COURT OF QUEEN S BENCH OF ALBERTA ATHABASCA CHIPEWYAN FIRST NATION

Transcription

1

2 COURT FILE NUMBER COURT JUDICIAL CENTRE APPLICANT(S) RESPONDENT(S) DOCUMENT COURT OF QUEEN S BENCH OF ALBERTA CALGARY ATHABASCA CHIPEWYAN FIRST NATION HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA AS REPRESENTED BY THE MINISTER OF ABORIGINAL RELATIONS (ABORIGINAL CONSULTATION OFFICE) BRIEF OF LAW OF THE APPLICANT Filed for hearing 10:00 am November 8, 2016 to November 10, 2016 ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT Rae and Company th Ave. SW Calgary, AB T2P 4V1 Ph: (403) Fx: (403) Attn: L. Douglas Rae and Brooke Barrett Olthuis Kleer Townshend LLP 250 University Ave., 8th Floor Toronto, ON M5H 3E5 Ph: (416) Fx: (416) Attn: Lorraine Land, Senwung Luk, and Michael McClurg

3 Table of Contents I. INTRODUCTION... 1 II. BACKGROUND AND FACTUAL SUMMARY... 2 A. ACFN and Treaty B. The Grand Rapids Pipeline... 3 C. The Aboriginal Consultation Office and the Alberta Energy Regulator... 4 D. Alberta s Work-in-Progress GeoData Mapping Project... 6 E. The Decision (i) ACO s initial correspondence with TransCanada (ii) ACO receives incomplete copy of ACFN s submissions from AER, begins closing file (iii) ACO receives more of ACFN s submissions from AER (iv) ACFN provides additional submissions to the AER for review by the ACO (v) ACO attends AER hearing (vi) ACO releases its decision III. SUBMISSIONS A. The ACO decision was ultra vires (i) the ACO has no statutory basis to make the Decision (ii) ACO prohibited from making the Decision even if it had a statutory basis to do so (iii) ACO had no common law or constitutional authority to make the Decision B. The ACO erred in deciding that the Crown did not owe a duty to consult and accommodate about the Project (i) the ACO Decision substantively erred in deciding the crown owed no duty to consult and accommodate ACFN about the project (ii) the ACO s Decision was incorrect (iii) ACO Decision procedurally unfair C. If no Crown officer has the authority to make the Decision, then the regulatory scheme is unconstitutional D. The Honour of the Crown has been breached IV. RELIEF SOUGHT V. LIST OF AUTHORITIES... 60

4 I. INTRODUCTION 1. On July 17, 2014, the Alberta Consultation Office (the ACO ) issued a decision that Athabasca Chipewyan First Nation ( ACFN ) had no right to consultation and accommodation with respect to the Grand Rapids Pipeline project (the Project ). 1 A day later the ACO explained to ACFN that the reason for this decision was that the project location is outside the geographic area in which ACO ordinarily requires consultation with ACFN ACFN makes this Application for judicial review with respect to this decision of July 17, 2014 (the Decision ). 3. This case is about the existence of a duty to consult and accommodate the ACFN in the geographic area affected by the Project. It touches on the following issues: whether the ACO had the authority to make the Decision; whether the ACO committed a reviewable substantive error in making the Decision; whether the ACO was procedurally fair in making the Decision; and, whether Alberta upheld the honour of the Crown in making the Decision. 4. The ACO refused to respect ACFN s constitutional rights to consultation and accommodation. It also made the Decision to deny ACFN a constitutional entitlement without according it procedural fairness. Neither the record of the Decision nor the reasons for the Decision reveal any extensive analysis of the information that was before the ACO, nor any attempts to account for that information in the Decision. 1 Record of Proceedings Jody Butt filed August 13, 2015 at Vol. 29, ABJ000456/001 [Record] [TAB 1]. (Note Tab references are to forthcoming joint book of consolidated record documents being prepared at a future date for the purposes of the hearing.) 2 Ibid at Vol. 29, ABJ000475/001 [TAB 2]. 1

5 5. ACFN is especially concerned about this Decision because it is formulated in a way that suggests that it has a geographical scope, rather than being confined to just this Project. The area affected by the Project is an important part of the territory in which ACFN members exercise their Treaty-protected harvesting rights. ACFN believes it is wrong for Alberta to exclude them from consultation on projects that affect this area and has come to this Court for assistance in protecting its rights. II. BACKGROUND AND FACTUAL SUMMARY A. ACFN and Treaty 8 6. The K ái tailé Dene (translated as people of the land of the willow ) are part of the Dené sułine people, and are called the Athabasca Chipewyan First Nation in the English language. For as long as the people of the ACFN have known, they have lived in and relied on the land that is now known as northern Alberta, southern Northwest Territories, and western Saskatchewan. ACFN is a band within the meaning of the Indian Act, 3 and an aboriginal people within the meaning of s.35(1) of the Constitution Act, In 1899, the Crown entered into Treaty 8 at Fort Chipewyan with ACFN. In the Crown s own written record of the agreement encapsulated by Treaty 8, the ACFN have a right under the Treaty to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered, that is, throughout the Treaty 8 area. 5 3 Indian Act, RSC 1985, c I-5. 4 Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982 c See Mikisew Cree First Nation v Canada, 2005 SCC 69 at para 2 [Mikisew]; Treaty No. 8 (1899). 2

6 8. These Treaty rights were recognized and affirmed by s.35(1) of the Constitution Act, B. The Grand Rapids Pipeline 9. Grand Rapids Pipeline GP Ltd. ( Grand Rapids ) filed various applications for approval to construct and operate the Project with the AER. Grand Rapids is partly owned by TransCanada Pipelines Limited ( TransCanada ). 10. Grand Rapids submitted the applications under the Pipeline Act, 7 Public Lands Act, 8 and Environmental Protection and Enhancement Act The Project consists of two main transmission pipelines, two smaller pipelines, three pump stations, and three terminals. The two main pipelines would be approximately km long, and would start in an area northwest of Fort McMurray and end in the Edmonton area Upon completion, the Project will be used to carry 333,000 bbl/d of diluent from Edmonton north for use in the west Athabasca oil sands area, and 900,000 bbl/d of blended crude bitumen from the west Athabasca oil sands area to the Edmonton area The majority of the pipeline is within Treaty 8 territory and the northern portion of the Project overlaps with ACFN s traditional territory, in which its members continue to exercise Treaty rights to hunt, trap, and fish The Government of Alberta had advised Grand Rapids that it must engage in extensive consultation with other First Nations in the vicinity of the Project, 6 Supra note 4. 7 RSA 2000, c P RSA 2000, c P RSA 2000, c E Record at Vol. 29, ABJ000484/006 (also see figure 1 at ABJ000484/093) [TAB 3]. 11 Ibid at Vol. 29, ABJ000484/010 [TAB 3]. 12 Ibid at Vol. 9, ABJ [TAB 4]; Vol. 11, ABJ000329/050 [TAB 5]. 3

7 including other Treaty 8 First Nations. 13 Alberta did not advise Grand Rapids to consult with ACFN at all, nor is there any evidence in the record suggesting that Alberta communicated this determination to ACFN. 15. Grand Rapids engaged with ACFN as a result of its own research and in order to act as a good neighbour. 14 C. The Aboriginal Consultation Office and the Alberta Energy Regulator 16. The Respondent Aboriginal Consultation Office is an office of the Government of Alberta, which, at all material times, reported to the then-minister of Aboriginal Relations. It does not have any apparent statutory authority. 17. According to The Government of Alberta s Policy on Consultation with First Nations on Land and Resources Management, 2013, the ACO s function is to [ ] manage all aspects of consultation [ ] The Alberta Energy Regulator ( AER ) is a decision-making body created under the Responsible Energy Development Act ( REDA ). 16 The ACO is a separate body from the AER, but is tied to the operation of the AER by Ministerial Order. The Decision under review is one which the ACO communicated to the AER under the auspices of a review of the Project. 19. Under REDA, the AER is mandated to provide for the efficient, safe, orderly and environmentally responsible development of energy resources in Alberta, and in respect of resource activities, to regulate i) the disposition and management of public lands, ii) the protection of the environment, and iii) the conservation and 13 Ibid at Vol. 29, ABJ [TAB 6]; Vol. 9, ABJ000297/008 [TAB 7]. 14 Ibid at Vol. 9, ABJ000297/003 [TAB 7]. 15 Ibid at Vol. 1., ABJ000003/005 [TAB 8]. 16 SA 2012, c R

8 management of water, including the wise allocation and use of water in accordance with energy resource enactments [ ] and pursuant to REDA The AER carries out its mandate by, among other things, considering and deciding applications in respect of pipelines, applications under the Public Lands Act, and applications under the Environmental Protection and Enhancement Act In carrying out its mandate, the AER is prohibited by statute from assessing the adequacy of the Crown s consultation with Aboriginal peoples. 19 As such, the ACO provides advice at the request of the AER with respect to the adequacy of consultation on projects being reviewed by the AER. 22. On November 26, 2013, the Alberta Minister of Energy issued Ministerial Order 141/ The Ministerial Order required, among other things, that the AER: [C]reate and maintain a consultation unit that will work with Alberta s Aboriginal Consultation Office (ACO) to ensure Alberta will be able to meet consultation obligations associated with [ ] the existing rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982, and [ ] the Consultation Policy and Guidelines The Ministerial Order further required that when a proponent files an energy application with the AER, the AER must immediately provide the ACO with: a copy of the application; any project details known by the AER that it has not previously submitted to the ACO, 17 Ibid at s 2(1). 18 Ibid at s 2(2). 19 Ibid at s Record at Vol. 2, ABJ [Tab 9]. 21 Ibid at Vol. 2, ABJ000009/003, s 1 [Tab 9]. 5

9 a list of the energy applications that the AER anticipates will be made in respect of the energy project, a copy of any statement of concern filed by a First Nation or other aboriginal group in respect of the application, a copy of any submission filed by a First Nation or other Aboriginal group in respect of an application under the Alberta Energy Regulator Rules of Practice, and; copies of any evidence and information submitted by or with respect to First Nations and other Aboriginal groups The Ministerial Order also requires that the AER request advice from the ACO respecting whether Alberta has found consultation to have been adequate, adequate pending the outcome of the AER s process, or not required The ACO s Decision under review appears to have been communicated to the AER as a result of a request by the AER pursuant to this Ministerial Order. D. Alberta s Work-in-Progress GeoData Mapping Project 26. The ACO stated that it made the Decision that no duty to consult and accommodate existed for ACFN with respect to the Project on reliance of the internal mapping data of the Government of Alberta. 24 As such, it will be useful to briefly discuss the record as it relates to this mapping data. 27. In 2010, Alberta commenced a project by which it was attempting to gather and map data in order to direct industrial development proponents to consult with First Nations ( GeoData Project ). Alberta has repeatedly assured ACFN that it was 22 Ibid at Vol. 2, ABJ000009/004, s 3 [Tab 9]. 23 Ibid at Vol. 2, ABJ000009/005, s 5 [Tab 9]. 24 Ibid at Vol. 29, ABJ000475/001 [Tab 2]. 6

