Fort McMurray Métis Local 1935 Applicant - v. -, 2016 ABQB 712

Court of Queen’s Bench of Alberta Citation: Métis Nation of Alberta Association Fort McMurray Local Council 1935 v Alberta, 2016 ABQB 712 Date: 20161216 Docket: 1503 05061 Registry: Edmonton Between: Fort McMurray Métis Local 1935 Applicant - and - Her Majesty the Queen In Right of Alberta (As Represented by the Minister of Aboriginal Relations) Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss _______________________________________________________ Table of Contents Introduction . 2 Background . 3 A. The Parties . 3

B. The Facts . 4 OSE140001 . 5 OSE140059 . 7 OSE 140048 . 13 Water Act Licence Renewal 16 IOL Aspen Project 18

Summary . 20 The Issues . 21 Standard of Review .. 22 Did the ACO violate the principles of procedural fairness and natural justice? . 23 The FM Local’s arguments . 23 The Crown’s arguments . 25 Discussion . 30 Law .. 30 Analysis . 31 I. Determining the scope of the required duty of procedural fairness . 31 II.

Was the Duty of Procedural Fairness Breached? . 34 Disposition . 40 Introduction [ 1 ] This is an application by Métis Nation of Alberta Association Fort McMurray Local Council 1935, otherwise known as Fort McMurray Métis Local 1935 [FM Local or Applicant], for judicial review of decisions by Her Majesty the Queen in Right of Alberta [Alberta Crown], as represented by the Aboriginal Consultation Office [ACO] that a duty to consult the FM Local was not triggered regarding a number of energy resource development applications. [ 2 ] This judicial review was heard in conjunction with the judicial review in Action No. 1503 06412, Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta [FCM Local JR], where the same question was essentially before the Court.

The Applicant, FM Local, adopts the argument of FCM Local in Action No. 1503 06412 in its entirety. [ 3 ] The core of the issue in this case, is whether the FM Local had provided sufficient information to trigger the duty to consult. The Alberta Crown takes the position that the FM Local did not provide sufficient 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 FM Local argues that it was led to believe that the Alberta Crown understood its duty to consult with the FM Local had already been triggered. [ 4 ] The FM Local also argues that the ACO violated the principles of procedural fairness and natural justice because it failed to consider all the detailed and comprehensive evidence provided by the FM Local when determining whether the duty to consult and accommodate had been triggered regarding the energy resource development applications. In particular, the Applicant contends that: (

i) the ACO imposed arbitrary and unreasonable timelines on the FM Local to answer the detailed information requests; (ii) the ACO imposed a shorter assessment period for the applications to the detriment of adequately assessing the FM Local’s reasonably asserted and constitutionally protected rights, which may be adversely impacted by the resource development applications; and (iii) the ACO failed to clarify timelines, failed to respond in a timely manner to requests for reasonable time extensions, and refused to grant the reasonable time extensions requested in respect of the information requests. Background A.

The Parties [ 5 ] The FM Local is an Alberta society incorporated pursuant to the Societies Act , RSA 2000, c S-14 . FM Local indicates that it is a branch or member of the Métis Nation of Alberta [MNA] and it is governed by the MNA bylaws. The FM Local states that in order to become a member of FM Local, a Métis person must reside in Fort McMurray and be a member of the MNA. According to the

Applicant, membership in the MNA requires individuals to establish their Métis ancestry back to the 1800’s. FM Local currently has 298 members. [ 6 ] The ACO is a branch of the Alberta Ministry of Indigenous Relations.

The ACO was established on November 1, 2013 “[t]o strengthen the [Government of Alberta’s] role in the First Nation consultation process.” The ACO provides “consultation management services to meet the needs of [Government of Alberta] Ministries, First Nations, the [Alberta Energy Regulator (AER)], and project proponents.” It works with the AER “to ensure that any needed consultation occurs for decisions on energy applications within the AER’s mandate.” [ 7 ] The AER took jurisdiction over energy applications under the Public Lands Act , RSA 2000, c P-40 , and

Part 8 of the Mines and Minerals Act , RSA 2000, c M-17 on November 30, 2014; and over energy applications under the Environmental Protection and Enhancement Act , RSA 2000, c E-12 [ EPEA ] and Water Act , RSA 2000, c W-3 , in March 2014. [ 8 ] On November 26, 2013, the Minister of Energy issued a Ministerial Order pursuant to the Responsible Energy Development Act , SA 2012, c R-17.3 [ REDA ], providing directions to the AER, among other things: • to ensure that the AER would consider and make decisions in respect of energy applications in a manner consistent with Alberta’s work to meet its consultation obligations; and • to require the AER to share with the ACO all submissions filed by First Nations and “other Aboriginal groups.” The Ministerial Order was replaced with Ministerial Order 105/2014 on October 31, 2014.

B. The Facts [ 9 ] The energy resource development applications involved in this judicial review application are:

a) Canadian Natural Resources Limited’s (CNRL) Oil Sands Exploration (OSE) Program Application No. 140001 [OSE 140001];

b) CNRL’s Oil Sands Exploration (OSE) Program Application No. 140059 [OSE 140059];

c) CNRL’s Gregoire Oil Sands Exploration (OSE) Program Application No. 140048 [OSE 140048];

d) CNRL’s Horizon Oil Sands Project: Renewal of Water Act Licence AER Application No.00186921-004 [ Water Act Licence Renewal]; and

e) Imperial Oil Resources Ventures Limited (Imperial) Aspen Project: AER Application No. 1782988, Environmental Protection and Enhancement Act Application No. 001-336673, and Water Act Application No. 001-00346324. [IOL Aspen Project]. [Collectively referred to as the “Applications” or the “Projects”]. [ 10 ] Three of the five Projects are OSE projects proposed by CNRL on its existing oil sands leases. OSE programs are temporary winter exploratory drilling programs that allow companies to gather information about the oil sands resources in a particular area.

Two of the OSE programs (OSE140001 and OSE1400059) will allow CNRL to gather this information and plan for potential mining production opportunities north of its existing Horizon Oil Sands Mine approximately l00 km northwest of Fort McMurray. [ 11 ] The third OSE program (OSE140048) will allow CNRL to gather information on CNRL’s oil sands leases north and south of Willow Lake and the community of Anzac, approximately 50 km southeast of Fort McMurray. [ 12 ] One of the five Projects is a renewal of CNRL’s Water Act diversion licence granted in 2004 associated with the Horizon Oil Sands Mine.

The Alberta Crown did not require any consultation on this renewal because there were no new novel adverse impacts that triggered a duty to consult anyone. [ 13 ] The fifth Project is IOL Aspen Project. It is an application with the AER for approval to construct, operate and reclaim a proposed in situ oil sands commercial scheme development. The IOL Aspen Project, if approved, is expected to be constructed in three phases over an estimated 40-year life span. It is subject to extensive environmental review, and an environmental impact assessment report (EIA) has been prepared.

The IOL Aspen Project is still in the regulatory process and no regulatory decisions have yet been made at the date of this judicial review application.

[ 14 ] After the institution of the ACO on November 1, 2013, FM Local began sending in Statements of Concern [SOC] to the AER and the ACO upon receiving Notice of Resource Applications in the area. [ 15 ] The circumstances of each Project are unique.

