Canada: Alberta Court Of Queen's Bench Confirms The Scope Of Procedural Fairness And Evidence To Trigger Alberta Crown's Duty To Consult In Resource Development Applications

The Alberta Court of Queen's Bench recently issued two decisions, Métis Nation of Alberta Association Fort McMurray Local Council 1935 v. Alberta, 2016 ABQB 712 and Fort Chipewyan Metis Nation of Alberta Local #125 v. Alberta, 2016 ABQB 713 confirming the procedural fairness threshold required of the Aboriginal Consultation Office (ACO) and the scope of the information required of First Nations incorporated societies in determining whether the Alberta Crown's constitutional duty to consult has been triggered in resource development applications. Both decisions are judicial reviews of ACO's determination that the Alberta Crown's duty to consult the Métis incorporated societies had not been triggered. The Court confirmed that a high level of procedural fairness is owed by the ACO as an administrative decision-maker to First Nations incorporated entities. The Court also confirmed that the incorporated entities are required to provide sufficient information to substantiate their claim as the representatives with authority to deal with the Alberta Crown in respect of the collective Aboriginal rights owned by the particular community.

Métis Nation of Alberta Association Fort McMurray Local Council 1935 v. Alberta, 2016 ABQB 712 (Métis Nation)


In this case, the ACO determined that a duty to consult the Métis Nation of Alberta Association Fort McMurray Local Council, also known as Fort McMurray Métis Local 1935 (FM Local or Applicant) was not triggered in respect of several energy resource development applications. This judicial review was heard together with the judicial review in the case discussed below. While FM Local adopted its argument in Fort Chipewyan Métis Nation, the facts of this case led to an entirely different result.

The energy resource development applications before the Alberta Energy Regulator (AER) in issue were three projects proposed by Canadian Natural Resources Limited (CNRL) on its existing oil sands leases, a renewal of CNRL's Water Act diversion licence granted in 2004, and Imperial Oil Resources Ventures Limited's (Imperial) Aspen Project application to construct, operate and reclaim a proposed in-situ oil sands commercial scheme development. 

In the late Fall of 2013, FM Local received Notices of Resource Applications in the area and sent Statements of Concern (SOC) to the AER and the ACO. In response, FM Local received detailed information requests from ACO which was required to answer within a few weeks. ACO denied FM Local's requests for an extension of time to provide further information with respect to 3 of the 4 project for which information requests had been issued, and a 5 business day extension was granted on only one file. Although the ACO had not reviewed all of the records FM Local had provided, ACO issued its decision letter to FM Local which determined that the Crown's duty to consult had not been triggered. 

The central issues were whether FM Local had provided sufficient information to trigger the duty to consult and ACO's procedural fairness in requiring and assessing the information. 


The Court assessed the degree of procedural fairness required of ACO as the administrative decision-maker in assessing the rights of FM Local. The spectrum of procedural fairness varies from a moderate level at one end, to a high level at the other end. The Court applied the factors from Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) (Baker) and determined that:

  • while discretionary decisions will generally be given considerable deference, in the context of constitutional Aboriginal rights the issues identified shift closer to the trial (or judicial) model of fairness;
  • given the Alberta Crown's constitutional duty to consult Aboriginal people, greater procedural protection is required where the ACO is determining whether an applicant's constitutional interests triggers the duty to consult;
  • a decision made by an administrative decision-maker that impacts constitutional rights will be of great importance to the individuals affected; and
  • the underlying purpose of ACO is to create and strengthen the Government of Alberta's role in the First Nation consultation process.

Where a "consultation process" is put in place by a decision-maker, it invites the conclusion that it has a regular practice which one can legitimately expect to be followed. That circumstance brings the duty of procedural fairness to a higher level in accordance with the prescribed consultation process. 

In this case, there is a "Directive" that prescribes a process to be followed in determining whether consultation is required when a Métis community asserts an Aboriginal right. The Court determined that decisions of this nature require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.

The Court also found that the ACO was in breach of the principles of procedural fairness. The Court found that while the information requested of the FM Local was detailed and would presumably require some time and expertise to answer, the deadlines imposed by ACO were "extremely short, inflexible and appeared to be arbitrarily imposed."  The Court further held that the ACO, "does not have complete discretion to determine what evidence or information it will review [...] The ACO must exercise its discretion to review evidence and information in a manner consistent with procedural fairness, and as already stated, disclose the information it relied upon."  The Court found that issuing decisions on the same day as having received FM Local's responses was unacceptable and that the timing of the decisions indicated that FM Locals responses were either not reviewed or only given a cursory review. The Court concluded that ACO violated principles of procedural fairness by: failing to provide sufficient time to respond to the information it requested; failing to meet its duty in providing clear deadlines within its process; and failing to demonstrate that it fully and fairly considered the information and evidence submitted to it by FM Local.  In the result, two of the ACO's Decision Letters were quashed and the question of whether the duty to consult FM Local was triggered were remitted back to the ACO for reconsideration.

