Fort McKay Métis Community Association v Métis Nation of Alberta Association, 2019 ABQB 892

Court of Queen’s Bench of Alberta Citation: Fort McKay Métis Community Association v Métis Nation of Alberta Association, 2019 ABQB 892 Date: 20191122 Docket: 1813 00165 Registry: Fort McMurray Between: Fort McKay Métis Community Association and the Métis Nation of Alberta Association Local Council #63 Fort McKay Applicant - and - Métis Nation of Alberta Association Respondent Corrected judgment: A corrigendum was issued on November 28, 2019; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr.

Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] This is an application brought by the Métis Nation of Alberta Association (“MNA”) pursuant to rule 3.68 of the Alberta Rules of Court , to strike the Origination Application filed by the Fort McKay Métis Community Association (“FMMCA”) and the Métis

Nation of Alberta Association Local Council #63 Fort McKay (“Local Council #63”) (collectively “the Joint Applicants”) on April 10, 2018. In their Originating Application, the Joint Applicants seek a declaration that it is the authorized legal entity to represent its members in consultation with industry and the Government of Alberta in and surrounding the community of Fort McKay.

As set out in paragraph 44 of their written submissions, the Joint Applicants state that they seek a declaration that the MNA has no legal authority to represent Métis who are not members of the MNA. [ 2 ] It also seeks an injunction preventing the MNA from asserting or otherwise declaring that it has the authority to represent the members of either the FMMCA or Local Council #63 in matters of consultation with industry and the Government of Alberta that affect the constitutional rights of the members of FMMCA or Local Council #63. [ 3 ] On June 10, 2018, the MNA filed an application to strike the Originating Application in its entirety.

The application also sought an order striking portions of the affidavit of Ron Quintal, sworn April 9, 2018, in support of the Originating Application, and costs. [ 4 ] This matter was heard by me in Fort McMurray, Alberta, on October 18, 2018. At the outset of the hearing, counsel for the Joint Applicants advised the Court that they were abandoning their request for injunctive relief.

Counsel for the Joint Applicants also advised the Court that they were abandoning their stated intention to seek additional declaratory relief through an amendment to the Originating Application. [ 5 ] At the conclusion of the oral hearing, I reserved my decision. These are my reasons for decision. [ 6 ] For the reasons that follow, I am satisfied that this application discloses no reasonable claim and should, accordingly, be struck by the Court. The claim cannot succeed on at least two fronts. First, the law with respect to the duty to consult is highly fact dependant.

In this instance, the Joint Applicants seek a declaration regarding their entitlement to consultation at-large, or in the abstract, without tying it to a specific Aboriginal right or to particular Crown conduct that potentially give rise to a breach of that right. Moreover, the duty to consult is a duty resting on the Crown in circumstances where proposed Crown action has the potential to adversely impact Aboriginal rights.

Given that this is a duty owed by the Crown, I am of the view that the Crown ought properly to have been named as a party to this application. [ 7 ] Second, the requested declaration fails to meet the necessary requirements for declaratory relief. First, the declaration pertains to a theoretical claim, not a real issue. Second, the declaration is not of practical utility. Furthermore, the underlying dispute between the parties has a significant political undertone that militates against the court exercising its discretion to grant declaratory relief in these circumstances.

Facts [ 8 ] The MNA is a private voluntary organization registered under the Societies Act, RSA 2000, c S-14 . The MNA is comprised of members who meet the criteria for membership and enrol voluntarily with the organization. The MNA’s registered members in Fort McKay comprise MNA Local #63. As such, MNA Local #63 is a local affiliate of the MNA.

The MNA maintains that it engages in consultation across Alberta on behalf of Métis people, including Métis people living in Fort McKay. [ 9 ] The objectives of MNA Local 63, as set forth in its written brief filed in response to this application, include promoting and facilitating the advance of Métis people though self-reliance, self-determination and self-management. [ 10 ] FMMCA is also a society registered under the Societies Act , and is comprised of individuals who are also members on MNA Local 63, as well as others who claim Métis ancestry.

As set out in its written brief, the objectives of the FMMCA are stated to include the provision of programs and services to its members. Reference is made to the purchase of land and houses for the common benefit of members, as well as the provision of programs in the areas of health, substance abuse, education and culture. At the time of filing its written materials, FMMCA reported a total membership of 98, including 57 members living in Fort McKay, and 41 members living elsewhere. [ 11 ] At the time of filing its written materials, MNA Local 63 reported that it has 14 members.

In its written submissions filed in response to this application, the Joint Applicants describe the mandate of the FMMCA as “focus[ing] on consultation with industry on its membership’s behalf, including but not limited to matters regarding current and proposed oil sands development in northeast Alberta, and specifically on proposed development within FMMCA’s traditional territory.”: Written Submissions, para 10. [ 12 ] It is common ground between the parties that there is no formal relationship between the MNA and the FMMCA.

It is also common ground that there is potentially overlapping membership between the MNA and the FMMCA. [ 13 ] In its Originating Application, the Joint Applicants assert that the MNA engages in consultation on behalf of Métis people in Alberta, including MNA members in Fort McKay. The FMMCA further asserts that it is “currently engaged in consultation for proposed developments” on behalf of its members relative to developments in and around the community of Fort McKay.

