively.

A. Test Part 1 – Real Or Constructive Knowledge of An Actual Or Potential Claim Or

Right To Resource or Land

The FCM Local’s Submissions

[232] The FCM Local maintains that it consists of Aboriginal people who have lived and

travelled in the region of northern Alberta and beyond since before Canada became a country.

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Up to today members continue to practice their traditional lifeways on the land, travel and use

their traditional waterways, and engage in the independent commercial ventures that have always

comprised an important part of their ability to carry out their traditional livelihoods, and to

practice their rights as Aboriginal people.

[233] The FCM Local submits it is a branch of the MNA. In order to become a member of

FCM Local, a Métis person must reside in Fort Chipewyan and be a member of the MNA.

Membership in the MNA requires individuals to establish their Métis ancestry back to the l800’s.

FCM currently has 173 members.

[234] The FCM Local has a volunteer Board of Directors and a staff of two to three people

working out of a two-room trailer in Fort Chipewyan. It does not receive funding from the

governments of Alberta or Canada for core administrative operations or to engage in consultation

when its rights may be directly and adversely affected by proposed government action.

[235] Fort Chipewyan is the oldest community in Alberta and one of the oldest in Canada. It

was founded by Roderick MacKenzie in 1788 to the west of Lake Athabasca to support the

Athabasca fur trade as well as the exploration of his famous cousin, Alexander MacKenzie. Its

original occupants were a conglomerate of Europeans, including Scots, Orcadians, English,

French Canadians, Métis and other mixed-ancestry workers, more colourfully known as

voyageurs. A community of Métis people has resided in and around Fort Chipewyan since its

inception and they continue to do so today.

[236] The FCM Local argues that it has presented to the Alberta Crown sufficient credible

information to meet the very low threshold needed to trigger the duty to consult. The FCM Local

submits its representation of a rights-bearing Métis community is neither dubious nor peripheral,

but even if they only met that very low standard it would still be enough to trigger the duty to

consult, in accordance with the standards set down by the Supreme Court of Canada in Haida

and all subsequent cases.

Duty Already Acknowledged by the Alberta Crown

[237] The FCM Local argues that, by its own policies and actions, the Alberta Crown has

admitted all of the necessary factual elements of the relevant legal test. The FCM Local provided

credible information and evidence in support of these key elements that were not contested by

the Alberta Crown. Furthermore, the project proponent, Teck, engaged in the procedural aspects

of consultation for over five years with the FCM Local; and the Crown in Right of Canada

determined that the federal Crown’s duty to consult was triggered with the FCM Local in respect

of this Project.

[238] The FCM Local argues that today, the Fort Chipewyan Métis Community is represented

by the FCM Local. The FCM Local has 173 members (110 adults, 46 youth and 17 seasonal

presences).

[239] At no point has the Alberta Crown ever challenged the FCM Local’s assertion that it is

the body that represents the Métis people of Fort Chipewyan. To the contrary, high-ranking

politicians regularly recognized the FCM Local’s authority to speak on behalf of the Métis

people in Fort Chipewyan. For example, the Honourable Diana McQueen, then Minister of

ESRD, acknowledged Fort Chipewyan as a rights-bearing Métis community in correspondence

to the FCM Local in August 2012. The Honourable Frank Oberle wrote to the FCM Local and

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encouraged the Fort Chipewyan Métis to continue to work with his staff on Alberta’s approach

to Métis consultation. The President of the FCM Local personally met with the Minister of

Aboriginal Relations in January 2013 and the Premier of Alberta in November 2014. On both

occasions, several issues facing the Fort Chipewyan Métis were discussed, including

consultation.

[240] The FCM Local maintains that it does not have to prove it represents a community of

rights-bearing Métis people, it only has to make a credible assertion. Requiring proof of rights at

this stage (as the Alberta Crown seems to do) is in direct contradiction to the Supreme Court’s

decisions in Haida and Taku River, both of which state that the very purpose of the duty to

consult is to deal honourably with the claims of Aboriginal peoples before they are proven in

court, and that any uncertainty with respect to the claims (even dubious or peripheral claims) are

to be addressed in assessing the scope of the duty to consult, not the trigger.

The Trigger

[241] The FCM Local argues that the Alberta Crown’s duty to consult with the Métis requires

the Alberta Crown to make decisions with an eye to its constitutional obligation to support the

enhancement and survival of distinctive Métis communities by seeking to minimize the impacts

of its decisions on the ongoing exercise of Métis Aboriginal rights. In determining whether the

Alberta Crown’s duty to consult was triggered, the FCM Local submits that it must: (a) Assert

that it represents an historic and contemporary Métis community; (b) Identify the Métis rights

that may be affected by the Alberta Crown decision with reasonable precision; and, (c) Assert

that its Métis rights may be affected by the proposed Crown decision.

[242] The FCM Local argues that while the Powley test is certainly relevant, detailed

submissions on all elements of the test is not required for the FCM Local to trigger the duty to

consult. This is because the Powley test was developed in a different context and for a different

purpose than the test for triggering the duty to consult. The purpose of the Alberta Crown’s duty

to consult Métis is intertwined with the purpose for including the Métis within s 35, to enhance

the survival of distinct Métis communities. Métis rights are communal in nature and are held by

the Métis collective. The FCM Local submits the focus of the Alberta Crown’s duty to consult

should be on addressing adverse effects on Métis collective rights – not on identifying specific

individual rights holders as was the emphasis in Powley.

The Right Being Claimed

[243] The FCM Local argues that the Alberta Crown did not ever question the credibility of the

FCM Local’s assertion of rights. For the purposes of this Judicial Review, the FCM Local

submits its Aboriginal rights to hunt, fish, trap and gather for subsistence (food) purposes within

the Métis harvesting area are the rights at issue.

[244] In terms of the geographic area in which the right is practiced, Alberta’s Métis

Harvesting Policy acknowledges that Métis harvesters may hunt for food within a 160 km radius

of Fort Chipewyan. The FCM Local argues that this admission should be dispositive of the

matter. The FCM Local argues that it also asserted on numerous occasions that it exercises its

rights in its Traditional Territory. The Project area is located within what the FCM Local

describes as its Traditional Territory and within 160 km of Fort Chipewyan.

Page: 57

Historic Métis Community

[245] The FCM Local argues that Alberta’s Métis Harvesting Policy formally identifies and

recognizes Fort Chipewyan as an historic and modern Métis community, and the 160 km radius

around Fort Chipewyan as the Métis harvesting area in which Fort Chipewyan Métis rights

holders may exercise hunting rights. They argue that this admission is dispositive of this point.

Nevertheless, should Alberta now seek to contest this point, the Record contains the following

information in support of FCM’s credible assertion that Fort Chipewyan is an historic Métis

community.

Information Provided In Support of FCM Local’s Assertion of Historic Métis Community

[246] The FCM Local maintains that Fort Chipewyan has been described as the most famous

and best studied of the Treaty No. 8 communities, founded by Roderick MacKenzie in 1788 to

the west of Lake Athabasca. The FCM Local has asserted to the Alberta Crown that it was a

community before effective European control of the area. For example, the community arose

prior to:

a.

Confederation, which occurred in 1867;

b.

The Northwest Territories (which includes modern day Alberta and

Saskatchewan) entered Confederation on July 15, 1870;

c.

d.

Treaty 8 was entered into in 1899; and

Alberta became a province in 1905.

[247] In support of its assertions, the FCM Local provided the Alberta Crown with a report

entitled Historical Métis Communities in Region One of the Métis Nation of Alberta, 1881-1916,

dated September 28, 2012, by Jonathan Anuik and Frank Tough [the Region 1 Report]. The

report was prepared by the Métis Archival Project Lab in collaboration with the University of

Alberta. The purpose of the report was to investigate whether there was a historical Métis

community in the Wood Buffalo region and the surrounding territory. It established:

a.

a historical Métis and Half-Breed community existed in Northeastern

Alberta; and

b.

Half-Breed settlers were historically present at Fort Chipewyan. The

report relies on the census data for Fort Chipewyan which indicated a

significant number of Métis families in northeastern Alberta. It also

relies, inter alia, on a census done by the Northwest Mounted Police of the

Aboriginal population in the winter of 1898/1899, which identified half-

breeds at Fort Chipewyan.

[248] The FCM Local also provided the Alberta Crown with a book entitled Fort Chipewyan

and the Shaping of Canadian History, 1788-1920s: We Like to Be Free in This Country by

Patricia McCormack. The author carefully traces the history of Fort Chipewyan over more than

100 years, with a particular focus on the history of Métis and other Aboriginal groups. With

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regards to the early history of the Métis at Fort Chipewyan, she notes: The Fort Chipewyan Half-

Breeds began to evolve distinctive non-Indian identities even before Red River was founded.

[249] A research summary prepared by the Alberta Crown and filed with the Legislature library

in 2006 [Research Summary], notes that the study area was one of the first areas in which a

Métis community emerged in Alberta. That area includes Fort McMurray and Fort McKay, both

of which were outposts of Fort Chipewyan.

[250] The FCM Local provided the Alberta Crown with a further report entitled, A Historical

Profile of the Northeast Alberta Area‘s Mixed-European – Indian or Mixed European-Inuit

Ancestry Community, commissioned by the Federal Department of Justice and authored by

Stantec (2005) [Stantec Report]. The Stantec Report is a narrative chronological history of the

community of Fort Chipewyan and the surrounding communities.

[251] The Stantec Report asks and answers many of the questions from the Powley test, such

as:

a.

b.

What evidence, if any, is there of a mixed-ancestry population living

together in the study region?

Did the mixed-ancestry population self-identify as a culturally distinctive

group?

c.

d.

In what period did the mixed-ancestry group first emerge?

What were the primary cultural or economic activities, customs, practices

or traditions of the mixed-ancestry group?

e.

What are possible indicators of the establishment of Effective European

control?

[252] The 200-page Stantec Report establishes not only that there were mixed-ancestry

people residing in Fort Chipewyan for centuries, but that those people formed a culturally

distinctive group (or, in Powley terms, a community). The report notes:

There is, however, ample evidence that [mixed-ancestry people] did have a

certain economic niche that they filled within the fur trade, and more indirectly

that they possessed at least some other culturally-defining features. There is

also documentary evidence to suggest that the mixed-ancestry people in the

northeast of Alberta were identified by others as a culturally distinctive group.

[253] Métis traditional land use is nomadic, which results in regional Métis communities.

During the fur trade, Métis would transport goods between Fort Chipewyan and southern areas

such as Edmonton, then visit relations and practice subsistence activities on the return trip. A

historical review of Métis land use and occupation in Northeastern Alberta shows that there is a

broader Métis community in Northeastern Alberta extending from Lac La Biche to North of Fort

Chipewyan that encompasses many smaller historic communities. These communities are linked

through ancestral family affiliation.

Page: 59

[254] The Stantec Report, at pages 174 to 181, notes that the geographic extent of the country

inhabited by mixed-ancestry people associated with Fort Chipewyan extended well beyond the

boundaries of the establishment.

Contemporary Métis Community

[255] Alberta’s Métis Harvesting Policy identifies Fort Chipewyan as a contemporary Métis

community, and the 160 km radius around Fort Chipewyan as the Métis harvesting area in which

Fort Chipewyan Métis rights holders may exercise hunting rights. The FCM Local argues that

this admission is dispositive of this point. Nevertheless, should the Alberta Crown now seek to

contest this point, the Record contains the following information in support of FCM Local’s

assertion that Fort Chipewyan is a contemporary Métis community which has continuity with the

historic community.

Information Provided In Support of FCM Local’s Assertion of Contemporary Métis Community

[256] Fort Chipewyan has continuously been home to a Métis community since 1788 and is a

present-day Métis community. In the “Research Summary,” the author discussed the evolution

of trading posts and outposts, and notes:

In those transportation centres that survived throughout the historic period, such

as Fort Chipewyan and Edmonton, there was substantial continuity of residence

over a lifetime and even through generations, resembling that illustrated by the

Powley family. Many of the surnames listed in the HBC employment registers in

the late nineteenth century are still found among Métis residents of Fort

Chipewyan in the early twenty-first century.

[257] The Stantec Report also notes:

At all points in the history outlined in Chapter 3 of this report [1670- 1870],

there were mixed-ancestry individuals living not only at the trade posts, but also

away from the posts, among the Indians and at smaller camps on their own.

[258] Recent community continuity is further demonstrated by the family history of

Métis elders that are discussed on the Record. For example, Jumbo Fraser, the President of FCM

Local, was born in Fort Chipewyan. His great grandfather was a fur trader, as was his

grandfather and his grandfather’s brother. They resided throughout Fort Chipewyan Traditional

Territory. As part of their traditional lifestyle, they would take supplies to various towns and pick

up all the fur they could and then walk 200 miles with the supplies from Fort Chipewyan to Fort

McMurray. On the way, they hunted for food along the Athabasca River.

[259] Barb Hermansen, a Métis elder and trapper, also shared her family history on the Record.

She grew up at Mile 64 on the Athabasca River and was raised by her stepfather, Edmo

Duchanne, and her mother, Annie, both of whom were Métis. Annie was born in 1925 and

married Edmo Ducharme in 1941. Her parents were George McDonald from Winnipeg and

Sophie Cardinal from Fort Chipewyan. George was one of 12 children. The Cardinal family

descended from men who fled the North to avoid persecution after the Métis resistance. Barb

moved across the Athabasca River to trapline1275 at age 15, when she got married. She raised

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her family on that trapline. She notes the existence of Métis living in the area especially at

Oakley Lake for the past 58 years.

Determination of Whether the Practice Is Integral to the Claimants’ Distinctive Culture

[260] Alberta’s Métis Harvesting Policy specifically contemplates the exercise of Métis

Harvesting Rights to hunt, fish, and trap for food, thereby acknowledging these subsistence

harvesting rights are both integral to Métis culture, and have continuity between historic and

contemporary practices. The FCM Local argues that this is dispositive of this matter.

Information Provided In Support of FCM Local’s Assertion of Practices Integral to Its

Distinctive Culture

[261] The FCM Local argues that the Record is replete with its credible assertions of rights. In

the FCM Local’s words:

The FCM community historically and continuously has relied on hunting, fishing,

trapping and gathering throughout its traditional territory for basic survival. In

addition, FCM continues to rely on their traditional lands and the resources

harvested from the land for medicinal, spiritual, recreational and cultural

purposes.

Since the late 18th century FCM have also used the rivers and lakes within its

traditional territory and throughout the region to travel for activities such as

trading, hauling wood, commercial barging and for seasonal hunting and fishing.

These navigable waters were and continue to be, a key transportation route,

enabling the FCM to maintain unique Métis traditional and commercial economic

activities.

These practices constitute FCM Aboriginal rights and they continue to be an

integral part of a distinct Métis culture and way of life. Ensuring the continuity of

these traditional Métis practices is not only an aspect of basic survival but also an

integral aspect of ensuring the continuing survival of the FCM.

[262] The FCM Local maintains that its assertions are supported by the Stantec Report, which

notes the following distinct practices, customs, economic activities and traditions of the Métis in

Northeast Alberta (including Fort Chipewyan):

a.

Voyageurs or canoemen who used their bush skill to transport cargo. This

skill distinguished the Métis from the Chipewyan who resided in that area;

b.

c.

d.

Interpreters who grew up in the languages of the bush and the post;

Guides who could lead the traders to the Indian camps;

Runners or trippers for the posts who set out to find the camps of the

Indians and bring back furs;

e.

f.

Hunting or fishing for the trade posts;

Women were adept at gathering berries, snaring rabbits, making snow

shoes, and trapping furs;

g. Hunting and trapping for trade; and

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h.

The mixed-ancestry people of the Fort Chipewyan area were a vital

component of the fur trade. The fur trade was, in many respects, their life and

culture during the period reviewed.

[263] These practices continue to be vital and integral to the Fort Chipewyan Métis today. The

book, Barb Hermansen: Her Story; The Last Woman to Raise Children on the Athabasca River,

provides but one example of the Fort Chipewyan Métis’ current practices. The book describes

trapping, beaver hunting, canoeing, travelling and camping along the Athabasca River, dog

sledding, fishing, hunting, picking blueberries and cranberries and gathering medicines.