OSE140001 [ 16 ] The location of this winter OSE program is on CNRL’s oil sands lease north of CNRL’s existing Horizon Oil Sands Mine. [ 17 ] On December 13, 2013, the ACO required CNRL to consult with Athabasca Chipewyan First Nation, Fort McKay First Nation, and Mikisew Cree First Nation. [ 18 ] On March 25, 2014 the ACO determined that consultation with these First Nations was adequate. [ 19 ] On April 11, 2014, in response to the AER’s public notification, both the FM Local and the Fort McMurray First Nation [FMFN] filed SOCs in the AER’s regulatory process. [ 20 ] In a letter dated April 22, 2014, the AER advised the FM Local that the concerns raised in its SOC “will be taken into consideration by the AER in its review of the application.” The AER also advised the FM Local that it was requesting CNRL to contact the FM Local to attempt to address the FM Local’s concerns, and that the AER has no jurisdiction to assess the adequacy of Crown consultation. [ 21 ] On June 10, 2014, the FM Local’s legal counsel wrote to the Minister of Aboriginal Relations and the Assistant Deputy Minister [ADM] in charge of Aboriginal Consultation to inquire when a response would be issued and sought clarification on how the Alberta Crown intended to implement their consultation requirements with FM Local. [ 22 ] The responses from the Minister and the ADM stated, among other things, that “Alberta consults with Métis groups on a case- by-case basis where proven or credibly-asserted Métis rights may potentially be impacted by land management and resource development decisions that are being contemplated by Alberta. [The] Aboriginal Consultation Office within the Department of Aboriginal Relations is now tasked with overseeing consultation processes that have been delegated to industry proponents.” [ 23 ] During this time, the FM Local staff members were corresponding with the ACO staff to understand how the ACO was going to apply such a case-by-case approach and requested a meeting with the ACO. [ 24 ] On October 6, 2014, the AER sent an email to the ACO attaching the FM Local’s SOCs which states: “We note that the ACO provided an adequacy determination on March 25, 2014 prior to these SOCs being filed (also attached for your reference) and that neither FM Local nor FMFN were included in the adequacy assessment.” [ 25 ] On October 16, 2014, the AER sent a letter to the FM Local, along with the OSE140001 AER Approval, advising that it had, among other things, considered the SOC filed by the FM Local on April 11, 2014 and the AER had decided to issue an approval to CNRL for 140001 without holding a hearing.

The letter read: You are receiving this letter because you filed a statement of concern about Application No. OSE 140001 (the application). The Alberta Energy Regulator (AER) has reviewed your statement of concern filed on behalf of [FM Local] dated April 11, 2014, the application, applicable requirements, and other submissions or information about the application and has decided to issue the applied-for authorization. The AER has determined that a hearing is not required under an enactment or otherwise necessary to make a decision on the application. A copy of the authorization is attached.

In making its decision, the AER had regard for the following: • [FM Local] has acknowledged that the OSE program proposed in Canadian Natural Resources Limited (CNRL)’s application ‘will have a relatively minor impact on’ areas in and around the area in which CNRL has proposed oil sands exploration activities (the application area). • Regarding the concerns raised about impacts on wildlife and cumulative impacts of energy development in the region, the activities proposed in the application will be localized, of short duration, and temporary.

Also, the area of the application is within the Lower Athabasca Regional Plan (LARP), which addresses acceptable land disturbance standards in relation to wildlife and management of cumulative impacts on a regional basis. The activities proposed in the area of the application are permitted under LARP. • Regarding the concerns you have raised about CNRL’s consultation of [FM Local] in relation to the project, the AER has reviewed the application and supporting documents and has confirmed that CNRL has met all applicable notification requirements for the application.

To the extent that you have raised concerns about the duty to consult with First nations and aboriginal groups, the AER has no jurisdiction to assess issues relating to the adequacy of consultation, and notes that the Aboriginal Consultation Office has deemed consultation to be adequate for this application. • With regard to your concerns about reclamation, all drill hole sites must be reclaimed in accordance with all applicable regulations and requirements including the Public Lands Operational Handbook and the Code of Practice for Exploration Operations.

CNRL has also indicated that sites will be allowed to naturally re-vegetate in order to ensure that the re-established plant community is compatible with surrounding natural ecosites. • The concerns raised in relation to spills and leakages at other existing CNRL projects and your concerns about the uncertainty of the energy regulatory system and government policy in Alberta relate to matters beyond the scope of CNRL’s current application.

• Although [FM Local] has identified that its members use traditional trails that run from Fort McKay to Birch Mountains and Namur Lake, [FM Local] has not provided information on the specific location of these trails in relation to the application area or the extent to which the trails might be impacted by CNRL’s proposed project.

In addition, CNRL has indicated that these trails are located outside of the application area, and the activities related to the application will be temporary, short term and involve minimal disturbance techniques on frozen ground. • Although [FM Local] has stated that the application area is within its traditional territory and that its members carry out traditional and other activities “in and around” the application area, the specific locations of such activities as identified by [FM Local] (i.e. the Hangingstone River) do not coincide with the application area.

This information fails to demonstrate a sufficient connection between [FM Local’s] traditional and other activities and the drilling program proposed in CNRL’s application. • Based on the above and having regard for all of the information before the AER, you have not demonstrated that [FM Local] may be directly and adversely affected by the application. Under the Responsible Energy Development Act an eligible person may file a request for a regulatory appeal on an appealable decision. Eligible persons and appealable decisions are defined in

section 36 of the Responsible Energy Development Act and

section 3.1 of the Responsible [Energy] Development Act general Regulation . If you wish to file a request for regulatory appeal, you must submit your request in the form and manner and within the time frame required by the AER.

You can find filing requirements and forms on the AER website www.aer.ca under Applications & Notices: Appeals. [The AER Decision Letter] [ 26 ] In the AER Decision Letter, the AER also provided the FM Local with a copy of AER Formal Disposition Oil Sands Exploration Program OSE 140001, dated October 16, 2014, pursuant to section 20(1) of the Public Lands Act , granting CNRL approval, for a one-year term with an expiry of October 15, 2015, on the specified terms and conditions [0SE 140001 AER Approval].

OSE140059 [ 27 ] The OSE140059 program is located in the same general area as OSE140001, on CNRL’s oil sands leases north of the existing Horizon Oil Sands Mine. [ 28 ] On September 16, 2014, the ACO required CNRL to consult with Athabasca Chipewyan First Nation, Fort McKay First Nation, and Mikisew Cree First Nation. None of the First Nations raised concerns about the program. [ 29 ] On October 24, 2014, and in response to the AER’s public notification, the FM Local filed its SOC in the AER’s regulatory process regarding the OSE140059 program.

The SOC, inter alia , included a reference to the Mark of the Metis: Traditional Knowledge and Stories of the Metis People of Northeastern Alberta .

Fort McMurray: Friesens, 2012. [ 30 ] On October 28, 2014, the AER advised the FM Local that the “application is currently under review and the concerns outlined in your letter will be placed on the Record of proceeding and available to the decision maker.” The AER also advised the FM Local that it was requesting CNRL to contact the FM Local to attempt to address its concerns, and that the AER has no jurisdiction to assess the adequacy of Crown consultation. [ 31 ] ACO staff reviewed the FM Local’s SOC and advised the Region Lead that:

a) the SOC was only four pages long, and “[o]verall, it’s a general statement of why they should be consulted on this project without detailed description of their concerns”;

b) regarding the eight areas of inquiry, for some of them, the SOC did not address the issue at all, and for others, documentation and/or information were still required; c) “Given the lack of detailed information on this SOC” she had requested staff to contact the AER to ask them if there is “any other background info attached to this SOC”; and

d) she had drafted a letter to send to the FM Local seeking further information. [ 32 ] In the review chart, and in relation to the “Dropbox link” provided by the FM Local, an ACO staff noted that “This link has been provided to download some documents quoted in the SOC. The link is no longer active.” [ 33 ] The ACO contacted the AER and asked if the FM Local submitted any additional materials with the SOC.

The AER advised that the FM Local had not provided any supporting documents. [ 34 ] In an email dated October 31, 2014, contained in an email chain between ACO staff regarding the IR Responses from FM Local on CNRL 140059, it was stated that the “[n]ext steps would be to see if they provided the information we needed. The letter

should be reviewed and the applicable information noted. If there are still gaps then you would forward another letter asking for clarification on those items.” [ 35 ] On November 14, 2014, the ACO sent the FM Local a letter with respect to its SOC. The letter read: This letter is in response to your letter of October 24, 2014 addressed to Canadian Natural Resources Limited and Alberta Energy Regulator (AER) in which you express concern about the proposed Canadian Natural Resources Limited OSE 140059 Project.

Alberta recognizes a duty to consult with some Metis communities where provincial Crown land management and resource development decisions may adversely or potentially impact credibly asserted rights. Alberta administers its duty to consult with Metis collectives on a case-by-case basis when credibly asserted rights may be potentially impacted by Crown land management and resource development decisions. As such, the AER has forwarded your letter to the Aboriginal Consultation Office (ACO).

Please provide the following at your earliest convenience and no later than November 28, 2014, so that the ACO can consider the concerns raised. 1. In your letter you mention that you have 300 members in Fort McMurray and surrounding areas. Please provide documentation that demonstrates those members officially belonging to the [FM Local]. 2. How does one become a member of the [FM Local]? Please explain and document the [FM Local] registration requirements. 3.