Issues [ 14 ] The issues are as follows: 1) What is the test under rule 3.68 , Alberta Rules of Court , for the Court to strike a commencement document on the basis that it discloses no reasonable claim;

2) Has the MNA established that the Local Associations’ Originating Application has no reasonable prospect of success; 3) Is declaratory relief available to the MNA in the circumstances of this case? The Position of the Parties [15] The MNA urges me to strike this Originating Application on the basis that the Court is being asked to make a ruling in aprivate law action which, properly characterized, is actually a public law, constitutional matter to which the Crown has not been joined asa party.

According to the MNA, the declaratory relief sought is directed to industry and the Crown in terms of stipulating that any and allfuture consultation must be undertaken with the Joint Applicants. [16] The MNA also says that the Originating Application must be struck on the basis that it identifies no claim, cause of action orenforceable legal interest, and cites no facts that are capable of supporting a private law claim or cause of action.

In short, the MNA saysthat this Originating Application is based on a political disagreement between three private organizations, each claiming to representMétis people living in Fort McKay and area. [17] The Joint Applicants, on the other hand, strenuously resist the application to strike, advancing a number of arguments insupport of their request for declaratory relief. First, the Joint Applicants maintain that the MNA does not represent the Métis communityin Alberta as a whole and, specifically, does not represent the Métis people living in and around the community of Fort McKay.

Rather,the Joint Applicants maintain that they are the rightful representatives of the Métis people living in this area for the purposes ofconsultation. [18] Second, the Joint Applicants contend that the duty to consult is not substantively at issue in their application. As such, theJoint Applicants challenge the MNA’s characterization of the application as a matter of public law that must necessarily involve theCrown as a party.

To the contrary, the Joint Applicants maintain that this is not a public law issue, but rather a contest between twoprivate, voluntary societies as to which one is authorized to speak for the Métis people of Fort McKay.

The Joint Applicants maintain thattheir application turns on the question of “to whom is the consultation owed?”: Respondents’ Written Submissions, para 5. [19] Third, the Joint Applicants assert that the MNA has “deprived” the Joint Applicants of their right to be consulted, therebygiving rise to the right to pursue a private law action against the MNA and to obtain an appropriate remedy. [20] Fourth, the Joint Applicants rely on the decision of the Supreme Court in Western Canada Shopping Centres Inc v Dutton,2001 SCC 46 , [2001] 2 SCR 534, as applied by the British Columbia Supreme Court in Komoyue Heritage Society v BritishColumbia (Attorney General), 2006 BCSC 1517.

As such, the Court is urged to import the law relating to class actions litigation to thisparticular dispute. In particular, the Joint Applicants content that they meet the legal requirements to define a class and, as such, they arethe authorized representatives of their members, the rightful Aboriginal rights holders. [21] Finally, the Joint Applicants say that they are entitled to a Powley analysis (R v Powley, 2003 SCC 43) at large and unrelatedto the analysis of the potential infringement of a specific right by virtue of particular Crown conduct contemplated or proposed.

Thisargument is captured at paragraph 25 of their written submissions in the following terms: “The Originating Applicants respectfullysubmit that they are entitled to a Powley analysis of any rights that they will assert in the future pertaining to both their community andtraditional territories, and they cannot be afforded this right if a different society is acting on their behalf”(emphasis added).

Analysis [22] The underlying issue in dispute is a disagreement over who, or what organization, represent the Métis people living in thecommunity of Fort McKay and surrounding area for the purposes of consultation when the Crown and industry proponents seek toengage with affected Indigenous groups to fulfil the Crown’s duty to consult.

The essence of the dispute is clearly illustrated in thelanguage employed in the Originating Application, namely that the Joint Applicants seek a declaration that they are “the proper and dulyauthorised legal entity to represent the [members of the Local Associations] in matters of consultation with industry, including but notlimited to the A2A railroad project, and/or the Government of Alberta in and surrounding Fort McKay.” [23] At the heart of the argument advanced by the Joint Applicants is the theory that they alone have the right to be consulted asthe rightful representatives of their members.

In my view, this is an overly simplistic approach to the issue of consultation. First, it failsto recognize the central role of the Crown as the entity charged with the duty to consult within the framework set out in Haida Nation vBritish Columbia (Minister of Forests), 2004 SCC 73, and the decided cases that apply this framework. Second, the argument fails toaccount for the fact that duty to consult is fact-specific and may vary in terms of both the nature and scope of the required consultationdepending upon the circumstances.

