Environmental, Indigenous and Natural Resources Blog

On December 20, 2013, the Court of Appeal of Alberta released its decision in Cold Lake First Nations v. Alberta (Tourism, Parks and Recreation), [2013] ABCA 443, determining that the Alberta government had met its duty to consult the Cold Lake First Nations in the context of upgrading and expanding a provincial recreation area.  CLFN filed an application for leave to appeal this decision to the Supreme Court of Canada.  Should the Court grant leave to appeal, we will follow with interest the future ruling in this case.

Background

The English Bay Provincial Recreation Area is located on the western shore of Cold Lake, Alberta. Although the recreation area is not on Cold Lake First Nation (“CLFN”) reserve land, it is very close and contains an area known as Blueberry Point, which CLFN historically and currently uses for fishing, trapping, smoking and eating fish, picking berries and medical plants, and harvesting birch bark.

In March 2006, the Government of Alberta (Ministry of Tourism, Parks and Recreation) (“Parks”) closed the recreation area for an upgrading and expansion project (the “Expansion Project”).  In June 2006, Parks began clearing the land.  In July 2006, Parks learned that the Expansion Project would affect CLFN archeological sites and ceased construction. While CLFN was not initially notified or consulted with respect to the Expansion Project, Parks and CLFN subsequently began consultation.

From September 2006 to December 2009, Parks and CLFN met eight times. In December 2009, Parks received clearance under the Historical Resources Act to proceed with the Expansion Project.  In February 2010, a 60-day comment period commenced and Parks encouraged CLFN to provide input on the project during this period. On March 11, 2010 Parks held an open house and invited CLFN members to attend.  A number of CLFN members attended and objected to the Expansion Project.  Correspondence was exchanged and the parties agreed to schedule an open house specifically for CLFN members but the open house did not occur.

On June 28, 2010, CLFN wrote Parks contending that the consultation process had been inadequate and that Parks failed to provide an open house for the CLFN members. On the same date, Parks wrote CLFN indicating that they could submit written comments on the Expansion Project until June 30, 2010.  This deadline was subsequently extended to July 11, 2010.  However, CLFN did not provide any other further written comments. 

On July 21, 2010, Parks informed CLFN that the consultation on the Expansion Project was complete.  On November 8, 2010, Parks advised CLFN that construction would commence.

Issue on Appeal

CLFN sought judicial review of Parks’ decision to end consultation and the decision to commence construction. The issue on appeal was whether Parks fulfilled its duty to consult CLFN.

The Crown’s Duty to Consult

The Court of Appeal articulated the legal framework applicable to the Crown's duty to consult First Nations. When determining whether the Crown discharged its duty to consult First Nations, the Court is required to address and answer three questions:

1. Is a duty to consult triggered?
2. If a duty is triggered, what is the scope and content of the duty?
3. Did the consultation process followed by the Crown adequately discharge the duty?

Did the Crown Discharge its Duty in the Circumstances?

On the first question, Parks conceded that the circumstances triggered the duty to consult.  For the issue on appeal was whether Parks fulfilled its duty to consult CLFN.

Turning to the scope of the duty to consult, Parks argued that the duty fell at the lower end of the spectrum while CLFN argued that the duty to consult was at the higher end of the spectrum.  The Court opined that the scope of the duty to consult was further up the spectrum than the scope found in Mikisew Cree First Nation v. Canada (“Mikisew Cree”), where the scope of duty was at the lower end.  The Court reached this conclusion because the expansion would cause varied impacts on both the treaty and traditional rights asserted by CLFN, which required some mitigation of the adverse effects.

In determining the scope, the Court noted that while CLFN’s rights were strongly asserted and although the campground Expansion Project would have an adverse effect on both the right to fish and other traditional uses, the campground had been in the recreational area for over 50 years, the expansion would effect a small area and the CLFN has 50,000 acres of reserve land in the area.  Parks was therefore required to give notice, provide information, meet with CLFN members, and to adjust its plans to mitigate and address some of CLFN’s concerns.

Turning to the third and final consideration, the Court ruled that the consultation process followed by Parks adequately discharged the duty to consult for the following reasons:

• the consultation period had been a long one (approximately 4 years);
• there was numerous correspondence between the parties;
• there were multiple impact reports; open houses were conducted;
• CLFN actively engaged in the process throughout the consultation period and Parks had responded to numerous concerns raised by CLFN.

In the end, the Court upheld Parks' decisions that consultation was complete and that construction would proceed.

Significance

As one of the first duty to consult cases in Alberta since Mikisew Cree, this decision is helpful because it clearly articulates the legal framework the Court will apply in considering whether the Crown has discharged its duty to consult First Nations.