No Independent Investigation of the Facts by Alberta Crown

[264] The FCM Local argues that it is inconsistent with the Alberta Crown’s duty to act

honourably to expect that all of the information needed will be independently produced by the

Métis community. This case squarely raises the issue of the extent of the Crown’s onus to obtain

information, studies or evidence that may be relevant to its decision making. The requirement for

the Crown to actively engage in information-gathering is particularly strong where the Crown is

dealing with the claims of the Métis who are the most disadvantaged of all Canada’s Aboriginal

peoples: Daniels v Canada (Indian Affairs and Northern Development), 20l3 FC 6 at paras 26,

84-86, 357 DLR (4th) 47, rev’d 2014 FCA 101, rev’d 2016 SCC 12. Furthermore, the Record

shows evidence of the FCM Local’s limited capacity and the practical difficulties it has in

meeting demands for information.

[265] More generally, the FCM Local submits where information is provided by the Métis

community, it is dishonourable for the Crown to assert that information is not credible, unless it

has some evidence to the contrary. Notably, there is not a single instance on the Record where

the Alberta Crown points to any information which is contrary to the FCM Local’s assertions. In

fact, there is not a single instance on the Record where the Alberta Crown seeks to investigate or

question the FCM Local’s assertions. Accordingly, the FCM Local submits it is dishonourable

and incorrect to claim that the FCM Local has not made a credible assertion of rights and

impacts sufficient to trigger the duty to consult.

The Alberta Crown’s Submissions

Identifying the Existing Rights Holding Collective and Who to Consult With

[266] The Alberta Crown submits that when considering the collective rights of First Nations,

there is a degree of certainty that is not present in the Métis context. There are recognized Indian

Bands with a known membership list. Federal legislation provides a governance structure for

those Indian Bands. In Alberta there are recognized First Nations and each one has an elected

Chief and Council. In the First Nation context, it is clear which rights-holding collectives exist

and Alberta is aware of who is entitled to speak on behalf of each recognized collective.

[267] The Alberta Crown contends that in the Métis context, identifying the existing rights-

holding collective is not as straightforward. It is not established which modern Métis groups

have the required continuity with a historic Métis community. In assessing that issue, one must

consider whether the members of the modern group have the necessary ancestral connection to

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the historic Métis community. The Alberta Crown argues that even assuming that the Métis

Harvesting Policy is an admission that formally identifies and recognizes Fort Chipewyan as an

historic and modern Métis community, which is denied, there is nothing in the Policy to

recognize that the FCM Local would be the appropriate representative to speak on behalf of an

existing rights-holding Métis collective in Fort Chipewyan.

[268] Since Powley, a number of lower courts have had the opportunity to apply the test to

claims for Métis rights. Where Métis harvesting rights have been established, the claimant was

able to establish an ancestral connection to the historic Métis community: R v Belhumeur, 2007

SKPC 114 at para 177-178; R v Goodon, 2008 MBPC 59 at para 62. Conversely, where no

genealogical evidence connected an individual to the claimed historic community, a Métis right

was not established: R v Norton, 2005 SKPC 46 at para 32-33; Paquette at para 9. In light of the

Powley requirements, the Alberta Crown was required to ask the FCM Local whether its

members were required to demonstrate an ancestral connection to an historic community and, if

so, which one(s).

Establishing Métis Claims

[269] The Alberta Crown argues that a Métis organization, such as FCM Local, must first

establish who it represents and whether it has the authority to represent that community before it

can credibly assert site-specific rights based on the criteria identified by the Supreme Court of

Canada in Powley for establishing Métis rights. The organization must be able to credibly

establish that the community it states it represents is a modern day Métis community with

continuity to a historic community. The community members must self-identify as Métis, be

accepted by the modern community and have an ancestral connection to the historic community.

If the organization is able to establish a credible assertion of Aboriginal rights on behalf of a

Métis community, it must then demonstrate how the project at issue might adversely impact the

exercise of those rights in order to trigger a Crown duty to consult.

[270] The Alberta Crown argues that in this case it sought detailed information from the FCM

Local about its membership, asserted rights and potential impacts of the Project. The Alberta

Crown says that it is significant that the FCM Local admitted that it did not know who it

represented in asserting section 35 rights, it could not credibly establish that it had authority to

act, that the undefined community it states it represented is a modern day Métis community

whose members objectively demonstrate the indicia of Métis identity, and that the Project would

adversely impact the community members’ exercise of asserted rights. The Alberta Crown

submits that based on the FCM Local’s foregoing admission, it was entirely reasonable for

Alberta to determine that the FCM Local had not provided sufficient information to meet its onus

of establishing a credible assertion of Métis rights. As a result, it was determined that Alberta

Crown consultation would not be required for the Project.

[271] The Alberta Crown has advised the FCM Local that it remains open to considering

further information in support of the FCM Local’s assertions and requests for consultation.

Alberta’s Métis Harvesting Policy

[272] The Alberta Crown does not agree that the Alberta’s Métis Harvesting Policy [Policy] is

dispositive of a number of issues. The Policy is meant to identify those individuals who can

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establish the criteria set out in Powley and prevent prosecutions from being commenced against

individuals who have a reasonable likelihood of establishing a constitutional defence. The Policy

eliminates the unsatisfactory procedure of individuals attempting to establish rights in

prosecutions. The Policy does not contain a formal recognition of the listed communities, as

suggested by the FCM Local. The Policy expressly states that the communities will be

considered for the purposes of Métis harvesting.

[273] The Policy does not relate to consultation with Métis. The existence of an historic and

modern Fort Chipewyan Métis community is an issue quite separate and apart from whether the

FCM Local represents such a community. Consultation with Métis was administered on a case-

by-case basis when credibly-asserted rights could be impacted by decisions. The Alberta Crown

has yet to develop a formal consultation policy dealing with the unique context of Métis but has

recognized that a duty to consult with a Métis group may arise when Crown land management

and resource development decisions might adversely impact the credibly-asserted rights of that

group.

Insufficient Information to Establish Aboriginal Rights

[274] The Alberta Crown acknowledges that the threshold for triggering the duty to consult is

low and that the tenuous nature of a claim can be dealt with when considering the scope of the

consultation required. It is however argued that the Supreme Court of Canada made these

statements in the context of claims raised by First Nations who were recognized Aboriginal

collectives. In its decisions on consultation, the Supreme Court has not been required to consider

whether the claimant was an authorized representative of a collective that could credibly assert

Aboriginal rights. This is a live issue before this Court. Determining the credibility of the FCM

Local’s rights assertion requires consideration of who the FCM Local is, who it says it

represents, and its authority to act.

[275] The Alberta Crown notes that the FCM Local suggests that it must only reasonably assert

facts which, if proven true, would support its claim that the duty to consult was triggered.

Alberta Crown agrees that a Métis group need not provide the level of evidence that would be

required at trial to prove asserted rights; however, the case law is clear that the claimant must

provide evidence to establish credibly asserted rights and that the project at issue has the

potential to impact those rights. While the trigger is low, it is meaningful and it must be met. A

bare assertion is not sufficient to trigger the duty to consult. The Alberta Crown argues that FCM

Local did not meet the required threshold for triggering a Crown duty to consult as the FCM

Local failed to provide sufficient information to establish both a credible assertion of Aboriginal

rights and that the Project has the potential to adversely impact credibly asserted rights. In

considering and assessing the credibility of the FCM Local’s rights assertion and whether a duty

to consult has been triggered, the Alberta Crown had to consider whether the Local represents a

rights-holding collective and has authority to speak and act on behalf of the collective it states it

represents.

[276] The Alberta Crown maintains that since 2012, when the FCM Local filed its SOC in

relation to the Project, AR has been trying to ascertain who the FCM Local represents, whether it

represents a Métis community that can credibly assert Aboriginal rights, and what rights are

being asserted. The Alberta Crown made inquiries of the FCM Local to try to determine whether

the FCM Local could establish a credible assertion of rights and trigger the duty to consult. In

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assessing the FCM Local’s assertion of rights to hunt, fish, trap and gather and a Crown duty to

consult, the FCM Local was asked to provide details about the areas in which its members are

conducting activities, and how those activities might be impacted by the Project.

[277] The Alberta Crown has repeatedly asked the FCM Local for information about its

membership, the nature of the rights asserted and how the Project would adversely impact on the

exercise of such rights. The information sought by the Alberta Crown related to aspects of the

Powley test and the test for triggering the duty to consult. With the establishment of the AER and

the ACO, the Alberta Crown again took the initiative to contact the FCM Local to try and

determine whether it could now meet its onus of establishing a credible assertion of Aboriginal

rights and a Crown duty to consult about the Project. The Alberta Crown inquired into the

membership requirements of the FCM Local in order to determine who it represents, its authority

to act, and whether it can credibly assert that its members demonstrate the indicia of Métis

identity for the purposes of claiming section 35 rights: (i) self-identification as a member of a

Métis community that is not of recent vintage; (ii) an ancestral connection to the historic

community; and, (iii) acceptance by the modern Métis community.

[278] In responding to the Alberta Crown’s requests, the FCM Local did not provide sufficient

information for the Alberta Crown to enable it to determine who the FCM Local represents, its

authority to assert Aboriginal rights and seek Crown consultation, or that it can credibly assert

that its membership demonstrates any of the required indicia of Métis identity. This is

information only the FCM Local can provide. The FCM Local has provided scant and

contradictory information in response to the Alberta Crown’s queries and nothing that provides

any assurance that the FCM Local’s membership requirements correlate in any way with Métis

identity.

Criteria for FCM Registration and Membership

[279] In the September 28, 2012 Letter, the Alberta Crown asked President Fraser how

someone becomes a member of the FCM Local and asked for an explanation, as well as

documentation, of the FCM Local’s registration requirements and the approvals process. In her

October 2012 reply, Ms. Bertolin asserted that both Alberta and Canada recognized the Métis

right to self-define and the integrity of the MNA registry, and stated that the FCM Local follows

the process set out in that registry.

[280] The Alberta Crown notes that in support of her December 16, 2013 Letter seeking

consultation for the Project, Ms. Bertolin provided a portion of the transcript from the ERCB

Teck Winter Drilling Hearing. President Fraser was part of a witness panel at that hearing and

testified that members in the FCM Local must also be members in the MNA. He stated that the

FCM Local was going to have its own membership, but hadn’t gotten around to it yet, but that if

someone in Fort Chipewyan with the background of a Métis is not a member of the MNA, they

could be a member of the FCM Local.

[281] In the November 2014 Letters, the Alberta Crown again asked President Fraser to explain

how someone becomes a member of the FCM Local. In his November 26, 2014 CNRL Response

Letter, President Fraser stated that the FCM Local is bound by the Bylaws of the MNA, which

define membership, and the registration guide of the Métis National Council. To become a

member, one must meet the requirements of belonging to a Métis Local for the purposes of

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voting in the MNA business matters. President Fraser referenced certain articles of the MNA

Bylaws governing when a local community may be defined as a Métis Local. The FCM Local

stated that guidance on how one becomes a member of a Local is provided in two articles

providing that notice of an annual meeting will be given to all members and a member will

automatically cease to be a member if they no longer reside in the local community. President

Fraser further advised that, in order for an individual to become a member of the FCM Local,

they must be an MNA member and live in Fort Chipewyan. They must also complete and sign a

membership form where they include their full name, birthdate, MNA card number, address,

phone number and email. Applicants are also required to show their MNA card and one piece of

identification. The President or Vice-President then undertakes a review of the application for

sign-off on approval.

[282] President Fraser drew a distinction in his letter between residence for the purposes of

voting qualifications in the MNA and the concept of an Aboriginal rights-bearing community.

He stated that the FCM Local has agreed to take care of some family members who it considers

members of [the Fort Chipewyan Métis], but who may not qualify for MNA local membership

status by virtue of residency requirements that relate to voting qualifications. This corresponds to

his testimony at the Teck Winter Drilling Hearing that, despite the formal membership

requirement of an MNA card, non-MNA members can join the FCM Local.

[283] The Alberta Crown submits that the FCM Local has not provided its Bylaws or

membership application package and has not indicated what criteria the President or Vice•

President consider in undertaking a review of applications prior to approval. Nor has the FCM

Local indicated the basis on which it admits members who do not meet the requirements for

MNA membership.

[284] The Alberta Crown indicates that the FCM Local states that it is a branch of the MNA

and that to become a member of the FCM Local a Métis person must reside in Fort Chipewyan

and be a member of the MNA. The FCM Local further states that the MNA requires individuals

to establish their Métis ancestry back to the 1800s. However, the Alberta Crown contends, there

is no evidence before this Court supporting the statement that the MNA requires such ancestry.

Even if the MNA does require an applicant to establish Métis ancestry as alleged, there is no

indication that they are required to tie such ancestry to the Fort Chipewyan area. Membership in

the MNA alone does not confer any legal Aboriginal rights on the member: Boucher v Métis

Nation of Alberta Assn, 2008 ABQB 262 at para 35, 434 AR 139, aff’d at 2009 ABCA 5

[Boucher QB].

[285] The Alberta Crown argues that President Fraser has conceded that the FCM Local admits

members who do not meet the MNA’s membership requirements. The FCM Local has nowhere

identified how many non•MNA members it has or what criteria are applied in allowing them

membership. Ultimately, the FCM Local’s membership process appears completely discretionary

and the FCM Local has given no guidance to the Alberta Crown on how that discretion is

exercised.

[286] The Alberta Crown argues that the FCM Local has not demonstrated that its membership

requirements in any way constitute an objectively verifiable process for establishing the indicia

of Métis identity necessary to establish a credible assertion of rights. There is no indication that

the FCM Local’s membership requirements screen out members who have recently self-

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identified as Métis or require members to present evidence of an ancestral connection to any

historic Fort Chipewyan Métis community or acceptance by a modern community.

Request for Information on Actual Members the FCM Local Represents

[287] The Alberta Crown submits that in attempting to determine who the FCM Local

represents, its authority to assert Aboriginal rights, and the credibility of its claims, the Alberta

Crown has repeatedly asked the FCM Local to provide not just information about its membership

criteria, but also about its actual members. The Alberta Crown notes that in its 2010 Strategic

Plan the FCM Local specifically identified its lack of membership as one of its weaknesses. In

the July 2012 SOC letter, the Designated Director asked President Fraser for information about

the FCM Local’s membership. In his August 2012 Response, President Fraser stated that the

FCM Local currently has 173 members (110 adults, 46 youth and 17 seasonal presence).

[288] However, the Alberta Crown notes, he stated that he estimated the population of the Fort

Chipewyan Métis Community to be between 350 and 400 individuals. President Fraser further

stated that not everyone registers with the society because there are no benefits outside of

harvesting, and people in the community may have membership status with the MNA, not the

Local. He asserted that, along with its membership, the Alberta Crown must also consider the

over 200 other Métis in Fort Chipewyan who are not members of the FCM Local as well as those

Métis who have moved out of Fort Chipewyan for work, school or other reasons. President

Fraser asserted that the FCM Local represents this entire Métis community-specific origin group

numbering over a thousand individuals.

[289] In the September 28, 2012 Letter, the Alberta Crown again asked President Fraser to

confirm and demonstrate the number of members in the FCM Local. In her October 2012

Response, Ms. Bertolin asserted that the numbers of Métis does not matter, it is the recognition

of the community and its evidence of section 35 rights, pursuant to the Métis Harvesting Policy,

that are material. The Alberta Crown argues that, contrary to the FCM Local’s position, a review

of the transcript reveals that President Fraser gave evidence at the Teck Winter Drilling Hearing

that the FCM Local has about 150 members, but that there are others who are Métis in the area

who have not joined the FCM Local because, as he indicated, there is no benefit. He stated that if

industry treated Métis like they treat First Nations, the FCM Local would have many more

members. President Fraser also referenced family living in Calgary, Edmonton and Fort

McMurray and stated that, if they came home, the FCM Local would have a lot more members.

He testified that Ms. Hermansen and her children and grandchildren are members of the FCM

Local, but did not identify any other members.

[290] In her January 2013 email, Ms. Bertolin referenced a question posed by the AR Minister

at his meeting with the FCM Local about an estimation of numbers for Métis who could trace an

ancestral connection to a recognized historic and contemporary Alberta Métis community. In

response, Ms. Bertolin attached a report commissioned by the Fort McMurray Local 1935. The

report reviews common surnames in late 1800s and early 1900s census documents for

Northeastern Alberta, but contains no information about current Local members.