Finally, the position advanced by the Joint Applicants is at odds with the Supreme Court’s directionsin Powley, regarding the potentially fluctuating composition of the appropriate rights-bearing Métis community for consultationpurposes. The Rule 3.68 Test – No Reasonable Claim [24] A court may strike all or part of a claim under one or more of the following conditions listed in Rule 3.86(2), including: (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim;

[ 25 ] A claim includes a matter in which an originating applicant seeks a remedy, such as in the case at bar where the Joint Applicants are seeking declaratory relief: Alberta Rules of Court , Alta Reg 124/2010 , vol 1, Appendix,

Definitions, “claim” (“the Rules ”). [ 26 ] The legal test for “no reasonable claim”, is fairly settled and has been variously phrased as:

a) Whether the claim has “no reasonable prospect of success”, which is the same as asking “whether it is plain and obvious that the claim cannot succeed”: HOOPP Realty Inc v The Guarantee Company of North America , 2015 ABCA 336 at para 13 , citing O’Connor Associates Environmental Inc v MEC OP LLC , 2014 ABCA 140 at para 14 ; Tottrup v Alberta (Minister of Environment) , 2000 ABCA 121 at para 7 ; Knight v Imperial Tobacco Canada Ltd , 2011 SCC 42 at para 17 , [2011] 3 SCR 45. b) [W]hether it is ‘beyond doubt’ or ‘plain and obvious’ that the claim will fail”: Lameman v Alberta , 2013 ABCA 148 at para 10 , citing Tottrup , at para 8 ; Knight , at para 17 ; Odhavji Estate v Woodhouse , 2003 SCC 69 at para 15 . c) “[W]hether it is plain and obvious or beyond a reasonable doubt that the claim cannot succeed”: Alberta Adolescent Recovery Centre v Canadian Broadcasting Corporation , 2012 ABQB 48 at para 25 , citing Tottrup , at paras 8-9 ; Donaldson v Farrell , 2011 ABQB 11 at paras 9 , 30. [ 27 ] The test for rule 3.86(2)(

b) is the same as that applied to rule 129(1)(

a) under the old Rules ( Alberta Rules of Court , Alta Reg 390/68): HOOPP Realty at para 13; Adolescent Recovery Centre at para 25. It is a stringent test, and an applicant’s claim should be interpreted liberally: Tottrup v Alberta at para 9; William A Stevenson & Jean E Côté, Alberta Civil Procedure Handbook , revised ed (Edmonton: Juriliber, 2018) vol 1 at 3-132. The Duty to Consult [ 28 ] The Crown’s duty to consult and, if appropriate, to accommodate when a proposed Crown action could adversely affect a claimed Aboriginal right, arises from the honour of the Crown: Haida Nation , at para 16 .

At para 20, the Supreme Court explained that: “[I]t is a corollary of s. 35 [of the Constitution Act 1982 ] 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.” [ 29 ] The duty to consult is an obligation resting solely on the Crown. This duty aims to reconcile prior Aboriginal occupation with Crown sovereignty. The duty cannot be delegated: Haida at para 53.

Its purpose is to protect Aboriginal peoples’ collective rights; and as such, “it is owed to the Aboriginal group that holds the [section] 35 rights”: Behn v Moulton Contracting Ltd , 2013 SCC 26 at para 30 , citing Beckman v Little Salmon/Carmacks First Nation , 2010 SCC 53 at para 35 ; and Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta , 2016 ABQB 713 at para 77 .

However, an individual or other body can be authorized by the collective to represent them with respect to their Aboriginal rights, including the duty to consult: Behn , at para 30 . [ 30 ] The duty to consult is triggered when the Crown has knowledge of a credible but unproven Aboriginal rights claim that could be adversely affected by proposed government action.

The content of the duty varies with the circumstances: Haida at para 37; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council , 2010 SCC 43 at para 36 . “The test is broad and sensitive to differing factual circumstances”: Fort Chipewyan Métis at para 77, citing Tsuu T’ina Nation v Alberta (Minister of Environment) , 2010 ABCA 137 . [ 31 ] Aboriginal rights are held by the Aboriginal collective, not individuals. In Powley , the Supreme Court confirmed that the duty to consult is owed to rights-bearing communities who meet the criteria enumerated in that decision.

Aboriginal hunting rights were at issue in Powley , which the Court found (at para 19) to be “contextual and site-specific”. For Métis, the rights-bearing collective is a contemporary Métis community that continues the pre-control practices of a historic rights-bearing Métis community: Powley , at paras 21, 23-27, 38 . [ 32 ] The Supreme Court defined a “Métis community” as “a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life,” but left open the possibility of a

section 35 rights-bearing Métis people extending over a wider geographic area: Powley , at para 12 . The Court specifically declined to enumerate potential Métis peoples, but did provide the following description of the term “Métis”, as set out in

section 35 (at para 10): The term “Métis” in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate for their Indian or Inuit and European forebears. [ 33 ] In Fort Chipewan Métis , Goss J undertook an extensive analysis of the Powley decision in the context of an application for judicial review initiated by the Fort Chipewyan Métis Nation of Alberta Local 125 of the decision of the Crown in Right of Alberta that a duty to consult about the Teck Frontier Oil Sands Mine [Project] had not been triggered.