Please identify how many members of the [FM 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. 4. Please provide a breakdown of the [FM Local’s] membership in terms of the communities members live in [sic] (e.g. X% reside in Fort McMurray, X% reside in surrounding area, etc.) and include documentation allowing us to verify the breakdown. 5. Within what geographical area does [FM Local] claim to represent Métis and where is that documented?

Please provide the appropriate documentation. 6. Please identify the areas and the specific environmental concerns that members of the [FM Local] have with the proposed project. 7. Is there one or more historic Metis communities that the members of the [FM 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. 8. You indicate that the project is proposed on lands used by members of the [FM Local] for activities such as hunting, trapping, fishing, gathering and meeting.

Please specify how those activities may be impacted by the proposed project. [ 36 ] A few days later, the FM Local advised the ACO that it would respond by the deadline. [ 37 ] On November 17, 2014, ACO staff in the First Nations Consultation [FNC] Unit contacted the ACO Region Lead about OSE140059. She explained that the “Métis SOCs notwithstanding, the consultations with First Nations [have] been done adequately.

For this reason, if we are holding up a decision based on the Métis SOCs, I believe I will need a statement to forward to the proponent outlining the rationale for this decision.” [ 38 ] In a “Briefing Note” dated November 19, 2014, an ACO staff member briefed leadership, and explained that the review of Métis SOCs was delaying project assessment timelines especially on time sensitive Public Lands Act FNC applications, including OSE programs, that the delays were impacting proponents, and that there was need to inform CNRL and Enbridge that their requests for an adequacy decision were delayed as a result. [ 39 ] On November 28, 2014, the information request response [IR Response] on OSE 140059 was submitted by FM Local, by way of a letter sent by Prowse Chowne LLP to the ACO.

The 10-page IR Response included four enclosures for download via a Dropbox link, as follows: 1. Matsui, Kenichi and Arthur J. Ray. “Delimiting Métis Economic Communities in the Environs of Ft McMurray: A Preliminary Analysis Based on Hudson’s Bay Company Records, by Kenichi Matsui and Arthur J. Ray.” June 5, 2014. 2. Métis Local 1935 Membership Form. 3. Fort McMurray Métis Local 1935 Land-Use in the Project Area. 4.

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.” 28 September 2012. [ 40 ] On December 1, 2014, the ACO Region Lead advised the

Section Lead that she would be reviewing the information that day to determine if enough information had been provided. She also explained that CNRL may be requesting an adequacy decision on the program. [ 41 ] On December 2, 2014, a second ACO staff member also reviewed the response and advised the Region Lead and

Section Lead of deficiencies. She noted in her email that:

a) with respect to the FM Local’s offer to provide a letter verifying it is a member of MNAA Region 1, that it has Records and data confirming its membership at 298, and that those individuals meet the MNA requirements for membership, “the only problem is that membership in the MNA does not mean members meet the Powley test. Regardless, we would still need to identify [FM Local] as a rights bearing community”;

b) “the membership information they provided doesn’t require members to show a connection to a historical community as part of their requirements.

Although I didn’t have an opportunity to look at the links yet, if the links do require this then that is helpful towards proving Powley ”; and c) “With regards to the information presented in questions 5 and 7 we may want to look at this information to see if it could help identify if [FM Local] is a rights bearing community.” (Record, volume 10, FML 271/1). [ 42 ] The Record is sparse on the review of the IR Response on OSE 140059, with one largely redacted email chain, dated December 2, 2014, referencing the IR Response.

As much of the email has been redacted by the ACO, it is difficult to understand the context of the comments made by the ACO staff in her email of December 2, 2014. [ 43 ] There is reference to a December 3, 2014 letter from Prowse Chowne LLP in the ACO’s Decision Letter 1, reproduced below ( Infra , para 47 of this Judgment). [ 44 ] On December 3, 2014, an email titled “FW: SOC – OSE140048 AND APPL 00186921-004” was sent by Prowse Chowne LLP to ACO staff members. The email read: I have just had a discussion with my colleague [about] the attached information requests. She advises me that Mr.

Parayko had advised her on the phone that a 5 day extension would be granted. We have also written to the ACO requesting a two week extension on both of these matters (requests attached). We corrected the re: line on Application 00186921 [i.e. the Water Act Licence Renewal] and attached the corrected letter herein. We have not had a written response so we are working on the assumption that there is at least a 5 day extension on both these matters. We have also tried to just tried [sic] to call all three of you and not one of you has a voicemail system that allows a message to be left.

The information requests are detailed and we require detailed information from consultants and [FM Local]. Furthermore the raw data from CNRL on OSE 140048 describing the exact location of the project and the project Application was received on Friday Nov. 28 and Monday December 1, 2014. It is simply impossible for us to respond within these deadlines. You should be aware that our clients received this same letter on 7 files in the last two weeks all with a two week response time.

It is simply impossible for us to answer these requests with the relevant information on such short notice. [ 45 ] No further letter was received by FM Local prior to the December 10, 2014 Decision. [ 46 ] On December 10, 2014, the ACO issued its decision [Decision Letter 1], regarding a number of projects, including: OSE 140059, OSE 140048, 00186921-004 [i.e. the Water Act Licence Renewal], IOL Aspen Project, OSE 140073, OSE 140074, and OSE 140075. [ 47 ] The Decision Letter 1 reads: This letter is in response to the written correspondence from Prowse Chowne LLP addressed to the Aboriginal Consultation Office (ACO) dated November 28, December 1 (two letters) and December 3, 2014 regarding the Projects and other matters noted above.

Alberta Aboriginal Relations has instructed Alberta Justice and Solicitor General to respond to these letters. The Government of Alberta acknowledges the information that [FM Local] has provided in response to information requests from the ACO regarding the Projects. You have also sent correspondence to the ACO dated December 8, 2014 in relation to another project. You have provided three reports: 1. Delimiting Métis Economic Communities in the Environs of Ft McMurray: A Preliminary Analysis Based on Hudson’s Bay Company Records, Kenichi Matsui and Arthur Ray, dated June 5, 2014; 2.

Métis Traditional Land Use and Occupancy Study: Teck Resources Limited – Frontier Oil Sands Project, prepared by Willow Springs Strategic Solutions Inc., dated October 2014; and 3. Historical Métis Communities in Region One of the Métis Nation of Alberta, 1881-1916, Jonathan Anuik and Frank Tough, with the Métis Archival Project Lab, dated 28 September 2012. In your correspondence, you have indicated that a third report by Clark, O’Connor and Fortna dated November 2014 and outlining your

client’s position on genealogical background of its members will be available to the Government of Alberta sometime in 2015. At this time, in accordance with the court decisions in Powley , Hirsekorn and L’Hirondelle , the Government of Alberta does not have enough information to determine whether there is a credible assertion that [FM Local] is a rights bearing community.

In addition to the information you have already provided, your client will need to provide the referenced genealogical information and all other outstanding information that has been requested by the ACO before the Government of Alberta will be in a position to consider this matter further. We understand that your client received notification from the Alberta Energy Regulator about the water Licence application four months ago, and the OSE programs in October.

Given the anticipated timing of your genealogical information in 2015, a further delay in the ACO’s process to December 17, 2014 as you requested in your correspondence dated December 1, 2014 and December 3, 2014 with reference to OSE 140048 and Application No. 00186921-004, is not warranted and the Government of Alberta will not be requiring consultation with [FM Local] based on the information that has been provided. On behalf of the ACO we confirm that the following deadlines apply to the following ACO information requests: 1.

ACO information Request re [OSE] 140048 ..: Letter sent to [FM Local] on November 20, 2014 and the deadline was December 4, 2014. This deadline was extended 5 business days to a revised deadline of December 9, 2014; 2. ACO information Request re ... Renewal of Water Act Licence...: Letter sent to [FM Local] on November 20, 2014 and the deadline was December 4, 2014; 3. ACO information Request re: [IOL Aspen Project] ...: Letter sent to [FM Local] on November 24, 2014 and the deadline was December 8, 2014; 4.