10 seeking ACFN s input on the GeoData Project, and that it would use the resulting map as only one tool in directing consultation In October, 2010, Alberta wrote to ACFN to advise that ACFN would be contacted by a contractor to arrange for a meeting in order to establish a map for the purposes of directing consultation. Alberta advised that it would use the map as one tool to guide its selection of which First Nations in Alberta would be consulted on individual projects This letter was accompanied by a list of Frequently Asked Questions ( FAQs ) and a document setting out a GeoData (Mapping Project) Update. This update stated, prior to any meetings with a First Nation, Alberta would create a map based on information within its possession, such as the geographical locations of random encounters that Alberta s Wildlife Management Unit have had with hunters from the First Nation The update specifically advised that [ ] the absence of information on the map in a geographic area does not necessarily mean that consulting the First Nation in that geographic area should be ruled out. The update reiterated that the map is only to be used as one tool in determining which First Nations should be consulted in a given geographic area The FAQs repeated many times that the First Nation would have the opportunity to provide input into the determination of the geographic area in the map and it set out that Alberta would treat the map as [ ] advisory only (one tool among others) [ ] Ibid at Vol 3, ABJ000015/002/003/004 [Tab 10] and Vol. 3, ABJ [Tab 11]. 26 Ibid at Vol 3, ABJ000016/001 [Tab 11]. 27 Ibid at Vol 3, ABJ000015/001 [Tab 10]. 28 Ibid. 29 Ibid at Vol 3, ABJ000015/002/003/004 [Tab 10]. 7

11 32. On January 20, 2011, representatives from various Alberta ministries met with representatives from ACFN to discuss the GeoData Project and left copies of its discussion map with ACFN. 30 Among other things, the Alberta representatives advised ACFN that Alberta s map is incomplete and repeated again that the map would be used as one tool among others Alberta would use to direct consultation. 31 The Alberta representatives asked ACFN to share input regarding ACFN s traditional uses of the land and stated that they wanted a dialogue to continue with respect to the GeoData Project Among other things, ACFN s representatives advised Alberta that ACFN members residing in Fort McMurray and Edmonton also hunt near their residences, and stated that this information should be reflected in Alberta s map. 33 ACFN s representatives also advised Alberta that it should look to ACFN s submissions with respect to regional land-use planning. 34 The record indicates that ACFN did indeed make submissions to Alberta earlier in 2010, and that those submissions indicated an area over which ACFN actively exercises its Treaty rights, including the area through which the Project pipeline would run On February 24, 2011, ACFN Chief Allan Adam wrote to a number of Ministers regarding the GeoData Project. 36 In the letter Chief Adam advised the Ministers that the map that had been presented to ACFN representatives at the January 20, 2011 meeting had been inadequate and had not captured ACFN s traditional uses of the land. He advised the Ministers that Alberta should look at the many submissions ACFN had previously made to it on different occasions. Chief Adam specifically noted that Treaty 8 enshrines the right of ACFN members to harvest 30 Ibid at Vol. 3, ABJ [Tab 12]. 31 Ibid at Vol. 5, ABJ000027/010/014 [Tab 13]; ABJ000028/005 [Tab 14]. 32 Ibid at Vol. 5, ABJ000028/005 [Tab 14]. 33 Ibid. 34 Ibid. 35 Ibid at Vol. 11, ABJ000329/021 [Tab 5]. 36 Ibid at Vol. 5, ABJ [Tab 15]. 8

12 throughout the Treaty 8 area, and that the Treaty should be the primary guide to Alberta in determining where ACFN must be consulted On April 11, 2011, the Minister of Aboriginal Relations responded to Chief Adam and advised that he had taken note of the Chief s concerns and that the Chief should be assured that Alberta uses the GeoData map as one advisory tool, among others, in its selection of which First Nations to consult on a given project or initiative On April 18, 2011, a representative of Alberta s Ministry of Aboriginal Relations sent an to representatives from ACFN attaching two documents he had uncovered in his scan of ACFN s files. One document was a short segment from a book about ACFN and the other was an extremely poor reproduction of a map. 39 Any shading indicating areas of concern is not visible, and the copy was of such low resolution that the lettering used in the legend of the map is illegible. 37. Staff from Alberta s Sustainable Resource and Environmental Management ministries (which seemed to consist of the Departments of Energy, Environment and Water, and Sustainable Resource Development) internally determined and filed a map showing Consultation Review Boundaries for ACFN in March There is no indication in the record that ACFN was notified of this determination. The record also indicates that the map filed within Alberta s information systems is incomplete and cut off The record indicates that, after March 2012, Alberta had no further contact with ACFN with respect to the GeoData Mapping Project until March 27, 2014, when an ACFN representative ed Adam Schneidmiller ( Schneidmiller ), a Consultation Officer at the ACO, requesting a map of the area that the ACO uses 37 Ibid at Vol. 5, ABJ000035/002 [Tab 15]. 38 Ibid at Vol. 5, ABJ [Tab 16]. 39 Ibid at Vol. 5, ABJ [Tab 17]; ABJ [Tab 18]; ABJ [Tab 19]. 40 Ibid at Vol. 5, ABJ [Tab 20]; ABJ [Tab 21]. 41 Ibid at Vol. 5, ABJ [Tab 22]. 9

13 in directing proponents to consult with ACFN. 42 This message was sent on to the Consultation Manager of the ACO, who was unaware of how to handle this request from ACFN or where to locate this map. 43 The Consultation Manager sent out an to various staff requesting standard practice or key messages for such requests. Various other ACO staff were also unaware of how to respond to this request and where to find this map It was not until April 11, 2014 that Schneidmiller replied to ACFN s request for the map. In this response the ACO provided ACFN with what appears to be a truncated map (the April 11 th Alberta Map ) and advised that, if ACFN wanted to modify the map that Alberta uses to direct consultation, it should do so through the GeoData Mapping Committee The April 11th Alberta Map is the one referred to by the ACO in its reasons for the Decision under review in this case. 46 In it, there is a brown line that appears to indicate the area of interest of ACFN. On the map in the record, the brown line is obviously cut off on the southern and eastern sides. This map also excludes the area through which the Project pipeline would be constructed. 41. On April 28, 2014, a representative of Alberta s Ministry of Aboriginal Relations sent a letter to ACFN advising it of the beginning of Phase III of the GeoData Project and attaching, among other things, further FAQs. In this set of documents, Alberta advised ACFN that it would be provided with a Draft 1 Map and that ACFN had the option of advising Alberta not to use the Draft 1 Map. 47 The Draft 1 Map is not in the record Ibid at Vol. 6, ABJ [Tab 23]. 43 Ibid at Vol. 6, ABJ [Tab 23]; ABJ [Tab 24]. 44 Ibid at Vol. 6, ABJ [Tab 24]; ABJ [Tab 25]; ABJ [Tab 26]. 45 Ibid at Vol. 7, ABJ [Tab 27]; ABJ [Tab 28]. 46 Ibid at Vol. 29, ABJ000475/001 [Tab 2]. 47 Ibid at Vol. 8, ABJ000172/018 [Tab 29]. In the documents Alberta made various other statements about the incomplete and fluid nature of the mapping project, including 10

14 42. On May 16, 2014, ACFN responded to Schneidmiller s April 11, advising the ACO that it was using an outdated map for ACFN. The ACFN representative attached a different map (the May 16 th ACFN Map ) and advised that the ACO should be using this map instead. 49 This map overlapped substantially with the area through which the Project would be constructed. 43. On May 20, 2014, Schneidmiller forwarded the May 16 th ACFN Map to members of the GeoData Mapping team and asked them to follow up with ACFN. 50 Schneidmiller advised ACFN that he had done so. 51 In the record, it is later suggested by a Regulatory Policy Lead at Environment and Sustainable Resource Development that ACFN should instead have been given a [ ] canned response [ ]. 52 E. The Decision 44. Over the course of August and September 2013, pursuant to REDA, Grand Rapids filed its applications for the Project with the AER On December 5, 2013, ACFN filed a Statement of Concern with the AER addressing the Project ( ACFN SOC ) 54, pursuant to REDA. 55 The ACFN SOC clearly set out ACFN s concerns about the potential adverse effects of the Project on Treaty rights. recognizing that First Nations land use is dynamic and evolving and that therefore the mapping project is a living and adaptable one (ABJ000172/013/024 [Tab 29]); that Alberta wanted further collaboration based on the Jan meeting (ABJ000172/001 [Tab 29]); that more engagement is needed to understand which geographic areas are important to First Nations [ ] (ABJ00172/017 [Tab 29]). 48 Ibid at Vol. 9, ABJ [Tab 30]. 49 Ibid at Vol. 9, ABJ [Tab 31]; ABJ [Tab 32]. 50 Ibid at Vol. 9, ABJ000257/001 [Tab 33]. 51 Ibid at Vol. 9, ABJ000258/001 [Tab 34]. 52 Ibid at Vol. 9, ABJ000260/001 [Tab 35]. 53 Ibid at Vol. 7, ABJ000155/001 [Tab 36]. 54 Ibid at Vol. 7, ABJ000154/001 [Tab 37]. 55 Supra note 16 at s

15 46. ACFN also filed witness statements as appendices to the ACFN SOC. 56 These statements were from Beatrice Deranger, Raymond Cardinal, and Leslie Cardinal, all of whom are traditional land users and ACFN members. These witness statements also described the ACFN members understanding that their practice of traditional harvesting was an exercise of Treaty rights under Treaty These witness statements were crucial evidence of ACFN s use of the land in the Project area, as they detailed the kinds of hunting, fishing, and trapping that each person practiced within the area that would be disturbed by the Project. Each witness statement also included a map on which each of the land users had highlighted areas where they practiced hunting, fishing, or trapping. 48. The AER determined it would hold a hearing on the Project and accepted ACFN s request to join as a participant Based on Ministerial Order 141/2013, s.3(d), ACFN believes that the above witness statements, as well as other submissions to the AER, should have been immediately forwarded to the ACO upon receipt by the AER. 58 However, the record suggests that these witness statements were not sent to the ACO until many months later. (i) ACO s initial correspondence with TransCanada 50. On March 14, 2014, Grand Rapids submitted its Aboriginal consultation materials for the Project to Alberta for review and approval. Beginning shortly after that, somewhat regular communication began between the ACO and other Government of Alberta officials, and TransCanada, regarding the Project. The ACO did not 56 Ibid at Vol. 9, ABJ [Tab 4]. 57 Ibid at Vol. 13, ABJ [Tab 38]. 58 Ibid at Vol. 2, ABJ000009/002 [Tab 9]. 12

16 make any effort to directly contact ACFN with respect to the Project until July 17, 2014, when the ACO issued the Decision On March 27, 2014, the Director of Consultation Operations at the ACO, Carcey Hincz ( Hincz ), sent an to some ACO staff members reporting that Hincz had been in contact with management at TransCanada and Hincz advised the ACO staff that they should expect TransCanada to be in touch about the status of ACO s review On April 3, 2014, Hincz received an from an official at the AER advising that the AER had [ ] been directed to move the Grand Rapids Pipeline Project towards a hearing ASAP [ ] and requesting to be put in touch [ ] with the appropriate staff [ ]. 61 The ACO Consultation Advisor assigned to reviewing the Grand Rapids project for consultation adequacy was Jody Butt ( Butt ) On April 4, 2014, the Assistant Deputy Minister of Aboriginal Relations met with senior officials from TransCanada. The Assistant Deputy Minister subsequently requested information about the status of the Project at the ACO and requested that staff look into it so that he could advise the proponent. 63 Butt informed the AER that he was unable to expedite the ACO s progress in determining Alberta s consultation obligations because he had yet to receive the Project materials for review On April 8, 2014, Hincz wrote Butt to inform him that TransCanada keeps calling and meeting with our leadership about Grand Rapids [ ] Ibid at Vol. 29, ABJ [Tab 2]. 60 Ibid at Vol. 6, ABJ [Tab 39]. 61 Ibid at Vol. 6, ABJ [Tab 40]; ABJ [Tab 41]. 62 Ibid at Vol. 6, ABJ [Tab 42]. 63 Ibid at Vol. 6, ABJ [Tab 43]. 64 Ibid at Vol. 6, ABJ000106/001 [Tab 44]. 65 Ibid at Vol. 6, ABJ000110/002 [Tab 45]. 13

