Not All Takings Up Of Land Within Treaty Territory Trigger The Crown's Duty To Consult

On October 22, 2019, a majority of the Alberta Court of Appeal (the Honourable Madam Justices Jo'Anne Strekaf and Ritu Khullar), issued its ruling in Athabasca Chipewyan First Nation v. Alberta, 2019 ABCA 401, which was accompanied by concurring reasons by the Honourable Madam Justice Rowbotham.

The Alberta Court of Appeal upheld the Aboriginal Consultation Office's (ACO's) existing policy of identifying lands affected by a given project, and identifying Indigenous groups that must be consulted. The Court also confirmed that the ACO is part of the Ministry of Indigenous Relations, and acts as the Crown on behalf of the Minister in making its determinations on matters properly before the Alberta Energy Regulator (AER).

Consistent with the Supreme Court of Canada's earlier finding in Mikisew, the majority reiterated that the duty to consult is not triggered with all Treaty signatories by any taking up of land within a Treaty area. Instead, a contextual analysis must be conducted in each instance to determine if an adverse impact will be suffered by a First Nation such that the duty to consult is triggered in that case. Additional details regarding the case are provided below.

Factual Background

Athabasca Chipewyan Prairie First Nation (ACFN) is a Treaty 8 First Nation. This case involved the appeal of an order of the Alberta Court of Queen's Bench stating that the duty to consult ACFN had not been triggered by a joint venture owned by TransCanada PipeLines Limited and Phoenix Energy Holdings Limited (Proponent), in a proposed pipeline project that traversed Treaty 8 territory (Project).

On August 30, 2013, prior to applying to the AER for approval, the Proponent consulted with the ACO's predecessor to determine which Indigenous groups it should consult with. In Alberta, while the AER decides whether to approve pipeline projects, it is prohibited by its governing statute from assessing the adequacy of the Crown's consultation with Indigenous peoples, which is a task carried out by the ACO.1 The ACO advised the Proponent that consultation was required with 8 Indigenous groups in the affected area, which did not include ACFN. Despite this determination, the Proponent consulted with ACFN, along with 32 additional Indigenous groups.

In December 2013, ACFN filed a Statement of Concern in relation to the Project with the AER, which was shared with the ACO. The AER decided to hold an oral hearing for the Project, giving standing to 54 participants...