Federal Court

Aboriginal Peoples

Crown gave First Nation notice of mine expansion project and afforded opportunity for consultation

Project was proposed expansion of open pit oil-sands mine. Project would be carried out on traditional lands of Athabasca Chipewyan First Nation (ACFN) Crown invited the ACFN to express its concerns to joint review panel charged with conducting project’s environmental assessment. Minister decided project was justified subject to conditions. ACFN asserted Crown made decision in breach of its duties to consult and accommodate ACFN. ACFN asserted Crown rushed through consultation process and issued decision before completing consultation. ACFN asserted process lacked transparency because Crown kept from ACFN its advice to Cabinet, proposed project conditions and information it received. ACFN asserted Crown breached its commitments to CFN during consultation process. Applicant sought judicial review. Application dismissed. Crown gave ACFN notice and afforded ACFN opportunity for consultation. ACFN participated throughout six-year process. Crown seriously considered views of ACFN. Measures Crown took to accommodate ACFN corroborated its serious consideration of ACFN’s concerns. Crown made changes that addressed concerns ACFN raised during consultation. Crown accommodated ACFN’s concerns by imposing long list of conditions. Duty to accommodate did not guarantee Aboriginal groups everything that they wished to obtain. Federal-provincial distribution of powers limited Crown’s ability to accommodate the ACFN because lands and mineral rights belonged to province of Alberta. Consultation process was not rushed. Record did not reveal lack of transparency, but showed that Crown repeatedly shared information, replied to ACFN’s correspondent, met ACFN’s representative and made policy decisions in light of ACFN’s concerns. Applicant was not entitled to disclosure of Minister’s advice to Cabinet and Crown did not have to justify Cabinet’s decisions on project. Claim that Crown created and deceived reasonable expectation that panel review process would heavily inform Crown’s decision-making for project was rejected. Record did not support contention that Crown was insufficiently responsive to ACFN’s concerns. Record did not reveal insufficient attention by Crown to project’s cumulative effects. Evidence established fact that ACFN will continue to be consulted in future.

Athabasca Chipewyan First Nation v. Canada (Minister of the Environment) (Dec. 9, 2014, F.C., Danièle Tremblay-Lamer J., File No. T-13-14) 250 A.C.W.S. (3d) 541.

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