She summarized the Powley criteria in the following terms, (at para 193), a

summary that I would respectfully adopt in relation to the within matter: The analysis in Powley established a ten-part test:

(1) Characterization of the Right;

(2) Identification of the Historic Rights-Bearing Community;

(3) Identification of the Contemporary Rights-Bearing Community;

(4) Verification of the Claimant’s Membership in the Relevant Contemporary Community;

(5) Identification of the Relevant Time Frame;

(6) Determination of Whether the Practice is Integral to the Claimants’ Distinctive Culture;

(7) Establishment of Continuity Between the Historic Practice and the Contemporary Right Asserted;

(8) Determination of Whether or Not the Right was Extinguished;

(9) If There Is a Right, Determination of Whether There Is an Infringement; and

(10) Determination of Whether the Infringement Is Justified. The Supreme Court in Daniels v Canada (Minister of Indian Affairs and Northern Development) , 2016 SCC 12 , at para 49 , noted that the criteria in Powley were developed specifically for purposes of applying s 35, which is about protecting historic community-held rights.

Failing to prove any one of the parts of the Powley test is fatal to a s 35 claim: R v Paquette , 2012 ONCJ 606 , at para 8 ; R v Hirsekorn , 2013 ABCA 242 , at para 108 , leave to appeal dismissed, 2014 CarswellAlta 87 ); Vautour at para 28. [ 34 ] Lower courts have employed a “regional approach” when applying Powley to identify a Métis community: Jason Madden, “The Métis Nation’s Self-Government Agenda: Issues and Options for the Future” in Frederica Wilson & Melanie Mallet, eds, Métis- Crown Relations: Rights, Identity, Jurisdiction, and Governance (Toronto: Irwin Law, 2008) 323 at 357, citing R v Laviolette , 2005 SKPC 70 , and R v Belhumeur , 2007 SKPC 114 .

See also the “territorial approach” discussed in R v Hirsekorn , 2013 ABCA 242 at paras 88-95 . [ 35 ] In this instance, the Applicants ask the Court to make a general declaration that they are the consultation representatives of their members without reference to any specific Aboriginal right potentially at risk, or any proposed Crown action adversely impacting on that right. In the absence of a specific Aboriginal right alleged to be at risk, the Joint Applicants are not able to point to the specific Métis community or communities that collectively holds that right.

Rather, the inference the Joint Applicants ask the Court to draw is that they represent the Fort McKay Métis community for all purposes, notwithstanding the fact that they acknowledge that 41 of their members do not reside in the community of Fort McKay. Although reference is made to the A2A project, it is offered up as an illustration only of what is sought in terms of a broad declaration.

In my view, this approach is inconsistent with the case-by-case contextual approach specified in Powley , Haida Nation , Carrier Sekani , and Fort Chipewyan Métis . [ 36 ] Following the process set out in Powley , an Aboriginal right must first be identified and characterized before an appropriate rights-bearing community can be confirmed. Moreover, the composition of the rights-bearing Métis community is associated with “the continuing practices of members of the community”," as opposed to a general community, and their geographical centre: Powley at para 27 ; Laviolette ; Hirsekorn .

Therefore, for each potential interference with an Aboriginal right, there must be a determination of the proper rights-bearing community who engage in the at-risk practice, before a determination of which organization(

s) might represent the interests of that community. Again, this is a very fact-based inquiry whose outcome is dependant on the particular right at issue and the specific context of the potential adverse impact on that right. [ 37 ] The Joint Applicants rely on a recent decision of the Federal Court, Enge v Canada (Indigenous and Northern Affairs) , 2017 FC 932 , to support their claim to be the proper consultation representatives of their members.

In Enge , the North Slave Métis Alliance (“NSMA”) challenged the adequacy of consultations undertaken by both Canada and the Northwest Territories in relation to the approval of the Northwest Territory Métis Nation Land and Resources Agreement-in-Principal (the “Agreement”). In that instance, the Crown only consulted the Northwest Territory Métis Nation (NWTMN). [ 38 ] The NSMA’s membership was found by the court to be based on Powley criteria. The Court also determined that the NSMA’s objective was to protect the Aboriginal rights of its members in the area north of Great Slave Lake: Enge , at paras 17-20 .

The NWTMN’s membership was also found to be based on general Aboriginal ancestry, but its focus was on the area south of Great Slave Lake: ibid at paras 20-23. [ 39 ] The Court held that the Crown had a duty to consult with both organizations in that instance.

This conclusion was based in part on the differing focuses of the Métis organizations, the different criteria for membership in the two organizations, the specific rights claimed by the NSMA, and the fact that neither the Crown, nor the NWTMN had “established that the NWTMN had any greater right to represent the interests of the Métis people of the Northwest Territories than does the NSMA”: ibid at paras 189-196. [ 40 ] While the Court found that the NSMA was entitled to be consulted with respect to any actions of the Crown that might have an adverse impact on the Aboriginal rights of its members, this was within the context of the specific facts of the case, namely the specific right to harvest caribou north of Great Slave Lake, as asserted by the NSMA.

This specific right had not been addressed by the NWTMN during the course of its consultations. The Court held that the specific organization entitled to consultation has to be addressed on a case-by-case basis: ibid at para 193. The entire case was considered in the context of a challenge to specific Crown conduct, conduct which had the potential to affect many Aboriginal rights. Significantly, the case was decided on the basis of a specific Aboriginal right potentially placed at risk by the Agreement – harvesting caribou north of Great Slave Lake.