[291] In his November 26, 2014 CNRL Response Letter, President Fraser restated the

information from his July 2012 SOC Letter. He further advised that a great number of people

who leave Fort Chipewyan end up leaving for extended periods of time, but often return, and

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non-resident Métis frequently harvest with family in their traditional territory, view Fort

Chipewyan as home and keep close ties to the land and people. President Fraser stated that the

FCM Local is obliged to represent all Métis as the primary voice for the MNA in Fort

Chipewyan and concluded by asserting that membership in a ‘Local’ for [the Fort Chipewyan

Métis] is not who we represent. We represent people who can trace the source or origin of their

rights to Fort Chipewyan.

[292] In responding to the Alberta Crown’s question about the geographic area over which the

FCM Local claims to represent Métis, President Fraser referred to the nomadic nature of Métis

culture and stated that if a Métis person living outside of Fort Chipewyan has an ancestral

connection to Fort Chipewyan, then the FCM Local represents them for Crown consultation. He

also made general reference to consultation with the Northwest Territories and British Columbia

governments.

[293] Similarly, in responding to the Alberta Crown’s request that he identify the historic

communities that the FCM Local’s members claim ancestral connections to, President Fraser

referenced the Métis Harvesting Policy, as well as some legal articles and historic reports, in

stating generally that the FCM Local has members who can trace their historical ancestry to Fort

Chipewyan, Fort McKay, Conklin and Lac La Biche. However, President Fraser again reiterated

that the FCM Local is conducting a genealogy study necessary to verify its assertions.

[294] The Alberta Crown argues that the FCM Local has provided very little information to the

Alberta Crown about who it states it represents for the purposes of asserting section 35 rights.

Moreover, the information provided is contradictory and confusing and demonstrates that the

FCM Local itself does not know who it represents, which raises serious questions about the FCM

Local’s authority to act, and the credibility of the rights asserted. In responding to Alberta’s

questions about the FCM Local’s membership, President Fraser identified a vast gulf between

the size of the FCM Local’s membership and the size of the community it states it represents in

asserting rights and seeking consultation. When questioned further on this issue, Ms. Bertolin

and President Fraser admitted that the FCM Local does not actually know who it represents for

the purposes of asserting section 35 rights and a Crown duty to consult for judicial review. The

Alberta Crown argues that an assertion of rights cannot reasonably be considered credible when

the corporate entity making the assertion concedes it does not know who it acts for. This

admission alone should prove fatal to the FCM Local’s application for judicial review. Given the

FCM Local’s admissions, the Alberta Crown submits, it was reasonable for the Crown to

determine that the FCM Local had not provided sufficient information to establish a credible

assertion of rights and therefore Crown consultation would not be required.

[295] Additionally, the Alberta Crown argues that the FCM Local’s membership constitutes

less than one-fifth of the population it states it represents for the purpose of asserting rights and

seeking consultation, which alone should raise questions about the FCM Local’s authority. This

evidence suggests that the majority of the community may not agree with the FCM Local

representing their interests. The Alberta Crown notes that in a similar case, Campbell v British

Columbia (Minister of Forests and Range), 2011 BCSC 448, [2011] 3 CNLR 151, aff’d (as

moot) 2012 BCCA 274 [Campbell], where the society acting on behalf of an Aboriginal group

was not able to establish authority to act, the British Columbia Supreme Court dismissed an

application for judicial review seeking to enforce the duty to consult.

Page: 68

[296] Further, the Alberta Crown observes that although the FCM Local is an incorporated

society, it has not provided any information that would establish that the FCM Local’s

membership or membership requirements correlate in any fashion to the indicia of Métis identity

or to the FCM Local’s authority to represent its members in asserting and enforcing Aboriginal

rights as was the case in Labrador Métis Nation and Enge. Moreover, the Local has advised

Alberta that its membership is not who it represents – it represents a much larger community that

it cannot currently define.

[297] An incorporated society may be able to represent an Aboriginal group for the purposes of

asserting rights and claiming Crown consultation, but it must still demonstrate that it has

authority to represent the group. However, as indicated by the Court of Appeal in Labrador

Métis Nation, it is the FCM Local’s responsibility to demonstrate that the community it states it

represents for the purpose of asserting important constitutionally-recognized rights has granted it

authority to act. The FCM Local has not provided any evidence of authority to represent the Fort

Chipewyan Métis.

[298] In considering the authority of a society to represent an Aboriginal group for the purposes

of asserting rights, one of the factors the courts have considered is whether there are competing

claims to represent the group. In this case, the FCM Local has repeatedly advised the Alberta

Crown that, while the MNA represent the Métis community politically, only the FCM Local can

address consultation and sign off on impacts of Projects. However, the Record demonstrates

disagreement between the MNA, MNA Region 1 and the Local on this issue. The Court in

Campbell dismissed the society’s application for judicial review, noting that there were

conflicting groups claiming to represent the Sinixt people.

[299] In asserting rights and responding to the Alberta Crown’s questions about who the FCM

Local represents, the FCM Local has not provided any information about the society’s stated

goals and objectives. The MNA’s Bylaws describe its objectives as including the promotion,

pursuit and defense of Aboriginal, legal, constitutional and other rights of Métis in Alberta:

Bellrose v Canada, 2012 FCA 67 at para 6, 429 NR 383. Both the FCM Local and the MNA

Region 1 have filed statements of concern in relation to the Project and both are being consulted

by Teck.

[300] The Alberta Crown says that in her November 30, 2012 email, Ms. Bertolin asserted that

President Fraser represents Métis who trace the origins of their rights to Fort Chipewyan for the

purposes of signing off on impacts, but not on issues of Métis governance and representation

which is an internal Métis matter. She referenced the Métis National Council, the MNA and the

Métis Nation Region 1 as well as the FCM Local and asserted that the only entity that can sign

off on impacts is the FCM Local. However, in her earlier October 16, 2012 letter, Ms. Bertolin

specifically advised the Alberta Crown of the fact that the MNA had filed an NQCL in relation

to the Shell Jackpine Hearing. In its NQCL, the MNA (representing the FCM Local, MNA,

MNA Region 1, Fort McMurray Métis Local 1935 and certain individuals including President

Fraser) asked the Joint Review Panel to consider whether the Alberta Crown had upheld its duty

to consult with the Métis people whose rights might be impacted by the Project: Shell Canada

Energy, Re, 2013 CarswellAlta 1184 at paras 58, 60, 2013 ABAER 11 (ERCB). Despite the

FCM Local’s statement that the MNA’s role is purely political, the MNA challenged a specific

Project approval and represented various other Métis groups, including the FCM Local, and

individuals for that purpose. The MNA continued on to participate in the full Joint Review Panel

hearing in November 2012 with Ms. Bertolin acting as one of its legal counsel. It is a portion of

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the transcript of that hearing that the FCM Local forwarded to the AR and AENV Ministers in

December of 2013 asking for consultation on the Project.

[301] According to the Alberta Crown, the transcript further reveals that Mr. Chartier, President

of the Métis National Council, testified that the MNA has the responsibility and jurisdiction to

look at accommodation and consultation within Alberta. He testified that the MNA Region 1

represents an impacted community and it must be involved; and while Mr. Chartier indicated that

the local communities should also have a meaningful role, he did not see that representation

should be fragmented beyond the regional level, although with significant input from the people

on the ground. In reviewing the MNA’s evidence in its final Hearing Report, the Joint Review

Panel noted that the MNA stated that it represented Métis members in the region from Lac La

Biche to Fort Chipewyan including the FCM Local. In issuing its Report, the Joint Review Panel

specifically commented on the fact that the role of the MNA with respect to representing the

Métis Locals has been unclear, and made reference to a letter in the consultation process from

the FCM Local stating that the MNA did not act for it and that only the FCM Local could speak

for its rights: Shell Canada Energy (Re) at para 1546.

[302] The Alberta Crown contends that a further indication in the Record that the MNA and the

FCM Local do not agree about who represents Métis for the purposes of consultation is found in

the February 21, 2013 memorandum the FCM Local sent to the Alberta Crown following its

meeting with the AR Minister. The FCM Local identified a consultation policy between the

Alberta Crown and the Fort Chipewyan Métis as its #1 issue and asserted that: “Alberta’s

relationship needs to be with the community. Alberta should not build any consultation protocol

that allows either Region 1 or MNA (provincial) to sign off on impacts or consultation. This does

not mean that [the community] disregard the MNA’s ability to speak for [the] community on a

political level.” In the memorandum, the FCM Local identified an issue with the MNA’s

involvement with Enbridge and Transalta and opportunities for the FCM Local to enter the

regulatory process. The FCM Local referenced the fact that the MNA signed agreements with

both Enbridge and TransCanada around the community, signed off on future pipelines and, in the

agreements, attempted to bar communities from filing in the regulatory process. Despite the

MNA having represented the FCM Local at the Shell Jackpine Hearing just six months earlier,

when President Fraser was specifically asked at the Teck Winter Drilling Hearing how he saw

the MNA fitting into the consultation process, he replied that he didn’t. President Fraser stated

that he would not want to be working with the MNA.

[303] According to the Alberta Crown, the Record indicates a lack of consensus within the

MNA organization as to who should speak for Métis in asserting rights and seeking consultation.

Given that the FCM Local has conceded that its members constitute less than one-fifth of the

Fort Chipewyan Métis community it states it represents and that the remaining population may

be members of the MNA, determining who speaks for the Métis in asserting Aboriginal rights

and seeking Crown consultation is critical. It cannot be said with any certainty that any Fort

Chipewyan Métis community agrees that the FCM Local, as opposed to the MNA or MNA

Region 1, represents it for the purposes of asserting rights and consultation.

[304] The Alberta Crown submits that it was reasonable for it not to require consultation with

the FCM Local, given the inconsistent information provided about who speaks for any potential

Fort Chipewyan Métis community. Requiring consultation with the FCM Local could curtail the

MNA or MNA Region 1’s efforts to address consultation: Martin v Canada (AG), 2002 FCT

1117 para 15, [2003] 1 CNLR 57. To maintain an efficient process, the Alberta Crown must have

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some assurance it is consulting with the authorized representative of an Aboriginal collective:

Red Chris Development Co v Quock, 2014 BCSC 2399 at paras 39, 41-44, 93 CELR (3d) 97

[Red Chris].

Privacy Concerns

[305] The Alberta Crown observes that the FCM Local has continually cited privacy concerns

as a barrier to providing required information and, on this application, is now asserting that the

Alberta Crown has an obligation to provide the very information over which it claims privacy.

According to the Alberta Crown, a review of the Record and the applicable law does not support

the FCM Local’s position. The FCM Local has indicated that it cannot provide the Alberta

Crown with information to support its assertion of rights and demand for Crown consultation,

because the MNA privacy policy prohibits it from providing any personal information about its

members without their written consent, and then only as required by the Métis Harvesting Policy.

The Alberta Crown cannot confirm the terms of the MNA privacy policy. However, if the MNA

supports the FCM Local in seeking Crown consultation, then the two organizations should be

able to come to some agreement on use of membership information. The fact that the FCM

Local has not been able to reach an agreement with the MNA for use of membership information

may again be seen as some evidence of disagreement between the MNA and the FCM Local

about who should represent any Fort Chipewyan Métis community for the purposes of asserting

rights and seeking consultation. Additionally, the MNA’s privacy policy does not explain why

the FCM Local could not provide the Alberta Crown with information about its non-MNA

members.

[306] The Alberta Crown maintains that the FCM Local has also informed the Alberta Crown

that it cannot provide information about its members due to Alberta privacy law. However, the

Alberta Crown notes, without taking any position as to their applications, that both the Personal

Information Protection Act, SA 2003, c P-6.5, ss 1-8 [PIPA], and the Societies Act, s 36, contain

provisions allowing an organization to disclose individuals’ personal information either with

their consent or on notice. The Alberta Crown contends that FCM Local’s lack of the consent of

its members to use their personal information, for the purposes of asserting rights and seeking

consultation, could also be seen as some evidence that the FCM Local does not have its

members’ authority to represent them for these purposes. Notably, PIPA provides that an

individual is deemed to have consented to the use of their personal information if it has been

provided to the organization for that purpose. Given that the FCM Local indicates it is not able to

provide the Alberta Crown with its members’ personal information, it is presumable that the

personal information was not gathered for the specific purpose of pursuing asserted rights and

Crown consultation, in direct contrast to the situations in Labrador Métis Nation and Enge.

Again, this raises issues about the FCM Local’s representative authority.

[307] In Ka’a’Gee Tu First Nation v Canada (AG), 2007 FC 763 at paras 129-130, [2007] 4

CNLR 102, the Federal Court was not persuaded that the concerns offered by the First Nation for

not sharing traditional knowledge information with the proponent or the Environmental Impact

Review Board had merit. The Court stated that while it understood the main concern to be the

protection of sensitive information concerning traditional knowledge of the First Nation

becoming public, no evidence was adduced to suggest that other options were unavailable to

protect against public dissemination of such sensitive information, while still participating in the

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process. In the court’s view, since the First Nation applicant had not justified their failure to

participate, the Applicants could not now complain that their concerns were not considered in the

preparation of the Traditional Knowledge study.

[308] Based on the existing jurisprudence, the Alberta Crown argues that the FCM Local

cannot rely on privacy concerns in failing to provide required information, particularly in the

absence of any explanation of why these concerns could not be addressed by the FCM Local

through other avenues. The FCM Local cannot sidestep its onus of proof by claiming privacy

over required information, nor refuse to provide required information that is uniquely in its

knowledge, and then argue that somehow the Alberta Crown is at fault for not gathering that

information: Clyde River (Hamlet) v TGS-NOPEC Geophysical Co ASA (TGS), 2015 FCA 179

at para 87, 91, 474 NR 96, leave to appeal granted at 2016 CarswellNat 599 [Clyde River].

Alternative Argument – Problem with the Establishment of the Required Indicia of Métis Identity

[309] In the alternative, if this Court should determine that the FCM Local has the authority to

assert Aboriginal rights and a duty to consult for the undefined community it says it represents,

the Alberta Crown argues that the FCM Local has provided insufficient information for the

Alberta Crown to reasonably determine that the members of the community could credibly

establish the required indicia of Métis identity.

[310] The FCM Local has provided limited information about just three members – President

Fraser, Roy Ladouceur and Barb Hermansen. Each of these individuals is identified as a member

of the FCM Local itself as well as the larger Fort Chipewyan Métis community that the FCM

Local states it represents. The limited information the FCM Local has provided does not

demonstrate that any of the three identified members would be able to establish the indicia of

Métis identity required to prove Aboriginal rights, and certainly does not establish any objective

basis for determining that the community at large – which the FCM Local states it represents –

can credibly assert Aboriginal rights.

President Fraser

[311] None of the FCM Local’s letters provide any information about President Fraser.

However, at the Teck Winter Drilling Hearing, President Fraser testified that he was born and

lived in Fort Chipewyan. His evidence at the drilling hearing was that his great-grandfather,

grandfather and great uncles were fur traders and would pull a scow from Fort Chipewyan to the

town of Athabasca. This is all of the information the FCM Local has provided about President

Fraser. It is unclear whether he has an ancestral Métis connection to Fort Chipewyan dating back

to the time of effective European control and whether he is accepted by the modern community

he states he represents.

Ray Ladouceur

[312] The FCM Local has also identified Mr. Ladouceur as a member of the FCM Local.

However, it has not provided information that would establish any of the indicia of Métis identity

in relation to Mr. Ladouceur. The FCM Local referenced Mr. Ladouceur in its August 2012 SOC

Response, its November 26, 2014 CNRL Response Letter, and a letter it sent to the ERCB and

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Teck about Teck’s winter drilling program which it included in the Dropbox materials. In each of

these letters, the FCM Local identified Mr. Ladouceur as a member of the FCM Local who lived

at least half the year on his trapline at Big Point in the Peace-Athabasca Delta. The FCM Local

did not provide any information to establish when he self-identified as Métis, his ancestral ties to

Fort Chipewyan, or his current acceptance by that community.