17 55. On the same day, April 8, 2014, Lawrence Aimoe, the Executive Director of the ACO, wrote to the Deputy Minister of Aboriginal Relations to say, [ ] TransCanada s treatment of our staff [ ] has been minimally professional and on the border of bullying On April 14, 2014, an official from the AER ed various staff from the ACO and the AER to advise that the review and decision on the Project was being accelerated in order to allow for the start of construction by September The official advised that the Project was of particular interest to Ministers and senior officials from the AER. The official requested a meeting between AER and ACO staff to coordinate the acceleration of the Project review and decision On April 15, 2014, Hincz ed other ACO officials regarding a meeting that it held with the AER regarding the Project. She stated: [i]t was clear in the discussion that this is now the priority file for the ACO to action (we had the discussion that this will not be the routine way of doing things going forward, this is an exception due to the higher level of interest in this project). 68 (ii) ACO receives incomplete copy of ACFN s submissions from AER, begins closing file 58. Also on April 15, 2014, the AER provided the ACO with a copy of the ACFN SOC dated December 5, However, the copy that the AER provided did not include the witness statements, or the land-use maps provided by the witnesses, or the map of ACFN traditional territory that the original ACFN SOC had included. 59. Butt wrote to a TransCanada representative to request summaries of any Statements of Concern it had received from First Nations and the responses to these concerns. 70 The ACO did not make ACFN aware that it was requesting 66 Ibid at Vol. 6, ABJ [Tab 46]. 67 Ibid at Vol. 7, ABJ000126/001 [Tab 47]. 68 Ibid at Vol. 7, ABJ [Tab 48]. 69 Ibid at Vol. 9, ABJ000262/004 [Tab 49]. 70 Ibid at Vol. 7, ABJ000131/002 [Tab 50]. 14

18 these submissions from TransCanada, nor did it provide ACFN with an opportunity to respond. The ACO also did not request these Statements of Concern (which were originally submitted by ACFN) from ACFN itself. 60. In an to some ACO staff on April 15, 2014, Hincz expressed concern about the urgent review of this file [ ] but I think we will have to be flexible on this one given the level of political interest On May 2, 2014, Butt updated Hincz on the status of the review of the Project. With respect to the ACFN SOC, which was missing all of its appendices, Butt set out the following Key Concerns [ ]: cumulative effects; TLU [Traditional Land Use Study] not completed (scope of work not received by TransCanada); pipeline safety and integrity; Management of traditional resources and land use. 72 In this update, Butt did not make reference to the multiple clear statements in the ACFN SOC that ACFN members actively practice Treaty rights in and around the Project. 73 Butt also failed to mention the missing appendices containing the witness statements of ACFN land users that the AER had not sent to the ACO, which were central to, and had been referenced multiple times in the ACFN SOC. 62. In correspondence dated May 8, 2014, the ACO reported to the AER with respect to the ACO s assessment of consultation adequacy to date in respect of the Project. 74 The correspondence broke down its reporting into three categories: (1) First Nations with whom the proponent was directed to engage in consultation; (2) First Nations with whom consultation was deemed to be adequate; and (3) First Nations with whom consultation was deemed to be not yet complete. ACFN was not listed under any of these categories, nor was ACFN copied on this correspondence. 71 Ibid at Vol. 7, ABJ000141/001[Tab 51]; ABJ000142/001 [Tab 52]. 72 Ibid at Vol. 8, ABJ000183/004 [Tab 53]. 73 Ibid at Vol. 7, ABJ000154/002 [Tab 54]. 74 Ibid at Vol. 8, ABJ [Tab 55]. 15

19 63. On May 13, 2014, Hincz wrote to Butt and another ACO staff member asking if the ACO had received a Statement of Concern from a First Nation with whom Alberta had not directed consultation on the Project and asked for a review of the ACFN SOC [ ] as soon as possible [ ] in order to [ ] see if our pre-consultation assessment still stands and we don t believe their SOC triggers a duty to consult [ ] Later in the same day, Hincz wrote to Butt asking him to review the Statement of Concern [ ] to see if what they are stating as to impacts to [Treaty rights] and [traditional use] might trigger a duty to consult [REDACTED] [ ] The following day, Butt responded that he had reviewed the Statement of Concern and [ ] found no site-specific concerns listed therein [ ]. 77 However, it became apparent to other ACO staff, including Hincz, that ACFN was advising that its members use the Project area to practice their rights and Hincz instructed that a review of the appendices to the ACFN SOC was needed in order to determine whether the duty to consult and accommodate had been triggered With respect to determining which First Nations to consult on a given project, the SRD Lands and Forestry First Nations Consultation Operating Procedures, which were intended for SRD staff to use in reviewing projects for consultation and which the record suggests were being used by the ACO for guidance, advise that staff should use First Nations contacts available on an internal spreadsheet, and should consider contacting area staff who might be aware of known Traditional Uses of the activity area [ ]. 79 There is no evidence in the record that the ACO did any of these things in order to determine whether the Project triggered Alberta s duty to consult and accommodate ACFN. 75 Ibid at Vol. 8, ABJ000242/002 [Tab 56]. 76 Ibid at Vol. 8, ABJ000242/001[Tab 56]; at Vol. 9, ABJ000246/001 [Tab 57]. 77 Ibid at Vol. 8, ABJ000242/001 [Tab 56]. 78 Ibid at Vol. 8, ABJ000242/001 [Tab 56]; ABJ000243/001 [Tab 58]. 79 Ibid at Vol. 2, ABJ000005/012 [Tab 59]. 16

20 67. In a briefing note dated May 14, 2014, ACO staff advised the Deputy Minister of Aboriginal Relations that the AER had identified ACFN as being directly and adversely affected by the Project and had accordingly granted ACFN standing in the hearing, but that the ACO had previously determined that no consultation was required with ACFN due to the area of interest that Alberta recognizes for ACFN. The briefing note advised that [t]he ACO, [REDACTED] is reviewing the Statement of Concern provided by this First Nation in order to determine the appropriate course of action By May 16, 2014, Hincz had instructed that the ACO close the Grand Rapids file and send its decision to the AER. At this time, the ACO had not yet received ACFN s witness statements, or any of the other appendices to the ACFN SOC. 81 (iii) ACO receives more of ACFN s submissions from AER 69. Not until May 21, 2014, did the AER send Butt ACFN s witness statements that ACFN had filed with the ACFN SOC in December of After Butt received the witness statements, he forwarded them on to others at the ACO, including Hincz. Much of the communication within the ACO in response to these statements has been redacted from the record by the Respondent under claim of solicitor-client privilege. From what remains in the record, it is apparent that Butt questioned whether the ACO could judge the adequacy of consultation, given that Alberta did not require Grand Rapids to consult on the Project originally. 83 In response, Hincz opined that [ ] the SOC likely triggers [ ] Alberta s duty to consult and accommodate. Hincz requested that Butt review the consultation to see if ACFN s concerns had been mitigated Ibid at Vol. 8, ABJ000239/003 [Tab 60]. 81 Ibid at Vol. 9, ABJ000254/001 [Tab 61]. 82 Ibid at Vol. 9, ABJ000262/001 [Tab 62]; ABJ [Tab 4]. 83 Ibid at Vol. 9, ABJ000267/001 [Tab 63]. 84 Ibid at Vol. 9, ABJ000267/001 [Tab 63]. 17

21 71. On May 23, 2014, the ACO confirmed that it would be providing a written report to the AER on June 6, 2014, and that it would not be participating in the AER hearing In response to a request from Butt, TransCanada sent its Record of Engagement with ACFN to Butt on May 28, TransCanada attached this record to an e- mail in which it set out a full page of argument as to why it felt that consultation was complete with ACFN. 86 ACFN was not copied on this correspondence. ACFN was not invited to respond, nor was it made aware that the ACO was requesting documentation from TransCanada. 73. By correspondence dated June 6, 2014, the ACO reported to the AER as follows: [ ] The ACO did not direct consultation with Athabasca Chipewyan First Nation (ACFN), because the ACO does not ordinarily require consultation with ACFN in this area. On May 21, 2014, the ACO was made aware of three individual witness statements attached as an appendix to ACFN s Statement of Concern filed with the AER. The ACO has reviewed the statements of these three individuals and, based on this review, the ACO has not changed its position that consultation with ACFN is not required with regard to this project. 87 (iv) ACFN provides additional submissions to the AER for review by the ACO 74. By correspondence dated June 11, 2014, the AER asked the ACO whether its June 6 th correspondence concluded the ACO s involvement in the Grand Rapids applications. 88 By correspondence dated June 13, 2014, the ACO replied advising that it intended to attend and observe at the upcoming AER hearing and to provide a final report after the conclusion of the evidence portion of the AER hearing Ibid at Vol. 9, ABJ [Tab 64]. 86 Ibid at Vol. 9, ABJ [Tab 65]. 87 Ibid at Vol. 9, ABJ [Tab 66]. 88 Ibid at Vol. 9, ABJ [Tab 67]. 89 Ibid at Vol. 9, ABJ [Tab 68]. 18

22 The ACO advised that it would not be participating or submitting any evidence in the AER proceeding ACFN filed further affidavits with the AER during June 16-20, These affidavits included those sworn by ACFN members Jonathan Bruno, 91 Raymond Cardinal, 92 and Patrick Marcel, 93 all of whom also harvested in the area in which the pipeline would be built. Each of these affidavits from these individuals detailed the expected impacts that the construction of the Project would have on the ability of ACFN members to carry out traditional harvesting in the area. 76. On June 20, 2014, ACFN also filed the affidavit of Chief Allan Adam with the AER. 94 Chief Adam s affidavit, as well as the affidavits of the land users cited above, describe the exercise of harvesting rights as rights under Treaty 8, and within Treaty 8 territory. Chief Adam s affidavit also specifically outlined the kind of harvesting that he personally practiced in the area affected by the Project. 95 It also described ACFN s understanding that Treaty 8 guaranteed their harvesting rights, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it On June 27, 2014, the AER sent Hincz and Butt an attaching various submissions ACFN had made to the AER, including: The affidavits of Patrick Marcel, Raymond Cardinal, Jonathan Bruno, and Chief Allan Adam; The affidavit of Rose Ross, which explained that ACFN members use the Project area to practice their Treaty rights and that ACFN has documented 90 Ibid at Vol. 9, ABJ000306/001 [Tab 69]. 91 Ibid at Vol. 10, ABJ [Tab 70]. 92 Ibid at Vol. 10, ABJ [Tab 71]. 93 Ibid at Vol. 10, ABJ [Tab 72]. 94 Ibid at Vol. 15, ABJ [Tab 73]. 95 Ibid at Vol. 15, ABJ000357/005 [Tab 73]. 96 Ibid at Vol. 15, ABJ000357/205 [Tab 73]. 19

