Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation), (2013) 566 A.R. 259

• Judge: Côté, Rowbotham and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 06, 2013
• Citations: (2013), 566 A.R. 259;2013 ABCA 443

Cold Lake First Nations v. Alta. (2013), 566 A.R. 259; 597 W.A.C. 259 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.002

Cold Lake First Nations (respondent/applicant) v. The Queen in Right of Alberta as represented by The Minister of Tourism, Parks and Recreation (appellant/respondent)

(1203-0254-AC; 2013 ABCA 443)

Indexed As: Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation)

Alberta Court of Appeal

Côté, Rowbotham and O'Ferrall, JJ.A.

December 20, 2013.

Summary:

Cold Lake First Nations applied for judicial review from a decision of the North-East Regional Director of Parks, Government of Alberta (Parks Alberta). The decision terminated ongoing consultations between the First Nations and Parks and authorized a major expansion of the English Bay Recreation Area (i.e., a campground), in the traditional territory of the First Nations. The main issue was whether Parks Alberta failed to properly exercise its constitutional duty to consult and accommodate the First Nations.

The Alberta Court of Queen's Bench, in a decision reported 543 A.R. 198, set aside the decision. Parks Alberta erred in unilaterally terminating the ongoing consultation and negotiation, and in concluding that the level of consultation that had taken place was adequate. Parks Alberta appealed.

The Alberta Court of Appeal, O'Ferrall, J.A., dissenting, allowed the appeal and restored the decision of Parks Alberta to proceed with the development. The majority held that the applications judge failed to adequately assess the scope of the duty to consult. The majority found that the duty to consult required Parks Alberta to give notice, to provide information, to meet with the First Nations, to seriously consider their concerns and to adjust the plans for the proposed development to mitigate and address their reasonable concerns. Parks adequately discharged its duty and its decision to end consultation was reasonable. O'Ferrall, J.A., would have dismissed the appeal on the basis that the applications judge's decision was not unreasonable and ought to be accorded deference.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See second and third Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - On judicial review, an applications judge held that Parks Alberta had erred in unilaterally terminating an ongoing consultation and negotiation with Cold Lake First Nations respecting expansion of a campground - Parks Alberta appealed, arguing that the applications judge failed to, inter alia: (1) determine the scope of consultation required; and (2) apply the correct standard of review and legal analysis to the consultation issue - The Alberta Court of Appeal stated that the first ground of appeal was to be reviewed for correctness - As to the second ground, the role of an appellate court was to determine whether the reviewing judge chose and applied the proper standard of review, and if not, to assess the decision under review in light of the appropriate standard of review - See paragraphs 8 to 10.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - On judicial review, an applications judge held that Parks Alberta had erred in unilaterally terminating an ongoing consultation and negotiation with Cold Lake First Nations respecting expansion of a campground - Parks Alberta appealed, arguing that the applications judge failed to, inter alia, provide adequate reasons - The Alberta Court of Appeal stated that with respect to this ground of appeal, the appellate court was to assess whether the reviewing judge's reasons were adequate to explain why the result was reached and to permit an appellate court to review the decision for error - The adequacy of reasons was to be assessed in the context of the full record, the proceedings, and the live issues at trial - See paragraph 11.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Cold Lake First Nations applied for judicial review of a Parks Alberta decision to terminate ongoing consultations and authorize a major expansion of a campground area into traditional territory of the First Nations - The applications judge set aside the decision, holding that the consultation had been inadequate - Parks Alberta appealed - The Alberta Court of Appeal allowed the appeal - The court found that the applications judge's reasons did not adequately enable the court to determine what level of consultation was required, or how the reviewing judge arrived at any potential degree of consultation - The court stated that the reviewing judge should have explored the potentially adverse effects of the campground expansion on the treaty rights and traditional uses asserted by the First Nations - Since the applications judge failed to address those issues, it fell to the appeal court to perform the analysis - See paragraph 16.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Cold Lake First Nations applied for judicial review of an Alberta Parks decision to terminate ongoing consultations and authorize a major expansion of a campground into traditional First Nations territory - An applications judge set aside the decision, holding that the consultation had been inadequate - Parks Alberta appealed - The Alberta Court of Appeal determined the scope of the duty to consult required in this case by considering the strength of the rights asserted by the First Nations and the potential adverse impact of the project on the rights asserted - The court determined that the duty to consult required Parks Alberta to give notice, to provide information, to meet with the First Nations, to seriously consider their concerns, and to adjust its plans to mitigate and address some of those concerns - See paragraphs 17 to 34.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Cold Lake First Nations applied for judicial review of a Parks Alberta decision to terminate ongoing consultations and authorize a major expansion of a campground into traditional First Nations territory - An applications judge found that consultation was inadequate and set aside the decision - Parks Alberta appealed - The Alberta Court of Appeal noted that in assessing the standard of review, the applications judge concluded that she should review the adequacy of the consultation process on a correctness standard and the decision of Parks Alberta to end the consultation and commence construction (the decision) on the reasonableness standard - The appeal court held that the reviewing judge erred in applying the correctness standard to the question of the adequacy of the consultation process and that both the consultation process and the decision should be reviewed on the standard of reasonableness - See paragraphs 35 to 40.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Cold Lake First Nations applied for judicial review of a Parks Alberta decision to terminate ongoing consultations and authorize a major expansion of a campground into traditional First Nations territory - An applications judge found that consultation was inadequate and set aside the decision to proceed - Parks Alberta appealed - The Alberta Court of Appeal, reviewing the matter on the standard of reasonableness, held that the consultation process was adequate - Once Parks Alberta realized that consultation was necessary, it stopped construction and commenced the consultation (i.e., it gave notice) - It undertook the studies and shared that information - It met numerous times with the First Nations and involved them directly in the studies - It listened to the First Nations' concerns and was willing to and did make changes based upon the information it learned during the consultation - Parks Alberta's actions were reasonable and in fact met the correctness standard if that were the applicable standard - The court also found that the decision to end consultation was reasonable - See paragraphs 41 to 56.