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


In Fort Chipewyan Métis Nation, the ACO determined that a duty to consult regarding the Teck Frontier Oil Sands Mine (Project) had not been triggered. The Alberta Crown argued that its decision was reasonable because the Fort Chipewyan Nation of Alberta Local 125 (FCM Local) provided insufficient information regarding who it represented for the purposes of asserting Aboriginal rights, its authority to act, the scope and nature of the rights asserted and any potential adverse impacts of the Project upon the asserted rights. FCM Local argued that it was led to believe that the Alberta Crown understood that its duty to consult had been triggered. It also argued that it had provided sufficient information to trigger the duty to consult and that the Alberta Crown's decision was unreasonable and incorrect. 

The Court also had to determine whether the Alberta Crown was in breach of its duty of procedural fairness, whether the duty to consult had been triggered, and the adequacy of the reasons the Alberta Crown provided in support of its decision.


With respect to the question of procedural fairness, the Court was satisfied that there was no breach of procedural fairness by the ACO. The ACO posed questions to FCM Local which aligned with the criteria set out in the Supreme Court decision in R. v. Powley, 2003 SCC 43 (Powley). 

With respect to the sufficiency of information, the Court found that the information provided by FCM Local was sparse and somewhat vague to support a claim to site-specific Aboriginal rights even at a prima facie level. FCM Local provided little to no information indicating shared customs, traditions, or a collective identity. Overall, the FCM Local was unable to establish that membership in the FCM Local is determinable by the three Powley factors of ancestral connection, self-identification, and community acceptance.  

With respect to the issue of standing, the Court noted that an organization purporting to represent the rights-bearing community must be able to demonstrate that it had been authorized by the rights-bearing community to do so.  The Court disagreed with the FCM Local's position that it did not have to "prove" that it represents a community of rights-bearing Métis people, and that the only requirement was for it to make a credible assertion. The Court confirmed that while an incorporated society may be able to represent an Aboriginal group, it must first demonstrate that it has been authorized to do so for the specific purpose. The Court found conflicting claims among the FCM Local and other incorporated societies, that each of them has the authority to represent the Fort Chipewyan Metis Community, and held that FCM Local had not established its authority. 

The Court also confirmed that in order for the duty to consult to be triggered, evidence must be provided to establish an adverse impact on Aboriginal rights. The Court found that the evidence provided by FCM Local fell short of demonstrating from a contemporary perspective how the Project would adversely impact the collective Aboriginal rights asserted by the whole Chipewyan Métis Community. While the federal Crown required the Applicant to consult with the FCM Local, the Court confirmed that this fact alone does not translate to an obligation on the Alberta Crown to follow suit. The Court noted the legal principle that the duty to consult is divisible between the federal Crown and the provincial Crown and held that the consultation undertaken by the federal Crown with the FCM Local does not deprive the Alberta Crown of its authority to conduct an independent evaluation as to whether or not the duty to consult with FCM Local is triggered. The Court concluded that the ACO's decision that the duty to consult was not triggered amounted to an acceptable and defensible decision based on the facts and the applicable law. The Court dismissed FCM Local's application for judicial review. 


While the outcomes in Métis Nation and Fort Chipewyan Métis Nation are different, due to their facts, the principles provide a useful procedural guideline for administrative decision makers, as well as clarity for the Aboriginal communities with respect to their legitimate expectations and the scope of evidence required to establish that the Alberta crow's duty to consult has been triggered:

  • It is now clear that the ACO will be held to a high standard of procedural fairness when dealing with potentially affected Métis Nations incorporated entities. It is also clear that in Alberta, Aboriginal right must be proved by sufficient evidence in order to trigger the Crown's duty to consult. Mere credible assertion is no longer sufficient.
  • Alberta consults with Métis groups on a case-by-case basis where proven Métis rights may potentially be impacted by land management and resource development decisions. 
  • The delay in project approval timelines is shown in both cases. Determining whether the Alberta Crown's duty to consult is triggered within the project approval timelines will remain a challenge for ACO. 
  • Given the high standard of procedural fairness imposed on the ACO, these decisions highlight the need for ACO and the AER to collaborate on project assessment timelines that will ensure that the high standard of fairness imposed on the ACO are met. It is beneficial to project proponents that ACO gets it right the first time to avoid further delays that will occasion from judicial review, ACO reconsideration, and perhaps a resulting Crown consultation period.  
  • While the statutory test for acceptance of Statements of Concern in the regulatory approval process is different from the common law test for triggering the Crown's duty to consult, these decisions highlight the need for early engagement and request for consultation decisions by project proponents to curb procedural delays.

BLG will continue to monitor and provide updates on these issues.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions