Métis Nation of Alberta Association Fort McMurray Métis Local Council 1935 Applicant - v. -, 2021 ABQB 282

Court of Queen’s Bench of Alberta Citation: Métis Nation of Alberta Association Fort McMurray Métis Local Council 1935 v Alberta, 2021 ABQB 282 Date: 20210412 Docket: 2003 19580 Registry: Edmonton Between: Métis Nation of Alberta Association Fort McMurray Métis Local Council 1935 Applicant - and - Her Majesty the Queen in Right of Alberta and Her Majesty the Queen as Represented by the Aboriginal Consultation Office and Canadian Natural Resources Limited Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice N.J.

Whitling _______________________________________________________ 1. Introduction and Overview [ 1 ] In these judicial review proceedings, the Applicant, the Métis Nation of Alberta Association Fort McMurray Métis Local Council 1935, seeks judicial review of an October 30, 2020, decision of the Respondent the Aboriginal Consultation Office (“ACO”),

which found that the Respondent Canadian Natural Resources Limited (“CNRL”), was not required to consult with any Aboriginal organization or group in relation to a certain oilsands mining project. The Applicant claims that it is the authorized representative of a community of Métis persons who reside in the Fort McMurray area, and who possess aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 .

The Applicant claims further that because its members’ aboriginal rights are affected by CNRL’s project, it is owed a duty to consult pursuant to Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 . [ 2 ] The Respondents Her Majesty the Queen in Right of Alberta and the ACO (the “Alberta Respondents”) apply to strike the Applicant’s Originating Application as an abuse of process.

They argue that these proceedings are, in substance, a collateral attack upon a January 2, 2018, decision which found that the Applicant has not raised a credible assertion that it is the authorized representative of a community which possesses aboriginal rights (the “ Credible Assertion Decision ”). [ 3 ] In its own application, the Applicant applies for a procedural order permitting it to admit the Affidavit of its CEO, Bill Loutitt, which contains evidence that was not before the ACO when it made the October 30, 2020, decision now under review.

It also applies for an order directing the Alberta Respondents to file an unredacted copy of the ACO’s record so that the validity of the redactions imposed at various places throughout that record can be reviewed by the Court. The Applicant also seeks an order permitting the Applicant to amend its Originating Application to add a “basket clause” into its prayer for relief. [ 4 ] Having carefully considered this matter, I conclude that the Alberta Respondents’ application must be granted, and the Applicant’s Originating Application must be struck.

The pleadings contained in the Applicant’s Originating Application are, in substance, a collateral attack upon the Credible Assertion Decision . An application for judicial review of a decision which addresses a different subject matter is not the appropriate forum for a de novo determination of the issues that the Applicant now seeks to litigate. [ 5 ] In case I am wrong in striking the Applicant’s Originating Application, I also dismiss the Applicant’s application for the procedural order it seeks.

The Applicant’s proposed new evidence is inadmissible since it was not before the ACO when it made the decision under review, and since it addresses issues that are not properly before the Court. The Applicant has not raised any basis to impugn the redactions imposed upon materials in the record. Although basket clauses are generally unobjectionable, the Applicant will not be permitted to add a basket clause to its prayer for relief in the particular circumstances of this case. 2.

Factual Background 2.1 Fort McMurray Métis Local 1935 v Alberta (Minister of Aboriginal Relations) , 2016 ABQB 712 [ 6 ] The Applicant’s efforts to achieve recognition as the authorized representative of a Métis community which possesses aboriginal rights has been ongoing for a number of years. [ 7 ] In December, 2014, the Alberta Respondents made a determination that, to that point in time, the Applicant had not provided enough information for Alberta to determine whether there existed a credible assertion that the Applicant represents a community possessing aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 .

Consequently, the Alberta Respondents determined that consultation with the Applicant was not required in relation to four projects that were then under consideration. The Applicant sought judicial review of that decision. [ 8 ] That judicial review application came before Justice Goss of this Court in Fort McMurray Métis Local 1935 v Alberta (Minister of Aboriginal Relations) , 2016 ABQB 712 .

In her decision, Justice Goss granted the Applicant’s judicial review application, set aside the decision of December, 2014, and remitted the matter to the ACO for reconsideration. 2.2 The Credible Assertion Process [ 9 ] At the time of the decision under review by Justice Goss, Alberta did not have a formal process to address Statements of Concern submitted by Métis organizations asserting a constitutional right to be consulted. Since her decision, however, such a process has been created (the “ Credible Assertion Process ”).

The government department designated to administer that process used to be called the Stewardship and Policy Integration branch of the Ministry of Indigenous Relations, with the Executive Director of that branch holding final decision-making authority. Although the name of that branch has since been changed to the Strategic Engagement and Policy Innovation branch, it will be referred to in these reasons as “SPI”. [ 10 ] Other than s. 35(1) itself, the operation of the Credible Assertion Process is not presently grounded in any statute. Instead, it is grounded in a number of policy documents.

These policies include a public document entitled Métis Credible Assertion: Process and Criteria , and an internal document entitled Métis Credible Assertion Internal Process which guide the operation of the processes before SPI. Another policy document entitled Aboriginal Consultation Office Métis Organization Statement of Concern Internal Process guides the processes to be applied by the ACO. In brief overview, these policies provide that it is SPI, and not the ACO, that is to determine whether or not a Métis organization has made a “credible assertion” of aboriginal rights.

As the title of the Credible Assertion Process suggests, SPI does not require a Métis organization seeking recognition as a rights-bearing community to conclusively establish that it meets the criteria in R v Powley , 2003 SCC 43 . Rather, such an organization is only required to raise a “credible assertion”. This standard requires an organization to provide “some information” on all aspects of the Powley test. [ 11 ] Additionally, the Credible Assertion Process requires a Métis organization to establish, on a balance of probabilities, that it is authorized to represent the rights-holding community.

This requirement was examined by Justice Goss in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta (Minister of Aboriginal Relations) , 2016 ABQB 713 (a case heard and determined at the same time as the Applicant’s own aforementioned application before Justice Goss) in the following terms:

408 In a situation where the MNA, MNA Region 1, and the FCM Local purport to represent the Aboriginal rights holding Métis of Fort Chipewyan with respect to consultation, it is obvious that ascertaining who speaks for the Métis in asserting Aboriginal rights and seeking Crown consultation becomes a critical issue to be resolved.

As such, this Court agrees with the Alberta Crown's submission that it would amount to a waste of resources for the Alberta Crown to potentially have to consult with several separate organizations who state that they represent smaller or larger subsets of the same group in respect of the same interests and the same project.

It is efficient and justifiable for the Alberta Crown to seek some assurance that it is consulting with the authorized representative of an Aboriginal collective: Red Chris [ Development Co v Quock , 2014 BCSC 2399 ] at paras 39 and 41-44. [ 12 ] The Applicant points out and relies upon certain academic criticism respecting the above analysis by Justice Goss. [1] [ 13 ] Under the Credible Assertion Process , the ACO’s responsibility respecting the determination of “credible assertions” is extremely limited.