Barb Hermansen

[313] Finally, the FCM Local has repeatedly referenced Ms. Hermansen. However, the FCM

Local has not provided sufficient information to demonstrate that Ms. Hermansen could credibly

establish an ancestral connection to a historic Fort Chipewyan Métis community or acceptance

by any modern Métis community. Ms. Hermansen testified at the Teck Winter Drilling Hearing

that she was born in Fort Chipewyan and grew up on Mile 64 on the Athabasca River. She

referred to her father’s part of the country as Plamondon and Lac La Biche. The transcript

provided for the Shell Jackpine project indicates that President Fraser and Ms. Hermansen

participated in a Métis panel at that hearing, but that portion of the transcript was not provided to

the Alberta Crown by the FCM Local. The information provided about Ms. Hermansen,

including in the Hermansen Biography, is very general in nature and appears to indicate an

ancestral connection to Winnipeg rather than Fort Chipewyan, although no time periods are

provided. Ms. Hermansen traces her ancestry through her father’s grandfather first to Winnipeg

and then to Lac La Biche. The connection on her mother’s side of the family appears to also be

to Winnipeg and then Fort McMurray.

[314] In this case, the FCM Local has provided extremely limited information and nothing that

provides any assurance that the larger undefined Métis community that the FCM Local states it

represents will plausibly be able to meet the Powley requirements. The limited nature of the

information provided by the FCM Local is particularly apparent when compared with the

information provided by the LMN in Labrador Métis Nation, where the LMN provided

affidavits of community representatives demonstrating that they could trace their ancestry,

without challenge, to the early European settlers of Labrador who co-habituated with the native

Inuit people there at the time. After reviewing the affidavit evidence, the Court determined that

there was a high degree of probability that the LMN was made up of Métis people who could

trace their ancestry to the Inuit of the area in the period post-contact and pre-European control:

Labrador Métis Nation v Newfoundland & Labrador (Minister of Transportation & Works),

2006 NLTD 119 at paras 26-32, 74-86, 81-85, rev’d 2007 NLCA 75 [Labrador Métis Nation

(TD)]; Labrador Métis Nation at paras 12, 36.

[315] In Enge, the Court was also satisfied that it had sufficient evidence of the ancestral

connections of the NSMA members such that it could, on a prima facie basis, determine that the

society’s members were part of a contemporary rights-bearing Métis community in the Great

Slave Lake area descended from the historic, rights-bearing Métis community which developed

in the same area: Enge at paras 202-207.

[316] In this case, and in the absence of information from the FCM Local, comparable in nature

to that provided in Labrador Métis Nation or Enge, the Alberta Crown submits that it was

reasonable for Alberta to determine that the FCM Local had failed to establish a credible

assertion that it is a rights•bearing community, and that Crown consultation would not be

required.

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[317] In the SOC, President Fraser stated that he did not have the capacity to fully assess the

impacts of the Project to the FCM Local’s members or the Fort Chipewyan Métis community as

a whole. President Fraser asserted generally that any impacts to water quantity and quality along

the Athabasca and Peace-Athabasca Delta would affect members’ use of the waterways for

harvesting, travel and commercial activities. He further indicated that the Project would overlap

the Hermansen trap line.

[318] In the July 19, 2012 SOC Letter, the Designated Director asked President Fraser to

identify how many of the FCM Local’s members would be affected by the Project, the nature

and location of individual activities relative to the location of the Project and how the Project

would directly affect specific members. In response, the FCM Local stated that the Project would

impact the entire community and its Aboriginal rights to harvest, navigate or use the waters and

transmit cultural and religious practices.

[319] In the September 28, 2012 Letter, the Alberta Crown asked President Fraser to confirm

the rights the FCM Local was asserting and the geographical area in which it claimed to

represent Métis. In her response, Ms. Bertolin simply referred to the Métis Harvesting Policy

stating that it created a case of prima facie asserted harvesting rights as well as a deemed

traditional territory that included the Project area. She also asserted that the community’s

traditional territory is much larger than the 160 km area referenced in the Policy and when the

FCM Local received funding for a TLU it would redefine the scope and shape of its territory.

[320] In the November 20, 2014 Letter, the ACO specifically asked President Fraser to identify

members directly affected by the Project with particular reference to the nature and location of

their individual activities relative to the Project. The ACO further asked how members’ hunting,

trapping and fishing would be impacted by the Project. In his November 26, 2014 CNRL

Response Letter, President Fraser stated that he disagreed with the question from an

individualistic perspective and referred to the communal nature of Aboriginal rights. He then

referred to the Hermansen Biography and stated that Ms. Hermansen’s trap line was still

occupied and used by the family and the program would impact that use as well as the ability to

hunt and harvest medicinal and food plants. President Fraser also referred to Mr. Ladouceur

indicating that Métis are still actively harvesting and pursuing other activities along the

Athabasca River and stated that the FCM Local has identified a minimum of 15 members who

use the Athabasca River for hunting, harvesting, camping and travel. However, no information

was provided about these members, the area or nature of the use, or how the Project might

impact that use.

[321] President Fraser asserted that Ms. Hermansen provided credible, sworn evidence of

robust family use at both the Shell Jackpine and Teck Winter Drilling Hearing. The transcript

provided from the Teck Winter Drilling Hearing demonstrates that Ms. Hermansen primarily

discussed historic use of her family’s trap line. She stated that, along with commercial trapping,

her children and grandchildren exercise harvesting rights in the trap line area. However, when

asked about other community members using the area, she acknowledged that she had not been

there in 15 years so could not really answer. At the time she left the trap line she was not aware

of other people exercising rights in the area. When President Fraser was asked about members’

traditional land use in the area around the Project, he stated that he only knew about Ms.

Hermansen and her family.

Page: 74

[322] Ms. Labour, a traditional knowledge facilitator for the FCM Local, testified that the

FCM Local had done some recent work with another industry advocate that allowed the FCM

Local to conduct some interviews about current Métis use in Northeastern Alberta. She

confirmed that while Fort Chipewyan has a big database of files with regard to historic use and

occupancy, it does not have a great deal of information about current use and its relationship to

industry development. In her testimony, Ms. Labour also confirmed that the 160 km notional

territory identified in the Métis Harvesting Policy is not fairly representative of the use and

occupancy of the Métis in Fort Chipewyan. She stated that the FCM Local use it as a point of

reference but she did not have anything that would be considered evidence to back that up,

“either way or the other.”

[323] In effect, the Crown submits, the FCM Local has admitted that it is not certain who it

represents. In light of this uncertainty, it is not surprising that the FCM Local is unable, at this

time, to provide detailed information about the use and occupancy of the Fort Chipewyan Métis

community it purports to represent.

Confusing Information from FCM Local on Assertion of Aboriginal Rights

[324] The information the FCM Local has provided the Alberta Crown about its membership

criteria and membership is confusing and contradictory and does not reasonably support a

finding that the FCM Local has established a credible assertion of Aboriginal rights. Moreover,

the FCM Local’s admission that it does not know who it represents in asserting section 35 rights

and a Crown duty to consult, completely undermines the credibility of the FCM Local’s

assertions.

[325] In sum, the Alberta Crown submits that a review of the Record highlights the following:

•

On several occasions the FCM Local has asserted that members of the

FCM Local must be members of the MNA, but at the same time it has

acknowledged that it grants membership to individuals who are not MNA

members.

•

The FCM Local has advised the Alberta Crown that, pursuant to its

membership requirements, an individual must live in Fort Chipewyan, but the

FCM Local has also repeatedly asserted that it represents an unstated number of

people who reside elsewhere.

•

The FCM Local states that it represents over 1000 Fort Chipewyan Métis

in asserting Aboriginal rights and seeking consultation, while admitting that its

membership is less than 200 individuals.

•

The FCM Local has explicitly advised the Alberta Crown that it represents

people who can trace the source or origin of their rights to Fort Chipewyan. At the

same time, the FCM Local has conceded that it does not know who it represents

for the purpose of asserting collective rights and will not know until it completes a

genealogy.

Page: 75

•

The FCM Local has not established any authority to act for the community

it states it represents, and there may be some disagreement between the FCM

Local and the MNA on this issue.

•

The FCM Local has provided almost no information about the members of

the community it states it represents. The limited information does not provide an

objective basis for determining that the community that the FCM Local claims it

represents can plausibly establish the indicia of Métis identity.

No Previous Acknowledgment of Duty to Consult by Alberta Crown

[326] The Alberta Crown further argues that there is no basis to the FCM Local’s arguments

that the Alberta Crown led it to believe that a Crown duty to consult had been triggered in this

case. In advancing this argument, the FCM Local proceeds to weave together its participation in

the regulatory process for the Project under EPEA and the Water Act, with its exchanges with the

Alberta Crown about asserted rights and consultation in an attempt to conflate events. The

Crown’s duty to consult is a real obligation that does not inform the requirements of the EPEA

and the Water Act that, as a precondition to a regulatory appeal, a party must be directly and

adversely affected by a decision of the Alberta Energy Regulator: O’Chiese First Nation v

Alberta Energy Regulator, 2015 ABCA 348 at paras 41-42, 607 AR 191 [O’Chiese First

Nation].

[327] The FCM Local suggests that because the Alberta Crown has previously sent President

Fraser correspondence asking for information about the FCM Local’s asserted rights, and various

government officials have met with the FCM Local to discuss its concerns, that the Alberta

Crown has conceded that the FCM Local has the authority to represent the Fort Chipewyan

Métis. The Alberta Crown disagrees.

[328] The Alberta Crown was not dealing with the FCM Local as a rights-bearing collective.

The interactions between the Alberta Crown and the FCM Local have not assisted in determining

the composition of the collective and, as a result, the Alberta Crown cannot now be said to be

estopped from challenging the FCM Local’s authority to represent the undefined Fort Chipewyan

Métis community for the purposes of asserting rights and seeking Crown consultation.

[329] The Alberta Crown argues that there is evidence in the Record that the FCM Local knew

that its SOC was accepted only for the stated purposes of the EPEA and Water Act applications

and not as a credible assertion of rights and a duty to consult as follows:

•

The Notice of Application for the Project specified that any person who

may be directly affected by the EPEA application or the Water Act application

may submit a written statement of concern to AENV. Neither the Notice of

Application nor the EPEA or the Water Act sections reference asserted rights or

consultation.

•

The FCM Local filed its SOC pursuant to the Notice of Application stating

that it heard that the best way to make its concerns heard was to get involved in

the regulatory process.

Page: 76

•

All correspondence from the Designated Director to the Local about the

SOC specifically referenced the EPEA and Water Act provisions. None of the

correspondence mentioned consultation.

•

In the transcript from the Teck Winter Drilling Hearing, President Fraser

testified that Alberta had never contacted the community about oil sands

development and confirmed that Alberta does not have a Métis Consultation

Policy.

[330] The Alberta Crown argues that the SOC filing process and the Designated Director’s

October 10, 2012 SOC Letter very clearly delineated the purposes for which the FCM Local’s

SOC was accepted. Moreover, in informing the FCM Local that its SOC was accepted under the

provisions of EPEA and the Water Act, the Designated Director expressly stated that he and his

office could not take any position on the FCM Local’s asserted rights and referred the FCM

Local to AR. The FCM Local has had legal representation throughout the process. It is

disingenuous for the FCM Local to now assert that the Designated Director’s decision granted it

standing for the purposes of Crown consultation and that the Alberta Crown led the FCM Local

to believe that a Crown duty to consult had been triggered in this case. The Record does not

support that position.

The Federal Crown

[331] The Alberta Crown observes that although the federal Crown has required Teck to

consult with the FCM Local, the duty to consult is divisible.

[332] Where both the federal Crown and the provincial Crown have decision-making authority

in relation to a project, each Crown must discharge its duty to consult: Coastal First Nations v

British Columbia (Minister of Environment), 2016 BCSC 34 at para 196, 85 BCLR (5th) 360;

Enge at 162-163, 165; Fond du Lac Denesuline First Nation v Canada (AG), 2010 FC 948 at

paras 230-231, 377 FTR 50, aff’d 2012 FCA 73 [Fond du Lac]; and Keewatin v Ontario

(Minister of Natural Resources), 2014 SCC 48 at paras 33, 50-51, [2014] 2 SCR 447.

[333] On March 30, 2012, Canada forwarded its draft consultation plan for the Teck project. It

included a list of Aboriginal groups that the federal government had identified for consultation

based on its current knowledge of the potential or established Aboriginal or Treaty rights that

could be affected by the Project. The Local was included in that list.

[334] Consultation undertaken by Canada with the FCM Local is not determinative of this issue

and the Alberta Crown is not required to follow Canada’s approach. The fact that Canada has

directed consultation with the FCM Local does not mean that consultation was, in fact, legally

required: Fond du Lac at para 208.

[335] In this case, the Court must consider whether the Local has provided sufficient

information to the Alberta Crown to establish a credible assertion of Aboriginal rights which

could be adversely affected by the Project

Page: 77

Powley Criteria

[336] The Alberta Crown argues that it was reasonable for Alberta not to require consultation

with a group that admits it does not know who it represents, has not established any authority to

act, and who cannot demonstrate in any objectively verifiable manner that its members can

establish Métis identity for the purpose of claiming section 35 rights. The Local’s

acknowledgement that it does not know who it represents for the purposes of asserting section 35

rights and a Crown duty to consult should be fatal to its application for judicial review.

[337] While the threshold for triggering the duty to consult is low, there is a threshold and it

must be met. In the context of this judicial review on whether the duty to consult is triggered, the

Alberta Crown submits that this Court is not required to determine whether a government action

amounted to an actual infringement, nor is the Court required to consider whether any such

infringement would be justified.

[338] The Alberta Crown contends that as the FCM Local has not provided information related

to a number of aspects of the Powley test, an assessment of the historical material need not be

undertaken by this Court. A failure to establish one aspect of Powley is dispositive of the claim.

[339] Accordingly, the Alberta Crown submits, the FCM Local failed to meet its onus of

establishing a credible assertion of Aboriginal rights and that the Project will adversely impact

the exercise of such rights triggering a Crown duty to consult. As such, the ACO’s Decisions

were reasonable and this judicial review should be dismissed with costs payable to the Crown.

Analysis and Conclusion – re Test Part 1: Crown’s Real or Constructive Knowledge of a

Claim

[340] The core issue, regarding this element of the trigger test, is whether the FCM Local has a

claim to the resource or land to which the resource is attached, and regarding which the FCM

Local alleges adverse impact by the Project. This question engages other sub-issues for

consideration, including the identification of membership in the rights-bearing community, and

whether or not the Applicant represents the rights-bearing community.

Identifying Membership in the Rights-Bearing Community

[341] In determining whether there is a Métis community or whether the claimant belongs to a

Métis community, courts must confirm that the claimants belong to an identifiable Métis

community with a sufficient degree of continuity and stability to support a site-specific

Aboriginal right. A Métis community can be defined as a group of Métis with a distinctive

collective identity, living together in the same geographic area and sharing a common way of

life: Powley at para 12. The “continuity” requirement puts the focus on the continuing practices

of members of the community, rather than more generally on the community itself: Powley at

paras 12, 27; Enge at para 182. Three broad factors serve as indicia of Métis identity for the

purpose of claiming Métis rights under s 35: self-identification, ancestral connection, and

community acceptance: Powley at paras 29-30. The membership criteria must be objectively

defined and cannot be vague.

Page: 78

[342] In this context, I note that both parties to this judicial review application have made

several references to the Alberta Métis Harvesting Policy, which is a public document that

responded to the Powley decision.

[343] It is also important to reiterate that membership in self-styled organizations does not

make one Aboriginal for purposes of constitutional exemptions. Statements located on the

membership card to organizations do nothing to advance the legitimate constitutional rights and

aspirations of Canada’s Aboriginal peoples. There must be evidence that the organizations are

rights-bearing communities, and there must be proof that an Aboriginal community has accepted

a claimant. The claimant must show shared culture, customs or traditions with an Aboriginal

community: R v Hopper, at para 18.

Was Information Provided by FCM Local on Community Membership Sufficient?

[344] While the Supreme Court in Mikisew sets a low evidentiary hurdle to establish the

existence of an asserted right, which triggers the duty of consult and accommodate, the burden is

nonetheless on the applicant to establish the potential existence of the asserted Aboriginal right

and the conduct that might adversely affect it: Acadia at para 27. Claimants must outline their

claims with clarity, focusing on the scope and nature of the Aboriginal rights they assert and on

the alleged infringements: Haida at para 36. An asserted Aboriginal right is not based upon

vague assertions of interest or historical connection to the area: Kane v Lac Pelletier (Rural

Municipality) No 197, 2009 SKQB 348 at para 58, 342 Sask R 113 [Kane]. Establishing Métis

Aboriginal rights requires significant evidence addressing the factors identified by the Supreme

Court: Kane at para 59. Sparse and tenuous evidence simply cannot support a claimed right:

Mitchell v Minister of National Revenue, 2001 SCC 33 at para 3, [2001] 1 SCR 911 [Mitchell].

