Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, 2016 ABQB 713

Court of Queen’s Bench of Alberta Citation: Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, 2016 ABQB 713 Date: 20170124 Docket: 1503 06412 Registry: Edmonton Between: Fort Chipewyan Métis Nation of Alberta Local #125 Applicant - and - Her Majesty the Queen In Right of Alberta (As Represented by the Minister of Aboriginal Relations) Respondent Corrected judgment: A corrigendum was issued on January 24, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H.

Goss _______________________________________________________ Table of Contents Introduction . 4 Background . 4

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 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 Analysis and Conclusion – re Test

Part 3: Adverse Impact on Asserted Métis Rights . 96 Adequacy of Reasons . 98 The FCM Local’s Submissions . 98 The Alberta Crown’s Submissions . 99 Analysis and Conclusion – re Adequacy of Reasons . 100 What is the effect of the Federal Crown’s decision that the duty to consult FCM Local was triggered? 101 Disposition . 101 Introduction [ 1 ] This is an application by Fort Chipewyan Métis Nation of Alberta Local 125 [FCM Local] for judicial review of the decision of the Crown in Right of Alberta [Alberta Crown or Crown] that a duty to consult about the Teck Frontier Oil Sands Mine [Project] had not been triggered.

The Alberta Crown took the position that its decision that the duty to consult was not triggered was reasonable because the FCM Local provided insufficient information regarding who it represents for the purposes of asserting Aboriginal rights, its authority to act, the scope and nature of the rights asserted and any potential adverse impacts of the Project upon the asserted rights. The FCM Local argues that the FCM Local was led to believe that the Alberta Crown understood its duty to consult had already been

triggered, that it had provided sufficient information to trigger the duty to consult and that the Alberta Crown’s decision – that the duty to consult was not triggered – was unreasonable and incorrect. Background A. The Parties [ 2 ] The FCM Local is an Alberta non-profit society incorporated, pursuant to the Societies Act , RSA 2000, c S-14 [ Societies Act ]. The Fort Chipewyan hamlet is located in the Regional Municipality of Wood Buffalo, approximately 220 km north of Fort McMurray, Alberta.

It is a fly-in community with no all-weather road access. [ 3 ] Alberta Indigenous Relations is a Government of Alberta Ministry [AR]. The Aboriginal Consultation Office [ACO] is a department of the Ministry.

The ACO was established on November 1, 2013 “[t]o strengthen the [Government of Alberta’s] role in the First Nations consultation process.” The ACO provides “consultation management services to meet the needs of [Government of Alberta] ministries, First Nations, the [Alberta Energy Regulator] and project proponents.” [ 4 ] Teck Resources Limited [Teck] is a federal corporation registered to operate in Alberta.

For the purposes of this judicial review, Teck is described as the proponent of the proposed Project, an open pit oil sands mine located 110 km north of Fort McMurray, Alberta and 130 km south of Fort Chipewyan in the Athabasca oil sands region of northeastern Alberta. The Project has a total capacity of approximately 260,000 barrels of bitumen per day.

Some of the physical features of the Project include two pits; tailings ponds, tailings pipelines and tailings management facilities; a froth treatment plant; tailings preparation and management facilities; a cogeneration and heat integration facility; steam and hot water generation facilities; earth structures and supporting infrastructure; containment ponds for recycle water, river water and a fish habitat compensation lake; landfills, hazardous waste storage, chemical storage; and access roads, administration and support buildings and a bridge across the Athabasca River.

Teck will also drain muskegs and divert water from the Athabasca River at an annual volume of up to 98 mm3/a (cubic millimetre per annum). The Project is to be developed in two phases. Phase 1 includes two process trains with planned start-up in 2026 and 2027, respectively. Phase 2 includes a third process train and has a planned start-up in 2037. Teck has chosen not to participate in this judicial review application. B.

The Facts [ 5 ] During the time period at issue in this judicial review application, the Alberta Crown Ministry’s name changed from Alberta Environment to Alberta Environment and Sustainable Resource Development [AENV], and later to the current Alberta Environment and Parks. Alberta Environment originally had jurisdiction over the environmental assessment process ( Environmental Protection and Enhancement Act , RSA 2000, c E-12,

Part 2 (as it read on January 1, 2008) [ EPEA ]; and the Energy Resources Conservation Board [ERCB] had jurisdiction over development of energy resources in Alberta ( Energy Resources Conservation Act , RSA 2000, c E-10, s 2(c), and Oil Sands Conservation Act , RSA 2000, c 0-7, s 10 (as they read on January 1, 2008).

They are referred to as named at the relevant time or collectively as the Alberta Crown. [ 6 ] In July 2007, AENV issued a Métis Harvesting in Alberta Policy [Métis Harvesting Policy or Policy] identifying the criteria that an individual must establish in order to qualify as a Métis harvester, when and where harvesting can take place and the regulations that apply to such harvesters. It was updated in June 2010.

The Policy replaced an Interim Métis Harvesting Agreement that was earlier entered into with the Métis Nation of Alberta [MNA] in 2004, which provided that members of the MNA could hunt, fish and trap for subsistence purposes including provisions related to the timing and location of those harvesting activities. The Métis Harvesting Policy allows a Métis harvester to hunt for food at all times of the year within that person’s community harvesting area.

The community harvesting area consists of the unoccupied Crown land or other land to which the Métis harvester has a right of access within 160 km of the community. Fort Chipewyan has been formally recognized as a historical and modern Métis community for the purposes of Métis harvesting in the Métis Harvesting Policy. [ 7 ] Teck informed AENV of its plans to develop the Project in November 2007. In February 2008, AENV advised Teck that the Project is a mandatory activity under the EPEA and therefore Teck was required to prepare and submit an Environmental Impact Assessment [EIA] report.

An EIA must include a description of potential negative environmental, social, economic and cultural impacts of a proposed project, plans to mitigate those impacts and the manner in which the proponent intends to implement a program of public consultation. AENV advised Teck that the Alberta Crown’s guidelines for consultation with First Nations would apply to the Project and Teck would be required to submit a First Nations Consultation Plan for review and approval. [ 8 ] Teck publicly disclosed the Project in March 2008.

In the Public Disclosure Document, Teck stated its intention to commence consultation with neighbours and communities of interest, including First Nations and Métis, well before filing its regulatory application, and to continue consultation throughout the application, regulatory, construction and operation stages of the Project. [ 9 ] Teck submitted a draft Aboriginal Consultation Plan for the Project for AENV’s review, which included a Community Inclusion List identifying the First Nations and Aboriginal organizations that Teck would consult, as well as the planned level of consultation.

Teck included the FCM Local in Group l, indicating the FCM Local would receive the fullest extent of consultation efforts (including face-to-face meetings, telephone, email and open houses). Teck also included Fort McKay First Nation, Athabasca Chipewyan First Nation, Mikisew Cree First Nation and Métis Local # 63 (Ft. McKay) in Group 1 of the list.

Teck determined full consultation was required with these Aboriginal communities based on their proximity to the Project area and the potential impact on Aboriginal rights and traditional uses. [ 10 ] AENV reviewed the draft Consultation Plan and advised Teck of the need to be clear that Métis are included in relation to

potential or asserted rights, and not because a Métis group has legally established rights. Teck amended and resubmitted its draft Consultation Plan for approval. [ 11 ] The revised plan states that although Métis consultation requirements have yet to be clarified by the Government of Alberta, Teck has included potentially affected Métis communities in the consultation plan as a matter of best practice and desire to develop mutually beneficial relationships with all Aboriginal communities in the region.

On June 10, 2008, the Consultation Plan was approved by AENV. [ 12 ] Pursuant to the Consultation Plan, Teck was required to submit a report to AENV on the process of consultation every two months. AENV also stated that it may require Teck to undertake further consultation at any time during the regulatory approval process based on the receipt of new or additional information. Bi-monthly reports were provided regularly to the Alberta Crown from February 2008 to February 2015. Every consultation report or supporting consultation log included a

summary of specific consultation activities between Teck and FCM Local. [ 13 ] On September 21, 2009, Teck and two Alberta Ministries met with FCM Local in Fort Chipewyan regarding healthcare, housing and economic development. [ 14 ] On November 24, 2011, Teck submitted its Integrated Application [Teck’s Application] to AENV, the Canadian Environmental Assessment Agency [CEAA] and the ERCB seeking various federal and provincial approvals for its proposed Project. Teck’s Application includes a

section specifically addressing Teck’s Aboriginal and Public Stakeholder Consultation. In that section, Teck repeats the statement from its Consultation Plan about the basis for its consultation with potentially affected Aboriginal communities and indicates its intent to continue consultation throughout Project construction, operation and closure. Teck further states that consultation has influenced the Project design and is expected to continue to do so. [ 15 ] The Teck Application confirms that Teck is consulting the FCM Local at the highest level and has provided the FCM Local with capacity funding.

Teck’s Application also describes some of the adverse effects to the exercise of treaty and Aboriginal rights expected to arise from the Project, including impacts in the following categories: acoustics, air quality, groundwater, hydrology, surface water quality, fish and fish habitat, terrain and soils, vegetation, wildlife, human health, paleontology, historical resources, resource use, visual aesthetics, traditional land use, Peace-Athabasca Delta and socio-economics. [ 16 ] On March 5, 2012, CEAA, AENV and the ERCB issued a joint Notice of Teck’s Application inviting any person who may be directly affected by the EPEA application or the Water Act application to submit a written statement of concern pursuant to those statutes.

The FCM Local, as well as Mikiswew Cree First Nation GIR, Athabasca Chipewyan First Nation IRC, Métis Nation of Alberta, Region 1, the Community of Fort McKay including Fort McKay First Nation & Fort McKay Métis Community and the Métis Nation of Alberta Association, Lakeland Local Council 1900 all filed statements of concern in relation to the Project.

Teck advised AENV, CEAA and the ERCB of its intention to provide responses to all statement of concern filers. [ 17 ] The May 28, 2012 Statement of Concern [SOC] submitted by the FCM Local explained that its members are an Aboriginal people practicing traditional lifeways on the land on which the Project development is proposed. FCM Local advised that it has Aboriginal rights to hunt, fish, trap and gather in the Project area and that the Project would impact those rights.

In addition, the FCM Local advised that because mining will occur over at least 30 to 40 years and, even with best practices, reclaimed landscapes will render some areas inaccessible and unavailable for traditional uses and will alter traditional travel routes. As well, the Project is located on the trap line of one of FCM Local’s members (Barb Hermansen), and would prevent her from carrying on trapping in that area forever.

Furthermore, the impact on waterways will affect members who use them for harvesting, travel and commercial activities. [ 18 ] On June 7, 2012, CEAA advised FCM Local that it had done a preliminary assessment that shows that there are potential adverse impacts to FCM Local’s Aboriginal rights as a result of the Project and confirmed that the Duty to Consult had been triggered for consultation with Canada. [ 19 ] The Record reflects that on June 14, 2012, the Alberta Crown indicated that there were “Métis Issues” associated with the Project and recommended that Teck fund a Project specific Métis Traditional Ecological Knowledge study and technical review. [ 20 ] On June 28, 2012, AENV responded to a query from the FCM Local’s representative, C.

Bertolin. AENV confirmed receipt of the SOC and advised that it would be reviewed by the Designated Director under EPEA and the Water Act who would decide to accept or reject it based on certain criteria.

The criteria identified included “whether there is a relationship between the concerns and the application, whether the concerns are related to the Director’s authority under [ EPEA and the Water Act ] and whether the majority of the people represented through the submission are directly affected by the project application.” AENV’s Approvals Program Policy provided that any organization that had a portion of its members living in the geographic vicinity of the activity would be considered directly affected. In response, Ms.

Bertolin forwarded AENV copies of the Métis Harvesting Policy and a prepared schematic of what she termed the buffer zone (a 160 km circle around Fort Chipewyan) to assist in the Director’s submission regarding FCM Local’s standing. [ 21 ] On July 5, 2012, FCM Local President, Jumbo Fraser, wrote jointly to the Premier of Alberta and the Prime Minister of Canada about potential additions to First Nations’ reserves in 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. Please identify how you anticipate the proposed project will directly affect specific members of the [FCM Local]. c. Please provide a breakdown of the [FCM Local] membership in terms of communities that the members currently live in (e.g. how many reside in Fort McMurray, Fort Chipewyan, Fort McKay, etc.).

Please include documentation allowing us to verify the information provided. [ 24 ] On July 19, 2012, President Fraser also wrote to CEAA and the ERCB (again copying various other federal and provincial officials) requesting that the bodies rule, both retroactively and prospectively, on the adequacy of consultation with the rights-bearing Métis community as it relates to any projects currently before or in their continuing jurisdictional mandates. [ 25 ] On August l, 2012, the Alberta AR Minister responded to President Fraser’s request for information and research indicating that he would be pleased to ask officials to look into the request, but asked for more specificity about the information sought.

On August 20, 2012, the Premier responded to the July 5, 2012 Premier Letter, advising that Alberta administers its duty to consult Métis on a case- by-case basis when credibly-asserted rights may be potentially impacted by Crown land management and resource development decisions.