When the ACO receives a Statement of Concern (“SOC”) from a Métis organization which claims a right to be consulted, the ACO is required to simply forward the SCO to SPI, and to obtain advice from the SPI as to whether or not the organization has raised a credible assertion. If the ACO is advised by SPI that a credible assertion has been raised, the ACO will proceed to determine what level of consultation with that organization, if any, will be required for a particular project.

If, on the other hand, the ACO is advised by SPI that the organization has yet to raise a credible assertion, the ACO will not make any such determination.

The Credible Assertion Process does not contemplate any independent assessment by the ACO as to whether or not an organization has made a credible assertion of aboriginal rights. 2.3 The Credible Assertion Decision [ 14 ] Although the language of Justice Goss’s decision formally remitted the issue of the Applicant’s claim to status as a rights bearing community to the ACO, the claim was instead addressed by SPI since by that point in time, the Credible Assertion Process had been established.

That process encompassed a consideration of both the information provided by the Applicant prior to the December, 2014, decision, and additional information that had been gathered since. That process resulted in a January 2, 2018, decision of the Executive Director of SPI (the “ Credible Assertion Decision ”). The decision is some 10 pages long and addresses the various aspects of the Applicant’s s. 35(1) claim in detail.

At its outset, the Executive Director introduced the questions to be answered as follows: I am considering the question of whether [the Applicant] has provided the Government of Alberta (Alberta) with sufficient information to determine that the “McMurray Métis” has credibly asserted Métis aboriginal rights, and that [the Applicant] has authority to represent a Métis collective community. [ 15 ] In the Conclusions

section of the Credible Assertion Decision , the Executive Director answered both questions in the negative: Based on the above, it is Alberta’s decision that [the Applicant] has not made a credible assertion that there is a Powley community in the Fort McMurray area or a broader regional area for the purposes of consultation.

Even if there is a credible Powley community (Fort McMurray based or regional), [the Applicant] has not established that it has authority to represent the community. [ 16 ] Although the Credible Assertion Decision was “final” in the sense that there existed no administrative right of appeal, it also invited the Applicant to continue its efforts into the future, and left open the possibility of a different outcome should additional information be brought to light: Nothing in this decision prevents the Local from providing Alberta with further information in the future to address the gaps and deficiencies in its assertion.

Alberta is aware that [the Applicant] is actively working to address some of the information gaps identified in the reasons for this decision, for example membership and authorization, and Alberta looks forward to further clarity in these areas. 2.4 The June 29, 2018, Judicial Review Application [ 17 ] The Applicant did not directly challenge the Credible Assertion Decision in any application for judicial review.

However, on June 29, 2018, the Applicant commenced a judicial review application under court file number 1803-13106 respecting a certain decision of the ACO dated January 31, 2018, which found that consultation with the Applicant was not required in relation to a certain oilsands project. That aspect of the decision appears to have resulted from the ACO’s reliance upon the Credible Assertion Decision .

Although the Credible Assertion Decision was not directly challenged or otherwise referred to in the Originating Application of June 29, 2018, a voluminous record was produced by Alberta which included the record before SPI when it reached the Credible Assertion Decision , and it appears that the validity of both decisions was agreed to be properly at issue in that proceeding.

I note that this proceeding was commenced within 6 months of the Credible Assertion Decision , and consequently was within the limitation period contained in r. 3.15(2) of the Alberta Rules of Court . [ 18 ] The Applicant’s judicial review application of June 29, 2018, was abandoned by the Applicant by Discontinuance of Claim filed September 9, 2020.

That discontinuance may have resulted from the fact that the underlying oilsands project had been completed. [ 19 ] Other than the indirect challenge to the Credible Assertion Decision in the judicial review application of June 29, 2018, the Applicant has not challenged that decision, and it has stood in effect since its release on January 2, 2018. 2.5 CNRL’s Horizon South Lease 24 Integration Application [ 20 ] The project applications that underlie the present judicial review proceeding are a number of applications by CNRL to the Alberta Energy Regulator (“AER”) respecting the integration of two previously approved oilsands mines, the Horizon Oil Sands Mine and the Joslyn North Mine (collectively the “Horizon South Application”).

[ 21 ] In the fall of 2019, CNRL submitted a Pre-Consultation Assessment Request and other information to the ACO in respect of the Horizon South Application seeking a determination as to whether or not CNRL was required to consult with any groups respecting those applications.

In its materials, CNRL submitted that since the consolidation would reduce the total development footprint of the two mines, and since no new area was being contemplated, no new impacts would result over and above those previously approved in the context of the mines’ original approvals. 2.6 The “No Consultation Required” Decision of October 1, 2019 [ 22 ] On September 13, 2019, the ACO issued a brief decision by letter concluding that since CNRL’s proposed Horizon South project was located entirely within the boundaries of an existing authorization, and since no new area or impacts were contemplated, CNRL was not required to engage in any consultations with any group respecting the Horizon South Application.

This decision was of general application and did not specifically refer to the Applicant or to any other group or community. [ 23 ] The September 13, 2019, decision was replaced by a subsequent decision dated October 1, 2019, in which the ACO clarified that its previous “no consultation required” decision encompassed both CNRL’s application pursuant to the Water Act and its application pursuant to the Environmental Protection and Enhancement Act . [ 24 ] It does not appear that the Applicant was given notice of either of the September 13, 2019, or the October 1, 2019, decisions of the ACO, or otherwise invited to participate in the process leading up to those decisions. 2.7 The ACO’s reliance upon the Credible Assertion Decision in January, 2020 [ 25 ] On December 13, 2019, the Applicant submitted an SOC to the AER respecting the Horizon South Application.

In this SOC, the Applicant expressed concerns respecting the potential impacts of the project upon what they asserted to be their constitutionally protected aboriginal rights.

Among other things, the Applicant requested in the SOC that the AER instruct CNRL to consult with the Applicant in relation to the project. [ 26 ] By email dated December 16, 2019, a Statement of Concern Coordinator with the AER forwarded the Applicant’s SOC to the ACO. [ 27 ] In in accordance with the Credible Assertion Process , the ACO did not make its own determination or assessment as to whether or not the Applicant is the authorized representative of a community possessing aboriginal rights.

Instead, on December 17, 2019, a consultation advisor with the ACO forwarded the Applicant’s SOC by email to an individual at SPI, asking: “Could you please provide an update on the Status of [the Applicant’s] Credible assertion?” [ 28 ] By email dated January 14, 2020, an individual at SPI responded to the ACO’s inquiry respecting the Applicant’s SOC, by advising of the contents of the Credible Assertion Decision of January 2, 2018, namely that “...at this point in time, the Government of Alberta does not have sufficient information to support a finding that there is a credible rights bearing community in the Fort McMurray area, or that [the Applicant] has been authorized to represent such a community if one exists.” [ 29 ] Whether because of SPI’s advice of January 14, 2020, or because of the ACO’s own prior decision of October 1, 2019, that CNRL was not required to consult with any group in relation to the Horizon South Application, or both, the ACO did not direct CNRL to consult with the Applicant in relation to that project. 2.8 The judicial review application of March 30, 2020 [ 30 ] On March 30, 2020, the Applicant filed an Originating Application for judicial review of the ACO’s “no consultation required” decision of October 1, 2019, which application was assigned court file number 2003 06576.