[345] In Labrador Métis Nation, this was established by affidavit evidence showing that the

affiants are of mixed Inuit and European ancestry whose Inuit bloodlines have originated from

those Inuit ancestors that resided in south and central Labrador prior to European contact. The

Newfoundland and Labrador Court of Appeal found that the Crown had sufficient information to

know the respondents had a credible claim based on Aboriginal rights, whether they be of Inuit

or Métis origin. All the respondents had to do was set out the essential facts underlying and

supporting their Aboriginal community’s claim to Aboriginal rights and the facts supporting their

submission that the Crown’s actions could adversely affect those Aboriginal rights: Labrador

Métis Nation at paras 36, 40.

[346] In Cold Lake, the First Nations argued that the Crown had a duty to acquire the

information about Aboriginal practices, such as the location and frequency of the traditional

activities and the extent to which traditional activities could potentially be adversely impacted by

the proposed development, and did not. The Alberta Court of Appeal stated that this did not form

part of the Crown’s obligation, but that both parties had reciprocal duties to facilitate an

assessment of the asserted rights and to outline concerns with clarity. The appellate court did not

view this as a gap in the record for which the Crown was responsible. The First Nations also

argued that the Crown had a duty to provide full information about historic Aboriginal uses of

the land in question. There was no suggestion that the Crown had or withheld such information.

The court concluded that the Crown should not ordinarily be required to conduct such research in

Page: 79

lieu of the First Nations, as the First Nations should be in a much better position to ascertain their

own historical practices: Cold Lake at para 29.

[347] Similarly, in Dene Tha’ First Nation v Alberta (Energy and Utilities Board), 2005

ABCA 68, 363 AR 234, leave to appeal denied, 2005 CarswellAlta 1133 – an appeal of an

unsuccessful application by the First Nation to intervene in a matter before the Alberta Energy

and Utilities Board regarding licenses issued for wells and roads – the application,

reconsideration decision and appeal thereof were denied as the First Nation had not shown that

they were directly and adversely affected. The First Nation had given the Board very little factual

detail or precise information and in argument suggested that it lacked information to be more

specific. In denying the appeal, Côté JA stated that the First Nation appellant must know, or be

able easily to learn, where its members hunt and trap: Dene Tha’ at paras 17-18.

[348] In determining whether an Aboriginal claimant has produced evidence sufficient to

demonstrate that their activity is an aspect of a practice, custom or tradition integral to a

distinctive Aboriginal culture, a court should approach the rules of evidence, and interpret the

evidence that exists, with a consciousness of the special nature of Aboriginal claims, and of the

evidentiary difficulties in proving a right which originates in times where there were no written

records of the practices, customs and traditions engaged in. The courts must not undervalue the

evidence presented by Aboriginal claimants simply because that evidence does not conform

precisely with the evidentiary standards that would be applied in, for example, a private law torts

case: Van der Peet at para 68.

[349] Evidence advanced in support of Aboriginal claims, like the evidence offered in any case,

can run the gamut of cogency from the highly compelling to the highly dubious. Claims must

still be established on the basis of persuasive evidence demonstrating their validity on the

balance of probabilities. Placing due weight on the Aboriginal perspective, or ensuring its

supporting evidence an equal footing with more familiar forms of evidence, means precisely

what these phrases suggest: equal and due treatment. The evidence presented by Aboriginal

claimants should not be artificially strained to carry more weight than it can reasonably support:

Mitchell at para 39.

[350] In Enge, the Applicant provided his own affidavit and affidavits from other North Slave

Métis Alliance members, as well as a number of reports relating to the ethnogenesis of the Métis

community in the Great Slave Lake area. That material established a prima facie Aboriginal

claim, based on the first eight criteria of the Powley test, which was not seriously challenged by

the Respondents. The court concluded that the Applicant had made an arguable case that he and

the NSMA had a right to hunt caribou based upon their asserted rights as Métis people who have

traditionally hunted in the Great Slave Lake area: Enge at paras 184, 230.

[351] In L’Hirondelle, the appellant had argued that it imposed an unfair burden to expect him

to have to prove his Métis status over and over again for different purposes. Slatter JA

commented that the incremental effort required to prove s 35 status is an incident of having that

status. It is an unavoidable fact that those who seek the benefits of constitutionally protected

status will have to prove it at some point. Such status should not be available just for the asking:

L’Hirondelle at para 42.

Page: 80

Conclusion on Sufficiency of Information

[352] Based on the legal principles above, my review of the Record indicates that the Applicant

FCM Local specifically referred to three individuals in order to establish the Métis Aboriginal

rights of members of the FCM Local within the Traditional Territory of the Fort Chipewyan

people. The Applicant claims this falls within a 160 km radius of Fort Chipewyan, the area

identified in the Alberta Métis Harvesting Policy as an area within which approved harvesters

will be able to hunt and fish. The three individuals referenced by FCM Local are: (i) President

Fraser, (ii) Ray Ladouceur, and (iii) Barb Hermansen.

[353] In my opinion, the Record demonstrates to me that there is some demographic evidence

of the area in which President Fraser’s family lived, as fur traders who pulled a scow; and where

Mr. Ladouceur lived at least half the year on his trapline. Ms. Hermansen traces her ancestry

through her great grandfather from Winnipeg to Lac La Biche and on her mother’s side from

Winnipeg to Fort McMurray. There is some evidence of where Ms. Hermansen’s grandfather

homesteaded, her father’s “part of the country,” where Ms. Hermansen and her stepfather were

born and where she grew up.

[354] However, the evidence is sparse and somewhat vague to support a claim to site-specific

Aboriginal rights even at a prima facie level: Enge at paras 176-179. In this particular case, the

existence of an identifiable Métis community with a distinctive collective identity, living

together in the same geographic area and sharing a common way of life, has not been

demonstrated with a sufficient degree of continuity and stability to support a site-specific

Aboriginal right. There is little to no information in the Record of shared customs, traditions, or a

collective identity in relation to the FCM Local.

[355] In this regard, the Record before this Court shows, inter alia, that in September 2012, the

Alberta Crown asked President Fraser how someone becomes a member of the FCM Local, the

organization’s registration requirements, and the approvals process. The information was

requested of FCM Local in order for the Crown to determine whether the organization’s

membership process requires any ancestral connection to a specified community. In October

2012, FCM Local replied that it follows the process set out in the MNA registry. A portion of the

transcript from the ERCB Teck Winter Drilling Hearing was also provided to show where

President Fraser testified that members in the FCM Local must also be members in the MNA. He

stated that the FCM Local “was going to have its own membership, but hadn’t gotten around to

yet,” but that if someone in Fort Chipewyan with the “background of a Métis” is not a member

of the MNA, they could be a member of the FCM Local.

[356] The Alberta Crown again, in November 2014, asked President Fraser to explain how

someone becomes a member of the FCM Local. He said that the Bylaws of the MNA that define

membership and the registration guide of the Métis National Council bind the FCM Local. To

become a member, one must meet the requirements of belonging to a Métis Local for the

purposes of voting in the MNA business matters. President Fraser further advised that, in order

for an individual to become a member of the FCM Local, they must be an MNA member and

live in Fort Chipewyan. They must also complete and sign a membership form where they

include their full names, birthdate, MNA card number, address, phone number and email.

Applicants are also required to show their MNA card and one piece of identification. The

President or Vice-President then undertakes a review of the application for sign-off on approval.

Page: 81

[357] The Record further demonstrates that President Fraser stated that the FCM Local has

agreed to take care of some family members who it considers “members of [the Fort Chipewyan

Métis]”, but who may not qualify for MNA local membership status by virtue of “residency

requirements” that relate to voting qualifications. In other words, non-MNA members can join

the FCM Local. The Record does not indicate that the FCM Local Bylaws or membership

application package have been provided and does not include what criteria the President or Vice•

President consider in undertaking a review of applications prior to approval. In other words, the

FCM Local has not indicated the basis on which it admits members who do not meet the

requirements for MNA membership.

[358] Based on the information in the Record, as referenced above, I have come to the

conclusion that the membership criteria in the FCM Local are vague and not objectively defined.

There appears to be discretion exercised by the President or Vice• President in their review of

applications prior to approval, but the basis for or criteria upon which that discretion must or can

be exercised is not indicated.

[359] Overall, on the issue of identifying membership in the rights-bearing community, the

information provided by the FCM Local to the Alberta Crown does not establish that

membership in the FCM Local is determinable by the three Powley factors of ancestral

connection, self-identification, and community acceptance.

[360] That determination on the insufficiency of information – regarding identification of

membership in the rights-bearing community – does not complete the analysis. There is also the

need for me to assess the impact of the Alberta Métis Harvesting Policy, because both parties to

this judicial review application acknowledge the relevance of the Policy.

[361] In that context, it’s apparent that the focus and purpose of the Alberta Métis Harvesting

Policy is to provide guidance on who is or may be considered a “Métis Harvester,” and thus, able

to hunt and fish in defined areas.

[362] In effect, I agree with the Crown that the Alberta Métis Harvesting Policy does not relate

to consultation with Métis.

[363] However, I also recognize the fact that certain communities have been identified as both

historic and contemporary Métis communities for the purposes of Métis harvesting. In that

context, the Alberta Métis Harvesting Policy certainly indicates that Alberta is prepared to

consider these communities as both historic and contemporary Métis communities and areas

where Aboriginal rights to hunt and fish exist. This recognition in the Policy constitutes some

evidence, on a prima facie basis, that a named community or area may be or host a rights-bearing

community for the purposes of consultation.

[364] Indeed, individuals must go further under the Policy to establish that they: (i) self•

identify as Métis; (ii) have an ancestral connection to an historic Métis community in Alberta;

(iii) belong to a contemporary Métis community in Alberta; and (iv) reside in Alberta to be

considered a Métis Harvester. Likewise, a community may need to provide further information

to trigger a duty to consult.

Page: 82

[365] Consequently, for the purposes of this judicial review decision, I will assume that the

Alberta’s Métis Harvesting Policy does provide some evidence to establish on a prima facie

basis that the Fort Chipewyan Métis Community is a rights-bearing community within a 160 km

radius of Fort Chipewyan.

[366] That takes me to the next question as to the standing or representative status of the FCM

Local vis-à-vis the rights-bearing community.

Does the FCM Local Represent the Rights-Bearing Community?

[367] In order for this Court to determine whether the FCM Local represents the rights-bearing

community, it is critical to examine the law dealing with the issue of who can trigger the duty to

consult in the context of Métis claims.

[368] Following my description of the governing legal principles in the next few paragraphs, as

to who can trigger the duty to consult for Métis, I will next consider whether the FCM Local is

the legal representative of the Fort Chipewyan Métis Community.

Who Can Trigger the Duty to Consult for Métis?

[369] The law is clear to the effect that the duty to consult exists to protect the collective rights

of Aboriginal peoples. It is owed to the Aboriginal group that holds the collective s 35 rights. An

Aboriginal group can authorize an individual or an organization to represent it for the purpose of

asserting its s 35 rights. However, it is too narrow of a general proposition to say that claims in

relation to treaty rights must be brought by, or on behalf of, the Aboriginal community. Certain

rights, despite being held by the Aboriginal community, are nonetheless exercised by individual

members or assigned to them. These rights may therefore have both collective and individual

aspects. Individual members of a community may have a vested interest in the protection of these

rights. It may well be that, in appropriate circumstances, individual members can assert certain

Aboriginal or treaty rights: Moulton at paras 30, 33.

[370] In Moulton some suggestions were made in respect of the classification of Aboriginal

and treaty rights. For example, the interveners Grand Council of the Crees and Cree Regional

Authority proposed that a distinction be made between three types of Aboriginal and treaty

rights: (a) rights that are exclusively collective; (b) rights that are mixed; and (c) rights that are

predominantly individual. LeBel J. noted that these suggestions bear witness to the diversity of

Aboriginal and treaty rights but would not, on that appeal and at that stage of the development of

the law, try to develop broad categories for those rights and slot each right in the appropriate

category. He did acknowledge that, despite the critical importance of the collective aspect of

Aboriginal and treaty rights, rights may sometimes be assigned to or exercised by individual

members of Aboriginal communities, and entitlements may sometimes be created in their favour.

In a broad sense, these rights might belong to them or might have an individual aspect regardless

of their collective nature: Moulton at paras 34-35.

[371] In Federation of Saskatchewan Indians v Canada (AG), 2002 FCT 1001, 223 FTR 60

(Fed TD), the principal issue was whether the Firearms Act, SC 1995, c 39 and the Regulations,

infringe the treaty rights of treaty Indians in Saskatchewan. The Attorney General of Canada

Page: 83

brought a motion for an order that the plaintiff, the Federation of Saskatchewan Indian Nations

[FSIN], cease to be a party to the action on the grounds that the FSIN is not a necessary party.

The court noted that a number of recent decisions have held that incorporated entities which

represent Aboriginal people cannot claim to have a direct interest in claims of treaty or

Aboriginal rights. As a result, the court determined that standing could not be granted to these

organizations on the basis of a direct interest in the matter: Federation of Saskatchewan Indians

at para 8, citing, Maurice v Canada (Minister of Indian Affairs & Northern Development)

(1999), 183 FTR 9 (Fed TD); Barlow v Canada (2000), 186 FTR 194 at paras 53-61 (Fed TD);

and Native Council of Nova Scotia v Canada (Attorney General), 2002 FCT 6 (Fed TD).

[372] In Labrador Métis Nation the court did not accept the appellants’ submission that

claimants always have to self-identify as either Inuit or Métis before the Crown’s duty to consult

and accommodate is triggered. It was deemed sufficient that the claimants belong to an

Aboriginal people within s 35(1) of the Constitution Act, 1982 to assert a credible claim. The

respondents had established this by affidavit evidence showing they were of mixed Inuit and

European ancestry whose Inuit bloodlines have originated from those Inuit ancestors that resided

in south and central Labrador prior to European contact. The unrefuted evidence before the

applications judge was sufficient to demonstrate a credible claim that the members of the 24

Labrador Métis Nation (LMN) communities know they have genetic, cultural and land use

continuity with their Inuit forebears, have a regional consciousness of a regional community, and

occupy and use, for traditional hunter/gatherer purposes, lands and waters threatened with

adverse effects by construction of the TLH: Labrador Métis Nation at para 36.

[373] In that case the Newfoundland and Labrador Court of Appeal stated that definitive and

final self-identification with a specific Aboriginal people was not needed before the Crown’s

obligation to consult arose. All the respondents had to do was establish certain essential facts

sufficient to show a credible claim to Aboriginal rights based on either Inuit or Métis ancestry:

Labrador Métis Nation at para 39.

[374] The court also rejected the Crown’s submission that a corporate plaintiff may not be the

vehicle for enforcement of an Aboriginal right to consultation. The LMN established through its

memorandum and articles of association, including the preamble to its articles, that it had the

authority of its 6,000 members in 24 communities to take measures to protect Aboriginal rights.

The preamble stated in part (after describing the basis of the Aboriginal rights claim of LMN

members): “We are entitled to consultation from government when any action they may take

could impair or interfere with our rights. We have a right to involvement in the management, as

an equal and full participant, of the natural resources of our lands.” The court stated that anyone

becoming a member of the LMN should be deemed to know they were authorizing the LMN to

deal on their behalf to pursue the objects of the LMN, including those set out in the preamble to

its articles of association. This was sufficient authorization to entitle the LMN to bring the suit to

enforce the duty to consult in the case. No evidence was presented that any of the 6,000 LMN

members or any other Aboriginal person questioned the authority of the LMN to act on their

behalf: Labrador Métis Nation at paras 46-47.

[375] In Enge, the court was satisfied that there was some evidence that the NSMA’s

Constitution limited membership in the NSMA to Indigenous Métis who are descendants of the

Métis People of the Northwest Territories who emerged prior to the Crown taking effective

control of their traditional lands, including the North Slave area. It also stated that the NSMA’s

purposes and objects included promoting the recognition of the Aboriginal rights and title and

Page: 84

treaty rights of the community of indigenous Métis of the North Slave area of the Northwest

Territories and advancing and supporting their constitutional, legal, political, social and

economic rights: Enge at paras 40, 205.

[376] In Campbell, a timber licence had been issued to the respondent logging company.