The Premier further advised that Alberta does not administer a Métis consultation capacity funding program. [ 26 ] Following receipt of Teck’s EIA, a federal-provincial team consisting of the ERCB, CEAA and government departments, including AENV’s consultation advisors, started their technical review of the EIA against both the regulatory requirements as well as the Aboriginal concerns identified in the statement of concern process. As a result, the ERCB, AENV and CEAA provided Teck with a set of Supplemental Information Requests on August 15, 2012 [SIRl].

The Alberta Crown requested information about the FCM Local during this process, asking for a status update of the traditional land use study that Teck agreed to fund for the FCM Local. In the Technical Review process, the Alberta Crown noted the MNA Region 1’s request for a project-specific Métis environmental knowledge study.

Alberta recommended that Teck fund the study as well as a technical review. [ 27 ] On August 27, 2012, President Fraser responded, asserting that the Project would impact the entire community and its Aboriginal rights, and asked for confirmation that the FMC Local’s SOC was official [August 27, 2012 SOC Letter]. President Fraser specifically stated: a. In FCM Local’s view, all members are affected by the Project because of the communal nature of FCM Local’s Aboriginal rights.

FCM Local members are avid harvesters and will be impacted by the conversion of 290 km2 of boreal forest to mining, with associated tailings ponds and water withdrawals. The Project falls within FCM Local’s traditional territory, which is deemed by the Alberta Crown to be a 160 km radius around Fort Chipewyan. b. FCM Local members Barb Hermansen (trapper) and Elder Ray Ladouceur (bushman) will be specifically impacted by the Project. Ms. Hermansen’s trap line is located within the Project area and will disappear as a direct result of the Project. Mr.

Ladouceur, and other FCM Local members, hunt moose and waterfowl, fish, harvest medical and food plants, trap and travel to Fort McMurray within the Project area. These activities will be impacted by the downstream effects of the Project on the region, in particular, water quantity and quality. Additionally, three FCM Local members’ commercial barging operations will be impacted as will all FCM Local members who use the Athabasca River to travel upstream to visit relations and friends in Fort McKay or Fort McMurray and to obtain annual domestic supplies.

Finally, FCM Local advised that traditional activities practiced in Wood Buffalo National Park (FCM Local members have more than 20 active trap lines in the Park) will be affected due to impacts to the Athabasca River and the Delta. c. There are 173 members of FCM Local, of which 156 reside in Fort Chipewyan and 17 have seasonal presence.

FCM Local advised that it does not have consent under privacy legislation to provide further information on the details of each of FCM Local member. [ 28 ] On August 28, 2012, at the request of the Premier, the AENV Minister further responded to President Fraser specifically addressing his concern about Métis harvesting rights in Alberta [August 28, 2012 Letter].

She advised that the Supreme Court of Canada established the criteria for recognizing Métis Aboriginal rights in Powley and confirmed that Alberta accommodates Métis harvesting rights through its Métis Harvesting Policy and application of the Powley criteria.

The Minister indicated that she was copying the AR Minister to allow him to address the consultation issues the FCM Local raised. [ 29 ] In September 28, 2012, a consultation staff member, in the Sustainable Resource and Environmental Management [SREM] Aboriginal Affairs Branch [SAAB], sent a further follow-up to the July 5, 2012 Premier Letter referencing President Fraser’s statement that he is the official Métis representative for FCM Local and therefore must be engaged in discussions, including resource development discussions, on behalf of the membership [September 28, 2012 Letter].

The Alberta Crown stated that it needed to understand who

President Fraser represents and the area and nature of the rights asserted. To this end, AENV asked for the following information: a. How many members does the FCM Local have? Please provide documentation that demonstrates the number of persons officially belonging to your Local Association. b. How does one become a member of the FCM Local? Please explain and document the FCM Local registration requirements and the membership approvals process. We are interested in learning whether your membership process requires any ancestral connection to a specified community. c.

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. d. Within what geographical area does FCM Local claim to represent Métis and what is the nature of the rights you are asserting?

Please advise if there are any documents supporting these assertions. [ 30 ] On October 10, 2012, the Designated Director advised President Fraser that the project- specific environmental concerns raised would be considered in the review of the applications. The Designated Director specifically noted the FCM Local’s assertion of Aboriginal rights to harvest, navigate or use the waters in the region.

He advised that “[t]he statement of concern process does not allow me or my Department to take any position on the asserted claims presented in your letter” and he encouraged the FCM Local to contact AR if it wanted to pursue those assertions. The Designated Director also confirmed that the SOC was considered official pursuant to EPEA and the Water Act and, as such, the FCM Local would be advised of his decision on the applications [October 10, 2012 SOC Letter]. [ 31 ] On October 16, 2012, Ms.

Bertolin responded to the SAAB advising that the FCM Local had endeavoured to provide answers, but some of what was requested might violate Alberta’s privacy laws. Rather than answer the questions asked, Ms. Bertolin referenced the October 10, 2012 SOC Letter as well as an attached email from CEAA and stated that the FCM Local had been officially recognized by both Alberta and Canada. Ms.

Bertolin further referenced the former Interim Métis Harvesting Agreement in asserting that AR had signed off on the veracity of the Métis Registry in 2004 (i.e. the MNA’s Registry), and that the FCM Local follows the process set out in the provincial MNA registry. She stated that “the numbers of Métis don’t [matter] it’s the recognition of the community and its evidence of

section 35 rights. [FCM Local] simply point[s] to Alberta’s Harvesting Policy creating a case of prima facie asserted harvesting rights and the territory.” She also referenced the Métis Harvesting Policy – issued in July 2007, and updated in June 2010 – as the “policy recognizing [the FCM Local] as both a ‘contemporary and historic rights-bearing community.’” Ms. Bertolin concluded her letter by stating that when Alberta and Canada funded a Traditional Knowledge Study [TKS] or Traditional Land Use Study [TLU], the FCM Local would redefine the scope and shape of its territory.

She also advised that the MNA had filed a Notice of Question of Constitutional Law [NQCL] with the ERCB in the Shell Jackpine Hearing. [ 32 ] On November 7, 2012, the FCM Local requested a meeting with the AR Minister and identified an initial list of issues for discussion, including the request for disclosure of information and research about the Fort Chipewyan Métis, the Métis consultation policy, the capacity for the Fort Chipewyan Métis to engage with industry, and the issue about Alberta Crown’s informing industry that they do not have to consult with the FCM Local. On November 30, 2012, Ms.

Bertolin emailed the AR Minister’s Office, the Designated Director and other AR staff and again requested a meeting with the Minister. In this email, she stated as clarification that in referring to President Fraser as representing the Métis who trace the origin of their rights to Fort Chipewyan, the FCM Local was talking about signing off on impacts, not the issue of Métis governance and representation (which she described as an internal Métis matter). Ms.

