Court of Queens 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 Albertas] 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  
Ministrys 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 persons  
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 Crowns 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 AENVs 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 [Tecks Application]  
to AENV, the Canadian Environmental Assessment Agency [CEAA] and the ERCB seeking  
various federal and provincial approvals for its proposed Project. Tecks Application includes a  
section specifically addressing Tecks 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. Tecks 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 Tecks  
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 Locals 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 Locals 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 Directors  
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.” AENVs 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  
Directors 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 Nationsreserves 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 Frasers 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 Locals  
SOC was official [August 27, 2012 SOC Letter]. President Fraser specifically stated:  
a.  
In FCM Locals view, all members are affected by the Project because of  
the communal nature of FCM Locals 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 Locals 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. Hermansens  
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  
memberscommercial 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 Frasers 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 Locals 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 letterand 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 Albertas  
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 dont  
[matter] its the recognition of the community and its evidence of section 35 rights. [FCM Local]  
simply point[s] to Albertas 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 Ministers 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  
Locals 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  
Rightssummarizing specific concerns raised by the participating Aboriginal groups, including  
the FCM Local, along with Tecks 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 ARs 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 Ministers questions.  
[39] On February 27, 2013, the FCM Local wrote to CEAA identifying its concerns with  
Tecks 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 Projects 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 Localsrequest for disclosure of research, the ADM referred to  
the AR Ministers 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 Locals  
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 Tecks SIR responses. Again in this SIR2, the  
Alberta Crown requested information about the FCM Local, including:  
a.  
an update on Tecks 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 Projects development and environmental assessment. Tecks SIR2 responses included an  
updated appendix of potential impacts listed by Aboriginal communities and Tecks  
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 Crowns 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 Crowns 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 Tecks SIR responses. She referred to the SOC and the FCM  
Locals official status and asked that the Alberta Crown make no decisions on any regulatory or  
other matters on any of Tecks 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 Locals legal counsel, Ms. Lambert (Ms. Bertolin and  
Ms. Lambert acted as the FCM Locals 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 Locals 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 Locals  
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  
Crowns approach to Métis consultation.  
[48] On February 10, 2014, Teck responded to the FCM Locals 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 Locals 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 groups 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 Tecks 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 Tecks  
support. On January 12, 2015, the FCM Locals consultant provided comments and  
recommendations to Teck.  
[54] The ACO reviewed the FCM Locals 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 Locals 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 FCMs 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 ACOs 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 ACOs request as it had been given official  
standing on all matters pertaining to the Project. The FCM Local provided a copy of the Alberta  
Crowns July 19, 2012 SOC Letter (from the Designated Director) and the FCM Locals 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 Locals  
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 Locals 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 Locals 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 Locals 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 Albertas 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 ARs  
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 Locals 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 16th, 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 Canadaincludes 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 Crowns duty of honourable dealing toward Aboriginal peoples arises  
from the Crowns 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 Tina Nation v Alberta (Minister of Environment), 2010 ABCA 137 at  
para 46, 482 AR 198 [Tsuu Tina]. In all its dealings with Aboriginal peoples, the Crown must  
act honourably, in accordance with its historical and future relationship with the Aboriginal  
 
Page: 23  
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 Gwetin First Nations  
and Federal Crown asserted that the proper rights holder was the community of Tsilhqotin  
people. The Provincial Crown said that the proper rights holder was the community of  
Tsilhqot’in Nation Gwetin people: Tsilhqot’in Nation v British Columbia, 2007 BCSC 1700 at  
para 43, 65 RPR (4th) 1 [Tsilhqot’in Nation (BCSC)], affd 2012 BCCA 285, revd 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  
   
Page: 24  
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 Tsilhqotin people. The  
Tsilhqotin National Government, a federally incorporated legal entity, only represented five of  
the seven Tsilhqotin communities. It does not represent either the Toosey/Tletinqox-tin Band or  
Tsilhqotin people who are members of the Ulkatcho Band at Nagwentlun (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 Tsilhqotin  
person. The court concluded that the Tsilhqotin Nation is the community with whom Tsilhqotin  
people are connected by those four threads: Ibid at para 457. The court noted that the Tsilhqotin  
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 Tsilhqotin people, any person  
in the group can hunt or fish anywhere inside Tsilhqotin territory. The right to harvest resides in  
the collective Tsilhqotin community. Individual community members identify as Tsilhqotin  
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 Tsilhqotin people. Tsilhqotin 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 Tsilhqotin people or any other subgroup within the Tsilhqotin Nation are  
derived from the collective actions, shared language, traditions and shared historical experiences  
of the members of the Tsilhqotin 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  
 
Page: 25  
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 peoples 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,  
affd 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 Tina 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.  
 
Page: 27  
[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 Haidas 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 assertionof  
Aboriginal title: Ibid at paras 69-70. The chambers judges findings grounded the Court of  
Appeals 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 Crowns 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 Tina at para 136, OBrien 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 Crowns 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 peoples 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 hardshipfor the non-Aboriginal  
population: Haida at para 48; Little Salmon at para 81.  
[101] Aboriginal claimants must not frustrate the Crowns 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 governments attempt to meet their concerns and suggestions,  
and to try to reach some mutually satisfactory solution: Mikisew at para 65; Fort McKay First  
 
Page: 29  
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 Crowns 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 Tina 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 Crowns overriding duty to  
consider their adequacy in any particular situation. This is not a delegation of the Crowns 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 Crowns 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  
   
Page: 30  
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 Crowns 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  
ACOs 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 governments 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 Tina at para 27, deference is owed to the fact findings upon  
 
Page: 31  
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  
LMNs requests to be provided with applications for all wetland and watercourse crossings, and  
adequate time to comment on them, LMN applied to quash the Ministers 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  
applications 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 respondentsclaim, 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 Crowns duty to consult; (b) the  
potential strength of the LMN communitiesclaim 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  
Page: 32  
Directors 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 Directors 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 Nations 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 Crowns 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 partiesarguments, 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).  
     
Page: 34  
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  
Page: 35  
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 administrativedecision.  
[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.  
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.  
Page: 40  
[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.  
Page: 41  
[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  
 
Page: 44  
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 Crowns) decision not to consult with the FCM Local  
reasonable?  
Page: 45  
[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.  
   
Page: 46  
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 doctrines 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