23 this in previous submissions to Alberta. Appended to the affidavit were submissions made to Alberta in 2010, and again in August 2013, reflecting ACFN s use of the area, 97 as well as a map identifying specifically where the Project overlaps where members practice their Treaty rights; 98 The affidavit of Rose Ross, which also indicated that, based on the preliminary traditional land use studies that ACFN was able to undertake through funding from the Grand Rapids, with respect to the area affected by the Project, three land users had already been identified who harvested in the area. These land users had given their witness statements, which were submitted to the AER on December 5, The Pre-Hearing Submissions of ACFN, which summarized the affidavits and witness statements ACFN had submitted regarding site-specific concerns and impacts that the Project would have on ACFN s rights. 100 These submissions contained explicit discussion of how ACFN was exercising its Treaty 8 rights in the area affected by the Project; 101 ACFN s concerns with respect to the Project s effects on water quality and wildlife habitat; 102 and ACFN s concerns about Alberta s lack of consultation thus far, including the fact that Alberta had not yet contacted ACFN about the Project On July 4, 2014, Hincz requested that Butt review ACFN s submissions to the AER for any [ ] site-specific concerns regarding Treaty Rights and traditional uses [ ] Ibid at Vol. 11, ABJ000329/021 [Tab 74]; described in ABJ000329/002 [Tab 74]. 98 Ibid at Vol. 11, ABJ000329/050 [Tab 74]. 99 Ibid at Vol. 11, ABJ000329/004 [Tab 74]. 100 Ibid at Vol. 13, ABJ [Tab 75]. 101 Ibid at Vol. 13, ABJ000350/008 [Tab 75]. 102 Ibid at Vol. 13, ABJ000350/007 [Tab 75]. 103 Ibid at Vol. 13, ABJ000350/004 [Tab 75]. 104 Ibid at Vol. 19, ABJ [Tab 76]. 20

24 79. Notes from Butt dated July 7, 2014 indicate that Butt had identified ACFN s concern that it had not been adequately consulted on the [ ] Project s known direct impacts on ACFN members Treaty 8 rights Under each of the ACFN affidavits that described how ACFN members practice their Treaty rights in the Project area, Butt wrote [n]othing new In response to media inquiries about the ACO s June 6 Report to the AER, Hincz requested information from a member of the GeoData team, Shane Gauthier. Despite the fact that the ACO team that Hincz was overseeing had just received a plethora of information advising that ACFN uses the area of the Project to practice its rights, Hincz asked if ACFN [ ] is aware of where [Alberta] consults with them, have they provided us with information to support anything different [ ] Jordan Cummer ( Cummer ), a Project Coordinator for Aboriginal Relations and a member of the GeoData team, wrote in response to Hincz on July 10, In this response he laid out a chronology of the GeoData team s interactions with ACFN and the information exchanged between Alberta and ACFN. While he noted that ACFN had asked for a copy of the map Alberta uses to direct consultation and that Alberta had responded by sending the April 11 th Alberta Map, he inexplicably failed to note that ACFN had responded to this by advising that the April 11 th Alberta Map was incorrect and by sending the May 16 th ACFN Map, which had been forwarded to the GeoData mapping team. 108 ACFN s attaching the May 16 th ACFN Map had been acknowledged by Alberta, and ACFN had been assured that the had been forwarded to the proper channels. 109 However, Cummer 105 Ibid at Vol. 19, ABJ000379/001 [Tab 77]. 106 Ibid at Vol. 19, ABJ000379/001 [Tab 77]. 107 Ibid at Vol. 27, ABJ [Tab 78]. 108 Ibid at Vol. 27, ABJ [Tab 79]; ABJ [Tab 80]. 109 Ibid at Vol. 9, ABJ [Tab 34]. 21

25 advised that [ ] no information/data has been provided to the GeoData team [ ]. 110 (v) ACO attends AER hearing 83. Prior to the AER hearing, Hincz had written to Butt with respect to ACFN s participation in the hearing, stating, I understand we can look forward to some entertainment on the 14/ On July 14 and 15, Hincz and Butt and another ACO staff member attended the AER hearings, while ACFN was making its submissions. 84. On July 15, 2014, ACFN withdrew from the AER hearing due to procedural fairness concerns, after Grand Rapids submitted an updated 169-page Environmental Protection Plan the same day that ACFN was to present its evidence Upon Grand Rapids filing the updated Environmental Protection Plan, Hincz contacted another ACO staff member to request that she, on an urgent basis, check the map in the Environmental Protection Plan [ ]to confirm that the northern most end of this pipeline does not enter into the area where we direct consultation with ACFN [ ] The ACO staff person responded to Hincz advising that the map in the Environmental Protection Plan did not trigger ACFN s consultation area. 114 The record indicates that this person made this determination entirely through reference to one or possibly two internal Alberta map(s). The map(s) on which the staff person made this decision do not show any data that explicitly refer to ACFN, 110 Ibid at Vol. 27, ABJ000399/001 [Tab 80]. 111 Ibid at Vol. 19, ABJ000375/001 [Tab 81]. 112 Ibid at Vol. 29, ABJ000450/001 [Tab 82]; at Vol. 28 ABJ [Tab 83]. 113 Ibid at Vol. 28, ABJ [Tab 84]. 114 Ibid at Vol. 28, ABJ000442/001 [Tab 85]. 22

26 nor do they show any data relating to the boundaries of Treaty However, they do show data that purports to relate to other First Nations. 87. Although ACO representatives attended the AER hearing at the same time as ACFN representatives, the ACO representatives never attempted to make themselves known to the ACFN representatives and did not speak to them. No record of any engagement of ACFN by the ACO at the AER hearing has been produced. (vi) ACO releases its decision 88. On July 17, 2014, the ACO issued the Decision to the effect that ACFN had no right to consultation and accommodation with respect to the Project. 116 Butt e- mailed the decision to ACFN. This was the first time that the ACO had contacted ACFN directly about the Project. 89. ACFN replied to Butt on the same day that [c]learly there are issues with this [decision], and expressed concerns about [ ] government [ ] making erroneous decisions early on without including the nations [sic] input In its reply, ACFN asked Butt to send any documents and analysis that Alberta had relied upon to make the Decision. 118 Butt explained that the ACO relied on a map that had been ed by ACO to ACFN on April 11, The April 11 th Alberta Map that Butt referenced does not incorporate the May 16 th ACFN Map which ACFN had sent to the ACO in response to the April 11 , 115 Ibid at Vol. 29, ABJ [Tab 86]; ABJ [Tab 87]. 116 Ibid at Vol. 29, ABJ000459/003 [Tab 88]. 117 Ibid at Vol. 29, ABJ000475/002 [Tab 2]. 118 Ibid at Vol. 29, ABJ000475/001 [Tab 2]. 119 Ibid at Vol. 7: The only map in the record that ACO sent to ACFN on that date can be found at ABJ [Tab 89]. It appears to have been an attachment to ABJ [Tab 90]. 23

27 and which ACFN requested that the ACO use to direct consultation instead. 120 The map also did not incorporate any of the myriad contrary information indicating that ACFN actively uses the Project area to practice its rights that ACFN had put before the AER and that the ACO had purportedly reviewed. 92. Butt explained that [ ] the project location is outside the geographic area in which ACO ordinarily requires consultation with ACFN ACFN replied to Butt s with concern that Alberta was [ ] taking such a careless approach to the complexity surrounding the ACFN s constitutionally protected rights. I m not sure how you can make this statement given the volume of information that has been provided to your office through various tables, discussions, and in writing On July 17, Vince Biamonte, Region Lead for the ACO, wrote to Butt, congratulating him on his work, stating, A happy proponent after all that, good job Jody! 123 In response to the complaints that ACFN lodged about the ACO s decision, Hincz simply advised Butt to send the matter along to the GeoData team, [ ] as I m aware they are currently working with ACFN on the area in which Alberta directs consultation with ACFN Ibid at Vol. 9, ABJ [Tab 32]; ABJ000257/001 [Tab 33]. 121 Ibid at Vol. 29, ABJ000475/001 [Tab 2]. 122 Ibid at Vol. 29, ABJ000475/001 [Tab 2]. 123 Ibid at Vol. 29, ABJ [Tab 91]. 124 Ibid at Vol. 29, ABJ000467/001 [Tab 92]. 24

28 III. SUBMISSIONS A. The ACO decision was ultra vires (i) the ACO has no statutory basis to make the Decision 95. The standard of review of an administrative body for a determination of true questions of jurisdiction or vires is correctness As the Supreme Court stated in Dunsmuir v New Brunswick: By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law A government decision maker must have statutory authorization to do so before it makes decisions affecting the rights of citizens. 98. In the case of the ACO, however, there is not even a statute that creates the office, nor is there any statute that empowers the ACO to do anything. There is also no statute empowering the Minister of Aboriginal Relations, to whom the ACO reported. 99. The Lieutenant-Governor-in-Council has the power to establish government departments and to designate Ministers to administer these departments. 127 The Department of Aboriginal Relations was created on May 8, 2012, with the Minister 125 Dunsmuir v New Brunswick, 2008 SCC 9 at para 59 [Dunsmuir]. 126 Ibid at paras Government Organization Act, RSA 2000, c G-10, s 2(1). 25

29 of Aboriginal Relations designated to administer it. 128 The Minister of Aboriginal Relations was transferred responsibility for various Aboriginal funding programs and Metis Settlement legislation, 129 but no further powers have been given to the Minister by any published instrument There is similarly no statute empowering the Minister of Aboriginal Relations to make decisions about the rights of citizens, or empowering it to subdelegate such powers to the ACO, as would be required should a subdelegated power be relied upon here The Supreme Court of Canada has stated in Rio Tinto Alcan v Carrier Sekani First Nation that [t]he power to engage in consultation itself, as distinct from the jurisdiction to determine whether a duty to consult exists, cannot be inferred from the mere power to consider questions of law. 131 While a power to decide whether the duty to consult exists might be inferred from a power to decide a question of law, the ACO itself has no statutory authority to decide questions of law. 132 Therefore, no inference of a power for the ACO to decide whether the duty to consult and accommodate exists can be made There is no statutory authority for the ACO to make the Decision. To the extent that the ACO needs statutory authority to make the Decision, the Decision was ultra vires of the ACO, and therefore invalid. The Applicants therefore petition the court to quash the decision. 128 OC 154/2012 (May 8, 2012). 129 Designation and Transfer of Responsibility Regulation, Alta Reg 80/2012, s 6(1.2), Lakehead University v Lakehead University Faculty Association, 2014 CanLII (ON LA) at para 57; Re Peralta et al and The Queen in right of Ontario et al. Peralta et al v Warner et al., 1985 CanLII 2082 (ON CA), aff d [1988] 2 SCR Rio Tinto Alcan v Carrier Sekani Tribal Council, 2010 SCC 43 at para 60 [Rio Tinto]. 132 Compare to Neskonlith Indian Band v Salmon Arm (City), 2012 BCCA 379 at para 9 [Neskonlith], in which the decision-maker was specifically empowered by statute to determine whether a duty to consult exists. 26

30 (ii) ACO prohibited from making the Decision even if it had a statutory basis to do so 103. In the alternative, even if the ACO did have the statutory authority to make the Decision, it was prohibited by law from doing so As discussed above, the Government Organization Act empowered the Lieutenant-Governor-in-Council to create departments and designate a Minister responsible for that department. 133 Order-in-Council 154/2012 established the Department of Aboriginal Relations, and designated a Minister of Aboriginal Relations to be in charge of it The Appropriations Act, 2014 appropriated a supply of $205,861,000 to the Department of Aboriginal Relations, of which $15,348,000 was specifically appropriated for the ACO To the extent that the Government Organization Act and the Appropriations Act, 2014 empowered the ACO to make the Decision, the ACO was making a decision under statutory authority However, the Administrative Procedures and Jurisdiction Act, at s.11, establishes: Notwithstanding any other enactment, a decision maker has no jurisdiction to determine a question of constitutional law unless a regulation made under section 16 has conferred jurisdiction on that decision maker to do so No regulation confers jurisdiction to determine a question of constitutional law upon the ACO. 133 Government Organization Act, RSA 2000, c G-10, s. 2(1). 134 OC 154/2012 (May 8, 2012). 135 Honourable Doug Horner, President of Treasury Board and Minister of Finance, Government Estimates (March 6, 2014), p 16, online: Ministry of Finance, < 136 Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3, s11. 27