Bertolin stated that when Fort Chipewyan is able to commission studies about the effects of development on its Aboriginal rights, that is when the issue of who can sign off on impacts arises (consultation, mitigation, accommodation) as it is possible that many Métis communities are/may be affected. Ms. Bertolin referenced the Métis National Council, the Métis Nation of Alberta and the Métis Nation Region 1 and asserted that the only entity that can sign off on impacts is the FCM Local. [ 33 ] On December 3, 2012, the AR Minister wrote to President Fraser and Ms.

Bertolin thanking them for their letters and agreed to meet and discuss their concerns regarding consultation and harvesting. On January 14, 2013, the AR Minister again wrote to President Fraser indicating that he was looking forward to meeting later in the month to discuss the FCM Local’s concerns relating to resource development, along with other issues. Ms.

Bertolin provided an updated agenda for the meeting with the AR Minister, including as additional points of discussion: the prospect of a Métis consultation policy, the request for capacity funding and the Métis Harvesting Policy. [ 34 ] On January 15, 2013, Teck submitted its SIR responses, which included an update on its stakeholder engagement activities. Teck answered specific questions about its engagement with First Nations and Métis, and confirmed that it was providing funding to the FMC Local for a TLU as well as an oral history project for a Fort Chipewyan Métis elder [Hermansen Biography].

Teck also provided an appendix entitled “ Potential Impacts to Identified Aboriginal and Treaty Rights ” summarizing specific concerns raised by the participating Aboriginal groups, including the FCM Local, along with Teck’s responses to those concerns. [ 35 ] The FCM Local met with the AR Minister on January 23, 2013. [ 36 ] On January 25, 2013, Ms.

Bertolin responded via email to a query the AR Minister had posed at the meeting about an estimation of the numbers of those who may be included in a possible Métis Harvesting Policy version if the door was open to only Métis who could trace an ancestral connection to a recognized historic and contemporary Alberta Métis Community. Ms. Bertolin responded that the FCM Local had been pondering a similar matter, and indicated that the issue became real when ESRD asked “who Local 125

speaks for and how many people would be affected by a project.” Ms. Bertolin enclosed with her email the August 27, 2012 SOC Letter as well as a 2009 historic report entitled “ Research Findings: Key or Leading Métis Families in the Wood Buffalo/Fort McMurray Region ,” commissioned by the Fort McMurray Métis Local 1935. She further attached a Scope of Work for a $94,000 genealogy project, which she asked the Alberta Crown to consider funding. Ms.

Bertolin indicated that the FCM Local would like to undertake the genealogy project “to assess the question of ‘Who’ the Fort Chipewyan Métis Community speaks for in respect to collective rights.” [ 37 ] In response to Ms. Bertolin’s January 25, 2013 email, the AR Minister sent an undated letter indicating that he had forwarded her information package to the Assistant Deputy Minister of Consultation and Land Claims [ADM] for his consideration.

The Minister confirmed, as discussed at their meeting, that AR does not currently have consultation capacity or traditional use study funds available for Métis. [ 38 ] Following the meeting with the AR Minister, the AR’s Executive Director sent an email to the FCM Local identifying outstanding issues and asking for input on those issues. The FCM Local responded in a memorandum dated February 21, 2013, indicating that its priority issue was a consultation policy between the Alberta Crown and the Fort Chipewyan Métis and commensurate resources.

The FCM Local further reiterated its requests for disclosure of research, studies and papers that impact, discuss or affect the Fort Chipewyan Métis and for Alberta to fund its genealogy study so that it could answer the Minister’s questions. [ 39 ] On February 27, 2013, the FCM Local wrote to CEAA identifying its concerns with Teck’s SIR responses and reiterating the environmental concerns previously identified in its SOC. On February 28, 2013, Teck provided its SOC responses to the FCM Local, CEAA, the ERCB and AENV.

Teck indicated that it was made aware of the environmental concerns expressed in the SOC during consultations and those concerns were summarized and responded to throughout the EIA. Teck further stated that, during the public comment period for the Project, communities identified Aboriginal and Treaty rights that could be affected by the Project, and that Teck addressed those concerns, including those expressed by the FCM Local, in responding to SIRs in the technical review process for the EIA.

Teck affirmed its commitment to discussing the Project’s potential effects with the FCM Local and exploring acceptable mitigation measures, including long-term commitments. [ 40 ] On April 11, 2013, the ADM replied to Ms. Bertolin advising that Alberta would begin the process of developing a consultation policy for Métis once the new First Nations consultation policy was released. In the interim, Alberta would continue to consult with Métis on a case-by​ case basis where there is a credible assertion of Métis Aboriginal rights.

The ADM reiterated that there was no capacity funding available for Métis and no funding available for a genealogical study. He indicated that those topics would be discussed as Métis consultation is explored further. In reference to the FCM Locals’ request for disclosure of research, the ADM referred to the AR Minister’s previous August 3, 2012 letter to President Fraser and reiterated that AR would look into the request, but again asked the FCM Local to provide specifics of the information sought. On May 8, 2013, Ms.

Bertolin responded, advising that the FCM Local’s research request was withdrawn for now and asking that the Alberta Crown reconsider funding the study. [ 41 ] On June 6, 2013, Teck received a second set of Supplemental Information Requests [SIR2], after the federal-provincial team reviewed Teck’s SIR responses.

Again in this SIR2, the Alberta Crown requested information about the FCM Local, including: a. an update on Teck’s consultation activities; b. a list of all potential adverse impacts of the project and environmental effects of the project on rights, specifically identifying potential impacts to the Métis and to each First Nation; c. a plan addressing how Teck plans to engage with each First Nation or Métis group potentially affected by this project; d. evidence that Teck has discussed reclamation with each Métis group for which a concern on this topic has been expressed; and e. information regarding impacts on FCM Local’s rights, use and/or occupancy, and an assessment of the effects of the Project on a trapline that is held by an FCM member. [ 42 ] On October 23, 2013, Teck provided its SIR2 responses, which included an update on its consultation activities; and identified how Aboriginal community concerns continued to shape the Project’s development and environmental assessment.

Teck’s SIR2 responses included an updated appendix of potential impacts listed by Aboriginal communities and Teck’s corresponding responses. In its SIR2 responses, Teck confirmed that it made an early decision to include Métis in the consultation plan despite AENV not requiring consultation with Métis groups. Teck advised that it was sending its bi-monthly consultation logs to the FCM Local and was also funding a Fort Chipewyan Métis community-wide genealogy study. [ 43 ] The FCM Local had received federal funding to support an EIA review and held a focus group to discuss the Project.