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians - [See all Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement (incl. requirement of consultation) - [See sixth Indians, Inuit and Métis - Topic 3 ].

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - [See second Indians, Inuit and Metis - Topic 3 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 9].

Goold v. Alberta (Office of the Children's Advocate) (2011), 502 A.R. 298; 517 W.A.C. 298; 2011 ABCA 63, refd to. [para. 9].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 11].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 11].

Brokenhead First Nation et al. v. Canada (Attorney General) et al. (2011), 419 N.R. 289; 2011 FCA 148, refd to. [para. 11].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [paras. 13, 62].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [paras. 13, 62].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 13].

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [para. 15].

Tsuu T'ina Nation et al. v. Alberta (Minister of Environment) et al. (2010), 482 A.R. 198; 490 W.A.C. 198; 2010 ABCA 137, refd to. [para. 18].

William v. British Columbia et al., 2007 BCSC 1700, affd. (2012), 324 B.C.A.C. 214; 551 W.A.C. 214; 2012 BCCA 285, refd to. [para. 29].

Tsilhqot'in Nation v. British Columbia - See William v. British Columbia et al.

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 32].

Halalt First Nation et al. v. British Columbia (Minister of Environment) et al., [2013] 1 W.W.R. 791; 330 B.C.A.C. 177; 562 W.A.C. 177; 2012 BCCA 472, refd to. [para. 38].

Neskonlith Indian Band v. Salmon Arm (City) et al. (2012), 327 B.C.A.C. 276; 556 W.A.C. 276; 2012 BCCA 379, refd to. [para. 38].

Long Plain First Nation et al. v. Canada (Attorney General) et al. (2012), 424 F.T.R. 52; 2012 FC 1474, refd to. [para. 38].

Dene Tha' First Nation v. British Columbia (Minister of Energy and Mines) et al., [2013] B.C.T.C. Uned. 977; 2013 BCSC 977, refd to. [para. 38].

Willson et al. v. British Columbia et al. (2011), 306 B.C.A.C. 212; 516 W.A.C. 212; 333 D.L.R.(4th) 31; 2011 BCCA 247, refd to. [para. 38].

Moberly First Nations v. British Columbia (Chief Inspector of Mines ) - see Willson et al. v. British Columbia et al.

Counsel:

A.L. Edgington and S.C. Latimer, for the appellant, The Queen in Right of Alberta as represented by The Minister of Tourism, Parks and Recreation;

K.L. Lambert and A. Clarke, for the respondent, Cold Lake First Nations.

This appeal was heard on June 6, 2013, in Edmonton, Alberta, before Côté, Rowbotham and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered on December 20, 2013, including the following opinions:

Côté and Rowbotham, JJ.A. - see paragraphs 1 to 58;

O'Ferrall, J.A., dissenting - see paragraphs 59 to 82.