Among other things, the Applicant pleaded in that application that the ACO had erred in concluding that a duty to consult with the Applicant under Haida was not triggered in relation to the Horizon South Application. That application was discontinued by Discontinuance of Claim filed on January 14, 2021.

That discontinuance may have resulted from the fact that the October 1, 2019, had by that time been replaced by another “no consultation required” decision of October 30, 2020. 2.9 The “no consultation required” decision of October 30, 2020 [ 31 ] By the Spring of 2020, some questions had arisen as to whether or not the ACO’s “no consultation required” decision of October 1, 2019, had been made in light of the full scope of all the approvals, amendments, licenses, and applications being made by CNRL to the AER at a sufficient level of detail.

Consequently, the ACO determined on March 19, 2020, that it would reconsider its earlier decision in light of more fulsome information. Pursuant to that reconsideration process, CNRL submitted supplemental forms and further detail to the ACO on March 30 and 31, 2020. [ 32 ] Notwithstanding the fact that the Applicant had commenced a judicial review application respecting the decision of October 1, 2019, which application was then still extant, the Applicant was not given notice of the ACO’s reconsideration process.

In an email of October 29, 2020 (being the day before the new decision was released), an individual at the ACO wrote to an individual at SPI, asking: “Can you please reply to update whether the status of [the Applicant] has changed from the attached decision of January 14, 2020?” Later that same day, the individual at SPI responded by email advising that the Applicant “has not established a credible assertion since January 14, 2020.” [ 33 ] Again, in accordance with the policy documents respecting the Credible Assertion Process , the ACO did not make any new or independent assessment as to whether or not the Applicant had raised a credible assertion of aboriginal rights.

Instead, it simply relied

upon SPI’s advice as to the contents of the Credible Assertion Decision and the absence of any further decision on the subject. [ 34 ] On October 30, 2020, the ACO issued a new “no consultation required” decision (the “Decision”), which replaced its October 1, 2019, decision. It is this Decision that is the subject of the present application for judicial review. [ 35 ] In the Decision, the ACO again determined that CNRL was not required to consult with any group respecting the Horizon South Application.

There is no reference to the Applicant anywhere in the Decision’s reasons, and the ACO made no assessment or determination as to whether or not the Applicant is the authorized representative of a rights-bearing community. Other than the email advice from SPI, the ACO also did not gather, receive, or consider any evidence or other material respecting that issue before making its Decision. [ 36 ] The Decision’s conclusions and rationale are stated as follows: 12 Is Consultation Triggered under the GoA’s FN/MS consultation policies? No, consultation is not triggered. In

summary, the proposed project, FNC201906810, Horizon South Lease 24 Integration Application, is located entirely within already approved projects. Although the technical details of the proposed project design differ, substantially no new area is being contemplated to be made unsuitable for the exercise of Treaty rights and traditional uses. Substantially, no additional, novel impacts on First Nations’ Treaty rights and traditional uses would occur compared to those already approved for the mines. The ACO notes that this rationale relates only to the EPEA and Water Act applications described herein.

CNRL has not requested a pre- consultation assessment for any Public Lands Act disposition amendments associated with this project. In the event that CNRL wishes to amend a Public Lands Act disposition, such a proposed amendment would come before the ACO for assessment regarding whether consultation about that proposed amendment is required. The ACO on October 1, 2019 arrived at the conclusion “no consultation required”.

After reviewing the additional information subsequently received from Fort McKay First Nation and CNRL, the ACO again arrives at the conclusion that “no consultation required”. [ 37 ] The Applicant was not formally served with a copy of the Decision. However, the Applicant’s legal counsel was advised of the Decision by letter on November 4, 2020. 2.10 The Applicant’s Originating Application [ 38 ] The present judicial review application was commenced by an Originating Application filed on November 27, 2020. That pleading consists of some 26 pages and some 80 paragraphs.

Its opening paragraph defines the “central issue” to be determined in this application in the following terms: The Central Issue in this Application 1.

The Application raises the question whether Métis interests and rights asserted by the members of the Fort McMurray Métis Local Council (“McMurray Métis”) must, as a matter of constitutional imperative, be taken into account by Her Majesty the Queen in Right of Alberta [“the Crown”] and Her Majesty the Queen as represented by the Aboriginal Consultation Office [“the ACO”] before the Alberta Energy Regulator [“AER”] is constitutionally competent to make a final decision in relation to Canadian Natural Resources Ltd.’s [CNRL’s] Horizon South Lease 24 Integration Application [“CNRL’s Integration Application to the AER”]. [ 39 ] The grounds pleaded in the Originating Application address a wide range of issues, and are generally lacking in focus.

The fundamental premise underlying these grounds is that the Crown owed the Applicant a duty to consult pursuant to Haida . This plea is reflected, for example, in paragraph 17: 17. First, as a matter of constitutional law, the decision is invalid because a mandatory constitutional obligation falling on the Crown has not been satisfied i.e. the Crown has not consulted, if at all, when in law it must do so.

The Crown denies that it owes a constitutional obligation to consult with the Applicant or its members, or indeed any Métis person in Alberta outside of Fort McKay and the Métis Settlements in respect of AER approvals of the CNRL application.

This case therefore raises a question of constitutional law under the Honour of the Crown and/or under s. 35 of the Constitution Act, 1982 . [ 40 ] Although much of the language of the Originating Application relates to the specific circumstances of the Horizon South Application, its language also reflects the Applicant’s broader objective of achieving recognition as a rights-bearing organization going forward. At paragraph 20, for example, the Applicant pleads as follows: 20.

The Applicant’s position is that Alberta must direct Aboriginal consultation with it as the entity which represents Métis people in Fort McMurray. Such consultation is a matter of constitutional imperative… [ 41 ] The Applicant also pleads at paragraph 44 that, contrary to the conclusion reached in the Credible Assertion Decision , it “is authorized by its members to represent the Métis community in Fort McMurray.” [ 42 ] The relief sought in the Originating Application is stated as follows: The Applicant seeks the following relief: a. An Order in the nature of certiorari, quashing the 2020 ACO decision;

b. A Declaration that Her Majesty the Queen in Right of Alberta is required to consult with the Applicant in respect of all AER approvals, licenses and authorizations involved in CNRL’s Integration Application to the AER; c. A Declaration that Alberta’s conduct is not reconciliation, is not honourable, and is not consistent with the Honour of the Crown; d. An order that this judicial review be integrated with the judicial review challenging the 2019 decision… [now discontinued] e.