In short, the Federal Court in Enge confirmed the fact-based and contextual nature of the duty to consult, stating at para 193 that: It is not appropriate to try to set out a set of guiding principles that should be taken into account in determining whether a specific organization purporting to represent a Métis collective is entitled to be consulted in a particular case.

This is a fact-driven question that must instead be addressed on a case-by-case basis. [ 41 ] To the extent that the Joint Applicants rely on the decision in Enge as support for the proposition that a more localized branch of NWTMN, namely the NSMA, was the sole appropriate Métis group to be consulted in that instance, I would respectfully disagree. My reading of the decision in Enge is that the court concluded that the NSMA was entitled to be consulted in addition to, not in substitution for, the NWTMA.

Contrary to the position that seems to be advanced by the Joint Applicants, Mactavish J did not conclude that only the NSMA was entitled to be consulted in that instance. As such, I am not persuaded that the decision in Enge actually supports the position advanced by the Joint Applicants in this instance.

The Availability of Declaratory Relief [42] The Supreme Court’s decision in Ewert v Canada, 2018 SCC 30, sets out the Court’s most recent articulation of the test anapplicant must meet when seeking declaratory relief. In Ewert, the Court described a declaration as “a narrow remedy but one that isavailable without a cause of action and whether or not any consequential relief is available” (at para 81).

The decision in Ewert identifiedfour requirements for the granting of a declaration, namely that (1) the court has jurisdiction to hear the issue; (2) the dispute is real andnot theoretical; (3) the party raising the issue has a genuine interest in its resolution, and (4) where the respondent has an interest inopposing the remedy sought. [43] A fifth required element is sometimes added, namely that “[a] declaration will only be granted if it will have practical utility,that is, if it will settle a ‘live controversy’ between the parties”: Daniels v Canada (Indian Affairs and Northern Development), 2016SCC 12 at para 11. [44] The Supreme Court has consistently invoked these core requirements for the issuance of declaratory relief, albeit in variousformulations, since adopting the English jurisprudence in Solosky v The Queen, (SCC), [1980] 1 SCR 821 at 830-833. [45] In Solosky, the Court cited the English phrasing of the test: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able tosecure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought: RussianCommercial and Industrial Bank v British Bank for Foreign Trade Ltd, [1921] 2 AC 438 (HL) at 448, cited in Solosky at 831. [46] The majority in Solosky held that “a declaration will not normally be granted when the dispute is over and has becomeacademic, or where the dispute has yet to arise and may not arise”: at 832.

See also: Operation Dismantle v The Queen, (SCC), [1985] 1 SCR 441 at 456-57; and Khadr v Canada (Prime Minister), 2010 SCC 3 at para 46. [47] Courts are reluctant to pronounce on the legal status of a “hypothetical future event”: Lazar Sarna, The Law of DeclaratoryJudgments, 4th ed (Toronto: Thompson Reuters, 2016). [48] What follows is a consideration of each of these four required elements in the context of this particular matter. Jurisdiction [49] The Court of Queen’s Bench of Alberta has the jurisdiction to grant declaratory relief pursuant to the Judicature Act, RSA2000, c J-2.

The Joint Applicants argue that the court’s jurisdiction stems from its inherent jurisdiction and the fact that its is a disputebetween two private societies registered in Alberta. In its application to strike this originating application, the MNA does not directlyquestion the jurisdiction of the court to issue declaratory relief.

However, the MNA, as more fully described below, characterizes thedispute between the parties as a non-judiciable political dispute. [50] I am satisfied that this court has the jurisdiction to grant declaratory relief under s 5 of the Judicature Act, as declaratory reliefwas with the jurisdiction vested in the English High Court of Chancery prior to July 14, 1870: The Law of Declaratory Judgments, at p 8-10.

Furthermore, s 11 of the Judicature Act, authorizes the court to grant declaratory relief even when consequential relief is not, orcannot, be claimed. [51] I am also satisfied that a dispute relating to the nature and extent of the Crown’s duty to consult are matters that potentially fallwithin this Court’s jurisdiction.

Requesting Party has a Genuine Interest [52] An applicant can establish genuine interest by demonstrating that they have a “legal interest or right” which “has been placedin jeopardy or grave uncertainty”: Operation Dismantle at 480, citing Bouchard, Declaratory Judgements, 2nd ed (1941) at 27, 48-49.Constitutional breaches on their own are not necessarily sufficient to establish a genuine interest; an applicant still needs to demonstratethat the breach affected their private interests, and that their own rights were infringed in order to ground their private interest: Committeefor Reform at paras 88, 90. [53] An applicant’s own private interest is usually the focus of a genuine interest inquiry: see Ewert at para 81.