31 109. The Administrative Procedure and Jurisdiction Act, at s.10(d)(ii), defines a question of constitutional law to include a determination of any right under the Constitution of Canada As the Supreme Court of Canada has repeatedly held, the Crown s duty to consult and accommodate is a constitutional duty. 138 The right of ACFN to be consulted about the project is therefore a constitutional right, corollary to the Crown s constitutional duty, and a decision that ACFN has no right to be consulted about the Project was therefore a determination of ACFN s rights under the Constitution of Canada Since no regulation or statute confers a power to determine a question of constitutional law upon the ACO, s.11 of the Administrative Procedures and Jurisdiction Act explicitly prohibits the ACO from deciding whether the Applicant ACFN has a right to be consulted about the Project, and the determination is ultra vires. The Applicants therefore petition this court to quash the decision In the alternative, if the ACO considered whether there is a duty to consult and accommodate without considering the question of constitutional law, it was clearly incorrect, since the whether there is a duty to consult and accommodate is a question of constitutional law. 139 In such situations, the courts must intervene and decide the question of constitutional law de novo, to ensure that government action is compliant with constitutional norms. 140 The Applicants therefore petition the Court to quash the decision and decide the question de novo. 137 Ibid at s10(d). 138 Rio Tinto, supra note 131, at para 75; R v Kapp, [2008] 2 SCR 483 at para Siksika First Nation v Alberta (Director Southern Region Environment), 2007 ABCA 402 at para United Food and Commercial Workers, Local 401 v Alberta (AG), 2012 ABCA 130 at paras

32 (iii) ACO had no common law or constitutional authority to make the Decision 113. The ACO had no statutory authority to make the Decision, and it cannot find any source of authority in the common law or constitutional law either The Crown has a duty to consult and accommodate an Aboriginal community when it has knowledge of an Aboriginal rights claim and contemplates conduct that might adversely affect those rights Notwithstanding this duty, administrative decision-makers are confined to the powers conferred to them by legislation. Although the legislature may choose to delegate the Crown s duty to consult and accommodate to a tribunal, that delegation must in fact take place Moreover, the delegation of the duty to consult and accommodate can only be made to a body that is empowered to accommodate the Aboriginal community s concerns Where the legislature has not delegated the Crown s duty to consult and accommodate, it rests upstream from the decision-maker who has the power conferred upon it by statute The ACO has no statutory existence, and no legal authority to accommodate an Aboriginal community s concerns. No power to decide whether the duty to consult or accommodate exists can therefore be inferred from such powers. To the extent that there could be a non-statutory (be it common law or constitutional) basis for a decision about whether a community is entitled to consultation and accommodation, it does not belong to the ACO. 141 Haida Nation v British Columbia, 2004 SCC 73 at para 35 [Haida SCC]. 142 Rio Tinto, supra note 131 at paras Rio Tinto, supra note 131 at paras 60-61; Neskonlith, supra note 132 paras West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247, para 106 [West Moberly]. 29

33 119. If the ACO has no authority to make the Decision about the existence of a duty to consult and accommodate, then the Applicants petition this Court to quash the Decision. B. The ACO erred in deciding that the Crown did not owe a duty to consult and accommodate about the Project 120. In the alternative, if the ACO had some common law authority or other authority not found in a statute, or if it had some statutory authority to make the Decision and if the Administrative Procedures and Jurisdiction Act did not prohibit it from deciding whether ACFN was owed a duty to consult and accommodate, then the ACO had authority to make that determination Government decisions not made pursuant to statutory authority must find their source of authority in Crown prerogative, which is also judicially reviewable On this alternative, the ACO made reviewable errors in its Decision, because its decision was substantively wrong, and because the ACO breached its duty of procedural fairness in making the decision. (i) the ACO Decision substantively erred in deciding the crown owed no duty to consult and accommodate ACFN about the project 123. The principle of the rule of law means that this Honourable Court has the jurisdiction to ensure that a decision-maker does not exceed his or her authority by making a decision that errs in substance The issue on this alternative is whether the ACO erred in deciding that the Crown s duty to consult and accommodate ACFN with respect to the Project did not exist. 145 Canada (Prime Minister) v Khadr, 2010 SCC 3, paras 34-36; Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, paras 34, 59-70; Black v Canada (Prime Minister), 2001 CanLII 8537 (ON CA), paras Dunsmuir, supra note 125 at paras

34 This question is distinct from the question of whether the Crown s duty has been adequately discharged, an issue not being raised in this Application. 147 a) The standard of review for the existence of the duty to consult and accommodate is correctness 125. There are two standards on which a court may substantively review an administrative decision: reasonableness, which requires a measure of deference on the part of the Court, and correctness, which does not Where judicial authority has already set out the standard of review to apply to a particular question, that authority is to be followed, and no further standard of review analysis is necessary In general, constitutional questions are subject to a correctness standard, because of the unique role of the courts as interpreters of the constitution With respect to the duty to consult and accommodate specifically, the Supreme Court determined in the Haida Nation case that the question of whether a duty to consult and accommodate exists is a question of law reviewable on a standard of correctness Haida SCC, supra note 141 at paras 37, Dunsmuir, supra note 125 at para Dunsmuir, supra note 125 at para Dunsmuir, supra note 125 at para Haida SCC, supra note 141 at paras See also: Beckman v Little Salmon/Carmacks First Nation, [2010] 3 SCR 103, para 48 [Beckman]; Kwicksutaineuk Ah-Kwa-Mish First Nation v Canada (Attorney General), 2012 FC 517, para 98. See also: Yellowknives Dene First Nation v Canada (Aboriginal Affairs and Northern Development), 2015 FCA 148, paras 46-47; Tsuu T ina Nation v Alberta (Environment), 2010 ABCA 137; West Moberly, supra note 144 para 77; Buffalo River Dene Nation v Saskatchewan (Energy and Resources), 2015 SKCA 31, paras 27-31; Enge v Mandeville et al, 2013 NWTSC 33, paras 22-28; Hamlet of 31

35 (ii) the ACO s Decision was incorrect 1) The test for the Duty to Consult and Accommodate 129. In Haida Nation, the Supreme Court established that the government has a duty to consult with Aboriginal peoples and accommodate their interests, grounded in the Honour of the Crown and protected by Section 35 of the Constitution Act, The test for whether there is a duty to consult and accommodate can be broken down into three steps: first, whether the crown has real or constructive knowledge of the proven or asserted Aboriginal right or title; second, whether the Crown is contemplating conduct; and third, whether the potential of the contemplated conduct may adversely affect any Aboriginal claim or right ) There was a duty to consult and accommodate ACFN in respect of the Project 131. The Haida Nation test for the duty to consult and accommodate can be applied to the case at bar as follows: Step one: the Crown had real or constructive knowledge of the proven or asserted Aboriginal right or title. 154 i. ACFN is a signatory to Treaty 8, which explicitly protects ACFN s harvesting rights throughout the Treaty 8 territory, subject to the Crown s taking up of the land. The Crown s own written version of the Treaty states: And Her Majesty the Queen hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the Clyde River v TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179, para Haida SCC, supra note 141 at paras Rio Tinto, supra note 131 at para 31. See also: Haida SCC, supra note 141 at para Rio Tinto, supra note 131 at paras

36 tract surrendered as before described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes. 155 ii. As a signatory to Treaty 8, the Crown has notice of the Treaty s contents. 156 iii. The Crown s own document, the SRD Lands and Forestry First Nations Consultation Operating Procedures correctly acknowledges, SRD is presumed to know of the existence of the Rights set out in the Treaties (to hunt, fish, or trap for food). 157 iv. In this case, the ACO was in possession of a large body of information explicitly stating that ACFN actively practices Treaty rights to hunt, fish, and gather in the Project area. 158 Step two: the Crown contemplated conduct that engaged Aboriginal rights. 159 i. Grand Rapids applied for a number of approvals from the Crown, which it requires in order to develop the Project. Many of the approvals were sought for developments within the Treaty 8 territory. ii. Alberta s own policies and procedures direct that extensive consultation is required for large-scale pipelines such as the Project Mikisew, supra note 5 at para 2 (emphasis in original); Treaty No. 8 (1899) (emphasis added). 156 Mikisew, supra note 5 at para Record at Vol. 2, ABJ000005/016 [Tab 59]. 158 See, e.g., the evidence outlined in paragraph 157 of this Brief of Law. 159 Rio Tinto, supra note 131 at paras

37 iii. In making determinations regarding these specific approvals, the Crown itself recognized that, before any decisive action could be taken, extensive consultation was required with respect to eight other First Nations, many of whom were Treaty No 8 signatories. 161 Step three: the Crown s contemplated conduct may adversely affect ACFN s Aboriginal rights. 162 i. The Supreme Court of Canada determined in Haida Nation, that the existence of the duty to consult and accommodate is triggered at a low threshold. 163 ii. The Supreme Court has since determined that taking up Treaty No 8 lands over which signatories hold hunting, fishing, and trapping rights meets the threshold to trigger the Crown s duty to consult and accommodate: the Crown s right to take up lands under the treaty [ ] itself is subject to its duty to consult and, if appropriate, accommodate First Nations interests before reducing the area over which their members may continue to pursue their hunting, trapping and fishing rights. 164 iii. Because the contemplated Project approvals would provide for taking up lands in Treaty No. 8 territory over which ACFN exercises rights, the contemplated conduct risks adversely affecting those rights. iv. In addition, the Crown was specifically aware that many members of the ACFN exercised their Treaty rights on the lands in question. For 160 Record at Vol. 2, ABJ000005/012 [Tab 59]. 161 Ibid at Vol. 29, ABJ [Tab 6]; at Vol. 9, ABJ000297/008 [Tab 7]. 162 Rio Tinto, supra note 131 at paras Mikisew, supra note 5 at para Mikisew, supra note 5 at para 56. See also: West Moberly, supra note 144 at paras

38 example, the December 5, 2013 witness statement of Raymond Cardinal, filed with the AER, states that Mr Cardinal hunts, fishes, and gathers in the area where the Project may be constructed, that the area around the Project was important to him as a place to practice his Treaty rights, and that the area around the Project was of cultural and spiritual significance to his family. 165 v. Five other witnesses gave similar evidence to that of Mr. Cardinal. The evidence was submitted with the caveat that it was only what ACFN had been able to compile on a preliminary basis, without conducting a project-specific land-use study. 166 vi. Additionally, ACFN had provided Alberta with its Submissions on Alberta s Lower Athabasca Regional Plan from 2010, which indicate that ACFN members use the Project area to practice their Treaty rights. 167 vii. Some officials at the ACO concluded, at one time or another, that a duty to consult and accommodate the ACFN probably did exist in the area affected by the Project. 168 Even Butt recognized concerns in ACFN s documents, summarizing ACFN s concerns in his notes from his review of ACFN s submission to the AER: 1. There has been inadequate consultation [ ] to address the Project s known direct impacts on ACFN members Treaty 8 rights. [ ] 2. There has been inadequate consultation [ ] regarding [ ] existing 165 Record at Vol. 9, ABJ000263/005/006 paras 5-7, 8 [Tab 4]. 166 Ibid at Vol. 15, ABJ000357/005 paras 32-34/008 paras [Tab 73]; at Vol. 9, ABJ000263/001/002 at paras. 2-7 /009/010, paras. 2-7 [Tab 4]; at Vol. 10, ABJ000328/002, paras 5-8 [Tab 70]; ABJ000326/002, paras [Tab 72]. 167 Ibid at Vol. 11, ABJ000329/021 [Tab 74]. 168 Ibid at Vol. 8, ABJ [Tab 56]; at Vol. 9, ABJ000267/001 [Tab 63]. 35