In the November 2013 EIA review, the FCM Local criticized the traditional land use information relied on by Teck and indicated that a biography of one member (Hermansen Biography) could not be utilized in place of a comprehensive TKS. [ 44 ] As indicated earlier, the ACO was created in November 2013, five months following the creation of the AER. In June of 2013, the Responsible Energy Development Act , SA 2012, c R-17.3 [ REDA ] came into force creating the Alberta Energy Regulator [AER], and dissolved the ERCB.

The transitional provisions of REDA provide that all previous applications to the ERCB continue under the AER: see, REDA , ss 3, 4, 8l-113; and the Responsible Energy Development Act Transition Regulation , Alta Reg 92/2013, s 2. The

Minister of Energy issued a Ministerial Order, pursuant to REDA , providing direction to the AER to ensure that it would make decisions in respect of energy applications in a manner consistent with the Alberta Crown’s work to meet its consultation obligations. The Ministerial Order requires the AER to share with the ACO all submissions filed by First Nations and other Aboriginal groups. [ 45 ] On December 16, 2013, the FCM Local wrote to the Minister of Aboriginal Relations and advised that it was dissatisfied with the Alberta Crown’s consultation process for the Project to date. [December 16, 2013 Letter].

In the letter, Ms. Bertolin advised that the FCM Local had received and completed review of Teck’s SIR responses. She referred to the SOC and the FCM Local’s official status and asked that the Alberta Crown make no decisions on any regulatory or other matters on any of Teck’s applications until the Fort Chipewyan Métis had been consulted. Ms. Bertolin asked that Alberta create, on an expedited basis, a consultation process and provide capacity resources so that the FCM Local could engage in meaningful consultation. On December 17, 2013, Ms.

Bertolin forwarded the December 16, 2013 Letter to CEAA and the AR and AENV Ministers, copying the FCM Local’s legal counsel, Ms. Lambert (Ms. Bertolin and Ms. Lambert acted as the FCM Local’s legal counsel at the Teck Winter Drilling Hearing [Teck Winter Drilling Hearing]. Ms. Bertolin acted as one of the legal counsel for the Métis Nation of Alberta Region 1, representing the FCM Local and President Fraser amongst others, at the Shell Jackpine Hearing.

She enclosed the Hermansen Biography, and portions of transcripts from two separate ERCB hearings – Teck’s 2013 application for approval of its 2012/2013 Project winter drilling program, as well as the 2012 Shell Jackpine Hearing application to expand a neighbouring project. [ 46 ] On January 16, 2014, Teck responded to the FCM Local’s SIR concerns addressing each of the issues raised by the FCM Local and advising that it had recently agreed to fund the FCM Local’s Project-specific TLU. [ 47 ] On January 27, 2014, the Minister of Aboriginal Relations responded to the FCM Local’s December 16, 2013 Letter.

The Minister confirmed that the Alberta Crown recognizes a duty to consult with some Métis communities when Crown land management and resource development may adversely impact their rights. The Minister further advised that AR would begin the process of developing a consultation policy for Métis once the new First Nations consultation policy was implemented. In the interim, the Alberta Crown would continue to consult with Métis communities on a case-by-case basis when there is a credible assertion of Métis Aboriginal rights.

The Minister encouraged the FCM Local to continue to work with AR staff on the Alberta Crown’s approach to Métis consultation. [ 48 ] On February 10, 2014, Teck responded to the FCM Local’s EIA review outlining its plans to address each concern expressed and confirming its commitment to fund a Project-specific TLU. Teck further confirmed its continuing commitment to consult with the FCM Local through regulatory review, project construction and operation. [ 49 ] In March 2014, the AER took jurisdiction over the EPEA and Water Act approvals for the Project.

The relevant sections of REDA came into force on March 29, 2014. [ 50 ] On May 1, 2014, AER sent a copy of FCM Local’s SOC to the ACO, pursuant to the Ministerial Order 141/2013 (replaced by Energy Ministerial Order 105/2014 , on October 31, 2014). The Ministerial Order required the AER to provide the ACO with copies of all Statements of Concern filed by a First Nation or Aboriginal group together with any evidence and information. The AER sent a letter to the FCM Local acknowledging receipt of the SOC, and confirming that AENV had previously advised the FCM Local in 2012 that the SOC was official.

The AER indicated it would consider the SOC concerns in accordance with its Rules of Practice . [ 51 ] In June of 2014, the AER contacted the ACO indicating that a process needed to be developed to deal with Métis statements of concern on AER applications. In responding, the ACO referenced the Ministerial Order and its requirement that the AER share with the ACO all submissions filed by First Nations and other Aboriginal groups so that the ACO may assess whether a Crown duty to consult is triggered by a non-status or Métis group’s submissions.

The ACO created charts to track the statements of concern received from the AER and, in October 2014, senior ACO staff confirmed that the Alberta Crown would continue to assess Métis consultation on a case- by-case basis. A template letter was created for responding to Métis SOCs received from the AER, asking eight questions. The template letter was to be sent to each Métis community for each project for which the group submitted a Statement of Concern. [ 52 ] On November 10, 2014, the Premier, who was also the AR Minister, met with the FCM Local.

The FCM Local indicated that the first item on its agenda was Métis consultation. [ 53 ] In November 2014, Teck advised the FCM Local that it had submitted its response to the third round of SIRs [SIR3] and provided a portion of its response outlining planned changes to the Project. Teck also provided the FCM Local with an updated map depicting a new project disturbance area 118 hectares smaller than originally planned. On December 4, 2014, Teck asked the FCM Local for comments on Teck’s proposed methodology for assessing effects on traditional land use.

Teck confirmed that the proposed approach was not intended as a substitute for an independent Cultural Impact Assessment the FCM Local was conducting with Teck’s support. On January 12, 2015, the FCM Local’s consultant provided comments and recommendations to Teck. [ 54 ] The ACO reviewed the FCM Local’s SOC, inputting the information on an internal chart. In November 2014, the ACO sent out letters, based on the template, to Métis groups who had filed statements of concern that were forwarded to the ACO, pursuant to the Ministerial Order.

President Fraser received a template letter from ACO in relation to the Project, as well as a CNRL Program and the Imperial Aspen Project [the Three Projects], with a demand that the questions be answered within two weeks [the Information Request]. [ 55 ] In the November 20, 2014 Letter that the FCM Local received about the Project, the ACO asked only six of the eight template questions, based on information it had already ascertained from the SOC. The ACO asked the FCM Local to answer the following questions by December 4, 2014 and provide supporting documents: 1. How does one become a member of the FCM Local?

Please explain and document the FCM Local registration requirements? 2. Please identify how many members of the FCM Local are directly affected by the proposed project with particular reference to the nature and location of their individual activities relative to the location of the proposed project.