Costs of this application. 2.11 The Applicant’s proposed new evidence [ 43 ] As noted above, the Applicant presently applies to admit new evidence into the record of this judicial review application. That new evidence consists of an Affidavit from the Applicant’s current CEO, Bill Loutitt. The copy of that Affidavit filed with the Court is unsworn, and is attached as an exhibit to the sworn Affidavit of a paralegal. [ 44 ] Mr. Loutitt’s Affidavit is approximately 1,800 pages long, inclusive of exhibits.

In very brief overview, the proposed new evidence appears to be that material which the Applicant relies upon to establish that it is the authorized representative of a Métis community possessing aboriginal rights.

It includes at least two historical expert reports, a work entitled the Mark of the Métis which is stated to be the Applicant’s first attempt to collect and document its history, correspondence between the Applicant and various government officials respecting the preparation of a Métis consultation policy, historical maps, genealogy documentation, and authorization forms signed by the Applicant’s members. None of this material was before the ACO at the time it made the Decision now under review. 3. Issues [ 45 ] The Alberta Respondents’ application raises the following issue:

(1) Should the Applicant’s Originating Application be struck as an abuse of process? [ 46 ] The Applicant’s application raises the following three issues:

(2) Should the Affidavit of Barry Loutitt be admitted as new evidence on this application for judicial review?

(3) Should the Court require the Alberta Respondents to file unredacted copies of the record for the purpose of reviewing the redactions?

(4) Should the Applicant be permitted to amend its pleading by adding a “basket clause”? 4. Should the Applicant’s Originating Application be struck as an abuse of process? 4.1 The applicable test for striking a pleading as an abuse of process [ 47 ] The Alberta Respondents apply to strike the Applicant’s application for judicial review pursuant to r. 3.68 of the Alberta Rules of Court . That provision reads, in relevant part, as follows: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; [...]

(2) The conditions for the order are one or more of the following: [...] (

d) a commencement document or pleading constitutes an abuse of process; [ 48 ] The test to be applied to strike a claim on the basis of r. 3.68(2)(

d) is not entirely clear. In Reece v Edmonton (City) , 2011 ABCA 238 at para. 14 , Slatter JA for a majority of the Court of Appeal explained that it is at least “questionable” that it is necessary to establish that it is “plain and obvious” that a pleading constitutes an abuse of process: This was not an application to strike out the pleadings for failure to disclose a cause of action. It is in that context that it is said it must be “plain and obvious” that no cause of action is disclosed, although that is not a prohibition on striking out claims just because the issues are complex.

As was stated in the leading case of Drummond-Jackson v. British Medical Assn. , [1970] 1 W.L.R. 688 (Eng. C.A.) at p. 700 “... the question is whether, when the point has been argued, it has become plain and obvious that there can be but one result”. It is questionable whether an application to strike a pleading because it is an abuse of process has to meet that test or standard. The leading cases on abuse of process cited below make no mention of such a test. The issue essentially comes down to whether the record before the court is sufficient to fairly decide whether an abuse of process is involved.

If, as in this appeal, the record is sufficiently clear to determine that there is an abuse of process, then there is no need to defer the issue to trial. It would be inappropriate to allow a suit that

has been shown in the context of the law and the litigation process to be an abuse of process to proceed just because its abusive nature,while clearly shown by the record, is complex or subtle: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (S.C.C.) at paras. 19-20, 25. [49] In contrast, the Court of Appeal subsequently stated in Lameman v. Alberta, 2013 ABCA 148 at para. 12 that “[t]he test forstriking pleadings for being an abuse of process is likewise whether it is plain and obvious the action will fail”.

In support of thisstatement, the Court cited Fraser CJA’s dissenting reasons in Reece at paras. 128-129. [50] Following Lameman, I must determine whether or not it is plain and obvious that the Applicant’s Originating Application isbound to fail as an abuse of process. 4.2 Legal principles respecting the collateral attack doctrine [51] The specific category of abuse of process relied upon by the Alberta Respondents in support of their application to strike isthat of “collateral attack”.

In Wilson v The Queen, (SCC), [1983] 2 SCR 594 at p. 599, McIntyre J. described thecollateral attack doctrine in the following terms: It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding andconclusive unless it is set aside on appeal or lawfully quashed.

It is also well settled in the authorities that such an order may not beattacked collaterally -- and a collateral attack may be described as an attack made in proceedings other than those whose specific object isthe reversal, variation, or nullification of the order or judgment. [52] The purpose of the collateral attack doctrine is to ensure fairness to the parties, but also to protect the integrity of the court and the administrative system. As Lange explains in The Doctrine of Res Judicata in Canada, 4th ed.

Markham, Ont.: LexisNexis Canada,2010, (“Lange”) at p. 465: “The fundamental policy behind the doctrine of collateral attack is to maintain the rule of law and to preservethe repute of the administration of justice.” And as Kerans J.A. wrote in R v Avery (1986), (NWT CA), 30 CCC (3d)16 (NWTCA): “The reason for the rule is that the law must encourage respect for due process by itself respecting it.

It is a rule ofpractical necessity.” [53] The collateral attack doctrine generally requires litigants to avail themselves of the review procedures provided to them bylaw, and not to circumvent those procedures by attacking orders in the wrong forum.

This subject was addressed by Lebel J. in Boucher vStelco Inc, 2005 SCC 64 at para. 35: The situation in which the respondent could find itself if the principles of res judicata or issue estoppel were not applied illustrates thedanger of a collateral attack and of the failure to avail oneself in a timely manner of the recourses against decisions of administrativebodies or courts of law that are available in the Canadian legal system.

The stability and finality of judgments are fundamental objectivesand are requisite conditions for ensuring that judicial action is effective and that effect is given to the rights of interested parties. Modernadjective law and administrative law have gradually established various appeal mechanisms and sophisticated judicial review procedures,so as to reduce the chance of errors or injustice. Even so, the parties must avail themselves of those options properly and in a timelymanner.

Should they fail to do so, the case law does not in most situations allow collateral attacks on final decisions. [54] Similarly, as Abella J. wrote in British Columbia (Workers' Compensation Board) v Figliola, 2011 SCC 52 at para. 28, thecollateral attack doctrine “prevents a party from using an institutional detour to attack the validity of an order by seeking a different resultfrom a different forum, rather than through the designated appellate or judicial review route”.

Abella J. went on to explain at para. 30that “the harm to the justice system lies not in challenging the correctness or fairness of a judicial or administrative decision in the properforums, it comes from inappropriately circumventing them”. 4.3 Collateral attack and administrative decisions [55] Over the years, the collateral attack doctrine came to be extended to the orders of administrative decision-makers.

As Binnie J.explained in Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at para. 21: These rules [respecting issue estoppel and collateral attack] were initially developed in the context of prior court proceedings. They havesince been extended, with some necessary modifications, to decisions classified as being of a judicial or quasi-judicial nature pronouncedby administrative officers and tribunals.