ACO information Request re: [OSE] 140073...: Letter sent to [FM Local] on November 27, 2014 and the deadline is December 11, 2014; 5. ACO information Request re: [OSE] 140074...: Letter sent to [FM Local] on November 27, 2014 and the deadline is December 11, 2014; and 6. ACO information Request re: [OSE] 140075...: Letter sent to [FM Local] on November 27, 2014 and the deadline is December 11, 2014.

The Ministry of Aboriginal Relations will consider the information that has been received from [the FM Local], as well as any information your client may provide in the future in the context of any further policy discussions regarding consultation processes.

If your client would like to discuss this issue further outside the project specific consultation process, please have them contact Cory Enns, Executive Director, Aboriginal Consultation Policy and Capacity... [FM Local] may forward the referenced genealogical information and detailed information requested in the November letters from the ACO to his attention. The Government of Alberta encourages your client 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 addressed.

Please note that the Government of Alberta is represented by Alberta Justice and Solicitor General with respect to this matter.

Accordingly, we ask that all communication including written correspondence from Prowse Chowne LLP with regard to this matter in the future be directed to the undersigned at the Aboriginal Law Team and not to our client. [ 48 ] On February 23, 2015, the ACO determined that consultation with Athabasca Chipewyan First Nation, Fort McKay First Nation, and Mikisew Cree First Nation was adequate. [ 49 ] On March 25, 2015, the AER issued CNRL Authorization for OSE140059 [OSE140059 AER Approval] for a five-year

term (two years for operation with an expiry on March 24, 2017 and three years for reclamation with an expiry March 24, 2020).

OSE 140048 [ 50 ] The location of this temporary winter OSE program is on CNRL’s oil sands leases north and south of Willow Lake and the community of Anzac, approximately 50 km southeast of Fort McMurray. [ 51 ] On September 5, 2014, the ACO required CNRL to consult with Mikisew Cree First Nation, Fort McMurray First Nation, Heart Lake First Nation and Chipewyan Prairie First Nation. [ 52 ] On October 17, 2014, the FM Local filed a four-page SOC letter in the AER’s regulatory process in response to the AER’s public notification. [ 53 ] On October 21, 2014, the Record indicates that a consultation adequacy decision was issued. [ 54 ] On October 24, 2014, the AER advised the FM Local that the “application is currently under review and the concerns outlined in [FM Local’s] letter will be placed on the Record of proceeding and available to the decision maker.” The AER also advised the FM Local that it was requesting CNRL to contact the FM Local to attempt to address its concerns, and that the AER has no jurisdiction to assess the adequacy of Crown consultation. [ 55 ] On October 28, 2014, there was an email exchange between ACO staff regarding FM Local’s SOC filed on the OSE 140048 that set out the timelines of when FM Local’s SOC was received by the AER, when the ACO received it and when the adequacy decision was made, which stated: “The main problem is that we received the SOC after the adequacy decision was made, but it was submitted to the AER before the adequacy decision was made.” [ 56 ] On November 19, 2014, after reviewing the SOC, the ACO sent a letter to the FM Local asking the same questions as for OSE140059 and requested a response by December 3, 2014. [ 57 ] On Monday, December l, 2014 Prowse Chowne LLP, Counsel for the FM Local:

a) Phoned the ACO and secured a short extension of 5 business days for FM Local to answer the IRs.

b) Followed up this phone call with an email to the ACO to try to ascertain the purpose and urgency of the IRs, advising that more time to respond was justified and stating “to fully answer the questions asked of it, the [FM Local] must understand what is being asked and for what purpose.

c) Wrote letters to the signatories of the November 19, 2014 IR from the ACO requesting a two-week extension to December 17, 2014. [ 58 ] The ACO did not respond to FM Local’s follow-ups to the December 1, 2014 phone call. [ 59 ] On Thursday, December 4, 2014, Counsel for FM Local called Stan Rutwind, ADM in charge of consultation, and explained that FM Local was buried under IRs, all with deadlines within a few weeks, and forwarded to him all the IRs and extension requests and emails with the ACO regarding the IRs. [ 60 ] On Friday, December 5, 2014, Cole Pederson, whose title at the time was Executive Director, ACO, wrote to Counsel for FM Local, copying seven of the ACO staff that had been involved in correspondence relating to the IRs including Stan Rutwind, and stated “Stan Rutwind has asked me to respond to the questions leading up to Ms.

Bishop’s emails of yesterday afternoon. On the basic extension of the timelines relating to the files identified, ACO agrees that Mr. Parayko offered a five day extension over the telephone and we stand behind that offer. [ACO’s] understanding is that the extension means five working days from the original deadline, whatever that was.” [ 61 ] Mr. Pederson’s December 5, 2014 email also stated: “[R]egarding [FM Local] and the Powley test, we have directed our Counsel to prepare a letter to you outlining their preliminary assessment. [W]e aim to have it to you either late Monday or first thing Tuesday.

Should any issues arise to delay that, we will call or e-mail you immediately.” [ 62 ] No such letter was ever received by FM Local and the Record does not include any other correspondence to FM Local until the Decision was issued December 10, 2014. [ 63 ] After close of business on Friday, December 5, 2014, Counsel for FM Local summarized the dates they understood as the new deadlines and “replied all” to Mr. Pederson by email sent at 5:04 p.m.

The email read: Further to your [correspondence], we wish to confirm our understanding of the 5-day (working days) time extensions on the outstanding ACO information requests. Below is our understanding of the new deadlines: 1. ACO Information Request re: CNRL, OSE 140048 under

section 20 of the Public Lands Act to conduct an Oil Sands Exploration Program: ACO response due December 10, 2014.

2. ACO Information Request re: CNRL 00186921-004, Canadian Natural Resources Limited Horizon Oil Sands Processing Plant and Mine: ACO response due December 10, 2014. 3. ACO Information Request re: Imperial Oil, Aspen Project Application No. 1782988 Environmental Protection and Enhancement Act Application No.: 001-336673, and Water Act Application No. 001-00346324: ACO response due December 15, 2014. 4. ACO Information Request re: VCI, OSE 140073 Under

section 20 of the Public Lands Act to conduct an Oil Sands Exploration Program: ACO response due December 19, 2014. 5. ACO Information Request re: VCI, OSE 140074 Under

section 20 of the Public Lands Act to conduct an Oil Sands Exploration Program: ACO response due December 19, 2014. 6. ACO Information Request re: VCI, OSE 140075 Under

section 20 of the Public Lands Act to conduct an Oil Sands Exploration Program: ACO response due December 19, 2014. We presume our above noted understanding of revised timelines is correct, unless you indicate otherwise. [ 64 ] On Friday, December 5, 2014, at 5:42 p.m., ACO were instructed that they would need “to clarify these deadlines first thing Monday.” [ 65 ] At 5:39 p.m. on Tuesday, December 9, 2014, FM Local’s Counsel was advised through an email by ACO staff that Mr.

Pederson intended to grant “a 5 business day extension” on only one file, OSE 140048. [ 66 ] On December 10, 2014 at l: 57 p.m., FM Local submitted their responses to the IRs on OSE 140048. The FM Local’s response to the IRs is 15 pages in length, and included four enclosures for download via a Dropbox link, as follows: 1. Matsui, Kenichi and Arthur J. Ray. “Delimiting Métis Economic Communities in the Environs of Ft McMurray: A Preliminary Analysis Based on Hudson’s Bay Company Records, by Kenichi Matsui and Arthur J. Ray.” June 5, 2014. 2.

Fort McMurray Métis Local 1935 Land-Use Community Knowledge Keeper data over the Project Area. 3. 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.” 28 September 2012. 4. CNRL Gregoire OSE 140048 Metis Local 1935 Traditional Land Use Data. [ 67 ] On the same day, December 10, 2014, at 4: 19 p.m., the Decision Letter 1 was sent to Prowse Chowne LLP confirming that the ACO was not requiring consultation for OSE140048. [ 68 ] On February 26, 2015, the AER approved OSE140048.

Water Act Licence Renewal [ 69 ] Following a public hearing in Fort McMurray – in which a number of First Nations and Aboriginal groups (not including FM Local) participated – and environmental impact assessment, a Joint Review Panel established by the Alberta Energy and Utilities Board (EUB) and the Government of Canada, issued Decision 2004-005 to CNRL on January 27, 2004, approving the Horizon Oil Sands Mine. Following that Joint Review Panel Decision, CNRL received a Water Act approval and Water Act Licence in 2004. [ 70 ] Only the renewal of the Licence is at issue in this judicial review proceeding.