3. Within what geographical area does FCM Local claim to represent Métis and where is that documented? 4. You mention that the proposed project will impact critical wildlife habitats and habitation sites. Please identify the areas and the specific environmental concerns that members of the FCM Local have with the proposed project. 5. Is there one or more historic Métis communities that the members of the FCM Local claim an ancestral connection to? If so, please describe that community or communities including location(s). Please provide a breakdown of membership ties to those communities. 6.

You indicate that the project is proposed on lands used by members of the FCM Local for activities such as hunting, trapping and fishing. Please specify how those activities may be impacted by the proposed project. [ 56 ] On November 21, 2014, Ms. Bertolin called the ACO about the November 20, 2014 Letter and indicated that the FCM Local’s SOC had been accepted in 2012, that the FCM Local was not expecting the need to provide further information.

She stated that the FCM Local believed a detailed response was not necessary because Crown had already determined it was affected by the Project when it accepted FCM’s SOC. A consultation advisor indicated that he would get back to her about the need for a response. [ 57 ] On November 26, 2014, the FCM Local responded to the ACO’s November 2014 letters in relation to the CNRL Program providing responses to the template questions and advised that it was in the process of preparing a genealogy study to assess how many people could trace their

section 35 rights to Fort Chipewyan and to verify their other assertions [November 26, 2014 CNRL Response Letter]. [ 58 ] On December 5, 2014, the FCM Local emailed the ACO asking for an extension to reply to the November letters about the Project and the Imperial Aspen Project. The FCM Local also requested an extension of time for responding to the request for information. [ 59 ] On December 13, 2014, Ms. Bertolin, on behalf of the FCM Local, wrote to the ACO stating that the FCM Local was perplexed by the ACO’s request as it had been given official standing on all matters pertaining to the Project.

The FCM Local provided a copy of the Alberta Crown’s July 19, 2012 SOC Letter (from the Designated Director) and the FCM Local’s August 27, 2012 SOC Letter response, which asks and answers, respectively, many of the questions the ACO asked in its November 20, 2014 Letter. Ms. Bertolin also provided a copy of the October 10, 2012 SOC Letter and stated that she trusted it would address each and every question the ACO has. In her correspondence, Ms. Bertolin also acknowledged the receipt of the November 20, 2014 Letter in relation to the Project and referenced the extensions requested.

She indicated that the November 20th Letter was received after the requested December 4th due date for a response. On December 18, 2014 , Ms. Bertolin followed up by email indicating that she had not received a response to her correspondence about the Project or the Imperial Aspen Project. [ 60 ] On January 2, 2015, the ACO emailed a letter to President Fraser addressing the Three Projects [First Decision Letter].

It reads: This letter is in response to your written correspondence addressed to the Aboriginal Consultation Office (ACO) dated November 26 and December 5 (two emails from Ora Campbell and Cynthia Bertolin), 2014 regarding the Projects [Teck Resources Frontier Project; Imperial Oil Resources Ventures Ltd. Aspen Project; and CNRL OSE Winter Drilling Program] and other [matters]. 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 future in the context of further policy discussions regarding consultation processes.

To discuss the issue outside the project specific consultation process, please contact [the] Executive Director, Aboriginal Consultation Policy and Capacity. When the referenced genealogical study becomes available, you may forward it to his attention. The Government of Alberta encourages you to participate in the Alberta Energy Regulator’s process, as it provides a venue in which project specific concerns associated with the Projects can be considered and assessed. [ 61 ] On January 23, 2015, Ms.

Bertolin emailed the ACO advising that the FCM Local was assembling a package to respond to the points raised in the First Decision Letter.

She again referenced the October 10, 2012 SOC Letter of the Designated Director, and asserted that the FCM Local had received official standing relating to all matters regarding Teck and was going to challenge Alberta/ACO’s changing of a decision that was formally communicated to the Fort Chipewyan Métis. (The email appears to contain a date error; and the reference to the August 27, 2012 Letter should have been a reference to the October 10, 2012 SOC Letter from the Designated Director). Ms.

Bertolin acknowledged that her client was attending the AER hearing as a full participant, having been granted standing as being directly and adversely affected. She asked that the Alberta Crown not take any arbitrary action. [ 62 ] The FCM Local submitted a request for reconsideration to the Alberta Crown on February 16, 2015 [the Reconsideration Request]. In the February 16, 2015 letter to the Alberta Crown, President Fraser responded to the November 2014 letters as well as the First Decision Letter [February 2015 Letter].

He indicated that the ACO could have applied the FCM Local’s November 26, 2014 CNRL Response Letter to all Three Projects and that answering the same questions three separate times was redundant. President Fraser also provided an overview of the FCM Local’s correspondence about consultation and referenced a number of documents and reports as well as a book by P. A. McCormack, Fort Chipewyan and the Shaping of Canadian History, 1788-1920 .

The FCM Local requested that Alberta review all the materials and reports being submitted, including appropriate consideration of the McCormick book and the letter from Minister McQueen to reverse the decision regarding FCM Local’s credible assertion of rights. [ 63 ] On that same day (i.e. February 16, 2015), Ms. Bertolin emailed the ACO, Teck, CNRL and Imperial Oil copying FCM Local’s counsel, Ms. Lambert, and attaching two separate letters – one to AR and one to the proponents – indicating that large files would be arriving.

The letter to the project proponents simply notified them of the FCM Local’s attached response to the Alberta Crown. Along with the February 2015 Letter, Ms. Bertolin forwarded to the ACO seven separate links to large Dropbox files. The FCM Local stated that it required Alberta’s response in thirty days or it would explore other legal remedies. [ 64 ] On March 19, 2015, Ms. Bertolin again emailed the ACO attaching the February 2015 Letter and the October 10, 2012 SOC Letter. [ 65 ] The ACO responded to Ms. Bertolin the next day on March 20, 2015, confirming that it was reviewing the information submitted. Ms.

Bertolin replied March 21, 2015 stating that she had informed her clients and litigation team that the Alberta Crown was reconsidering and inquired when they could expect to receive a decision. That same day, Ms. Bertolin again emailed the ACO attaching a chain of emails and attachments and stating that the FCM Local wanted to include that information in support of its February 2015 Letter. On April 1, 2015, Ms.

Bertolin emailed the ACO stating that she recognized that the issues were complicated, but that the FCM Local needed to hear from the Alberta Crown and requested a timeline. [ 66 ] On May 1, 2015, the FCM Local filed its Originating Application challenging the First Decision Letter. [ 67 ] The ACO emailed Ms. Bertolin on May 14, 2015 indicating that the Alberta Crown was reviewing all of the information submitted by the FCM Local, however, the Dropbox links had expired. The ACO asked Ms. Bertolin to resend the links. Ms. Bertolin emailed the ACO and Ms.