However, onoccasion, the Federal Court has equated the genuine interest required for a declaration to the interest required to make a claim orapplication to the Court, thereby accepting public interest standing as sufficient to satisfy the genuine interest requirement for declaratoryrelief: Committee for Monetary and Economic Reform v R, 2014 FC 380 at paras 96-97; Conseil des Innus de Ekuanitshit c Canada(Ministre des Pêches et des Océans), 2015 FC 1298 at paras 55, 57-59. See also, Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 at 361, 36-65. [54] Seeking an advisory opinion with respect to

an act without demonstrating that one has specific rights under the legislation, orhow the purported damage distinguishes one from any other Canadian, does not raise a private interest that could be protected bydeclaratory relief: Committee for Reform at paras 6, 95, 137. However, this is not what the Joint Applicants are requesting in thisinstance. [55] The Joint Applicants maintain that are not seeking an advisory opinion on the constitutionality of the duty to consult. Rather,they are requesting that the Court declare that they are the legal consultation representatives for their members.

Without this declaration,they contend that there is a risk that the Crown and project proponents could approach other organizations when consulting with Métiswhose alleged rights could be detrimentally impacted by Crown conduct. If the Crown or project proponents approach other

representatives, there is the potential that the Aboriginal rights of the Joint Applicants’ members may not be protected andaccommodated, or at least not protected and accommodated in their preferred manner. There is also the risk that the benefits ofconsultation and accommodation, often in the form of funding, will not be directed for the specific benefit of the Joint Applicants’members.

In my view, this is a somewhat circular argument that focuses on the results or benefits flowing from a particular status asjustification for acquiring that status. [56] On balance, I am satisfied that the Joint Applicants have a genuine interest in resolving the dispute, as a resolution in theirfavour would tend to confirm their status as the proper entity for any required consultation in the future.

To the extent that a declarationwould carry some form of legitimacy as regards their future role in consultative processes, I accept, at least for the purposes of this case,that that funds flowing from such consultation processes might well become available to the Local Associations.

Proper Contradictor – Respondent’s Interest [57] A third element of the test that an applicant must meet for a court to consider exercising its discretion to grant declaratoryrelief, is that the respondent to the request must have a true interest in opposing the declaration sought: Ewert at para 81; Solosky at 831.In other words, the respondent must be “a proper contradictor”: Solosky at 831; Montana Band of Indians v R, (FCA), [1991] 2 FC 30, at para 15 (CA), leave to appeal to SCC refused, 22427 (27August 1991).

The issue of a proper contradictor isnot a common issue, and courts often confirm that the respondent has a real interest without explaining their conclusion: see Ewert atpara 82; Conseil des Innus at para 66; Montana Band at para 15. [58] While the MNA and its members may well have an interest in opposing the declaration requested by the Joint Applicants, it isnot the “proper contradictor” in this instance in light of the fact that the duty to consult is an obligation resting entirely on the Crown. [59] The MNA and its members undoubtedly have an interest in opposing the Joint Applicants’ request for a declaration.

If theJoint Applicants are declared their members’ sole representatives for consultation purposes, then the MNA, could not also be theconsultation representatives for this same group. This would impact the MNA’s ability to protect those Métis’ rights in the MNA’spreferred manner, and to have access to, and the control of, any benefits flowing from consultation and accommodation. [60] However, it is properly the Crown who has an interest in contradicting the Joint Applicants’ requested declaration, because itis the Crown that must fulfil the underlying duty.

As the duty to consult is an obligation resting on the Crown, such a declaration wouldbe binding on the Crown. [61] Although the Crown has flexibility in how it chooses to consult with Aboriginal collectives, and what parties it may involve inconsultations, the Crown is ultimately responsible for ensuring that duty is fulfilled: Haida at para 53. Likewise, it is the Crown againstwhom Aboriginal peoples must seek relief if the duty is alleged to have been breached in any given situation. The Crown’s central role inthis regard was underscored in Enge.

In that instance, the NSMA sought judicial review against the Crown, in addition to naming theNWTMN as a respondent, when challenging the adequacy of consultations undertaken by the Crown with the NSMA, the organization inrelation to which Mr. Enge was the President. [62] Furthermore, as was determined in Enge, it is possible that the Crown could owe a duty to consult both the Joint Applicants,the MNA, and possible other Métis rights-bearing communities in certain circumstances, depending on the nature and scope of theproposed Crown action and the Métis rights potentially at risk.

As previously stated, the nature and scope of the duty to consult is highlyvariable and fact-specific. The requested declaration would, however, mandate consultation with the Joint Applicants only, regardless ofthe circumstances. In my view, such an approach is contrary to the well-established principle that the duty to consult is highly fact-specific and, as such, can only be determined on a case-by-case basis.

Real Issue [63] The declaration requested by the Joint Applicants pertains to a hypothetical, future breach of their rights, and therefore raises atheoretical and not a real issue. [64] As alluded to above, a court may only exercise its discretion to grant declaratory relief when “the dispute before the court isreal and not theoretical”: Ewert at para 81; Daniels at para 11; Khadr at para 46. A declaration may be granted regarding future rights,but not when those rights are merely hypothetical.

A hypothetical future right is, in my view, properly defined as encompassing asituation where “the dispute has yet to arise and may not arise”: Solosky at 832, where the dispute is “merely possible or remote,” orwhere the dispute is contingent upon “some future event which may never take place”: Operation Dismantle at 456. [65] The Joint Applicants say that the dispute before the Court is a real dispute given that the MNA is holding itself out as theauthorized representative of the Joint Applicants in the on-going consultations relating to the A2A project.

Even assuming that the JointApplicants are correct in their assertion that they are entitled to be consulted in relation to this or any other actual proposed project, theremedy lies in an action against the Crown relative to the adequacy of consultation in relation to the specific project, not an action that, ineffect, seeks to push aside another organization claiming to be a representative of the affected Métis rights holders.

Practical Utility – Settling a Live Controversy [66] The declaration requested by the Joint Applicants would not, in my view, have practical utility and therefore it does not satisfythe final requirement for declaratory relief. This is not surprising as the requirement that the declaration settle a live controversy is veryclosely associated with the condition that the dispute be real, not theoretical nor academic.

There is no live controversy to settle becausethe proper representative for the duty to consult is not an issue until a credibly claimed Aboriginal right of a rights-bearing community isat risk from contemplated Crown conduct.

[ 67 ] This is also not one of the situations where a court makes an exception to this requirement that there be a live controversy, such as when the controversy continues to arise, even if a declaration would have no practical utility as regards past breaches: Solosky at 822. This exception is often granted in cases where the Crown continues to breach the constitution or other legal duties: see Solosky at 822; Ewert at paras 88, 90 ; Western Canada Wilderness Committee v Canada (Minister of Fisheries and Oceans) , 2014 FC 148 at paras 65 , 92.

However, the Joint Applicants do not allege that the Crown has breached its duty to consult, rather they target the MNA, a party that does not owe them such a duty. [ 68 ] Furthermore, although the question of the proper consultation representative may continue to arise, the Joint Applicants do not suggest that any future dispute would arise in relation to the same right, in the same context. The outcome of the dispute, the determination of the proper consultation representative, is very dependent on the factual circumstances of each case.

Therefore, as the context may vary, it is not the same dispute that continues to arise. [ 69 ] A court will not “declare the law generally or to give an advisory opinion;” there must be “contested legal rights” about which the court can make a decision: Committee for Reform at paras 88, 144, see also paras 137, 140-42.

Declarations must settle legal issues and should not be used to settle political disagreements, as otherwise there is no objective legal criteria for the courts to apply: Committee for Reform at paras 21. [ 70 ] The MNA urges me to find that the dispute at issue in this instance is political, and therefore non-judiciable. By naming the MNA and not the Crown as respondents, and not tying their request to a particular adversely affected Aboriginal right, the Local Associations have deprived the Court of the necessary facts needed for it to apply objective legal criteria.

Without a real dispute, the Court has no facts to understand the nature of the Aboriginal right that might be at risk from unknown Crown conduct that might give rise to a duty to consult. The Court requires such a factual foundation to determine both the rights-bearing community to whom the practiced right attaches, and that community’s representative for consultation for that specific issue.

At the moment, there are no directly contested legal rights, as the party who must fulfil the duty to consult, the Crown, is not party to the application. [ 71 ] The Local Associations argue that the dispute is real because the consultation regarding the A2A project is ongoing. If the requested declaration was confined to declaring the proper consultation representative(

s) for the A2A project, the issue might conceivably lead to a different outcome. However, this is not the issue before me and I decline to rule on such a hypothetical issue, particularly given the absence of the Crown as a named party. However, the scope of the requested declaration is far beyond that of the A2A project, and is therefore hypothetical and without the necessary context.

Discretionary Remedy [ 72 ] Even if the requested declaration stratifies the criteria for declaratory relief, a court’s decision to grant a declaration is discretionary, and a Court may decline to exercise its discretion “based on variegated and non-exhaustive factors”: Sarna, The Law of Discretionary Judgments , at 22.

These factors include: standing, mootness, the availability of other procedures, and the absence of affected parties: Sarna at 22 citing Gook Country Estates Ltd v Quesnel (City) , 261 BCCA 69 at para 10. [ 73 ] Another reason a court may decline to exercise its discretion is when an applicant requests a declaration of fact, not of law. This is because a declaration is “a judicial statement confirming or denying a legal right of the applicant”: Sarna at p 1 [emphasis added].

Sarna explains the distinction between factual and legal declarations as follows: “the factual declaration or determination that an agreement has been arrived at, may be a precursor to, but is different from the legal status of the agreement”: Sarna at p 6. [ 74 ] In Gill v Canada (Minister of Employment & Immigration) (1991), 49 FTR 285 , the plaintiff sought a declaration that he was not married, never had been married and that his answers to Canada’s immigration counsellor were truthful.

The Federal Court held that “if I determined that the Plaintiff has never been married and has answered truthfully about his marital status, I would be making a finding of fact,” and denied the requested declaration: Gill at para 14. [ 75 ] From the available submissions, the Joint Applicants and the MNA do not contest the law regarding the proper representatives for the duty to consult. Rather, as in Gill , the Joint Applicants are asking the Court to make a finding of fact that they are their members’ consultation representatives.

In my view, this would militate against the court exercising its discretion to grant declaratory relief in this instance. [ 76 ] However, “even in the absence of live controversy, the Court may still decide to exercise its discretion to consider a moot question if the circumstances justify it:” Conseil des Innus at para 64, citing Borowski . One reason courts require a real issue is because facts are needed to connect a claimant to the alleged dispute.