It was set to expire in February 2015. [ 71 ] In June 2014, the AER advised the ACO that it would be providing standard public notice for the renewal applications, and asked what the ACO’s consultation requirements would be. The ACO responded that they could not confirm at that time if any consultation would be required, as they would need to review the renewal applications. [ 72 ] On July 14, 2014, the FM Local filed an SOC in the AER’s regulatory process in response to the AER’s public notification.

On July 16, 2014, the AER sent back a letter confirming its receipt of the SOC. [ 73 ] On July 28, 2014, the AER sent Prowse Chowne LLP a letter advising that the concerns outlined in the SOC “will be taken into consideration by the AER in its review of the application.” The letter also noted that the AER was requesting CNRL contact the FM Local to attempt to address its concerns, and that the AER did not have jurisdiction to assess the adequacy of Crown consultation with the rights of Aboriginal peoples. [ 74 ] On October 28, 2014, the ACO advised the AER that it had not completed its assessment of whether any novel adverse impacts would arise from the renewals, and was following up with CNRL as it needed to know the potential increase in water usage to better determine the level of adverse impact on treaty rights and traditional uses, and that the assessment could not be completed without the information. [ 75 ] On October 31, 2014, the ACO advised the AER and CNRL that no consultation was required for the renewal applications as there will be no new or novel adverse impacts to treaty rights or traditional uses, given that there are no changes requested, no outstanding developments, and the requested water allocation remains unchanged from the first approval. [ 76 ] On November 19, 2014, after reviewing the SOC, the ACO sent the FM Local a letter seeking further information and

requested a response by December 3, 2014. [ 77 ] On December 1, 2014, Prowse Chowne LLP sent a letter to the ACO regarding OSE140048, which attached the ACO letter to the FM Local regarding the Water Act Licence Renewal. [ 78 ] On December 3, 2014, Prowse Chowne LLP sent an email to ACO titled “FW: SOC – OSE140048 AND APPL 00186921- 004.” The APPL 00186921-004 referred to the Water Act Licence Renewal. The email, inter alia , indicated that FM Local’s Counsel had been informed “that Mr. Parayko had advised [on] the phone that a 5 day extension would be granted.

We have also written to the ACO requesting a two week extension on both of these matters (requests attached). We corrected the re: line on Application 00186921 [i.e. the Water Act Licence Renewal] and attached the corrected letter herein.” (See para 44 of this Judgment).

In other words, the FM Local requested a two-week extension from the December 3, 2014 deadline to December 17, 2014. [ 79 ] The events between December 1, 2014 and December 9, 2014, have already been summarized above. [ 80 ] After the close of business on Friday, December 5, 2014, Prowse Chowne LLP sent the ACO Executive Director an email outlining its understanding about new deadlines for various projects, and for the Water Act Licence Renewal specifically, its understanding of the deadline was December 10, 2014. (See, para 63 of this Judgment). [ 81 ] At 5:39 p.m. on Tuesday, December 9, 2014, FM Local’s Counsel was advised by ACO staff that Mr.

Pederson “only committed to a 5 business day extension to project #1 on your list, CNRL, OSE 140048.” [ 82 ] On December 10, 2014 at 11:49 a.m., Prowse Chowne LLP submitted the FM Local’s responses to the IRs on CNRL Water Act Licence Renewal. The FM Local’s IR Response on the CNRL Water Act Licence Renewal is 10 pages in length, and included five enclosures for download via a Dropbox link, as follows: 1. Matsui, Kenichi and Arthur J. Ray. “Delimiting Métis Economic Communities in the Environs of Ft McMurray: A Preliminary Analysis Based on Hudson’s Bay Company Records, by Kenichi Matsui and Arthur J.

Ray.” June 5, 2014. 2. Métis Local 1935 Membership Form. 3. Fort McMurray Métis Local 1935 Land-Use Community Knowledge Keeper data over the Project Area. 4. 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.” 28 September 2012. 5.

CNRL 00186921-004 Horizon Oil Sands Mine EPEA Water Licence “Water Act Renewal Application.” [ 83 ] On December 10, 2014, at 4:19 p.m., the Decision Letter 1, as reproduced earlier, was sent to Prowse Chowne LLP confirming that the ACO was not requiring consultation for the Water Act Licence Renewal. [ 84 ] On August 5, 2015, the AER issued CNRL a Licence to Divert Water under the Water Act .

IOL Aspen Project [ 85 ] On July 12, 2013, the Alberta Crown approved Imperial’s First Nations Consultation Plan, which required Imperial to consult with Fort McKay First Nation, Fort McMurray First Nation, Athabasca Chipewyan First Nation and Mikisew Cree First Nation. [ 86 ] Imperial has an extensive engagement program for stakeholders and Aboriginal communities that would continue through construction, operations and reclamation.

The Imperial engagement program is for the six registered fur management area holders in the area, as well as a number of additional First Nations, Métis Locals and Aboriginal organizations which include: the FM Local, the Fort McMurray MNA Local #2020, MNAA Region 1, Chipewyan Prairie Dene First Nation, Fort McKay MNA Local 63, Fort Chipewyan MNA Local 125, and the Christina River Dene Nation Council. [ 87 ] This consultation plan included:

a) the sharing of project information throughout the process including formal project notification, the full integrated application and EIA, regulatory process status updates and presentations;

b) invitations to participate in public open houses in Fort McMurray (July 23, 2013 and June 12, 2014);

c) meetings, both in person and by telephone, on February 10, March 17, May 13, and September 10, 2014, and February 5, 2015;

d) sharing of, and opportunity to provide input and comments on, bimonthly Aboriginal contact summaries and meeting minutes;

e) sharing of project shapefiles;

f) sharing of regulatory process deadlines (and reminders of deadlines) such as the deadline for input on the EIA terms of reference and the filing of SOCs;

g) Imperial funded a third party review of the EIA for Fort McKay First Nation and obtained Fort McKay First Nation’s permission to share the third party technical review with the FM Local; and

h) Supporting the FM Local in conducting a traditional land use study and third party EIA technical reviews. [ 88 ] The FM Local submitted comments on the proposed terms of reference for the EIA in October 2013. [ 89 ] Alberta Environment and Sustainable Resource Development [ESRD] considered the input, responded to the FM Local on December 30, 2013, and provided the FM Local with a copy of the Final Terms of Reference. In this letter:

a) ESRD noted that the FM Local had asked the term “Aboriginal” be defined in the EIA terms of reference. ESRD did not do so and explained: “Alberta does not recognize a duty to consult with all Métis groups. Alberta determines consultation requirements on a case- by-case basis with Métis groups that meet the Powley test”;

b) ESRD noted that a “number of clauses have been added to provide further information on impacts to water, land, vegetation and wildlife of importance to Aboriginal users”; and

c) ESRD advised the FM Local to direct any questions about the term “Aboriginal” or “Consultation requirements specific to this project” to the Consultation Advisor for the project. [ 90 ] On July 15, 2014, the FM Local filed an SOC in the AER’s regulatory process in response to the AER’s public notification. [ 91 ] On July 30, 2014, the AER advised the FM Local that Imperial’s applications are “currently under review and the concerns outlined in your letter will be taken into consideration by the AER in its review of the applications.” The AER also advised the FM Local that it was requesting Imperial to contact the FM Local to attempt to address its concerns, and the AER noted that it had no jurisdiction to assess the adequacy of Crown consultation. [ 92 ] On November 24, 2014, after reviewing the SOC, the ACO sent the FM Local a letter seeking further information and requested a response by December 8, 2014. [ 93 ] On December 1, 2014, and in response to the November 24, 2014 Letter from the ACO, Prowse Chowne LLP sent a letter to the ACO requesting a two-week extension to December 22, 2014. [ 94 ] The events between December 1, 2014 and December 9, 2014 have already been summarized above. [ 95 ] On December 9, 2014, Prowse Chowne LLP was advised that an extension had not been granted. [ 96 ] On December 15, 2014, Prowse Chowne LLP sent a letter to the ACO, responding to the November 24, 2014 Letter, providing the IR Responses on the IOL Aspen Project.