In that context the more specific objective is to balance fairness to the parties with the protectionof the administrative decision-making process, whose integrity would be undermined by too readily permitting collateral attack orrelitigation of issues once decided. See also: Garland v Consumers’ Gas Co, 2004 SCC 25 at para. 71. [56] In R v Consolidated Maybrun Mines Ltd, (SCC), [1998] 1 SCR 706, and its companion case, R v AlKlippert Ltd, (SCC), [1998] 1 SCR 737, the Supreme Court established a separate framework for collateral attacks onadministrative orders.

That framework, which was most recently examined and applied in R v Bird, 2019 SCC 7, requires the court tofocus upon the legislature’s intention as to the appropriate forum for challenging the validity of an administrativeorder.

Maybrun identifies five non-exhaustive factors that may be considered: (1) the wording of the statute under the authority of whichthe order was issued; (2) the purpose of the legislation; (3) the existence of a right of appeal; (4) the kind of collateral attack in light ofthe expertise or raison d’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with theorder (Maybrun, at paras. 45-49; Klippert, at para. 13).

The factors are “not independent and absolute criteria, but important clues,among others, for determining the legislature’s intention” (Maybrun, at para. 46). [57] In Donald J.M. Brown, Q.C. and the Honourable John W. Evans, Judicial Review of Administrative Action inCanada (Toronto: Carswell, 2019), at para. 5:0300 (“Brown and Evans”), the authors add the following factors which have also been

considered by the courts in this context: the desirability of a direct attack as opposed to a collateral attack; whether a direct attack hasalready been instituted; the significance of any delay; and the appropriateness of the issue being dealt with by the court in which thecollateral attack is made. 4.4 Limitations to the collateral attack doctrine [58] The collateral attack doctrine is subject to certain limitations.

These include at least two limitations of potential significance tothe present case. [59] Firstly, a decision or order is only immune from collateral attack if the decision-maker was of competent jurisdiction to makeit.

This point was explained in Volhoffer v Volhoffer, (SK CA), [1925] 3 DLR 552 (Sask CA) at pp. 556-557: From these authorities, the law would appear to be that, if a tribunal which has jurisdiction over a subject-matter, provided a given stateof facts exists, makes an order in respect of that subject-matter in the absence of the existence of that state of facts, and, therefore,without jurisdiction, such order must be treated as valid and binding until it is reversed upon an appeal, and, generally speaking, it cannotbe attacked in a collateral proceeding.

But where the tribunal has not been given any jurisdiction over the subject-matter, no matter whatstate of facts may exist, an order made in respect of it is a nullity, and need not be appealed against, and its invalidity may be set up as ananswer in any proceeding taken under it. [60] Citing the above passage from Volhoffer, Lange summarizes the law on this point at p. 467 as follows: There are two kinds of lack of jurisdiction for the purpose of a judgment.

An important distinction must be made between a judgmentrendered where there is no jurisdiction, in and of itself, and a judgment rendered where there is no jurisdiction although jurisdiction isassumed to exist because of a set of facts which are assumed to exist. The former is a nullity and assailable in a subsequent proceeding asa defence to an estoppel argument. It is not viewed as a collateral attack on the judgment. The latter is only assailable by way of appeal.If it is attacked in a subsequent proceeding, it is viewed as a collateral attack on the judgment.

See also: R v JLS, 2002 BCCA 174 at paras. 36-39; Re MacKenzie, 2013 BCSC 1665 at paras. 73-78. [61] Secondly, the collateral attack doctrine is only applicable where the attack is against the prior decision itself, as distinguishedfrom its underlying factual findings. In Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63, a city employee had been dismissed on thebasis of his criminal conviction for sexual assault. His union grieved the dismissal and argued before an arbitrator that the conviction hadbeen wrongly decided.

In declining to apply the doctrine of collateral attack in that context, Arbour J. wrote as follows at para. 34: …[I]n the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of adifferent claim with different legal consequences, whether the conviction was correct. It is an implicit attack on the correctness of thefactual basis of the decision, not a contest about whether that decision has legal force, as clearly it does. Prohibited “collateral attacks”are abuses of the court's process.

However, in light of the focus of the collateral attack rule on attacking the order itself and its legaleffect, I believe that the better approach here is to go directly to the doctrine of abuse of process. [62] Subsequently, in Garland v Consumers’ Gas Company, 2004 SCC 25 at para. 71, Iacobucci J. declined to apply the collateralattack doctrine to a class action for damages which implicitly attacked the validity of an order of the Ontario Energy Board for thefollowing reasons: Based on a plain reading of this rule, the doctrine of collateral attack does not apply in this case because here the specific object of theappellant's action is not to invalidate or render inoperative the Board's orders, but rather to recover money that was illegally collected bythe respondent as a result of Board orders.

Consequently, the collateral attack doctrine does not apply. 4.5 Arguments in the present case [63] In the present case, the Respondents argue that the Applicant’s application for judicial review, while ostensibly taken fromthe ACO’s Decision of October 30, 2020, is, in substance, a collateral attack upon the Credible Assertion Decision.

That is, theRespondents argue that the Applicant is presently attempting to establish that it is the authorized representative of a Métis communitywhich has made a credible assertion to an entitlement of aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act,1982.

Those claims were not determined or even mentioned in the decision presently under review, and are the same claims that were notaccepted in the Credible Assertion Decision. [64] In response, the Applicant makes no bones about the fact that its central objective in this proceeding is to establish that itenjoys a constitutional right to be consulted by the Crown pursuant to Haida, and argues that this is the appropriate forum for a fulsomedetermination of that claim.

Further, it argues that the Credible Assertion Decision is now “moot” since it is limited in its application tothe four projects that had been at issue at the time of the proceedings before Justice Goss, and is inapplicable to the Horizon SouthProject. The Applicant also argued at the oral hearing of this application that SPI was not legally authorized to make the CredibleAssertion Decision since, unlike the ACO, its authority is not grounded in any statute or Ministerial Order.

The Applicant also arguesthat the Credible Assertion Process should not be followed because it is tainted by a number of legal errors, including the application ofthe wrong legal test to the duty to consult. 4.6 Did SPI have jurisdiction to make the Credible Assertion Decision? [65] As stated in several authorities above (Volhoffer, Lange JLS, MacKenzie), a prior decision or order is only immune fromcollateral attack if it was rendered by a decision-maker with jurisdiction over the subject matter.

Unlike many administrative processes,the Credible Assertion Process is not grounded in any statute, and is instead governed by certain policy documents which do not

themselves carry the force of law. [66] In support of SPI’s jurisdiction to make the Credible Assertion Decision, the Alberta Respondents rely upon AthabascaChipewyan First Nation v Alberta (Minister of Aboriginal Relations, Aboriginal Consultation Office), 2019 ABCA 401 at paras. 37-52, in which the Court of Appeal affirmed the jurisdiction of the ACO to make determinations respecting the adequacy of consultationsdespite the fact that, like SPI, its jurisdiction is not grounded in any statute.