39 development in the region that has forced ACFN members to increasingly rely on the Project area to exercise Treaty rights. [ ] Exhibit B says ACFN consultation notice overlaps with pipeline area. 169 viii. In contrast to the approach mandated by the Supreme Court for determining whether a duty to consult and accommodate exists, the ACO appeared to base the Decision solely on whether the Project was in a geographical area where Alberta ordinarily requires consultation with ACFN. 170 The conclusion that the Project was not in such an area seemed to be based on maps that appear in the record as incomplete 171 or which omitted any data relating to ACFN at all The ACO s determination that the Crown did not have a duty to consult and accommodate ACFN with respect to the Project was incorrect The Applicants therefore petition this Court to quash the erroneous Decision of the ACO, declare that the duty to consult and accommodate ACFN does indeed exist in respect of the Project, and substitute its own decision for the ACO s. (iii) ACO Decision procedurally unfair 134. It is a fundamental rule of Canadian law that an administrative decision affecting a party s rights, privileges, and interests attracts a duty of fairness This rule applies equally to situations where the Crown makes a decision affecting the interests of a First Nation. The Supreme Court of Canada recently stated: 169 Ibid at Vol. 19, ABJ000379/001 [Tab 77]. 170 Ibid at Vol. 29, ABJ000475/001 [Tab 2]. 171 Ibid at Vol. 7, ABJ [Tab 89], being an attachment to ABJ [Tab 90]. 172 Ibid at Vol. 29, ABJ and ABJ [Tabs 86 and 87], attachments to ABJ [Tab 85]. 173 Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, para 20 [Baker]. 36

40 [T]he impact of an administrative decision on the interest of an Aboriginal community, whether or not that interest is entrenched in a s.35 right, would be relevant as a matter of procedural fairness, just as the impact of a decision on any other community or individual [ ] may be relevant. 174 (a) The scope of the ACO s duty of procedural fairness in this Decision 136. The extent of procedural fairness owed to a particular party is assessed using the factor-based approach laid out by the Supreme Court of Canada in the classic Baker case. The Court explained the purpose of this factor-based approach as follows: [U]nderlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decisionmaker The Supreme Court in Baker laid out five factors to be considered in assessing the scope of procedural fairness owed by the government: 1. Nature of the decision: the more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness Nature of the statutory scheme: greater procedural protections will be required when no appeal procedure is provided within the statutory scheme 174 Beckman, supra note 151 at para Baker, supra note 173 at para Ibid at para

41 under which the decision was made, or when the decision under review is determinative of the issue Importance of the decision: the more important the decision is to the person affected, and the greater the impact on them, the greater the procedural protection that is owed Legitimate expectations: where the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness Choice of procedures of agency: the content of the duty of fairness should take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances The Baker factors are applied to the case at bar as follows: 1. The nature of the Decision points to a higher duty of fairness The decision that there is no duty to consult and accommodate ACFN in the area affected by the Project is not a policy decision, but more in the nature of a judicial or administrative decision, calling for a higher duty of fairness. 181 The ACO s task here was to apply rules of general application to particular 177 Ibid at para Ibid at para Ibid at para Ibid at para Donald J M Brown & John M Evans, Judicial Review of Administrative Action in Canada loose-leaf (consulted on 29 August 2016), (Toronto: Carswell, 1998), ch 7:2310 at page 7-32 and 7:3200 at page [Brown and Evans]. 38

42 facts, 182 which it was supposed to do by applying the law of consultation and accommodation to the facts of the Project. Even if Alberta has not formally empowered the ACO to make a final decision, the ACO s role would still attract this higher duty of fairness: a decision-maker that, as a matter of formality, makes recommendations to the official decision-maker, but whose recommendations are virtually always accepted, is akin to a final decision-maker The nature of the Statutory Scheme points to a higher duty of fairness There is no statute authorizing the ACO to operate or providing it with any decision making procedure. As such, there is no statutory right of appeal, nor any statutory derogation from the common law requirements of procedural fairness. 184 Moreover, in this particular case, the Decision finally disposed of the matter: ACFN had no further opportunity to make submissions with respect to the ACO s determination, or to have the ACO reconsider the Decision. 3. The Importance of the Decision points to a higher duty of fairness The Decision concerns the constitutional rights of ACFN and its members. The Constitution of Canada protects both the right of ACFN to be consulted and accommodated, 185 and the rights of ACFN members to enjoy the 182 British Columbia (Attorney General) v British Columbia (Information and Privacy Commissioner), 2004 BCSC 1597, para Re Abel and Advisory Review Board (1980), 31 OR (2d) 520. See also: McEvoy v Canada (Attorney General), 2013 FC 685, paras 41-42, aff d 2014 FCA 164 (de facto decision makers owe a duty of procedural fairness). 184 Brown and Evans, supra note 181, ch 7:2420 at page See also: Knight v Indian Head School Division No 19, [1990] 1 SCR 653, esp 669, 677 (statutory derogation from natural justice must be clear); Kaberwal v Saskatchewan (Kirk Westgard, The Ministry of the Economy), 2013 SKQB 244 (CanLII), at para See: Haida SCC, supra note 141. See also: Mikisew, supra note 5. 39

43 harvesting rights guaranteed them by Treaty In this case, the ACO s decision that ACFN was not entitled to consultation or accommodation meant that any information that ACFN had regarding impacts of the Project on their Treaty rights would not be considered by the Crown under its constitutional process of consultation and accommodation. Decisions concerning constitutional rights have been considered very important by the courts. 187 The decision also concerns potential impacts on the ability of ACFN to gain their livelihood from their traditional harvesting through exercise of their Treaty rights. Decisions that affect a person s livelihood have been considered very important by the courts. 188 Moreover, the Decision engages protection of ACFN s culture. As explained by Chief Allan Adam in his affidavit, also before the ACO, [g]oing out on the land is an essential way we pass on our culture from one generation to the next [ ]. 189 The witness statement of Raymond Cardinal speaks to the threat the Project posed to his ability to teach his children to hunt, fish, trap, and gather within ACFN Traditional Territory. 190 The ACO s Decision is of great importance to ACFN s cultural survival. 4. ACFN s Legitimate Expectations point to a higher duty of fairness The legitimate expectations of ACFN also point toward a higher duty of fairness. ACFN had a legitimate expectation that the ACO would give good 186 See: R v Badger, [1996] 1 SCR Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, para 118 [Suresh]; Crouch v Snell, 2015 NSSC 340, para Kane v University of British Columbia, [1980] 1 SCR 1105, page 1113; Alberta (Funeral Services Regulatory Board) v Strong, 2006 ABQB 873, paras 28-31; Waxman v Ontario Racing Commission, [2006] OJ No 4226, 2006 CanLII 35617, para 10 (discussing the impact of the risk to one s livelihood on the requirements of procedural fairness). 189 Record at Vol. 15, ABJ000357/003 [Tab 73]. 190 Ibid at Vol. 19, ABJ000263/005, para 2 [Tab 4]. 40

44 faith consideration to ACFN s evidence of its use of the Project area to practice its Treaty rights. The Government of Alberta s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013, states, Alberta will solicit, listen carefully to, and seriously consider First Nations concerns with a view to substantively address potential adverse impacts on Treaty rights and traditional uses. 191 ACFN also had a legitimate expectation that the ACO would look beyond Alberta s internal maps to determine whether it owed ACFN a duty to consult and accommodate, because Alberta had made various clear, unambiguous, and unqualified statements to this effect. 192 Alberta s First Nations Consultation Guidelines on Land Management and Resource Development states that in determining whether to delegate consultation to a proponent for a given project, Alberta will consider [s]pecific traditional use information shared by First Nations; [ ] [i]nformation acquired through direct interaction with First Nations; and [ ] [o]ther relevant information that comes to Alberta s attention. 193 In addition, Alberta had advised ACFN on numerous occasions even through the Minister of Aboriginal Relations that Alberta would use its internal mapping system as just one tool in order to determine when its duty to consult and accommodate was triggered The choice of procedures points to a higher duty of fairness 191 Ibid at Vol. 1, ABJ /004 [Tab 8] 192 Canada (Attorney General) v. Mavi, [2011] 2 SCR 504, 2011 SCC 30 (CanLII), at para Record at Vol. 1, ABJ000002/006 [Tab 93] 194 Ibid at Vol. 3, ABJ000015/002/004 [Tab 10]; ABJ000016/001 [Tab 11]; at Vol. 5, ABJ000027/014/018 [Tab 13]; ABJ [Tab 16]; at Vol. 8, ABJ000172/002 [Tab 29]. 41

45 At the time of the Decision, the ACO had not published any procedures, and no procedures specific to the ACO and in force at the relevant time have been disclosed in the certified record. It therefore appears that there is no procedural framework specific to the ACO for this Court to defer to. Even if the ACO had chosen procedures, there is no indication in the record that the ACO has any expertise in doing so. Moreover, any deference owed to the decision-maker should not carry much weight where there is no evidence on the record that a decision-maker actually engaged its expertise in choosing a procedure. 195 Additionally, no deference is owed where the procedure selected was unfair The Baker factors suggest a high level of procedural fairness in making the Decision However, as detailed below, the Respondent s breaches of procedural fairness including its failure to give notice, failure to consider evidence, and failure to accord adequate participation to ACFN establish that it did not even provide the ACFN with a low level of procedural fairness. (b) Standard of review on procedural fairness grounds 141. The standard of review on procedural fairness grounds is correctness. 197 (c) ACO breached its duty of procedural fairness in failing to give notice 195 Congrégation des Témoins de Jéhovah v Lafontaine (village), 2004 SCC 48, para Airport Self Storage and RV Centre Ltd v Leduc (City), 2008 ABQB 12, paras Canada (Citizenship and Immigration) v Khosa, [2009] 1 SCR 339, Maritime Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59, paras 75-81; Boardwalk REIT LLP v Edmonton (City), 2008 ABCA 220, para

46 142. Notice is a fundamental element of the duty of fairness at common law. 198 An administrative decision-maker is required to give sufficient notice to those affected by a decision in order to discharge the duty of procedural fairness. Brown and Evans summarize the duty to give notice as follows: The general principle is that the notice must be adequate in all circumstances in order to afford to those concerned a reasonable opportunity to present proofs and arguments, and to respond to those presented in opposition An administrative decision-maker is therefore required to give sufficient notice that a decision will be made to a party whose rights and interests would be affected, so that the affected party has the opportunity to put facts and arguments before the decision-maker, in order to participate in a meaningful way In providing notice, the decision-maker should also give a reasonable amount of detail about the case that the affected person will have to meet 201 : the affected party should not have to guess at what will be at issue in a decision. 202 The fact that the case to be met may be accessible publicly or by request is not sufficient notice: the materials should be specifically disclosed to the party CSWU, Local 1611 v British Columbia (Information and Privacy Commissioner), 2015 BCSC 1471, para Brown and Evans, supra note 181, ch 9:1200 at page 9-6. See also Re Webb and Ontario Housing Corp (1978), 22 OR (2d) 257 (Ont CA). 200 See also: Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3, s 1(b). See also: Brown and Evans, supra note 181, ch 9:2110 at page 9-12; Canadian Pacific Railway v Vancouver, 2006 SCC Brown and Evans, supra note 181, ch 9:5120 at page See also: Ontario Inc v Hamilton (City), 2008 ONCA 570, paras 29-36; Paul v Canada, 2012 FC 64, para 48; Marachelian v Canada, [2001] 1 FCR 17, para Brown and Evans, supra note 181, ch 9:5220 at page See also: Re Seven-Eleven Taxi Co Ltd and City of Brampton (1975), 10 OR (2d) 677 (Ont H Ct J Div Ct); Canada (Attorney General) v McKenna (1994), 88 FTR 202 (FCTD), para 17, aff d 1 FCR 401 (FCA), para Karakachian v Canada ( Citizenship and Immigration), 2009 FC 948, paras