The IR Response is 13 pages in length, and included three enclosures for download via a Dropbox link, as follows: 1. Matsui, Kenichi and Arthur J. Ray. “Delimiting Métis Economic Communities in the Environs of Ft McMurray: A Preliminary Analysis Based on Hudson’s Bay Company Records, by Kenichi Matsui and Arthur J. Ray.” June 5, 2014. 2. Fort McMurray Métis Local 1935 Land-Use Community Knowledge Keeper data over the Project Area. 3.

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.” 28 September 2012. [ 97 ] On December 16, 2014, Counsel for FM Local received a letter from Alberta Justice and Solicitor General [JSG] [Decision Letter 2]. [ 98 ] The Decision Letter 2 reads: This letter is in response to your letter to Nicholas Parayko, Consultation Advisor, Aboriginal Consultation Office (ACO) dated December 15 regarding [IOL Aspen Project; EPEA Application 001-336673; Water Act Licence Renewal] Applications.

Alberta Aboriginal Relations has instructed Alberta Justice and Solicitor General to respond to your letter. Regarding the ACO’s deadlines with respect to these Applications, Alberta’s response has already been provided to you in my letter of December 10, 2014. These deadlines have not been changed and no further extensions have been given by the ACO.

Regarding the Government of Alberta’s response to information that has been received from [FM Local], Alberta’s response has already been provided to you in my letter of December 10, 2014. Please refer to the third page of my letter requesting that your client contact Cory Enns, Executive Director, Aboriginal Consultation Policy and Capacity, for further discussion outside of the project-specific consultation process. In this regard, Alberta awaits the genealogical information you indicate will be forthcoming from your client in the year 2015. Your client is free to contact the ACO or Mr.

Enns directly; however, all correspondence from Prowse Chowne LLP related to any project specific consultation or related to general consultation policy discussions is to be directed to Alberta Justice and Solicitor General and not to our client. In my letter to you of December 10, 2014, I provided you with notice that the Government of Alberta is represented by Alberta Justice and Solicitor General with respect to this matter.

My letter to you requested that all communication, including written correspondence from Prowse Chowne LLP with regard to this matter be directed to the undersigned at the Aboriginal Law Team and not to our client. Contrary to this request, you sent your letter of December 15, 2014 directly to our client. We therefore ask that you comply with the Law Society of Alberta’s Code of Conduct, sections 6.02(8) and 10, and refrain from further direct communications with our client.

Summary [ 99 ] A

summary of key dates relating to the SOC, IRs and Decisions on Consultation Adequacy is provided below: Application Consultation Adequacy Decision Issued Statement Of Concern Submitted Information Request to ML 1935 Sent Information Request Deadline Extension Dates Information Submitted by ML 1935 Decision to ML 1935 on Consultation Disposition Issued by AER OSE 140001 Mar. 25, 2014 Apr. 11, 2014 N/A Oct. 16, 2014 Oct. 16, 2014 OSE 140059 Feb. 23, 2015 Oct 24, 2014 Nov. 14, 2104 Nov. 28, 2014 N/A Nov. 28, 2014 Dec. 10, 2014 Mar. 25, 2015 OSE 140048 Oct. 21, 2014 Oct. 17, 2014 Nov. 19, 2014 Dec. 3, 2014 (and then, Dec. 4, 2014) ?

Dec. 10, 2014 at 1:57 PM Dec. 10, 2014 Feb. 26, 2015 Water Act Licence Renewal Oct. 31, 2014 July 14, 2014 Nov. 19, 2014 Dec. 3, 2014 (and then, Dec. 4, 2014) ? Dec. 10, 2014 at 11:49 AM Dec. 10, 2014 Aug. 5, 2015 IOL Aspen Project No decision yet July 15, 2014 Nov. 24, 2014 Dec. 8, 2014 ?

Dec. 15, 2014 Dec. 10, 2014 Not yet Issued [ 100 ] In its Originating Application, the FM Local asks this Court to quash the three Decision Letters dated October 16, 2014 [AER Decision Letter], December 10, 2014 [Decision Letter 1] and December 16, 2014 [Decision Letter 2], and direct the Crown to consult the FM Local on five of the Projects to which they relate. [ 101 ] The AER Decision Letter is a letter from the AER to the FM Local dated October 16, 2014, associated with OSE140001.

It is not a decision of the ACO. [ 102 ] The other two Decision Letters at issue are letters from JSG to the FM Local’s legal counsel Prowse Chowne LLP. The two letters were dated December 10, 2014 [Decision Letter 1], and December 16, 2014 [Decision Letter 2].

[103] All of these letters have been reproduced earlier in this judgment. The Issues [104] The Applicant argues that the ACO erred in law when it applied a higher threshold than required by law in assessing the duty toconsult the FM Local, and concluded that the duty to consult the FM Local was not triggered. [105] The Applicant further contends that the ACO erred in law when it violated the principles of procedural fairness and naturaljustice by:

a) Failing to consider all the detailed and comprehensive evidence provided by the FM Local when determining whether the duty toconsult had been triggered in respect of the Applications;

b) Imposing arbitrary and unreasonable timelines on the FM Local to answer detailed information requests;

c) Improperly prioritizing a shorter assessment period for the Applications to the detriment of adequate assessment of the FM Local’sreasonably asserted, constitutionally protected rights, which may be adversely affected by the Applications; and

d) Failing to clarify timelines, failing to respond in a timely manner to requests for reasonable time extensions, and refusing to grantreasonable time extensions requested in respect of the information requests. [106] Given the central role that the issue of procedural fairness appears to play regarding the within judicial review application bythe FM Local, I have opted to deal with this question foremost. [107] I have chosen this course in the context of the statement by the Supreme Court of Canada in Cardinal v Kent Institution, (SCC), [1985] 2 SCR 643 at para 23, 24 DLR (4th), that a breach of fair hearing by an administrative decision-makerinvalidates an administrative decision, regardless of whether the reviewing court is of the view that the administrative decision-makerwould have reached the same conclusion without the breach. [108] In effect, if this Court concludes that there has been a substantive breach of the duty of procedural fairness – which is more thana defect in form or a technical irregularity – it would not be expected or required to speculate on how the ACO could have proceeded ifthere was no breach: Edmonton Police Assn v Edmonton (City), 2007 ABCA 184 at para 9, 409 AR 1; see also, Alberta Rules of Court,r 3.24(3).

Compliance with the duty of procedural fairness is fundamental in Canadian administrative law and our legal system. [109] In this context, I wish to observe that the same issues that have arisen in the within proceedings were essentially before thisCourt in the sister case earlier referred to as FCM Local JR, and indexed as: Fort Chipewyan Métis Nation of Alberta Local #125 vAlberta, 2016 ABQB 713 (Action No. 1503 06412).

The judicial review application in the FCM Local JR was heard in conjunction withthe within proceedings, and the decision in the FCM Local JR is being released at the same time as the within Judgment. It iscontemplated that the FCM Local JR would serve as a jurisprudential supplement to this Judgment.

Standard of Review [110] The issue of procedural fairness is reviewed on the standard of correctness: Anand v Anand, 2016 ABCA 23 at para 8, 609 AR359. [111] Regarding the other issues that are engaged in relation to the duty to consult, the Newfoundland & Labrador Court of Appeal inLabrador Métis Nation v Newfoundland & Labrador (Minister of Transportation & Works), 2007 NLCA 75 at para 35, 288 DLR (4th)641 leave to appeal to the SCC dismissed, 2008 CarswellNfld 142 [Labrador Métis Nation], comprehensively addressed the standards ofreview for specifically identified questions as follows: Issue (i), the necessity of ethnic identification, is a pure question of law and the standard of review is correctness.

Issue (ii) concerningidentification as Métis, would normally be a mixed question of law and fact; if the issue were properly before him, the applications judgewould have to apply the Powley legal standard to the facts of this case. But whether the issue was properly before him is a question oflaw. Issue (iii), assessing the credibility of the respondents’ claim, is also a mixed question of law and fact; the legal principles earlierdiscussed had to be applied to the facts.