No Reasonable Prospect of Success [ 77 ] Applying the test for the Alberta Rules rule 3.68, there is no reasonable prospect of success that the Alberta Court of Queen’s Bench would grant the Local Associations a declaration that they are the representatives of their members whenever the duty to consult arises in respect to their members’ Aboriginal rights. [ 78 ] Even though the Local Associations’ claim must be interpreted liberally: Tottrup v Alberta , it is plain and obvious, and beyond a reasonable doubt that the claim will fail.

Firstly, the Local Associations are asking for a declaration that they are their members’ consultation representatives, regardless of the Aboriginal right at risk, or the nature of the contemplated rights-infringement. The question of “whether a specific organization purporting to represent a Métis collective is entitled to be consulted in a particular case is a fact-driven question that must instead be addressed on a case-by-case basis”: Enge v Canada at para 193. Therefore, the Court cannot issue a declaration regarding the Local Associations’ entitlement to consultation in general.

There must be facts and specific rights in question to support the contextual nature of the duty to consult inquiry.

[ 79 ] Secondly, the Local Associations’ requested declaration does not satisfy the conditions for a court to grant declaratory relief. The MNA, while an interested respondent, is not the proper contradictor in this case because the duty to consult is not its obligation – it is the responsibility of the Crown. Again, without a specific Aboriginal right at risk by identifiable contemplated Crown conduct, the question of the Local Associations’ entitlement to consultation remains theoretical; without a context, there is no real issue in dispute and the declaration would not settle a live controversy.

Finally, the Local Associations are likely requesting a declaration of fact, which is a basis for a court to decline to exercise its discretion to grant declaratory relief. [ 80 ] The test for striking an application on the basis that it discloses no reasonable claim is stringent. However, the issues identified above are not mere weaknesses in the Local Associations’ case.

They are obstacles, which are plainly and obviously insurmountable. [ 81 ] Before concluding, I would briefly address the additional arguments advanced by the Joint Applicants in urging me to reject this application to strike their Originating Application. [ 82 ] One of the arguments advanced by the Joint Applicants in resisting the application to strike their Originating Application is that they meet the pre-requisite conditions for allowing a class action to proceed.

In Western Canada Shopping Centres , the Supreme Court outlined these conditions in the following terms (at para 38-41), namely: i. the class must be capable of clear definition; ii. there must be issues of fact or law common to all class members; iii. success for one class member must mean success for all; and iv. the class representative must adequately represent the class. [ 83 ] Even accepting the Joint Applicant’s contention that it meets the four conditions necessary for a class action, I am not persuaded that the law relating to class or representative actions has any relevance to the within matter.

While the argument advanced by the Joint Applicants identifies some interesting parallels between a Powley analysis and a Western Canada Shopping Cengres analysis, I find that there is no merit in the Joint Applicants’ argument in this regard. Aboriginal rights, including Métis rights, are collective rights, not individual rights, and are subject to a specific legal framework that has been outlined by the Supreme Court in a series of decisions.

Class actions, on the other hand, involve the bringing together of individual actions determined to be of sufficient similarity so as to warrant the consolidation of proceedings for the purposes of efficiency and judicial economy. [ 84 ] I reject the Joint Applicants’ contention that they are somehow “entitled” to a Powley declaration at large. In my view, this argument is contrary to the very clear procedure outlined by the Supreme Court in Powley relative to the identification of specific Métis rights held by a specific rights-bearing community in clearly identified circumstances.

I am not persuaded that there is any merit to the Joint Applicants’ reliance on Powley as a legal foundation for this claimed entitlement to a declaration at large. [ 85 ] Finally, the Joint Applicants maintain that they have been deprived of their right to be consulted. Even assuming that the Joint Applicants could establish that they have been so deprived, any remedy available to them would lie against the Crown only, not the MNA, as contended.

In the absence of the Crown as a party to this proceeding, I find that the Joint Applicants have no reasonable prospect of success in establishing that any remedy is available to them relative to the MNA, the named Respondent in the Originating Application. [ 86 ] The test for striking a commencement document under rule 3.68 on the basis that it discloses no reasonable claim is simple but stringent. A court must ask whether the claim has no reasonable prospect of success; whether it is plain and obvious that the claim cannot succeed; or whether it is ‘beyond doubt’ or ‘plain and obvious’ that the claim will fail.

Conclusion [ 87 ] For the reasons set out above, I would allow the application brought by the MNA and would strike the Originating Application filed by the Joint Applicants on April 10, 2018. [ 88 ] The MNA is entitled to its costs relative to this application. If the parties are unable to agree to the amount of costs owing, they may seek direction from the court within 30 days of the release of this decision. Heard on the 18 th day of October, 2018. Dated at the City of Fort McMurray, Alberta this 22 nd day of November, 2019. M. David Gates J.C.Q.B.A. Appearances:

R Lake, A Taylor and D Roth for the Applicants (Respondents in this Application) N Frame for the Respondent (Applicant in this Application) _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice M. David Gates _______________________________________________________ The year in the citation line has been changed from 2018 to 2019.