47 145. The record for this decision stretches over almost four years. During this time, Alberta never provide ACFN with any notice that it would be making a final determination about ACFN s right to be consulted and accommodated with respect to the Project, or the area affected by the Project Indeed, Alberta repeatedly reassured ACFN that its data was incomplete, and that the mapping data would be only one of many tools to be used. 204 As late as April 28, 2014, Alberta advised ACFN that the data collected for the GeoData Project would be used to create a Draft 1 Map, and that ACFN had the option of advising Alberta not to use the Draft 1 Map, 205 suggesting that Alberta was still of the understanding that its own data showing the consultation area for each First Nation to be incomplete and provisional The ACO did send a report to the AER on June 6, 2014, and copied the correspondence to ACFN. To the extent that this ACO Report can be considered notice, it stated that the ACO had not directed consultation with ACFN because, [ ] the ACO does not ordinarily require consultation with ACFN in this area [ ]. 206 It did not provide further reasons, nor did it explain why it had disregarded the ACFN SOC and witness statements submitted by ACFN, nor did it indicate that it would reconsider this position In its letter of June 13, 2014 to the AER, the ACO stated that it would observe the AER hearing and that it would provide a final report after the evidence portion of the hearing. 207 It did not disclose what kind of decision it would be making, or what kind of evidence it was looking for The first time that the ACO or any representative from Alberta directly contacted ACFN with respect to the Project was on July 17, 2014, when Butt sent a copy of 204 Record at Vol. 5, ABJ [Tab 16]. 205 Ibid at Vol. 8, ABJ000172/018 [Tab 29]. 206 Ibid at Vol. 9, ABJ [Tab 66]. 207 Ibid at Vol. 9, ABJ [Tab 68]. 44

48 the Decision that the Crown did not have a duty to consult and accommodate ACFN regarding the Project. The second time was on July 18, 2014, when Butt advised ACFN that the ACO had made the Decision on the basis that [ ] the project location is outside the geographic area in which ACO ordinarily requires consultation with ACFN [ ] The ACO gave ACFN no notice that it was making a decision denying ACFN its right to be consulted on July 17, and no indication of the case ACFN would have had to meet in order for the ACO to have found otherwise. It also did not provide a deadline by which ACFN could submit evidence, set out a process by which ACFN could make submissions, or indicate whether its decision would be final, and if not, when such a final decision would be made. Nor did the ACO ever set out its doubts about ACFN s evidence and arguments such as to enable ACFN to respond Such a denial of notice fails to meet even a low procedural fairness requirement. The Applicants petition this Court to declare that the ACO failed accord adequate procedural fairness in the Decision by failing to give reasonable notice, and to quash the Decision in light of this breach. (d) ACO breached its duty of procedural fairness by failing to consider evidence 152. If relevant evidence has been placed before a decision-maker, but the decisionmaker has apparently ignored it in making the decision, then the decision-maker has breached its duty of procedural fairness Where the reasons for a decision refer to evidence supporting it, but are silent on evidence pointing in the opposite direction, there may be an inference that the 208 Ibid at Vol. 29, ABJ000475/001 [Tab 2]. 209 Brown and Evans, supra note 181, ch 10:5110 at page See e.g. GRK Fasteners v Leland Industries Inc, 2006 FCA

49 decision-maker overlooked contradictory evidence when making its findings of fact In its July 17 letter advising the AER of the Decision, there was no indication that the ACO had considered any of the evidence ACFN had proffered or why it had not accepted it. The ACO simply stated, [ ] it is the ACO s position that consultation with ACFN is not required with regard to this project [ ] In response to ACFN s objection to the Decision, Butt explained that the ACO had relied on a map that was sent to ACFN on April 11, 2014 (the April 11 th Alberta Map referred to above), and that the Project area was outside of the area in which the ACO ordinarily requires consultation with ACFN Alberta s mapping, on which the Decision seemed to exclusively rely, appears to have derived from information amassed during the GeoData Project. The record on the GeoData Project, as well as the record as it relates to the AER hearing, shows evidence contradicting the Decision dating back more than three years, including: Information provided at a January 20, 2011 meeting between ACFN and various Alberta ministries, during which ACFN representatives advised Alberta that ACFN members residing in Fort McMurray and Edmonton hunted 210 Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC) at para 17; Hinzman v Canada (Minister of Citizenship and Immigration), 2010 FCA 177 at paras 35-38; Alhayek v Canada (Citizenship and Immigration), 2012 FC 1126 at paras 55-58; DH v Persons with Developmental Disabilities, South Region Community Board, 2013 ABQB 197, paras 32-43; Basran v Canada (Citizenship and Immigration), 2015 FC 1221, paras Record at Vol. 29, ABJ000459/003 [Tab 88]. 212 Ibid at Vol. 29, ABJ000475/001 [Tab 2]. The map sent on April 11, 2014, appears in Vol. 7 of the record at ABJ [Tab 89], as an attachment to ABJ [Tab 90]. 46

50 near their residences and that this information needed to be reflected in the map; 213 A February 24, 2011 letter from ACFN Chief Adam to Alberta, advising that the boundaries of Treaty 8 should be the primary guide in determining where ACFN should be consulted; 214 Witness statements filed with the AER on or about December 5, 2013, of Beatrice Deranger, Raymond Cardinal, and Leslie Cardinal. These statements detailed the hunting, fishing, and trapping practices that each land user practiced in the area affected by the Project, and were accompanied by a map on which each land user highlighted areas where they harvested, which clearly overlapped with the area affected by the Project; The affidavit of Rose Ross, which stated that although ACFN had not conducted a comprehensive land use study for the Project, these three land users who were affected by the Project had already been identified; 215 The affidavit of Rose Ross also set out a summary of the various submissions that ACFN had made to Alberta from 2010 onward regarding ACFN s practice of Treaty rights in the area affected by the Project; 216 The ACFN SOC described the potential impacts of the Project on ACFN harvesting practices; 217 The May 16 th ACFN Map, in reply to and correcting the April 11 th Alberta Map provided by the ACO; Ibid at Vol. 5, ABJ000028/005 [Tab 14]. 214 Ibid at Vol. 5, ABJ000035/002 [Tab 15]. 215 Ibid at Vol. 9, ABJ000263; ABJ000329/004 [Tab 4]. 216 Ibid at Vol. 11, ABJ000329/002 /021 [Tab 74]. 217 Ibid at Vol. 7, ABJ000154/001/003 [Tab 54]. 218 Ibid at Vol. 9, ABJ [Tab 31]; ABJ [Tab 32]. 47

51 Further affidavits filed with the AER by the ACFN during June 16-20, 2014, by Jonathan Bruno, Raymond Cardinal, Patrick Marcel, and Chief Allan Adam; Each affiant attested to the fact that the ACFN member harvested in the area affected by the Project; 219 and The Pre-Hearing Submissions of ACFN before the AER, and its concerns about impacts to harvesting in the area The record indicates that Butt had reviewed the ACFN SOC 221 and affidavits before the AER hearing. 222 However, in his reasons, he indicated that he relied solely on the April 11 th Alberta Map one that ACFN had specifically identified as being erroneous while ignoring all the other evidence tendered by ACFN. This is consistent with Butt s earlier report to his superiors within the ACO, in which evidence submitted by ACFN was ignored The record also indicates that other officials within the ACO understood ACFN s submissions to establish that ACFN members harvest within the area affected by the Project: 224 at certain points, the ACO s inquiry shifted to analyzing whether ACFN s concerns had been mitigated. 225 Nothing in the reasons for the Decision, or in the record, explain why those positions within the ACO affirming the existence of the duty to consult and accommodate in this case were rejected in favour of the position taken in the Decision While the ACO was ostensibly reviewing ACFN s submissions to determine if Alberta s duty to consult and accommodate was triggered, it entirely disregarded 219 Ibid at Vol. 10, ABJ000326/002, paras 8-11 [Tab 72]; ABJ000327/ , paras 5-8 [Tab 71]; ABJ000328/002 paras 8-11 [Tab 70]; at Vol. 15, ABJ000357/ , paras and [Tab 73]. 220 Ibid at Vol. 13, ABJ000350/ [Tab 75]. 221 Ibid at Vol. 8, ABJ [Tab 56]; ABJ000239/003 [Tab 60]. 222 Ibid at Vol. 19, ABJ [Tab 77]. 223 Ibid at Vol. 8, ABJ000183/004 [Tab 53]. 224 Ibid at Vol. 8, ABJ000242/001 [Tab 56]. 225 Ibid at Vol. 9, ABJ000267/001 [Tab 63]. 48

52 the substance of the evidence. Hincz, Butt s supervisor at the ACO, suggested that Butt treat the AER hearing as entertainment. 226 Butt s notes from the review of the various ACFN affidavits, stating that he observed nothing new, indicate that Butt ignored the evidence that was clearly put before him. 227 The ACO s reliance on its own map in the face of contrary evidence is consistent with its approach to the urgent review of the Environmental Protection Plan submitted by Grand Rapids, in which Hincz looked no further than whether the new document was implicated by the ACO s internal mapping system One week prior to the Decision, Hincz asked the GeoData team once more for information on where ACFN practiced its Treaty harvesting rights. 229 The GeoData team replied by sending a chronology of the interactions between GeoData and ACFN and the information exchanged between Alberta and ACFN. 230 The chronology, however, inexplicably omitted the ACFN response to ACO s map, in which ACFN stated that the map was erroneous and provided an alternative. 231 In spite of the wealth of data ACFN provided to the ACO, the ACO stated, [n]o information/data has been provided to the Geodata committee The ACO took a blinkered approach to the evidence before it, despite its admission that its GeoData mapping project was incomplete, 233 and despite its 226 Ibid at Vol. 19, ABJ000375/001 [Tab 81]. 227 Ibid at Vol. 19, ABJ [Tab 77]. 228 Ibid at Vol. 28, ABJ [Tab 84]; ABJ [Tab 85]; at Vol. 29, ABJ [Tab 86]; ABJ [Tab 87]. 229 Ibid at Vol. 27, ABJ [Tab 78]. 230 Ibid at Vol. 27, ABJ [Tab 79]; ABJ [Tab 80]. 231 Ibid at Vol. 9, ABJ [Tab 31]; ABJ [Tab 32]. 232 Ibid at Vol. 27, ABJ000399/001 [Tab 80]. 233 Ibid at Vol. 8, ABJ000172/017 [Tab 29]. 49