Issue (iv), the matter of standing, is another mixed question of law and fact; legal questions ofagency and entitlement to be a representative plaintiff must be applied to the circumstances of [the parties]. Issue (v), the scope of theduty to consult, depends on (

a) legal principles relating to the extent and scope of the Crown’s duty to consult; (

b) the potential strengthof the LMN communities’ claim to Aboriginal rights; (

c) the extent of the potential adverse effects the construction of the [Trans-Labrador Highway] may have; and (

d) whether the Crown failed in its constitutional duties to consult and accommodate. Question (

a) isa pure question of law, (

b) and (

d) mixed questions of law and fact, and (

c) a pure question of fact. [112] Later, in Dunsmuir v New Brunswick (Board of Management), 2008 SCC 9 at paras 51, 53, [2008] 1 SCR 190, the SupremeCourt of Canada confirms that questions of fact, discretion and policy as well as questions where the legal issues cannot be easilyseparated from the factual issues generally attract a standard of reasonableness. [113] Further, in Dunsmuir at para 47, the Supreme Court explains that a court conducting a review for reasonableness must inquireinto 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-makingprocess.

However, it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law.

Did the ACO violate the principles of procedural fairness and natural justice? The FM Local’s arguments [ 114 ] The FM Local argues that the method and manner by which the Alberta Crown applied the test as to whether the duty to consult was triggered was incorrect, as the Alberta Crown did not seek to have all the relevant information before it.

The test for when the duty to consult is triggered not only derives its content from the honour of the Crown, but the Crown’s method and manner of applying this test is also governed by the honour of the Crown and procedural safeguards must be in place. [ 115 ] When a resource company contacts the ACO they are advised by the ACO which First Nations they must consult with in accordance with the First Nations Consultation Policy for “delegated consultation.” There is no option at this point for Métis groups to be selected for consultation by the ACO as the policy excludes Métis groups.

The Joint Operating Procedure states “[t]he goal is for the delegated consultation and the AER’s statement of concern period to end at the same time, so that all input can be assessed and considered in the regulatory decision.” The first notice that potentially impacted Métis groups receive of the project is after the consultation period is completed. The form of notice they receive is a mere Notice of Application posted on the AER’s website.

The Responsible Energy Development Act allows 30 days from the posting on the website for parties to file a Statement of Concern. [ 116 ] The FM Local says the Record in this case shows that Consultation Adequacy Decisions are made before information is provided through the SOC process, and therefore, before there is any information about potentially affected Métis Groups. It is argued that notice is given to parties that are not included in the First Nations Consultation Policy, such as Métis, after Consultation with First Nations.

The ACO staff appeared to be aware of this anomaly. [ 117 ] Furthermore, according to the Record in this proceeding, the process of considering the evidence after Consultation Adequacy Decisions have been communicated to resource companies was problematic.

The Record shows that ACO staff became aware that Métis SOCs were “sitting,” and consequently, other ACO staff began questioning how they were to process Métis SOCs because there was no process set out in their operating manuals and they did not have resources to do the work. [ 118 ] The FM Local argues that one key aspect of Alberta Crown’s duty to consult is for the Crown to reveal the test the FM Local needed to meet to trigger the duty to consult early on in the process and to provide its analysis of FM Local’s submissions in a clear and transparent manner.

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: Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 at paras 43-45 , [2004] 3 SCR 511 [ Haida ]. [ 119 ] Only if the Crown has a duty to disclose key components of its threshold decision-making and 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: West Moberly First Nations v British Columbia (Ministry of Energy, Mines and Petroleum Resources) , 2011 BCCA 247 at paras 147-151 , 333 DLR (4th) 31. [ 120 ] In this case, FM Local’s legal counsel asked the ACO why certain information was being requested through IRs, an answer was promised, but this answer never came.

The FM Local argues that it is impossible to know what test Crown staff applied or what element of the test the Crown believes FM Local failed to meet.

It submits that all that is revealed on the Record is that the Crown’s “test” appears to be a moving target, and the evidentiary threshold seems to increase every time FM Local clears a hurdle, giving the appearance that the Crown dishonourably manufactured a “test” which could never be met. [ 121 ] It is argued that the ACO did not appear to have reviewed the majority of the information provided in the IR Responses that were prepared by FM Local. [ 122 ] The FM Local submits that the Alberta Crown acting honorably would have engaged in open communication with FM Local about the reason for the IRs and worked with FM Local to allow reasonable timeframes for the information to be furnished rather than leaving FM Local guessing about extensions with no timely response until after deadlines had passed. [ 123 ] Instead, the FM Local submits, the Alberta Crown failed to provide FM Local with any explanation of what test it expected FM Local to meet and what issues or concerns it had with the information submitted by FM Local.

As a result, there was no fair opportunity for FM Local to respond. Such an outcome contravenes the basic principles of procedural fairness, the honour of the Crown and the purpose of consultation. [ 124 ] The FM Local contends that unstructured decision-making raises a serious breach of the honour of the Crown. The nature of 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, Chief Justice McLachlin called upon governments to establish regulatory schemes or policies to strengthen the reconciliation process and to reduce recourse to courts cautioning that the 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 . Discretionary and arbitrary decision- making is manifestly unfair and in breach of the honour of the Crown.

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. [ 125 ] The FM Local further argues that the Alberta Crown appears to be imposing a different test to trigger the duty to consult than that set out by the law, by placing a very high evidentiary burden on the FM Local, giving little time to meet that burden, and not explaining or clarifying the test to be met.

[ 126 ] The FM Local requests this Honourable Court declare: i. the Alberta Crown’s decision that the duty to consult was not triggered with FM Local in relation to these Projects was incorrect; and ii. Alberta Crown breached the honour of the Crown in making its Decision. [ 127 ] Subsequently, both parties agreed that the only question to be addressed by the Court in this judicial review application relates to whether the Alberta Crown’s duty to consult is triggered, and not whether the Alberta Crown breached the honour of the Crown.

The Crown’s arguments [ 128 ] The Alberta Crown argues that the issue on this judicial review is whether the ACO reasonably determined that the FM Local had not provided sufficient information to establish a credible assertion that it represents a rights-bearing community and that consultation would not be required with the FM Local for each of the five Projects. [ 129 ] It submits that the FM Local’s application should be dismissed because the FM Local has not met the required threshold for triggering a Crown’s duty to consult.

The FM Local has failed to meet its onus of establishing both a credible assertion of Aboriginal rights and that each of the five Projects have the potential to adversely impact credibly asserted rights.

Section 35 of the Constitution Act, 1982 recognizes and affirms rights not available to other citizens. Crown consultation, including accommodation and mitigation, will be required with communities possessing Aboriginal rights. [ 130 ] The test for triggering the Crown’s duty to consult is well-established.

In this case, in order to trigger a Crown’s duty to consult the FM Local had the onus to establish: 1) First, that the FM Local represents a potential rights-holding Aboriginal community and has authority to act on its behalf. 2) Second, that the rights-holding Aboriginal community can credibly assert site​ specific Métis Aboriginal rights based on the criteria identified by the Supreme Court of Canada in Powley .

This requires credible information that: there is a modern day Métis community with continuity to an historic community; that community members self-identify as Métis and are accepted by the modern community; and community members have an ancestral connection to the historic community. 3) Third, if both the first and second hurdles are met, the FM Local must demonstrate how the Projects at issue might adversely impact the exercise of the asserted rights in order to trigger a Crown duty to consult. [ 131 ] The public interest requires governments to be sure that they are recognizing consultation obligations with Aboriginal groups that have credible claims and that they are consulting with the right entity with authority to speak on behalf of the collective.

Governments have a responsibility to ensure that claimed rights have some basis in law. Governments must also respect the rights and reasonable expectations of others, including project proponents who may be delegated the procedural aspects of consultation, other potential Aboriginal claimants, First Nations with existing rights, and the expectations of all Albertans for good government. [ 132 ] Government decisions may be set aside on the basis of claims of inadequate consultation .

These rights and their parameters must be protected. [ 133 ] Alberta acknowledges that aspects of Powley are not relevant in the context of a judicial review related to the duty to consult. In this context, the Court is not determining whether a government action amounted to an actual infringement, nor is the Court required to consider whether any such infringement would be justified.

The Alberta Crown does not take issue with the “Crown conduct” component of the test for the duty to consult for the purposes of this Application. [ 134 ] The Alberta Crown recognizes that a legal duty to consult a Métis community with credibly asserted Aboriginal rights could arise. Accordingly, the Alberta Crown has internal policies in place guiding Alberta’s case-by-case approach to Métis consultation. [ 135 ] In 2007, the Alberta Crown released an internal Pre-Policy Initiative to provide interim guidance in addressing Métis consultation.