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

[ 68 ] On June 15, 2015, Teck submitted a Project Update to CEAA and the AER incorporating an updated EIA reflecting changes resulting from changes to its oil sands lease as well as feedback from regulators and stakeholders. In its Project Update, Teck reviewed its Aboriginal community engagement to date and provided a

summary of the FCM Local’s Interim Cultural Impact Assessment, received April 20, 2015. Teck confirmed that the FCM Local’s Community Impact Assessment was expected to be completed that month and that the FCM Local had completed a Project-specific TLU. [ 69 ] On July 10, 2015, the ACO emailed Ms. Bertolin, attaching a letter (dated July 9, 2015) [Second Decision Letter], which advised as follows: Thank you for your February 16 th , 2015 letter requesting the Government of Alberta’s reconsideration of its decision on the applications [re the Three Projects].

The Government of Alberta acknowledges the information that Fort Chipewyan Métis Local 125 (FCM) has provided in response to information requests from Aboriginal Relations’ Stewardship and Policy Integration Branch (SPI) regarding [the Three Projects]. You have provided the following reports: 1. Jonathan Anuik and Frank Tough, with the Métis Archival Project Lab, “Historical Métis Communities in Region One of the Métis Nation of Alberta, 1881-1916.” Edmonton, University of Alberta, 2009. 2. Alberta. Office of the New Democrat Opposition. “Research

summary dated December 6, 2006, summarizing the status of research being conducted on Métis historical issues, prepared by Neil Reddekopp.” Government of Alberta Sessional Papers, 2007. 3. Gwyneth Jones. “Historical Profile of the Great Slave Lake Areas’ Mixed European-Indian Ancestry Community.” March 31, 2005. 4. Labour & Hermansen, “Barb Hermansen: Her Story.” June 2011. 5. Mark of the Métis – Research proposal for Heritage Land Occupancy Relationship Study in Fort McMurray and Wood Buffalo Region, June 2009. (including maps) 6. Neil Reddekopp, “Conklin as an Aboriginal Community: Legal Analysis”. 7.

Select Committee of the Senate Appointed to Inquire into the Resources of the Great MacKenzie Basin, Session 1888, Queen’s Printer 1888. 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 available, please forward it to his attention. We confirm that these policy discussions will take place separate and apart from project-specific consultation matters. [ 70 ] On August 24, 2015, the FCM Local filed an Amended Originating Application adding the Second Decision Letter to its judicial review. The FCM Local has not included the CNRL Program or Imperial Aspen Project in its application although both the First Decision Letter and Second Decision Letter apply to those projects as well.

C. The Relevant Law [ 71 ] In this

section of the Judgment, I have set out the relevant constitutional and legislative provisions, as well as common law concepts that are material to my analysis. [ 72 ]

Section 35 of the Constitution Act, 1982 ,

Schedule B to the Canada Act 1982 (UK), 1982, c 11, proclaimed in force on April 17, reads: 35.

(1) The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.

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

(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. The Duty to Consult [ 73 ]

Section 35 represents a promise of rights recognition which is realized through the process of honourable negotiation. It is a corollary of s 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate. It is a doctrine that applies independently of the expressed or implied intention of the parties: Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 at para 20 , [2004] 3 SCR 511 [ Haida ] .

The duty to consult is both a legal and a constitutional duty: Haida at para 10, 16 ; R v Kapp , 2008 SCC 41 at para 6 , [2008] 2 SCR 483; Behn - Moulton Contracting Ltd v British Columbia , 2013 SCC 26 at para 28 , [2013] 2 SCR 227 [ Moulton ]; Little Salmon/Carmacks First Nation v Yukon (Director, Agriculture Branch, Department of Energy, Mines & Resources) , 2010 SCC 53 at paras 42 , 61, [2010] 3 SCR 103 [ Little Salmon ]; Manitoba Métis Federation Inc v Canada (Attorney General) , 2013 SCC 14 at paras 69-72 , [2013] 1 SCR 623 [ Manitoba Métis Federation ]; Enge v Mandeville , 2013 NWTSC 33 at para 164 , [2013] 8 WWR 562 [ Enge ]. [ 74 ] The fundamental purpose and objective of the modern law of Aboriginal and treaty rights is the reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective claims, interests and ambitions in a mutually respectful long-term relationship: Little Salmon at para 10; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) , 2005 SCC 69 at para 1 , [2005] 3 SCR 388 [ Mikisew ]. [ 75 ] The duty to consult exists to protect the collective rights of Aboriginal peoples; and as such, is owed to the Aboriginal group that holds the s 35 rights, which are collective in nature.

Nonetheless, an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s 35 rights: Moulton at para 30 . The Honour of the Crown [ 76 ] The phrase honour of the Crown refers to the principle that servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign: Manitoba Métis Federation at para 65 .

The Crown’s duty of honourable dealing toward Aboriginal peoples arises from the Crown’s assertion of sovereignty over Aboriginal people and de facto control of land and resources that were formerly in the control of that people: Haida at para 32 . As stated in Manitoba Métis Federation : 66 In Aboriginal law, the honour of the Crown goes back to the Royal Proclamation of 1763, which made reference to the several Nations or Tribes of Indians, with whom [they] are connected, and who live under [Crown] Protection: ...

The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty. ... .... 68 The honour of the Crown imposes a heavy obligation, and not all interactions between the Crown and Aboriginal people engage it.

In the past, it has been found to be engaged in situations involving reconciliation of Aboriginal rights with Crown sovereignty. … 73 The honour of the Crown is not a mere incantation, but rather a core precept that finds its application in concrete practices and gives rise to different duties in different circumstances: Haida Nation , at paras. 16 and 18 .

It is not a cause of action itself; rather, it speaks to how obligations that attract it must be fulfilled. ... .... 75 By application of the precedents and principles governing this honourable conduct, we find that when the issue is the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown: (1) takes a broad purposive approach to the

interpretation of the promise; and (2) acts diligently to fulfill it. [ 77 ] With respect to

section 35, the honour of the Crown requires that consultation and appropriate accommodation take place

when a proposed government action threatens to adversely affect Aboriginal peoples. The test is broad and sensitive to differing factualcircumstances: Tsuu T’ina Nation v Alberta (Minister of Environment), 2010 ABCA 137 at para 46, 482 AR 198 [Tsuu T’ina]. In allits dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with theAboriginal peoples in question: Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 atpara 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 andpractices of the particular Aboriginal group claiming the right. Aboriginal rights are not general and universal; their scope and contentmust 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, (SCC), [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 isestablished, the general requirements are: (1) sufficient occupation of the land claimed to establish title at the time of assertion ofEuropean sovereignty; (2) continuity of occupation where present occupation is relied on; and (3) exclusive historic occupation. Indetermining what constitutes sufficient occupation, one looks to the Aboriginal culture and practices, and compares them in a culturallysensitive way with what was required at common law to establish title on the basis of occupation.