Litigation was commenced, on behalf of an indigenous group of people who had historically

identified themselves as Sinixt, seeking declaration of Aboriginal title to certain lands. The

Directors of the Sinixt Nation Society [Sinixt Society] brought petition for an order quashing the

licence on grounds that the Crown had breached its constitutional duty to consult the Sinixt. The

Minister brought application for order that the petition be dismissed on grounds that petitioners

were without authority to advance claims or obtain relief sought, and that they lacked requisite

standing to bring the petition.

[377] Willcock J, of the Supreme Court of British Columbia, noted that there were competing

claims to represent whatever rights were still possessed by the Sinixt. In November 2009, the

Okanagan Nation Alliance made a submission to British Columbia Hydro in which the Alliance

took the position that the Sinixt were not a distinct indigenous nation, but were part of the

Okanagan Nation Alliance and shared the Syilx culture. The Alliance claimed that the last

registered member of the Arrow Lakes Band died in 1953 on the Okanagan Indian Band Reserve

near Vernon, and left many ancestors who were present-day members of that band and who were

thus represented by the Alliance: Campbell at para 51.

[378] The Colville Confederacy also claimed to speak on behalf of the Lakes People. The

Colville Business Council, on behalf of the Confederacy, had filed a British Columbia land claim

in the early 1990s. That claim had been controversial among the Sinixt. A hereditary chief of the

Sinixt Arrow Lakes Nation wrote to request that the Business Council abandon the claim and

questioned its authority to represent the Sinixt. He complained that the Colville Confederacy’s

negotiating team consisted of three Arrow Lakes descendants and one representative whose

affiliation with the Sinixt could be of inadequate Arrow Lakes blood degree: Campbell at para

53.

[379] The Sinixt Society was incorporated and its purpose was to provide education with

respect to the historical, social, and ceremonial characteristics of the Sinixt people and to

administer the interests of the Sinixt Nation in accordance with a Sinixt Manifesto. In order to be

accepted for membership as a mxgxia or blood member, a person had to be a blood descendant

of the Sinixt people. Non-blood members could not serve as directors or vote. The application

forms required applicants to affirm their identity as blood members of the Sinixt Nation. No

information with respect to language, culture or tradition was sought on the application form.

Many applications contained no information with respect to lineage. The directors of the Sinixt

Society assessed eligibility for membership but did not, or could not, expressly describe the

criteria that they used. The directorship consisted of the petitioners in the proceedings. When

they were elected directors, there were only six blood members of the Sinixt Society present:

Campbell at paras 58-59, 64-65. There was evidence of the contemporary presence in Canada

and the United States of people who claim to be descended from Sinixt ancestors. The exact

numbers of Sinixt and their location was not certain, and there was limited information on the

lineage of the members of the society: Campbell at para 39.

[380] The court stated that representative proceedings could be brought where the collective on

whose behalf the claim is made is determinable by stated objective criteria. The petition

Page: 85

described the rights-bearing group as an Aboriginal First Nation, the Sinixt Nation, which is not

a legal entity and which was not defined in a manner that permitted its membership to be

determined. The petitioners would not regard proof of an ancestral connection to the members of

the Arrow Lakes Band as a necessary condition for membership in the collective they sought to

represent. It was one of their objectives to establish other broader criteria for membership and to

represent a collective that included descendants of individuals excluded from that now-extinct

band: Campbell at paras 139-143.

[381] The petitioners argued that it was the prerogative of an Aboriginal community to

determine its own membership, and that the Constitution Act, 1982 protected rights of

unrecognized as well as recognized Aboriginal communities. The court agreed but noted the

rules will only permit a representative proceeding to be brought on behalf of a group that is

capable of objective definition. A claim by an existing Aboriginal collective to land rights will

only be permitted if the ancestral connection of its members to the members of an Aboriginal

collective and occupation at the time of the exertion of sovereignty is pleaded with sufficient

particularity. Requiring such particulars does not permit or require the court to determine who

belongs to an Aboriginal collective, but rather requires the community itself to describe how the

group is composed, using objective criteria: Campbell at paras 144-145.

[382] The court in Campbell noted that the membership criteria were vague. The Sinixt

Society’s Bylaws permitted only blood descendants of the Sinixt People to be admitted into

membership, but did not define how an applicant’s status as a blood descendant was to be

established. There did not appear to be any bar to seeking membership on the basis of remote

ancestry, nor was there any explicit requirement for membership in the Sinixt Society that

applicants be connected by language, customs, tradition, or shared historical experience. The

application form did not seek any evidence of community recognition; such as recognition

granted by the Sinixt Society Board. Because the Bylaws did not stipulate what criteria could be

considered by the Board in exercising its discretion to grant admission, membership in the Sinixt

Society, like recognition as membership of the Sinixt Nation, could depend entirely upon the

exercise of the discretion of the directors of the Sinixt Society who were petitioners in the

proceeding. The evidence did not support the argument by the petitioners that the Sinixt Society

was the only group among rival representative groups that was open to every member of the

nation. Even where there was evidence of ancestral connection, membership appeared to be at

the discretion of the directors: Campbell at paras 146-149.

[383] Willcock J stated that in the absence of any objective criteria for membership in the

collective bringing the petition, the petitioners could not say that membership in the rights-

bearing collective was determinable by what they referred to as the three Powley factors:

ancestral connection, self-identification, and community acceptance. The membership in a class

must be determinable by stated objective criteria: Campbell at para 150.

[384] Willcock J stated that definition of the contemporary rights-bearing community is

essential for the purpose of ensuring that there are no conflicts inherent in the representative

proceedings and for ensuring that the representatives are appropriate: Campbell at para 154.

[385] The petitioners in Campbell also argued that by virtue of the Crown’s prior dealings with

the Sinixt Society, the Crown was estopped from denying that the petitioners were appropriate

representatives of the Sinixt’s interests. The petitioners pointed to consultations with a range of

public and Crown corporations and Crown agencies, particularly emphasizing ongoing

Page: 86

communications with BC Hydro. Willcock J noted that while it is possible for the Crown to be

estopped when it has previously engaged with a representative body as if they were the agent of s

35 rights-bearers, the prior dealings in the case before him did not assist in determining the

composition of the collective on whose behalf the petitioners should have standing: Campbell at

paras 155-156, citing Labrador Métis Nation at paras 60, 68.

[386] The British Columbia Supreme Court [BCSC] stated that in order to ensure that conflicts

are not inherent in the proceedings, it is essential that the group be defined in terms consistent

with the definition of a section 35 rights-bearing group. If that is not the case, the petitioners will

represent groups with divergent interests. The evidence did not permit membership in the

collective to be tested against any criteria to determine that the petitioners were authorized by an

appropriate rights-bearing group. Members of the Okanagan Nation Alliance, members of the

Lakes Tribe of the Colville Confederacy, and non-registered individuals could all claim Sinixt

ancestry: Campbell at paras 157-159.

[387] The petitioners represented only one segment of the Sinixt, those who have determined

that their interests cannot and should not be represented by the Aboriginal collectives into which

the Lakes People merged in the period from the late 1800s to 1956. There was sufficient

evidence on the application to establish that they were authorized to speak for those who had

been active in seeking a separate voice to speak for the Sinixt, but they did not purport to speak

only for those disaffected members of other recognized communities. They purported to speak

for all Sinixt. Willcock J concluded this was an inadequate basis to say they could properly

represent that broad group and noted that the Okanagan Nation Alliance and the Colville

Confederacy denied that they did so. Both the Colville Confederacy and the Okanagan Nation

Alliance had purported to speak for the Sinixt. Those groups spoke for persons whose identities

were determinable by objective criteria and the source of their authority and the nature of their

representation were also determinable: Campbell at paras 160-162.

[388] The BCSC concluded that it was bound to dismiss representative proceedings where the

proposed class or collective for whom the action was brought was not defined in a manner that

permitted its membership to be determined by objective criteria: Campbell at para 166.

[389] In Kane at para 55, the Saskatchewan Court of Queen’s Bench also held that the “proper

applicant for a judicial review application in a consultation proceeding would be the rights-

bearing community itself or an individual member of the community in a representative capacity

on behalf of all other members of the community.” Similarly, an authorized corporate entity can

be the vehicle for enforcement of the Crown’s duty to consult particular Aboriginal

communities: Moulton, supra.

[390] The above discussion demonstrates that the courts have had some opportunity to consider

the issue of representation of Métis rights-bearing communities in enforcing their Aboriginal

right to consultation. The key lesson that emerged from this jurisprudence is that the organization

purporting to represent the rights-bearing community must be able to demonstrate that it had

been authorized by the rights-bearing community to do so.

Page: 87

Is FCM Local the Legal Representative of the Fort Chipewyan Métis Community?

[391] At the core of this application, and the issue of who can trigger the duty to consult, is the

question whether the FCM Local, as an organization registered under the Societies Act, is in fact

the legal representative of the Fort Chipewyan Métis Community, as it claims.

[392] In its First Decision Letter, the ACO having reviewed the materials provided by the FCM

Local, concluded that it did not have “enough” (or sufficient) information to determine whether

there is a credible assertion that the FCM Local is a rights-bearing community. The Alberta

Crown clarified in its written submissions that the problem relates to the FCM Local’s standing,

as the FCM Local has not satisfactorily demonstrated to the ACO that it has the authority to

represent the Fort Chipewyan Métis Community.

[393] In this regard, the Record before me demonstrates that in its 2010 Strategic Plan, the

FCM Local identified its “lack of membership” as one of its weaknesses. The Record also

indicates that in August 2012, President Fraser stated that the FCM Local had 173 members (110

adults, 46 youth and 17 seasonal presence). He estimated the population of the Fort Chipewyan

Métis Community to be between 350 and 400 individuals. President Fraser also stated that some

of these individuals may have membership status with the MNA and not the FCM Local.

President Fraser asserted that the FCM Local represents this entire “Métis community-specific

origin group” numbering over a thousand individuals.

[394] Further, the Record indicates that in January 2013, the FCM Local wanted “to assess the

question of ‘who’ the Fort Chipewyan Métis Community speaks for in respect to collective

rights” in a Scope of Work for a genealogy project. In the November 26, 2014 CNRL Response

Letter President Fraser stated that a great number of people who leave Fort Chipewyan end up

leaving for extended periods of time, but often return, and non-resident Métis frequently harvest

with family in their traditional territory, view Fort Chipewyan as home and keep close ties to the

land and people. He indicated that the FCM Local is “obliged to represent all Métis as the

primary voice for the MNA in Fort Chipewyan.” President Fraser stated that if a Métis person

living outside of Fort Chipewyan has an ancestral connection to Fort Chipewyan, then the FCM

Local represents them for Crown consultation purposes.

[395] Notwithstanding this information on Record, FCM Local argues before this Court that it

does not have to prove that it represents a community of rights-bearing Métis people, it only has

to make a credible assertion. I disagree.

[396] This Court recognizes that generally, Métis claims belong to the category described as

“claims of unorganized Aboriginal collectives.” Nevertheless, and based on the existing

jurisprudence discussed above, I am satisfied that the FCM Local is required to substantiate its

claim as the representative of the Fort Chipewyan Métis Community, and demonstrate that it has

been charged with the authority to deal with the Alberta Crown in relation to the collective

Aboriginal rights owned by the Fort Chipewyan Métis Community. Simply put, the FCM Local

has to establish that it has the authority of the Fort Chipewyan Métis Community to act on its

behalf before the Alberta Crown can deal with it as a representative of the Community.

[397] The question then becomes: Who speaks for Fort Chipewyan Métis Community? That

question was answered by the BC Supreme Court in Campbell at para 162, which can be

Page: 88

paraphrased thus: The legal entity whose source of authority and nature of its representation are

demonstrably determinable would have the appropriate legal standing to speak for the Fort

Chipewyan Métis Community that is the Aboriginal collective right-bearer.

[398] The FCM Local contends that the issue as to its legal standing was resolved by the

Alberta’s Métis Harvesting Policy. The FCM Local says that the community it represents has

been identified as a contemporary Métis community under the province of Alberta’s Métis

Harvesting Policy, which also recognizes the 160 km radius around Fort Chipewyan as its

harvesting area.

[399] However, notwithstanding this Court’s decision to assume, for the purpose of this judicial

review, that the Alberta’s Métis Harvesting Policy provide some prima facie evidence that the

Fort Chipewyan Métis Community is a rights-bearing community within a 160 km radius of Fort

Chipewyan, there is nothing in the Policy to confirm that the FCM Local is or would be the

appropriate representative to speak on behalf of the Fort Chipewyan Métis Community in

asserting rights and claiming Crown consultation.

[400] Further, the FCM Local asserts that it is a branch of the MNA and an association, which

acquired its corporate personality through registration under the Societies Act, with a volunteer

Board of Directors and a staff of two to three people working for it.

[401] On this Record, I observe that there is no clear evidence on the nature of the relationship

between the FCM Local and the MNA. Nonetheless, even if FCM Local’s position is accepted

that it is a branch of the MNA, the existing caselaw has established that membership in the MNA

alone does not confer any legal Aboriginal rights on the member: Boucher QB at para 35. Our

Court of Appeal in Boucher v Métis Nation of Alberta Association, 2009 ABCA 5 at para 7,

448 AR 185 [Boucher CA] held that:

The [MNA] is a voluntary society incorporated under the Societies Act. Its powers

come largely from consent and implied contract. No one is forced to join the

respondent Métis Nation Association of Alberta. Alberta legislation does not

require membership in it to join a Métis Settlement or get a land allocation. The

Association is not a Métis Settlement, and does not run any of the Métis

Settlements. People with Aboriginal rights have important rights which other

people do not have, but they have them irrespective of membership in this

association. The majority of Albertans are not eligible to join this Association

even if they seek to do so. In my view, this voluntariness aspect is very important.

[402] The Alberta Court of Appeal’s decision in Boucher CA applies to FCM Local as well.

First, assuming FCM Local is a branch of the MNA, the decision applies directly to it. Second, if

FCM Local is not a branch of the MNA, it remains a voluntary society incorporated under the

Societies Act, and thus the decision in Boucher CA is equally applicable to it. Third, FCM

Local’s authority derives from consent and implied contract, as such other members of the Fort

Chipewyan Métis Community who do not consent to its authority would not cease to be Métis

holding Aboriginal rights by virtue of their refusal to give (or withdrawal of) consent.

Consequently, it is logical to conclude that the FCM Local as an Association is not the same as

Fort Chipewyan Métis Community, and does not run or govern Fort Chipewyan Métis

Community. In other words, FCM Local is an “Association [that] is set up and sustained by

Page: 89

agreement among its members, and given corporate personality by the Societies Act ....[which]

does not purport to grant [governmental] powers”: Boucher CA at para 10.

[403] While it is permissible for a corporate entity to be the vehicle for enforcement of the

Crown’s duty to consult particular Aboriginal communities, the corporate entity can only do so if

it can establish to the court’s satisfaction that it has the authority of the communities it purports

to represent: Moulton, supra; Campbell, supra; Labrador Métis Nation, supra; Komoyue

Heritage Society v British Columbia (Attorney General), 2006 BCSC 1517; CED Aboriginal

Law IV.3.(f), §179.

[404] In other words, although an incorporated society may be able to represent an Aboriginal

group, it must first demonstrate that it has authority to represent the group for that specific

purpose. That authority, regarding the representation of Fort Chipewyan Métis Community, has

not been established by the FCM Local on this Record.

[405] That conclusion takes me to the next issue of multiple representations that has arisen

regarding the question of who has the legal standing to represent Fort Chipewyan Métis

Community. The FCM Local states that while the MNA represents the Métis community

politically, only the FCM Local can address consultation and sign off on impacts of Projects.

[406] On this question, the Record before me shows that both the FCM Local and the MNA

Region 1 filed statements of concern in relation to the Project, and are being consulted by Teck.

Also, the Record indicates that at the Shell Jackpine Hearing, the MNA represented various other

Métis groups, including the FCM Local, and individuals in the region from Lac La Biche to Fort

Chipewyan. Significantly, as well, the President of the Métis National Council testified at the

Hearing that the MNA has the responsibility and jurisdiction to look at accommodation and

consultation within Alberta.

[407] Thus, the Record demonstrates conflicting claims by the MNA, MNA Region 1, and the

FCM Local that each of them has the authority to represent the Fort Chipewyan Métis

Community. In this vein, I observe that the ACO had before it the transcript of the President of

the Métis National Council, Mr. Chartier, which opposed the fragmentation of representation

beyond the regional level. Obviously, this evidence would have made it problematic for the ACO

to determine which one of these three groups – MNA, MNA Region 1, or FCM Local – has the

authority of Fort Chipewyan Métis Community to speak for it for the purpose of asserting its

Aboriginal rights and consultation.