It provides, among other things, that in considering asserted Métis rights, the Alberta Crown will evaluate the nature of the claims based on the test set out in Powley . [ 136 ] In 2008, a Métis Consultation Internal Directive was developed to provide further guidance and to ensure the Alberta Crown meets its legal obligations.

The Directive provides a process to be followed in determining whether Métis consultation is required when a Métis community asserts an Aboriginal right. [ 137 ] In the specific context of EPEA and Water Act approvals requiring EIA reports, the Aboriginal Relations First Nation Consultation Work Instructions requires the ACO to take steps in accordance with the Métis Consultation Internal Directive when considering whether Métis consultation is required or when an Aboriginal right is asserted by a Métis community. [ 138 ] Whether a duty to consult was triggered in relation to the FM Local depended, in part, on the credibility of its asserted rights.

In

assessing the credibility of the FM Local’s assertions, the Alberta Crown had to consider whether the FM Local represented a potential rights-holding collective and had authority to act. [ 139 ] The Alberta Crown argues that months before the decisions at issue, the Alberta Crown communicated to the FM Local and Prowse Chowne LLP that the Alberta Crown did not have a formal Métis consultation policy and that it did not recognize a duty to consult the FM Local.

This was communicated to Prowse Chowne LLP, in response to a letter from Prowse Chowne LLP to the Minister of (then) Aboriginal Relations and an Assistant Deputy Minister with the Ministry in July 2014. The FM Local was told on numerous occasions that the Alberta Crown considers consultation with Métis on a case-by-case basis.

In July 2014, the Assistant Deputy Minister of Consultation and Land Claims advised Prowse Chowne LLP that: Alberta consults with Métis groups on a case-by-case basis where proven or credibly-asserted Métis rights may potentially be impacted by land management and resource development decisions.

This approach accords with principles outlined by our courts, which have established that consultation is required where the Crown has knowledge of a proven or credibly asserted right and contemplates conduct that has the potential to cause a novel adverse impact on the exercise of that right. [ 140 ] The Alberta Crown states that SOCs are part of the AER’s regulatory process.

For each of the Projects, the AER sent the FM Local a letter confirming receipt of its SOC, and advising that its concerns would be considered, and stating that it did not have jurisdiction to consider the adequacy of Crown consultation. [ 141 ] In June 2014, the AER and ACO discussed the need for a process to deal with Métis SOCs on AER applications.

The ACO referenced the Ministerial Order and the requirement that the AER share with the ACO all submissions filed by First Nations and other Aboriginal groups so that the ACO may assess whether a Crown duty to consult is triggered by a non-status or Métis group’s submissions. [ 142 ] When the AER first started forwarding SOCs to the newly constituted ACO, there was internal discussion within the ACO about how they should be handled. [ 143 ] The Alberta Crown notes that upon receipt of the SOCs, the ACO: i. Created charts to track SOCs received from the AER; ii.

Internal discussions were held and briefing notes prepared to ensure that the ACO was following the 2007 Pre-Policy Initiative and 2008 Métis Consultation Internal Directive. iii. Ongoing communication occurred between ACO staff to discuss and ensure review of Métis SOCs; iv. Senior ACO staff confirmed that the Alberta Crown would continue to assess Métis consultation on a case-by-case basis and apply the Métis Consultation Internal Directive, as summarized in a new set of Work Instructions; v. A template chart was created for reviewing Métis SOCs based on the Powley requirements; and vi.

Internal ACO charts were created to track responses from Métis groups. [ 144 ] The Record demonstrates that ACO staff was organized to coordinate letters to Métis Locals seeking further information for projects in the Northern Region. As at October 28, 2014, the FM Local had submitted nine SOCs with the AER on various oil and gas development projects involving a number of proponents including CNRL, Enbridge, VCI, Cenovus and Imperial Oil.

By December 2, 2014, the FM Local had submitted 19 SOCs. [ 145 ] The Alberta Crown argues that since receiving the various SOCs, the ACO has requested and reviewed documentation from the FM Local in order to make an assessment of whether the FM Local represents a Métis community that can credibly assert Aboriginal rights, and what rights are being asserted.

The Alberta Crown made inquiries of the FM Local and asked the FM Local for information about its membership; membership requirements; the nature of the asserted rights to hunt, fish, trap and gather; details about the areas in which its members are conducting activities; and how those activities might be adversely impacted by the Projects. [ 146 ] The Alberta Crown indicates that the information it sought related to aspects of the Powley test and the test for triggering the duty to consult.

It is argued that the FM Local provided minimal information in response, and conceded that its genealogical study would not be ready until 2015. There was a lack of information about who the FM Local represents for the purposes of asserting Aboriginal rights and its authority to act; lack of information on essential elements of the Powley test; and finally, lack of information about potential adverse impacts of the Projects upon the asserted rights. [ 147 ] The Alberta Crown submits that its decision-making was not “opaque or unstructured” as alleged.

The Pre Policy Initiative, Internal Directive and Work Instructions guided ACO staff. The Record demonstrates that the Alberta Crown communicated to the FM Local the information that was required for the Alberta Crown to consider its assertions. The case to be met by the FM Local is not unclear. The leading case on Métis rights, Powley , was referenced by the FM Local and Prowse Chowne LLP in its correspondence.

[148] The Alberta Crown’s ESRD advised the FM Local on the IOL Aspen Project in December 2013 that Powley was the criteria.The Record does not support the FM Local’s submissions that an honorable, clear and transparent test and process for providinginformation was not established or that the test the Alberta Crown applied was a “moving target.” [149] The Alberta Crown argues that there is no merit to the FM Local’s argument that to act honorably the Alberta Crown shouldhave engaged in open communication with FM Local about the reason for the IRs and worked with FM Local to allow reasonabletimeframes for the information to be furnished.

The ACO acted reasonably in setting deadlines for response to requests for informationand addressing extensions, given the type of information requested, and the factual context associated with each Project, as follows: i. The FM Local was aware of the Projects, having filed SOCs with the AER in the regulatory process between Julyand October 2014. In the case of the [IOL Aspen Project], the FM Local was notified by Imperial in July 2013, received the EIA inDecember 2013, and had access to project shapefiles and a third party technical review of the EIA for many months.

The FM Local wasalso conducting a project specific TLU, which the Record indicates may have been complete. ii. The three CNRL OSE projects were time sensitive, temporary winter drilling programs with minimal impacts. Theexisting Water Act Licence was due to expire in a few weeks and there were no novel impacts arising from the renewal. iii. Regulatory delays in the fall of 2014 were impacting proponents, including CNRL. iv.

Prowse Chowne LLP advised the Alberta Crown on November 28, 2014 that the FM Local’s genealogicalinformation, “linking members of [the FM Local] to a historical Northeastern Alberta Métis community” would not be available until2015. v.

Most of the information requested would have been readily available to the FM Local, including information aboutits membership requirements, members, and where its members are currently exercising asserted rights. [150] The Alberta Crown points to Little Salmon/Carmacks First Nation v Yukon (Director, Agriculture Branch, Department ofEnergy, Mines & Resources), 2010 SCC 53 at para 12, [2010] 3 SCR 103, where the Supreme Court confirmed that good governmentrequires decisions to be made in a timely way. Crown decision-makers must balance societal and Aboriginal interests.

Given all ofthese factors, the ACO’s decisions, as reflected in the Decision Letters, were entirely reasonable. The FM Local was encouraged tocontinue to participate in the AER’s process, and to forward its genealogical information when it became available, as well as any otheroutstanding information, to Aboriginal Relations for consideration. [151] The Alberta Crown contends that the information provided by the FM Local and Prowse Chowne LLP was primarily limited tomaterial related to general historical Métis’ connection to the area.

This material was unclear as at times it referred to a larger region, orother communities, such as Lac La Biche and Fort Chipewyan. [152] It argues that the FM Local did not provide information relevant to key aspects of the Powley test. In responding to the AlbertaCrown’s requests, the FM Local did not provide sufficient information for the Alberta Crown to be able to reasonably determine who itrepresents, its authority to assert Aboriginal rights and seek Crown consultation, or that it can credibly assert that its membershipdemonstrates any of the required indicia of Métis identity.

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