53 assurances to ACFN - including from the Minister - that ACO s internal mapping would be just one tool it would use to direct consultation The ACO breached its duty of procedural fairness to ACFN by ignoring and rejecting out of hand ACFN s evidence respecting its practice of its rights Such a failure to consider evidence fails to meet even a low procedural fairness requirement. The Applicants petition this Court to declare that the ACO failed to accord adequate procedural fairness in the Decision by ignoring evidence that was squarely put before it, and to quash the Decision in light of this breach. (e) ACO breached its duty of procedural fairness in failing to allow ACFN to adequately participate in the decision 164. The duty of procedural fairness requires the decision-maker to allow those who will be affected by a decision to participate in the decision-making process. Brown and Evans have described the duty as follows: [T]he common law duty of fairness requires that those who may be adversely affected by some administrative action or decision be afforded a reasonable opportunity to participate in the decisionmaking process, by tendering proofs and making submissions Participation involves a right to bring evidence and make submissions before the decision-maker. 236 This includes the right to address and challenge any evidence 234 Ibid at Vol. 3, ABJ000015/002/004 [Tab 10]; ABJ000016/001 [Tab 11]; at Vol. 5, ABJ000027/014/018 [Tab 13]; ABJ [Tab 16]; at Vol. 8, ABJ000172/002 [Tab 29]. 235 Brown and Evans, supra note 181, ch 10:0200 at page Brown and Evans, supra note 181, ch 10:5000 at page 10-50, 10:9100 at page

54 already before the decision-maker. 237 The decision-maker also has a duty to disclose any factors considered relevant to the decision The opportunity to participate requires that there should be a chance for the decision-maker to lay out the case to be met to the person affected, and for the person affected to submit facts and arguments to respond to the decision-maker. A process mediated by some third party is not sufficient to discharge this obligation If there is any issue of credibility, then the person affected will usually be entitled to an oral hearing The record produced for this Application stretches almost four years back from the Decision, and does contain two unanswered requests for information for the GeoData project from However, the record also shows that Alberta generated a draft map in 2012 for ACFN s consultation area that it never sent to ACFN for comments Despite the directives of the SRD Lands and Forestry First Nations Consultation Operating Procedures, and despite having knowledge of ACFN s concerns through its submissions to the AER, at no time did the ACO ask ACFN for information about how the Project would impact its rights, or make any inquiries into ACFN s 237 Brown and Evans, supra note 181, ch 10:9100 at page , 12-9; Suresh, supra note 187 at paras Brown and Evans, supra note 181, ch 10:9100 at page and 10:9300 at page See eg: Woolner v Canada (Citizenship and Immigration), 2015 FC 590, para 48; Island Timberlands LP v Canada (Foreign Affairs and International Trade), 2008 FC 1380, para Calgary (City) v Properties Plus Ltd, 2013 ABQB 246, paras Brown and Evans, supra note 181, ch 10:0400 at page See eg: Khan v University of Ottawa (1997), 34 OR (3d) 535 (Ont CA); Patient X v College of Physicians and Surgeons of Nova Scotia, 2013 NSSC 165, para 52; Yeotely Laryea v Canada (Minister of Citizenship and Immigration), 2012 FC Record at Vol. 5, ABJ [Tab 16]; ABJ [Tab 17]; ABJ [Tab 18]; ABJ [Tab 19]. 242 Ibid at Vol. 5, ABJ [Tab 20]; ABJ [Tab 21]. 51

55 concerns. Indeed, the first time that the ACO communicated directly with ACFN about the Project was when the ACO ed ACFN with the Decision. The ACO provided the ACFN with no opportunity to provide evidence or arguments The record does indicate that the evidence that ACFN had filed before the AER was eventually transmitted to the ACO, as required by MO 141/2013. However, ACFN was therefore provided with no opportunity at the AER hearing, or at any other time, to make submissions to the ACO about its right to be consulted and accommodated with respect to the Project: after receiving ACFN s evidence, the ACO attended the AER hearing only as an observer, not as a participant, 243 and did not speak to any ACFN representatives. ACFN had no opportunity to respond to any doubts ACO may have had about its submissions The ACO never provided any explanation for why it disregarded ACFN s submissions to the AER, including its multiple affidavits and witness statements. If the ACO did not find these individual statements to be credible, it did not advise ACFN or provide reasons for that finding. To the extent that the ACO s decision was based on adverse findings of credibility against the evidence that ACFN presented, ACFN should have been given an opportunity to answer the case against it in an oral hearing By the end of its decision-making process, the ACO had never solicited any evidence or argument from ACFN about the Project, but it had communicated numerous times with Grand Rapids about its consultation with ACFN, without providing ACFN with any opportunity to respond The record also suggests that the ACO felt intense pressure, both from the proponent and from more senior officials, to move extraordinarily quickly to 243 Ibid at Vol. 9, ABJ000306/001 [Tab 69]. 244 Ibid at Vol. 9, ABJ [Tab 65]. 52

56 evaluate the Project. 245 The Executive Director of the ACO even wrote, TransCanada s treatment of our staff [ ] has been minimally professional and on the border of bullying. 246 Hincz wrote that the way the ACO was handling the file [ ] will not be the routine way of doing things going forward, this is an exception due to the higher level of interest in this project [ ] The ACO s failure to accord ACFN participatory rights to provide evidence and submissions to the decision-maker, address the concerns of the decision-maker, and have its evidence tested where credibility is at issue all constitute breaches of the duty of procedural fairness Such a denial of participatory rights fails to meet even a low procedural fairness requirement. The Applicants petition this Court to declare that the ACO failed to accord adequate procedural fairness in the Decision by failing to allow ACFN to participate in this decision, and to quash the Decision in light of this breach. C. If no Crown officer has the authority to make the Decision, then the regulatory scheme is unconstitutional 176. The duty to consult and accommodate ACFN exists for this Project, and for any other takings up that occur within the Project area The Crown is constitutionally required to meet the duty to consult and accommodate. Although it may establish a legislative scheme to delegate the duty to administrative decision-makers, the Supreme Court has been clear that the duty must be discharged at some point in the Crown decision-making process: If the tribunal structure set up by the legislature is incapable of dealing with a decision s potential adverse impacts on Aboriginal 245 Ibid at Vol. 6, ABJ [Tab 39]; ABJ [Tab 40]; ABJ [Tab 41]; ABJ [Tab 43]; ABJ [Tab 44]; ABJ [Tab 45]; at Vol. 7, ABJ [Tab 47]. 246 Ibid at Vol. 6, ABJ [Tab 46]. 247 Ibid at Vol. 7, ABJ [Tab 48]. 53

57 interests, then the Aboriginal peoples affected must seek appropriate remedies in the courts As also noted by the Supreme Court, there is a danger that dividing the duty to consult and accommodate between administrative bodies could prevent the duty to consult and accommodate from being carried out: The fear is that if a tribunal is denied the power to consider consultation issues, or if the power to rule on consultation is split between tribunals so as to prevent any one from effectively dealing with consultation arising from particular government actions, the government might effectively be able to avoid its duty to consult To prevent this fear from being realized, the Courts must intervene to ensure that the duty to consult and accommodate is discharged by some Crown official If the Respondent Minister has no authority to decide whether the duty to consult and accommodate ACFN exists, then the Applicants petition this Honourable Court to issue a declaration that the Province has a duty to consult and accommodate the ACFN regarding the project, 250 and to order the Province to fulfill its duty to consult and accommodate If no Minister of the Crown has the authority to consult ACFN with respect to this Project, then it is submitted that the regulatory scheme governing the approvals for the Project is unconstitutional. Notice of this question of constitutional law was provided to the Attorneys General by a filing dated July 13, Rio Tinto, supra note 131 at paras 63, 75. See also: Haida SCC, supra note 141 at para Rio Tinto, supra note 131 at para Ross River Dena Council v Government of Yukon, 2012 YKCA 14, para 56; Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2015 FCA 222, paras 74, ; Haida Nation v British Columbia (Minister of Forests), 2002 BCCA 147, para 60; Haida SCC, supra note 141 at para See: Adams Lake Indian Band v British Columbia, 2011 BCSC 266, paras

58 D. The Honour of the Crown has been breached 182. As the Supreme Court of Canada stated in the Mikisew Cree case, the honour of the Crown infuses every treaty and the performance of every treaty obligation In the same case, the Court found, with respect to Treaty 8, that [w]hat occurred at Fort Chipewyan in 1899 was not the complete discharge of the duty arising from the honour of the Crown, but a rededication of it The Court has called for a case-by-case analysis regarding the Honour of the Crown, since [t]he duty that flows from the honour of the Crown varies with the situation in which it is engaged. What constitutes honourable conduct will vary with the circumstances. 254 In discussing what duties are imposed by the Honour of the Crown, the Supreme Court has held, inter alia: (3) The honour of the Crown governs [T]reaty-making and implementation [ ] leading to requirements such as honourable negotiation and the avoidance of the appearance of sharp dealing; and (4) The honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples [ ] The Court has been clear that the honour of the Crown demands that constitutional obligations to Aboriginal peoples be given a broad, purposive interpretation, 256 and that it requires the Crown to act diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests Mikisew, supra note 5 at para Ibid at para Manitoba Metis Federation v Canada, 2013 SCC 14, para Ibid at para Ibid at para Ibid at para

59 186. In the context of Treaties, the Court has suggested a summary test to determine whether the honour of the Crown has been upheld: [v]iewing the Crown s conduct as a whole in the context of the case, did the Crown act with diligence to pursue the fulfillment of the purposes of the obligation? In this case, the duty to consult and accommodate is one of the constitutional processes engaged by the fulfillment of Treaty 8, which rededicated the Honour of the Crown. Upon being notified by ACFN by potential impacts resulting from a taking up of surrendered lands, the Crown is obliged to deal with ACFN in good faith, and with the intention of substantially addressing their concerns The Crown failed to uphold its Honour in this case. As the above evidence shows, the Crown persistently ignored facts and arguments that ACFN submitted to the ACO regarding potential impacts of the Project on its rights The Crown also persistently prioritized the timeline of the proponent and the political pressures arising from other officials at the expense of good faith engagement with ACFN. While repeatedly communicating with the proponent, it only communicated directly once with ACFN, to deny it its constitutional rights The fact that the first time Alberta ever engaged with ACFN about the Project was to inform it that there was no duty to consult and accommodate ACFN, in spite of a persistent stream of information suggesting the contrary, is sufficient to infer that the Honour of the Crown was not discharged The Applicants therefore petition this Court for a declaration that the Honour of the Crown has not been upheld in this case. IV. RELIEF SOUGHT 192. For the above reasons, ACFN seeks the following relief: 258 Ibid at para Mikisew, supra note 5 at paras

60 1. ACFN seeks the following declarations: a. That the Crown had a duty to consult and accommodate ACFN on the Project (without further specification as to the content of the duty); b. That the ACO s Decision that there was no duty to consult and accommodate ACFN was incorrect; c. That the Crown owed ACFN a duty of procedural fairness in making its Decision; d. That the Crown violated its duty of procedural fairness in making the Decision. e. That Alberta has breached the Honour of the Crown in making its Decision; 2. In the event that this Court finds that the ACO s Decision was incorrect or that the Crown violated its duty of procedural fairness in making the Decision, or that the ACO had no authority to make the Decision, ACFN seeks an Order in the nature of certiorari quashing the Decision. 3. If this Court determines that the ACO did not have any authority to determine whether the Crown s duty to consult and accommodate was triggered, ACFN seeks an Order in the nature of mandamus requiring the Crown to consult and accommodate ACFN regarding the Project in accordance with the Crown s constitutional obligation. 4. If this Court determines that neither the ACO nor a Minister of the Crown currently has the authority to determine whether the Crown s duty to consult and accommodate is triggered, ACFN seeks a declaration that the Crown s consultation regime is unconstitutional insofar as it excludes any determination of whether the duty to consult and accommodate has been triggered prior to a Crown decision. 57

61 5. ACFN may seek such further and other relief as counsel may advise. 6. ACFN seeks its costs on this Application. 58

62 ALL OF WHICH IS RESPECTFULLY SUBMITTED this 2nd day of September, 2016 OLTHUIS KLEER TOWNSHEND LLP Senwung Luk Michael McClurg Counsel for the Applicant, Athabasca Chipewyan First Nation 59