[408] In a situation where the MNA, MNA Region 1, and the FCM Local purport to represent

the Aboriginal rights holding Métis of Fort Chipewyan with respect to consultation, it is obvious

that ascertaining who speaks for the Métis in asserting Aboriginal rights and seeking Crown

consultation becomes a critical issue to be resolved. As such, this Court agrees with the Alberta

Crown’s submission that it would amount to a waste of resources for the Alberta Crown to

potentially have to consult with several separate organizations who state that they represent

smaller or larger subsets of the same group in respect of the same interests and the same project.

It is efficient and justifiable for the Alberta Crown to seek some assurance that it is consulting

with the authorized representative of an Aboriginal collective: Red Chris at paras 39 and 41-44.

Page: 90

[409] Given the difficulty of identifying which of the competing corporate entities actually

possesses the authority and legal standing to represent Fort Chipewyan Métis Community in

respect of the relevant projects, this Court concludes that the decision of the ACO – that the

Alberta Crown’s consultation with the FCM Local will not be required – is justifiable as an

acceptable outcome that is defensible in respect of the facts and law: see, Campbell at para 51;

John Voortman & Associates Ltd v Haudenosaunee Confederacy Chiefs Council, [2009] 3

CNLR 117 at para 73, 2009 14797 (Ont SCJ).

[410] Further, on this Record, the evidence of President Fraser on the actual membership of the

FCM Local vis-à-vis the estimated population of Fort Chipewyan Métis Community, which at

various times has vacillated between 350, 400 to 1,000, has not been helpful. The FCM Local’s

membership is described vaguely and loosely. Its membership constitutes less than one-fifth of

the population it states it represents for the purpose of asserting rights and seeking consultation

and that the remaining population may be members of the MNA.

[411] On an objective basis, it is difficult for this Court to accept (or reconcile) the claim by the

FCM Local, having a membership that currently stands at 173 members, with the fact that the

corporate entity purports to represent the Fort Chipewyan Métis Community, with a potential

population of between 350 to 1000 individuals. In other words, a corporate entity with a

membership of less than one-fifth of the total population of Fort Chipewyan Métis Community

cannot claim to be representative of the entire Aboriginal community for the purpose of asserting

Aboriginal rights and seeking consultation.

Estoppel

[412] The Applicant FCM Local also infers its standing as the representative of the Fort

Chipewyan Métis Community from the fact that “high-ranking politicians” in the province of

Alberta either met with the President of FCM Local or exchanged correspondence with it. The

FCM Local further claimed a standing to represent Fort Chipewyan Métis Community based on

the Crown’s October 10, 2012 SOC Letter, which accepted its SOC as official, pursuant to the

EPEA and Water Act.

[413] In terms of the argument that the FCM Local either met with or exchanged letters with

officials of Alberta Crown, I agree with the Crown that these interactions alone are not

conclusive of FCM Local’s legal standing as the representative of the Fort Chipewyan Métis

Community. The argument that the Alberta Crown’s acceptance of a SOC in relation to the

subject Project is evidence of the Crown’s recognition of the unity of FCM Local’s identity with

that of Fort Chipewyan Métis Community is non-sequitur.

[414] The Record indicates that all correspondence from the Designated Director to the FCM

Local about the SOC specifically referenced the EPEA and Water Act provisions. None of the

correspondence mentioned consultation.

[415] The October 10, 2012 SOC Letter by the Designated Director stated that the FCM

Local’s SOC is considered official, pursuant to the EPEA and the Water Act and, therefore, it

would be advised of the Director’s decision on those applications. The Designated Director

referenced the fact that the FCM Local asserted Aboriginal rights in its SOC, and specifically

Page: 91

advised that the SOC process does not allow his Department to take any position on the asserted

claims and encouraged FCM Local to contact AR if it wished to pursue rights assertions. Both in

2012 and 2013, the FCM Local wrote to Alberta on a number of occasions and asked that

Alberta create a Métis-specific consultation process.

[416] This Court does not accept that representation is conferred on FCM Local by a process of

estoppel. FCM Local’s participation in the regulatory process for projects under the EPEA and

the Water Act is separate from the issue of Fort Chipewyan Métis Community’s assertion of

Aboriginal rights and consultation. They should not be conflated. In O’Chiese First Nation at

paras 41-42, McDonald, JA stated that the Crown’s duty to consult cannot be conflated with the

very specific wording of both the Responsible Energy Development Act, SA 2012, c R-17.3, and

the Public Lands Act, RSA 2000, c P-40. See also, Fort McKay at paras 17, 19.

Privacy issue

[417] In its August 2012 SOC Letter (and another letter written on October 16, 2012), the FCM

Local advised that it does not have the consent under privacy legislation to provide further

information on the details of each of FCM Local’s members.

[418] On privacy concerns that FCM Local raised as a barrier to the provision of certain

information requested by the ACO, the Alberta Crown submits that sections 1-8 of the Personal

Information Protection Act, SA 2003, c P-6.5 [PIPA], and section 36 of the Societies Act are

instructive. Those legislative provisions permit an organization to disclose its members’ personal

information either with their consent or on notice. The Crown contends that FCM Local’s

inability to obtain the consent of “its members to use their personal information” for the assertion

of Aboriginal rights and consultation suggests that the FCM Local does not have its members’

authority to represent them.

[419] The FCM Local cannot use the concept of privacy law to avoid the legal requirement of

demonstrating the source of its alleged authority to represent the Fort Chipewyan Métis

Community. Significantly, the information that could assist FCM Local in discharging that onus

is exclusively within its control as the entity that was registered under the Societies Act, and

statutorily obliged, pursuant to section 36(1) of that legislation, to “keep a register of its

members containing the names of the applicants for incorporation and the name of every other

person who is admitted as a member of the society.” In addition, it is noteworthy that sections 1-

8 of the PIPA permit an organization to disclose personal information of an individual member,

where s/he has given “consent in writing or orally to the collection, use or disclosure” of the

personal information.

[420] Given these legislative provisions, I agree with Alberta Crown’s submission that, in the

absence of any explanation as to why these privacy concerns could not be addressed through

alternative options or avenues, the FCM Local is unable to rely on that concept to avoid its onus

of establishing the source of its authority to represent the Fort Chipewyan Métis Community by

providing the information on its members as required by the ACO, being the decision-maker that

needed to determine whether or not FCM Local is the appropriate entity to consult with: Ka

‘a’Gee Tu at para 130.

Page: 92

Conclusion on FCM Local’s Representation

[421] Based on my review of the Record, and in light of the applicable law, I am not satisfied

that the FCM Local has demonstrated that it has been authorized by the rights-bearing

community – which, for the sake of convenience, I have referred to as the Fort Chipewyan Métis

Community – in enforcing their Aboriginal right to consultation. In this context, I observe that in

the written briefs of the FCM Local as well as the Record, there are numerous situations where

the FCM Local appears to merge or blend its separate identity with the Fort Chipewyan Métis

Community. In considering this judicial review application, it is important for this Court to

clarify that it has treated the FCM Local as an organization registered under the Societies Act,

which is distinctive from the Fort Chipewyan Métis Community.

[422] Even if the FCM Local had the requisite authority (demonstrated by way of, for example,

its Bylaws), I am also not satisfied from the Record that the FCM Local represents a sufficient

number of the Fort Chipewyan Métis Community to be actually representative. At FCM Local’s

membership of less than (or approximately) one-fifth of the community’s population, the FCM

Local appears to represent only a portion of the Fort Chipewyan Métis Community.

[423] Finally, the lack of clarity and apparent conflict between the FCM Local and the MNA

Region 1 as to representation of the Fort Chipewyan Métis Community regarding the

community’s Aboriginal right to consultation leads me to conclude that the issue of the FCM

Local’s authority to act on behalf of that community is far from clear or well established.

B. Test Part 2 – Contemplated Crown Conduct That Engages Aboriginal Claim Or

Right

[424] The Alberta Crown in its written submissions indicates that “Alberta does not take issue

with the “Crown conduct” component of the test for the duty to consult for the purpose of this

Application”: Alberta Crown’s Written Brief, at para 133, footnote 169.

Analysis and Conclusion – re Test Part 2: Contemplated Crown Conduct

[425] The law in relation to this part of the test requires this Court to assess whether the

proposed Crown conduct, action or decision may impinge on an Aboriginal right or engage a

potential Aboriginal right: Rio Tinto at paras 33, 42-44.

[426] The Court must first consider process issues involved in the planned proposed measure

and whether the process contemplated is compatible with the honour of the Crown, whether or

not the facts of the case would otherwise support a finding of infringement of Aboriginal rights.

An Aboriginal group may be entitled to set aside a government decision on the basis that the

process leading to the decision was not reasonable: Mikisew at para 59.

[427] Since the Alberta Crown concedes this component of the test, there is no need for me to

say anything further on this element of the test.

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C. Test Part 3 – Adverse Impact on Asserted Métis Rights

The FCM Local’s Submissions

[428] In accordance with its First Nations Consultation Policy, the Alberta Crown considered

the nature of the Project and the typical impacts from an open pit oil sands mine and determined

that the Project may have an adverse impact on the exercise of Treaty Rights and traditional uses

(including the rights to hunt, fish, trap and gather plants for food), held by First Nations. The

FCM Local argues that the impacts on neighboring First Nations’ rights to hunt, fish and trap are

sufficiently similar to the impacts on the FCM Local’s asserted rights to hunt, fish and trap, such

that the Crown must acknowledge the Project may impact asserted Métis rights.

[429] The FCM Local argues that the approval of the Aboriginal Consultation Plan in 2008 by

the Alberta Crown is dispositive of this issue and the Alberta Crown cannot reasonably deny the

potential for adverse impacts arising from its decision to approve the Project.

[430] The FCM Local notes that, on October 10, 2012, the Designated Director accepted the

FCM Local’s letter and confirmed that the SOC was considered official pursuant to EPEA and

the Water Act. He then advised the FCM Local that the SOC does not allow his Department to

take any position on the asserted claims. The FCM Local submits that by accepting the SOC, the

Alberta Crown must have concluded that the Project could have impacts on the FCM Local’s

rights which they cannot now deny.

[431] In addition, the FCM Local asserted the following adverse effects to its Aboriginal rights

to hunt, fish, trap and gather, which were never disputed by the Alberta Crown:

a.

b.

c.

d.

e.

Contribution to cumulative impacts, including the Peace-Athabasca Delta

area which is culturally significant to the FCM Local;

Reduced water flow to the Athabasca River and to tributaries of the Peace-

Athabasca Delta;

Risk to the ability of Big (Oakley) Lake to sustain itself, and impacts to

surrounding waterfowl;

Environmental risk associated with the long-term storage of tailings and

the reliance of mine plans on new and unproven technologies;

Negative impacts to the Ronald Lake Wood Bison herd, woodland

caribou, moose and other wildlife due to habitat removal;

f.

The unproven track record for reclamation in the oil sands;

g.

The FCM Local members are avid harvesters and will be impacted by the

conversion of 290 km2 of boreal forest to mining, with associated tailings

ponds and water withdrawals;

Page: 94

h.

Traditional activities practiced in Wood Buffalo National Park (FCM

Local members have more than 20 active trap lines in the Park) will be

affected due to impacts to the Athabasca River and the Delta;

i.

Concerns about tailings and water use and recycling;

Concerns about mallards; and

j.

k.

Concerns about reclamation plans, including traditional medicines and

seed selection.

[432] In addition to these impacts, Teck reported to the Alberta Crown 25 pages of Aboriginal

community concerns in its 2012 Application for the Project in categories such as acoustics, air

quality, groundwater, hydrology, surface water quality, fish and fish habitat, terrain and soils,

vegetation, wildlife, human health, paleontology, historical resources, resource use, visual

aesthetics, traditional land use, Peace-Athabasca Delta, and socio-economics.

The Alberta Crown’s Submissions

[433] The Alberta Crown argues that a party claiming a duty to consult must present some

evidence to establish a causal connection between the proposed project and a potential for

adverse impacts on a credible claim/to site-specific Aboriginal rights. The FCM Local has failed

to provide any such evidence in this case.

[434] In acknowledging that it has very little information about its members’ current land use

or the potential impacts of the Project, the FCM Local has continually referred the Alberta

Crown to the Hermansen Biography and the transcripts of Ms. Hermansen’s testimony at the

Teck Winter Drilling Hearing. The FCM Local has stated that impacts to one member are shared

on a community-wide basis, and therefore should suffice to trigger consultation.

[435] The Alberta Crown argues that the FCM Local’s approach appears somewhat

contradictory. It asserts that information from just one member about primarily historic use of

the Project area should suffice to trigger a Crown duty to consult about Aboriginal rights, but

that same information is not sufficient to provide a meaningful baseline from which to assess

impacts to the Métis of Fort Chipewyan. In any event, Ms. Hermansen did not provide any

information as to how the Project might impact her family’s use of the trap line area. She

testified at the Teck Winter Drilling Hearing that she had not been to the trap line area in 15

years, that the trap line could not really be called a trap line anymore, and her son would be the

one who could speak to any adverse impacts. If anything, her testimony appears to address past

impacts on the trap line, not potential impacts from the Project and not impacts on the exercise of

any asserted communal harvesting rights.

Environmental Concerns are not Potential Adverse Impacts to Asserted Rights

[436] The Alberta Crown observes that in the FCM Local’s Brief, it includes a lengthy list of

what it identifies as adverse impacts to Aboriginal rights which it alleges the Alberta Crown

never disputed. The Alberta Crown maintains that the list does not identify how the Project could

Page: 95

potentially impact the exercise of asserted rights. The concerns are general and primarily

environmental in nature.

[437] The Alberta Crown argues that the concerns contained in the FCM Local’s list were

generated from Teck’s Consultation Records, and are environmental concerns raised by all

Aboriginal communities taking part in the regulatory process. They are not specific to the FCM

Local and do not identify potential impacts on rights. Nor did the FCM Local provide this list to

Alberta in response to any request for information about impacts to asserted rights. The Crown

argues that the FCM Local cannot now rely on information culled from the record about its

environmental concerns – information that the FCM Local never provided to the Alberta Crown

in support of its requests for consultation – and rely on that as a basis for arguing that the Alberta

Crown somehow acknowledged the potential for adverse impacts to asserted rights.

[438] In this regard, the Alberta Crown notes that the statutory test for acceptance of an SOC

under EPEA and the Water Act is not the same as the common law test for triggering the duty to

consult. The SOC process centers on the issue of whether the EPEA and Water Act approvals

may directly affect any individual or organization – there is no requirement for a credible

assertion of rights. The Alberta Crown point to the fact that, in accepting the FCM Local’s SOC,

the Designated Director specifically advised President Fraser that neither he nor the Department

could take any position on the FCM Local’s asserted rights and directed him to AR: EPEA, s 73;

Water Act, s 109; O’Chiese First Nation, supra; and Fort McKay at paras 17, 19.

[439] The Alberta Crown also argues that there is no foundation to the FCM Local’s

submission that the Alberta Crown acknowledged the potential for adverse impacts to the FCM

Local’s asserted rights by accepting Teck’s Consultation Plan. Teck’s Consultation Plan

specifically states that Teck is consulting with Métis as a matter of best practice and out of a

desire to develop mutually beneficial relationships with Aboriginal communities in the region,

despite the Alberta Crown not requiring Métis consultation.

The FCM Local is Conducting Project-Specific Studies

[440] The Alberta Crown notes that the FCM Local has repeatedly advised that, along with

needing a genealogy to determine who it represents, it needs a project-specific TLU in order to

assess its members’ rights and uses and the potential impacts of the Project. The Record

demonstrates that Teck has provided funding to the FCM Local for preparation of both a Project-

specific TLU as well as a Cultural Impact Assessment. As of the time of issuance of the Second

Decision, the FCM Local had not provided the Alberta Crown with its Cultural Impact

Assessment or its TLU.

[441] The Alberta Crown maintains that since the FCM Local has not provided the Alberta

Crown with any information about potential impacts of the Project on its members’ rights and

uses and has admitted that it requires a project•specific TLU in order to gather this information,

it was reasonable for the Alberta Crown to determine that the FCM Local had not met its onus to

establish that the Project could potentially adversely impact any asserted rights and, therefore,

consultation is not required at this time.