Occupation sufficient to groundAboriginal title is not confined to specific sites of settlement, but extends to tracts of land that were regularly used for hunting, fishing orotherwise 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 adeclaration of Aboriginal rights, the court must identify which present group or community holds those rights. In that case the Tsilhqot’inNation Gwet’in First Nations and Federal Crown asserted that the proper rights holder was the community of Tsilhqot’in people.

TheProvincial Crown said that the proper rights holder was the community of Tsilhqot’in Nation Gwet’in people: Tsilhqot’in Nation vBritish Columbia, 2007 BCSC 1700 at para 43, 65 RPR (4th) 1 [Tsilhqot’in Nation (BCSC)], aff’d 2012 BCCA 285, rev’d 2014 SCC44 [Tsilhqot’in Nation (SCC)].

The British Columbia Supreme Court stated that this inquiry is primarily a matter of fact to bedetermined on the whole of the evidence relating to the specific society or culture: Tsilhqot’in Nation (BCSC) at para 439, citing theSupreme Court of Canada decision in Delgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010 at para 115, 153DLR (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 anAboriginal nation.

As stated in Powley, verifying membership is crucial, since individuals are only entitled to exercise Métis Aboriginalrights by virtue of their ancestral connection to and current membership in a Métis community. Identification as a member of anAboriginal community is not external; an Aboriginal community determines its own membership: Tsilhqot’in Nation (BCSC) at para444.

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 huntingparty, 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, theSupreme Court of Canada made no reference to the need to find an organized society: Ibid at para 454. Bands are defined by the IndianAct, RSC 1985, c I-5, but are not expressly made legal persons by that statute.

While they have an existence separate from that of theirmembers, they lack many of the abilities of natural persons, corporations, municipalities and even unincorporated associations:Tsilhqot’in Nation (BCSC) at para 455. [84] Vickers J concluded that there is no legal entity that represents all Tsilhqot’in people. The Tsilhqot’in National Government, afederally incorporated legal entity, only represented five of the seven Tsilhqot’in communities. It does not represent either theToosey/Tletinqox-tin Band or Tsilhqot’in people who are members of the Ulkatcho Band at Nagwentl’un (Anahim Lake).

The courtconcluded that the search for a legal entity did not assist in the effort to define the proper rights holder: Tsilhqot’in Nation (BCSC) atpara 456. Their political structures may change from time to time. Self-identification may shift from band identification to culturalidentification depending on the circumstances. What the court found remains constant are the common threads of language, customs,traditions and a shared history that form the central self of a Tsilhqot’in person.

The court concluded that the Tsilhqot’in Nation is thecommunity with whom Tsilhqot’in people are connected by those four threads: Ibid at para 457. The court noted that the Tsilhqot’inpeople make no distinction amongst themselves at the band level as to their individual right to harvest resources. The evidence in thatcase was that, as between Tsilhqot’in people, any person in the group can hunt or fish anywhere inside Tsilhqot’in territory. The right toharvest resides in the collective Tsilhqot’in community.

Individual community members identify as Tsilhqot’in people first, rather thanas 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 thecommunity of Tsilhqot’in people. Tsilhqot’in people were the historic community of people sharing language, customs, traditions,historical experience, territory and resources at the time of first contact and at sovereignty assertion.

The Aboriginal rights of individualTsilhqot’in people or any other subgroup within the Tsilhqot’in Nation are derived from the collective actions, shared language,traditions and shared historical experiences of the members of the Tsilhqot’in Nation: Ibid at para 470. Interference with that Right

[86] To determine whether Aboriginal rights have been interfered with, such as to constitute a prima facie infringement of s 35(1),certain questions must be asked. First, is the limitation/restriction unreasonable? Second, does the limitation/restriction impose unduehardship? Third, does the limitation/restriction deny to the holders of the right their preferred means of exercising that right? The onus ofproving a prima facie infringement lies on the individual or group challenging the legislation.

The test involves asking whether either thepurpose or the effect of the restriction unnecessarily infringes the interests protected by the Aboriginal right: R v Sparrow, (SCC), [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 collectiveAboriginal right. If an infringement were found, the onus would shift to the Crown, which would have to demonstrate that the limitationis justifiable. To that end, the Crown would have to show that there is no underlying unconstitutional objective.

Further, it would have toshow 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 Crownmay require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim: Haida at paras 20, 25.This approach is consistent with the concept of reconciliation and reduces the risk that when Aboriginal people’s rights are finallyrecognized, they are not rendered meaningless by intervening actions and the passage of time: Haida at paras 27, 32-34; Enge at para164.

A duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right ortitle and contemplates conduct that might adversely affect it: Haida at para 35; Taku River at para 25. Knowledge of a credible butunproven 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 byassigning appropriate content to the duty, not by denying the existence of a duty: Haida at para 37. [89] In Acadia Band v Minister of National Revenue, 2007 FC 259 at para 22, 310 FTR 109, aff’d 2008 FCA 119 [Acadia], theFederal Court reviewed the applicable legal principles for assessing the strength of an asserted claim. The Supreme Court in Van derPeet, set out a number of general principles for determining whether an Aboriginal practice, custom or tradition qualifies as a rightpursuant 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 ofthe 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 theright, the court must first correctly determine what it is that is being claimed (para. 51); • The court must bear in mind that the activities may be the exercise in a modern form of practice, custom or tradition that existed priorto 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 theAboriginal 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 ofreconciliation that s 35 demands.

It preserves the Aboriginal interest pending claims resolution, and fosters a relationship between theparties that makes negotiations possible. Precisely what is required of the government may vary with the strength of the claim and thecircumstances. But at a minimum, it must be consistent with the honour of the Crown: Haida at para 38.

The threshold to trigger theduty is low, even very low: Mikisew at para 34; Carrier Sekani Tribal Council v British Columbia (Utilities Commission), 2010 SCC43 at para 40, [2010] 2 SCR 650 [Rio Tinto]; Tsuu T’ina at para 67. [91] The function of the duty to consult is to protect those rights while they are in the process of proof. However, the low thresholdmust remain a meaningful threshold. The applicant has to establish some sort of appreciable or discernible impact flowing from theimpugned Crown conduct before a duty to consult in relation to that impact will arise.

This is both logical and practical because there hasto be something for the Crown and the Aboriginal group to consult about. It makes little sense for the duty to consult to arise where thereis 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 isproportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousnessof 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 thespectrum 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 atpara 43. At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potentialinfringement is of high signific

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