At para. 39, Strekaf and Khullar JJ.A. concluded that: While the Crown can choose to create a formal legal process by endowing a specific body with legal powers to carry out the Crown'sduty of consultation and decide whether that duty is triggered (either through regulation or statute), it does not have to do so. [67] The Applicant argues that Athabasca Chipewyan is distinguishable from the present case since, in addition to relying uponthe policy documents which govern the ACO’s processes and decisions, the Court of Appeal relied at paras. 25 and 48 upon a MinisterialOrder which requires the AER to request advice from the ACO respecting whether or not consultations have been found to be adequate.No such Ministerial Order confers jurisdiction upon SPI. [68] I respectfully disagree with the Applicant that the presence of the Ministerial Order was essential to the Court of Appeal’sanalysis in Athabasca Chipewyan.

Fundamentally, the Court of Appeal held that the ACO is a part of the Ministry of IndigenousRelations and as such is authorized to exercise the Crown’s executive authority despite the fact that it is a non-statutory body. Althoughthe policy which governs the ACO is not itself an express grant of legal authority, the policy guides the ACO in fulfilling the Crown’sresponsibilities in this area.

These conclusions are equally applicable to SPI and its Executive Director when making decisionsrespecting the Credible Assertion Process. [69] I therefore find that the Executive Director did have jurisdiction over the subject matter addressed by the Credible AssertionDecision.

Consequently, the decision does potentially enjoy protection under the collateral attack doctrine. 4.7 Potential errors by SPI [70] The Applicant also argues that the Credible Assertion Decision has no application to the issues in this judicial reviewapplication because it is tainted by a number of errors, including but not limited to the following:

(1) SPI required the Applicant to establish that it is a rights bearing community, whereas the applicable standard only requires that theCrown have knowledge of a potential aboriginal right, and that the contemplated conduct might affect that right (Haida para. 35;Mikisew para. 33; Athabasca Chipewyan para. 55);

(2) SPI was wrong to require the Applicant to establish, on a balance of probabilities that it is authorized to represent a rights-bearingcommunity (Fort Chipewyan para. 408; Madden p. 227); (3) the Credible Assertion Process constitutes an “unstructured discretionary administrative regime which risks infringing aboriginalrights in a substantial number of applications in the absence of some explicit guidance” contrary to Haida para. 51, and R v Adams, (SCC), [1996] 3 SCR 101 para. 54; and (4) by recognizing another organization as a rights-bearing community and not the Applicant, the Crown discriminated against theApplicant in the administrative law sense. [71] For present purposes, it is unnecessary to assess the merits of the above arguments.

It suffices to say that these sorts of errors,if present, constitute errors within the exercise of SPI’s jurisdiction. Although these arguments could have been raised in an applicationfor judicial review directly challenging the Credible Assertion Decision, and although some of these errors might fairly be described as“jurisdictional”, they are not the sort of errors that would render the Credible Assertion Decision a “nullity” for the purposes of the testin Volhoffer.

Consequently, the errors alleged by the Applicant do not constitute a valid basis for disregarding the Credible AssertionDecision in the context of the present proceeding. 4.8 Is the Credible Assertion Decision “moot”, or inapplicable to the presentproceedings, since it is limited to the four projects at issue before Justice Goss? [72] The Applicant argues that the Credible Assertion Decision has no application to the Horizon South Application since itspeaks only to the Applicant’s claim of a right to be consulted in relation to the four projects that were at issue in the proceedings beforeJustice Goss.

Since those projects are no longer at issue, the Applicant argues that the decision is moot and of no relevance to theApplicant’s potential right to be consulted in relation to the Horizon South Application. [73] I respectfully disagree with the Applicant’s narrow reading of the Credible Assertion Decision. Although that decision doesrefer to the reconsideration directed by Justice Goss, and also anticipates a further reconsideration by the ACO respecting the fourprojects, these remarks merely describe the procedural history leading up to the decision.

The decision’s analysis and conclusions do notturn upon the potential impacts of the four projects. [74] A review of the detailed reasons contained in the Credible Assertion Decision confirms that it was the intent of the ExecutiveDirector of SPI to find that the Applicant had not yet raised a credible assertion of a right to be consulted under Haida and that no such

right would be recognized by Alberta unless and until such a credible assertion is raised. Reading these reasons in light of the policy documents which govern the underlying Credible Assertion Process , it cannot reasonably be concluded that the decision is confined to the four projects that were before Justice Goss. [ 75 ] I therefore disagree with the Applicant that the Credible Assertion Decision has no application to the matters at issue in the present judicial review application.

That decision reflects a determination by SPI that the Applicant has not yet raised a credible assertion respecting its s. 35(1) claim. 4.9 Is it plain and obvious that the present judicial review application is a collateral attack upon the Credible Assertion Decision ? [ 76 ] As noted above, a collateral attack is “an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment” ( Wilson p. 599).

The collateral attack doctrine is only applicable where the attack is against the prior decision itself, as distinguished from its underlying factual findings ( Toronto para. 34; Garland para. 71 ). [ 77 ] I find that it is plain and obvious that the Applicant’s Originating Application constitutes a collateral attack upon the Credible Assertion Decision . The Applicant’s central purpose in this proceeding, as expressly stated in the opening paragraph of its pleading, is to establish that Alberta owes the Applicant a duty to consult under Haida .

Such a finding by this Court would not only be contrary to the findings underlying the Credible Assertion Decision , it would deprive that decision of all legal force and effect. [ 78 ] The validity of the Credible Assertion Decision is not an issue that is properly before the Court in this proceeding.

The issues determined in the Credible Assertion Decision were nowhere addressed or mentioned by the ACO in the Decision now under review, and the record before SPI when it made the Credible Assertion Decision is not a part of the record that was before the ACO. [ 79 ] This finding of a collateral attack is also supported by a consideration of the Maybrun criteria. Although those criteria usually focus upon the legislative intent reflected in an underlying statute, they can equally be applied to the policy documents which guide the operation of the Credible Assertion Process .

Those documents reflect a policy decision that Métis credible rights and authoritative representation determinations are to be made at first instance by the Executive Director of SPI, whose decisions may then be directly reviewed by this Court. Those issues are not to be determined by the ACO when determining the level of consultation required for a particular project, and are not to be determined by this Court when reviewing the ACO’s decisions. [ 80 ] As CNRL points out, the Credible Assertion Process ’s separation of functions between SPI and the ACO advances a number of important policy objectives.

Among other things, it prevents project applications from being encumbered by unrelated issues that may take many years to resolve, and prevents project proponents from being dragged into a dialogue that is appropriately held between the organization and the Crown. This structure also creates separate avenues of judicial review which permit the Court to focus upon one subject area at a time unclouded by the other.