[442] Again, the Alberta Crown comments that it has continually advised the FCM Local that it

is open to revisiting the issue of consultation and invited the FCM Local to provide any new

information received, which would include the TLU and Cultural Impact Assessment.

Page: 96

[443] The Alberta Crown argues that the duty to consult is not triggered in this case as the FCM

Local has failed to demonstrate that the Project may adversely impact any such rights. The

Supreme Court of Canada has clearly stated that, in order to trigger a duty to consult, an

Aboriginal group must show a causal relationship between the proposed project and a potential

for actual foreseeable adverse impacts to a credible claim to Aboriginal rights. There is no at-

large duty to consult which is triggered anytime development is proposed; rather, there must be

some non-negligible impact to site-specific rights.

[444] The Alberta Crown submits that even though the threshold to trigger the duty is low, it

must remain a meaningful threshold. There needs to be an evidence-based potential for a

possible impact, the evidence must be linked to the approval under consideration, and must

constitute more than mere submissions or generalities. Adverse impacts must be appreciable,

clear, established and demonstrably adverse to the continued exercise of rights. The Crown is not

obliged to consult about speculative or hypothetical impacts.

[445] In this regard, the Alberta Crown contends that the Record demonstrates that in seeking

consultation:

•

The FCM Local has never defined its Traditional Territory, but has

admitted that it does not correspond to the 160 km area defined in the Métis

Harvesting Policy; and

•

The FCM Local has admitted it does not have information about the Fort

Chipewyan Métis’ community’s current use of the Project area, or how the

Project might impact such uses and requires a TLU.

[446] Accordingly, the Alberta Crown submits that the FCM Local has failed to meet its onus

of establishing that the Project might adversely impact asserted rights.

Analysis and Conclusion – re Test Part 3: Adverse Impact on Asserted Métis Rights

[447] Although the conclusion on the FCM Local’s problematic position on representation is

sufficient to dispose of this judicial review application without considering the issue of whether

the Project may adversely impact the asserted rights in this instance, I will nonetheless assess the

issue.

[448] In that context, I note that in Fond du Lac at paras 210-212, a proponent applied to the

Canadian Nuclear Safety Commission to renew its operating licence for uranium mine and mill,

and for incorporation of care and maintenance activities at a second mine site into the renewed

licence. Both First Nation and non-First Nation communities participated in a public hearing

before the Commission, after which the Commission granted the proponent’s application. An

application for judicial review was brought and was dismissed due to issues of standing and the

requirement that they be directly affected by the decision. The Federal Court stated:

210

[T]he duty to consult may not be triggered at all where there is a relatively

minimal adverse effect on claims to Aboriginal title or rights or treaty rights

claims. In The Duty to Consult: New Relationships with Aboriginal Peoples

(Saskatoon: Purich, 2009 at page 34), Professor Dwight Newman summarizes

when the duty to consult may be triggered:

Page: 97

The application of the triggering test is obviously far from simple. Where

government departments are uncertain about whether their action triggers a

duty to consult, the safer course may be to act as if it did and extend at least

notice of the proposed action to potentially affected Aboriginal

communities….

Government departments need not consult in circumstances where there are

overriding doubts about the Aboriginal title or right or treaty right. They need

not consult in circumstances where there is no plausible adverse effect on an

Aboriginal claim…. However, it is not always easy for government officials to

make those determinations with certainty, which may support the notion that to

avoid the risk of not consulting in circumstances where consultation should

have occurred, where there is any argument for doing so and it is practical to

do so, at least notice to Aboriginal communities should be extended. It would

be impractical to consult on every governmental decision, though, so there is a

need for good judgment in applying this principle.

211 For the duty to consult to arise there must be some evidence presented to

establish an adverse impact on Aboriginal rights. Further, evidence to support the

finding of an interference with a specific or tangible interest must be linked to the

project or decision under consideration and must constitute more than mere

submissions or generalities.

212

In [Ojibway Nation at para 34], the Federal Court confirmed that no at-

large duty to consult arises in the absence of an unresolved non-negligible impact:

I do not question that the above statements reflect a profoundly held concern

not only of Chief Nelson but of others in the Manitoba Aboriginal community.

The problem is that to establish a procedural breach around projects such as

these there must be some evidence presented which establishes both an adverse

impact on a credible claim to land or to Aboriginal rights accompanied by a

failure to adequately consult. The Treaty One First Nations are simply not

correct when they assert in their evidence that a duty to consult is engaged

whenever the Government of Canada makes any decision related to lands in

[the] traditional territory inside the boundaries of Treaty 1. There is no at-large

duty to consult that is triggered solely by the development of land for public

purposes. There must be some unresolved non-negligible impact arising from

such a development to engage the Crown’s duty to consult.

[449] Further, in Fond du Lac at para 221, Russell J concluded that where the licensing

application sought renewal of an operating licence for a mine and mill that have been in

operation for over ten years with no new taking up of land or authorized activities, and where

there was no evidence of adverse impacts on the Applicants’ Aboriginal or Treaty rights by a

decision to grant the licensing application, any duty to consult that existed was minimal and

consisted of giving notice, disclosing information and discussing with the Applicants the issues

raised by them in response to the licensing application. The court found that all of this had

occurred.

Page: 98

[450] On the Record before this Court, the transcript from the Teck Winter Drilling Hearing

demonstrates that when Ms. Hermansen was asked about her family’s (children and

grandchildren) exercise of harvesting rights in the trap line area, as well as other community

members’ traditional land use of the area around the Project, Ms. Hermansen acknowledged that

she had not been in the area in 15 years.

[451] Due to this long absence from the community, Ms. Hermansen’s evidence fell short of

describing, from a contemporary perspective, how the Project would potentially impact the

collective Aboriginal rights asserted by the entire Fort Chipewyan Métis Community.

[452] However, in the Court’s opinion, if the evidence on Record supports the conclusion that

the Project has the potential to adversely impact Fort Chipewyan Métis Community’s credibly

asserted collective Aboriginal rights, an overlap with environmental concerns is irrelevant. In

other words, the mere fact that Fort Chipewyan Métis Community’s asserted Aboriginal rights

coincide or align with environmental concerns does not constitute a valid ground for the Crown

to ignore its duty to consult with the Métis community in Fort Chipewyan or its authorized legal

representative.

[453] Apparently, the impugned ACO’s Decision focused on the question of FCM Local’s

authority to represent the Métis Community in Fort Chipewyan, and did not address this

particular issue regarding an overlap between environmental concerns and credibly asserted

Aboriginal rights.

[454] In this regard, it is significant that the Alberta Crown indicates that it has “continually

advised the FCM Local that it is open to revisiting the issue of consultation and invited the FCM

Local to provide any new information received, which would include TLU [Traditional Land

Use] and Cultural Impact Assessment.”

[455] In the result, I am persuaded that the ACO’s Decision that FCM Local did not provide

sufficient information to the Government of Alberta in order to determine whether there is a

credible assertion that it is a rights-bearing community, and therefore, consultation would not be

required in relation to the Project, is justifiable and falls within the range of acceptable outcomes.

Adequacy of Reasons

The FCM Local’s Submissions

[456] Courts have recognized the communication of a reasoned decision is an important

element in discharging the duty to consult. In West Moberly at para 144, the BC Court of Appeal

explained:

To be considered reasonable, I think the consultation process, and hence the

“Rationale”, would have to provide an explanation to the petitioners that, not only

had their position been fully considered, but that there were persuasive reasons

why the course of action the petitioners proposed was either not necessary, was

impractical, or was otherwise unreasonable. Without a reasoned basis for rejecting

the petitioners’ position, there cannot be said to have been a meaningful

consultation.

Page: 99

[457] The FCM Local argues that no reasons were provided by the Alberta Crown when it

denied its duty to consult, and the Record reveals no hints as to the reasons for the Alberta

Crown’s decision. In addition, the FCM Local submits that the Alberta Crown’s unstructured

decision-making in this case raises a serious breach of the honour of the Crown.

The Alberta Crown’s Submissions

[458] The Alberta Crown argues that there is no basis to the FCM Local’s argument that the

Alberta Crown failed to provide adequate reasons and that it was confounded by the decision.

[459] A review of the Record, the Crown contends, does not support this statement; rather, the

Record demonstrates the events outlined below.

[460] The AER forwarded the FCM Local’s SOC to the newly constituted ACO about the

Three Projects, and confirmed that the Alberta Crown recognizes a duty to consult with Métis

communities when resource development decisions may potentially adversely impact credibly

asserted rights. The ACO advised that it administers its duty to consult with Métis collectives on

a case-by-case basis when credibly asserted rights may be potentially impacted and, as such,

asked the FCM Local to provide requested information about its membership and potential

Project impacts. The requested information related to the requirements from Powley and the

duty to consult case law.

[461] In its First Decision, the ACO referenced the material provided by the FCM Local and its

assertion that a genealogy study was underway. The ACO advised that it did not have enough

information to find a credible assertion and require consultation, but invited the FCM Local to

provide the genealogy once complete, along with any other materials.

[462] The FCM Local then asked that the ACO reconsider its decision based on extensive

supplemental materials. The ACO agreed. The supplemental information provided did not

contain the genealogy study. In its Second Decision, the ACO confirmed that it had reviewed all

of the information the FCM Local asked it to review, but that it was not sufficient to establish the

FCM Local as a rights-bearing community and therefore consultation would not be required. The

ACO advised that it had previously asked the FCM Local to provide specific information, but the

FCM Local had not provided it. The ACO further reviewed the differences between the scope

and requirements for participation in the AER regulatory process and the Alberta Crown’s

consultation process. The Alberta Crown invited the FCM Local to enter into policy discussions

about consultation and provide the required information when available.

[463] The Alberta Crown submits that the Supreme Court of Canada in Newfoundland and

Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,

[2011] 3 SCR 708 [Newfoundland Nurses], confirmed that adequacy of reasons is not a stand-

alone basis for quashing a decision of an administrative decision-maker. The Court held that it is

more of an organic exercise – i.e. reasons must be read together with the outcome and serve the

purpose of showing whether the result falls within a range of possible outcomes. And that in

addition, courts may look to the record for the purpose of assessing the reasonableness of the

outcome: Ibid at paras 14-15. Further, administrative decision-makers do not have to consider

and comment upon every issue raised by the parties in issuing a decision. For the reviewing

court, the issue remains whether the decision, viewed as a whole, in the context of the record, is

Page: 100

reasonable: Grand Riverkeeper, Labrador Inc v Canada (AG), 2012 FC 1520 at para 38, 422

FTR 299; Clyde River at paras101-105.

[464] In this case, a review of the Record, including the information the Alberta Crown

requested and the information the FCM Local provided, demonstrates that both Decisions of the

ACO were reasonable – they fell within the range of acceptable possible outcomes.

[465] The Alberta Crown submits that, given the lack of relevant information from the FCM

Local, along with its admissions about its lack of knowledge about who it represents and the

potential impacts of the Project, the ACO’s decision that the FCM Local had failed to establish a

credible assertion that it is a rights•bearing community and that consultation was not required for

the Project was reasonable.

Analysis and Conclusion – re Adequacy of Reasons

[466] The FCM Local argues that the ACO’s Decision Letters did not provide the reasons for

the Alberta Crown’s decision.

[467] Although all the arguments made by the parties in the within judicial review proceeding

were not expressly or directly made before the ACO, and neither did the ACO provide

comprehensive written reasons in its Decision Letters, it stated that it referenced the materials

and information it reviewed along with the basis for its conclusion.

[468] In this context, I note that the ACO confirmed that it reviewed all the materials and

information presented to it by the FCM Local before making its decision that “the Government

of Alberta does not possess sufficient information to determine whether there is a credible

assertion that [FCM Local] is a rights-bearing community.” The ACO went on to confirm that

“consultation with [the FCM Local] will not be required in connection with the [Projects].”

[469] The materials that the ACO listed as reviewed are documented in both its First Decision

Letter of January 2, 2015, and the Second Decision Letter, dated July 9, 2015 (emailed to FCM

Local’s legal counsel as an attachment on July 10, 2015). The lists of materials are contained in

the ACO’s Decisions reproduced earlier in this Judgment.

[470] In Newfoundland Nurses at paras 15-16, the Supreme Court of Canada says:

[15] In assessing whether the decision is reasonable in light of the outcome and

the reasons, courts must show “respect for the decision-making process of

adjudicative bodies with regard to both the facts and the law.” This means that

courts should not substitute their own reasons, but they may, if they find it

necessary, look to the record for the purpose of assessing the reasonableness of

the outcome.

[16] Reasons may not include all the arguments, statutory provisions,

jurisprudence or other details the reviewing judge would have preferred, but that

does not impugn the validity of either the reasons or the result under a

reasonableness analysis.... In other words, if the reasons allow the reviewing

court to understand why the tribunal made its decision and permit it to determine

Page: 101

whether the conclusion is within the range of acceptable outcomes, the Dunsmuir

criteria are met.

[471] In this case, the ACO Reasons, and the Record, were sufficient for this Court to

understand why the ACO made its decision, as well as permitted this Court to determine whether

the ACO’s conclusion is within the range of acceptable outcomes. In the result, and in light of

the Record, facts and law in this matter, I am satisfied that the ACO’s Reasons in its Decision

Letters are adequate for the purpose of conducting this judicial review.

What is the effect of the Federal Crown’s decision that the duty to consult FCM Local was

triggered?

[472] This Court would be remiss not to observe that the federal Crown has required Teck

Resources Limited to consult with the FCM Local.

[473] The existing jurisprudence support the legal principle that the duty to consult is divisible

between the federal Crown and the provincial Crown: Coastal First Nations v British Columbia

(Environment), 2016 BCSC 34 at para 196. In that case, Koenigsberg J held that:

[W]here action is required on the part of the Crown in right of the Province or

federal government, or has been undertaken by either – the manifestation of the

honour of the Crown, such as the duty to consult and accommodate [is] clearly

divisible by whichever Crown holds the constitutional authority to act. In this

case, where environmental jurisdictions overlap, each jurisdiction must maintain

and discharge its duty to consult and accommodate. [Emphasis added].

See also, Keewatin v Ontario (Minister of Natural Resources), 2014 SCC 48 at paras 33,

50-51, [2014] 2 SCR 447; Enge at paras 162-163, 165.

[474] In addition, I note that based on the direction of the federal Crown that Teck consult with

FCM Local, a considerable amount of consultations has transpired between FCM Local and

Teck. That development alone, however, does not translate to an obligation on the Alberta

Crown to follow suit. In this vein, caselaw indicates that even where there is evidence

demonstrating that “a considerable amount of consultation with the Applicants concerning the

Decision did occur [it] does not mean [that] a duty to consult existed”: Fond du Lac at para 208.

[475] Consequently, I conclude that the consultation undertaken by the federal Crown with the

FCM Local does not deprive the Alberta Crown of its power or authority to conduct an

independent evaluation as to whether or not the duty to consult with FCM Local is triggered.

Disposition

[476] In coming to my decision in this judicial review application that the ACO’s decision is

reasonable, I do note that the Alberta Crown has stated, continuously, that its present position

that the duty to consult the FCM Local was not triggered does not mean that the Alberta Crown

will be unable to discharge any consultation obligations that may be found to exist in the future

as it relates to the Fort Chipewyan Métis Community. The Alberta Crown’s written submissions

acknowledge this fact: Alberta Crown’s Written Brief, at paras 9, 382; Haida at paras 60-63.

Page: 102

[477] The judicial review application made by Fort Chipewyan Métis Nation of Alberta Local

#125 [FCM Local] is dismissed.

[478] The parties may arrange to speak to costs, if necessary.

Heard on the 2^ndand 3^rddays of May, 2016.

Dated at the City of Edmonton, Alberta, this 15^thday of December, 2016.

J.H. Goss

J.C.Q.B.A.

Appearances:

Keltie L. Lambert / Justine Mageau

Witten LLP

for the Applicant

Krista D. Epton / Angela L. Edgington

Alberta Justice

Aboriginal Law

for the Respondent

Page: 103

_______________________________________________________

Corrigendum of the Reasons for Judgment

of

The Honourable Madam Justice J.H. Goss

_______________________________________________________

Paragraph [407] has been corrected to read, in part: “In this vein, I observe that the ACO had

before it the transcript of the President of the Métis National Council, Mr. Chartier, which

opposed the fragmentation of representation beyond the regional level.”