Permitting the Applicant to raise issues determined by SPI when judicially reviewing decisions by the ACO would blur this separation of functions. [ 81 ] The separation of functions under the Credible Assertion Process also facilitates the development of expertise by a specialized decision-maker respecting the unique issues faced by Métis communities. That expertise does not reside within the ACO.

Permitting these issues to be determined at first instance in this Court in the context of reviewing ACO decisions would deprive the process of that expertise. [ 82 ] The Credible Assertion Process also furthers reconciliation between the Crown and Aboriginal peoples by providing a dedicated administrative mechanism for the determination of such important issues without the necessity of recourse to the Courts. It provides organizations like the Applicant with an ongoing ability to bring forward new evidence to address any deficiencies in their claims, and to obtain new decisions addressing that evidence.

Where necessary, the resulting administrative decisions may be directly reviewed by this Court pursuant to r. 3.15. These issues are not to be determined at first instance in the context of comparatively costly and cumbersome judicial proceedings. [ 83 ] In

summary, a review of the policy documents which govern the Credible Assertion Process confirms that it was the Crown’s intention to separate decisions respecting credible assertions by Métis communities from decisions respecting the adequacy of consultations respecting particular projects. Decisions in these two areas are to be made by specialized decision-makers, each focused upon the particular matters at issue, and each subject to a separate avenue of judicial review. This separation is designed to achieve focus, specialization, and efficiency.

Permitting the Applicant to litigate its credible assertion claim in this Court on a de novo basis when reviewing a decision by the ACO which does not address that claim would frustrate these legitimate policy objectives. 4.10 Conclusions on abuse of process [ 84 ] In conclusion, I find that it is plain and obvious that this application for judicial review, while ostensibly taken from the ACO’s Decision of October 30, 2020, is, in substance, a collateral attack upon the Credible Assertion Decision of January 2, 2018.

The Applicant’s central purpose in this proceeding is to establish that the Crown owes the Applicant a duty to consult under Haida . The present proceeding is not the right forum for a determination of that important issue. The Applicant could have sought that relief in the context of an application for judicial review of the Credible Assertion Decision but chose not to do so. The Applicant may also continue to seek that relief from SPI, and may seek judicial review of any future decisions by SPI.

But the Applicant may not seek that relief in the context of a judicial review application taken from an ACO Decision which deals with a different subject matter. [ 85 ] The Alberta Respondents’ application to strike the Applicant’s Originating Application pursuant to r. 3.68 is granted. 5. Should the Affidavit of Barry Loutitt be admitted as new

evidence on this application for judicial review? [86] In the event that I have erred respecting my decision to strike this application as an abuse of process, I will also determine thethree issues raised by the Applicant’s application. The first of these issues is whether or not the Applicant’s proposed Affidavit of BarryLoutitt ought to be admitted as new evidence on this application for judicial review. 5.1 The “general rule” and its exceptions [87] Rule 3.22 prescribes the contents of the record for the purposes of an application for judicial review: 3.22 When making a decision about an originating application for judicial review, the Court may consider the following evidence only: (

a) the certified copy of the record of proceedings of the person or body that is the subject of the application, if any; (

b) if questioning was permitted under rule 3.21, a transcript of that questioning; (

c) anything permitted by any other rule or by an enactment; (

d) any other evidence permitted by the Court. [88] Although r. 3.22(

d) confers a discretion upon the Court to permit the admission of additional evidence, the “general rule” isthat evidence that was not before the original decision-maker is inadmissible on judicial review. In Gowrishankar v JK, 2019 ABCA316 at para. 60, the Court of Appeal wrote: As a “general rule”, evidence that was not before the original decision maker and which goes to the merits of the decision is notadmissible on a judicial review.

The reason for this rule is that a court on a judicial review is simply conducting a review of the decisionof the original decision maker based on the record that was before it. “Attempting to introduce fresh evidence respecting the merits of thechallenged decision on an application for judicial review misapprehends the nature of judicial review”: Sobeys West Inc v AlbertaCollege of Pharmacists, 2017 ABCA 306 at para 67 adopting the comments of Slatter J (as he then was) in Alberta Liquor StoreAssociation v Alberta (Gaming and Liquor Commission), 2006 ABQB 904 at para 42. [89] In Alberta, the test in R v Palmer, (SCC), [1980] 1 SCR 759, respecting the admission of new evidence onappeal is not applicable to applications to admit new evidence on judicial review: Sobeys West at paras. 67-69, adopting Alberta LiquorStore Association at para. 44.

Consequently, important evidence which could not have been led before the initial decision-maker uponan exercise of reasonable diligence is not, for that reason, admissible as new evidence on judicial review. [90] There exist several recognized exceptions to the general rule stated in Gowrishankar, some of which are listed by Feth J. inBergman v Innisfree (Village), 2020 ABQB 661 at paras. 45-46. But even where such an exception applies, a judicial review applicationmay not be converted into a de novo hearing of the issues decided by the initial decision-maker.

In the Alberta Liquor Store Associationcase cited by the Court of Appeal in the above passage from Gowrishankar, Slatter J. (as he then was) wrote: 46 Whenever it may be appropriate to file affidavits on judicial review applications one thing is clear: the applicants are not entitledto turn the judicial review application in a trial de novo on the merits of the issue before the tribunal.

Here, the Applicants are entitled toshow that the Board was incorrect, unreasonable, or patently unreasonable, depending on the ultimate standard of review that is selected.They are not however entitled to ask the Court to usurp the jurisdiction of the Board, and decide de novo whether the Respondents areconducting “separate businesses”. In their brief the Applicants assert, at para. 58, “These facts [set out in the affidavits] bear on adecisive issue: is Real Canadian operated as a separate business?” That is not the issue before the Court.

The issue is whether thedecisions of the Board meet the standard of review. Whether the Board's decisions meet the appropriate standard must be decided basedon the record that was before the Board, and the reasonableness of the decisions must be determined in accordance with what was on thatrecord. 5.2 The Haida consultation exception [91] The particular exception relied upon by the Applicant in support of its application to admit new evidence is said to arise injudicial review applications where the duty to consult and the Honour of the Crown are at issue.

In Nova Scotia (Aboriginal Affairs) vPictou Landing First Nation, 2019 NSCA 75 at para. 66, the Court held that “[e]xtrinsic evidence may be admitted to assess theappropriate scope of Aboriginal consultation that is required by the honour of the Crown”. Similarly, Brown and Evans state at para.6.5300 that “evidence will usually be required where the Crown's duty to consult is under review.” [92] In Alberta, there exists some disagreement respecting the nature and scope of this exception.

In Tsuu T'ina Nation v Alberta(Environment), 2008 ABQB 547, LoVecchio J. addressed this subject as follows: 28 The decision in Haida must be seen as a tacit approval of evidence, which would go beyond that contained in a return, beingconsidered by the Court in a judicial review when the Crown's duty to consult is an issue. 29 Perhaps more fundamentally, the duty to consult is grounded in the honour of the Crown.

It would not be in keeping with thehonour of the Crown to strike evidence which is available and might assist the Court in making a preliminary assessment of the merits ofthe right claimed and the other issues before the Court. [93] The above passage in Tsuu T'ina was quoted and adopted by Browne J. in Cold Lake First Nation v Alberta (Tourism,Parks and Recreation), 2012 ABQB 579 at paras. 26-27. However, in Fort McKay First Nation v Alberta (Minister of Environment

and Sustainable Resource Development) , 2014 ABQB 32 , Read J. wrote: 26 I respectfully disagree with this analysis [in Tsuu T’ina ]. The Chambers Judge in Haida Nation was not conducting a judicial review, but rather considering an application for an interlocutory injunction in a lawsuit. In fact, in paragraphs 60-63, the Supreme Court addressed the fact that British Columbia did not have a process for administrative review of the duty to consult and what the hypothetical standard of review would be of such an application.

I do not accept that affidavit evidence is admissible in judicial review simply because the honour of the Crown is in issue. [ 94 ] Read J. went on to conclude at para. 29 that even had she agreed with the analysis in Tsuu T’ina , “nothing in Tsuu T’ina ... mandates or permits a party to adduce new evidence that is irrelevant or which is tendered in an effort to have the judicial review judge conduct a trial de novo , essentially usurping the jurisdiction of the initial decision maker.” 5.3 Application to the present case [ 95 ] The Applicant’s proposed new evidence is inadmissible in this judicial review application.

The Applicant’s application to enter this evidence misapprehends the nature of judicial review and attempts to convert this proceeding into a de novo trial of the matters determined by SPI in the Credible Assertion Decision . [ 96 ] The Applicant’s proposed evidence does not fall within an exception to the general rule that judicial review proceedings are limited to a review of the material before the initial decision-maker.

Although I accept that it may sometimes be necessary to admit new evidence in the context of judicial review proceedings addressing the existence or scope of the Crown’s duty to consult, those matters are not properly before the Court in the present case. The existence of any right on the part of the Applicant to be consulted was not determined or even mentioned in the Decision under review, and it is not the role of this Court to determine that issue at first instance.

Conducting a de novo determination of that issue within this proceeding would constitute a usurpation of SPI’s authority. [ 97 ] The Applicant argues that it ought to be permitted to submit its proposed evidence since it would have submitted that evidence to the ACO if it had been invited to participate in the reconsideration process. But that argument is, in substance, an application to admit new evidence pursuant to the Palmer test. That is, the Applicant is arguing that it could not have submitted its evidence upon an exercise of reasonable diligence since it was not invited to make submissions.

As noted above, however, the Court of Appeal held in Sobeys West that this is an inadequate basis to admit new evidence in judicial review proceedings. [ 98 ] Finally, even if the Applicant were to succeed in its claim that the ACO should have received evidence from the Applicant prior to rendering the Decision now under review, such a finding would not warrant a fulsome hearing of that evidence in this Court.

Rather, the proper remedy would be to remit the matter to the initial decision-maker for its own consideration of that evidence: Alberta Liquor Store Association at para. 50 . [ 99 ] The Applicant’s application to admit new evidence is denied. 6. Should the Court require the Alberta Respondents to file unredacted copies of the record for the purpose of reviewing the redactions? [ 100 ] The record prepared and filed by the ACO in response to this application contains a number of redactions.

The Alberta Respondents have advised the Applicant and the Court that these redactions were imposed with respect to (1) privileged information and (2) information submitted by another community respecting a potential duty to consult that community. [ 101 ] The Applicant argues that the Alberta Respondents ought to be required to produce unredacted copies of all the redacted documents in the record to the Court so that the validity of the redactions can be assessed.

The Applicant does not present any specific basis to doubt the validity of the redactions other than to assert that submissions received from third parties, such as other rights claimants, are relevant to the issues to be determined in this proceeding.

The Applicant acknowledges that privileged information need not be produced, and does not provide any basis to doubt that the information withheld on the basis of privilege is not in fact privileged. [ 102 ] The Applicant’s application to lift redactions is governed by r. 3.19(3) which reads: 3.19(3) If the Court is not satisfied with the explanation for not sending all or part of the record of proceedings, the Court may order any or all of the following: (

a) the person or body to provide a better explanation; (

b) the person or body to send a certified copy of a record to the court clerk; (

c) the person or body to take any other action the Court considers appropriate. [ 103 ] I am satisfied with the Alberta Respondents’ explanation for withholding portions of the record by imposing redactions. Determinations as to relevance and privilege are to be made at first instance by the party producing the record. It is not the task of this Court to routinely review all such determinations to test their validity.

The Applicant has not articulated any basis to question the validity of the underlying claims of privilege, and has not established that third-party information is relevant to the Applicant’s own claims. [ 104 ] The Applicant’s application for an order directing the Alberta Respondents to file an unredacted copy of the record for the Court to review is denied.

7. Should the Applicant be permitted to amend its pleading by adding a “basket clause”? [ 105 ] The Applicant applies for permission to amend its Originating Application for the purpose of adding a “basket clause” into its prayer for relief.

The Applicant argues that the inclusion of such a clause is a common practice, and that one was omitted from its own pleading as a result of oversight. [ 106 ] Although it is not improper to include a basket clause in an Originating Application for judicial review ( Wilcox v Alberta , 2020 ABCA 104 at para. 64 ), it has already been necessary for the Court to entertain an application to strike the Originating Application on the basis that it seeks unavailable relief. Under these particular circumstances, I would deny the Applicant’s application to add an open- ended basket clause to its prayer for relief. 8.

Order Granted [ 107 ] The following order is granted: 1. The Alberta Respondents’ application to strike the Applicant’s Originating Application is granted; 2. The Applicant’s application to admit new evidence is denied; 3. The Applicant’s application for an order directing the Alberta Respondents to file an unredacted copy of the record is denied; 4. The Applicant’s application to amend its Originating Application is denied; and 5. The parties may address costs of these applications in writing within 30 days. Heard on the 25 th day of March, 2021.

Dated at the City of Edmonton, Alberta this 12 th day of April, 2021. N.J. Whitling J.C.Q.B.A. Appearances: Debbie Bishop for the Applicant Angela Croteau / Brooklyn LeClair for the Respondents Her Majesty the Queen in Right of Alberta and Her Majesty the Queen as Represented by the Aboriginal Consultation Office Tamela J. Coates, Q.C. / Michelle S. Jones for the Respondent Canadian Natural Resources Limited

[1] Jason Madden, “The Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta ” Osgoode Hall Law Journal 57.1 (2021) : 195-229 at p. 227: “The perverse nature of the court’s logic is especially striking when one considers that the Crown’s own inaction and reluctance to recognize Métis governance structures over the generations contributes to any conflicting claims.”