Declaratory Relief, Licences, Constitutional, Forests, Contract, Cooperation, Permits, Remedies, Wildlife, Evidence
This case involved a claim by the Tsuu T’ina Nation (Tsuu T’ina) and Samson Cree Nation (Samson Cree) that the Crown had failed to adequately consult and accommodate First Nations regarding the development of Alberta’s Water Management Plan for the South Saskatchewan River Basin (SSRB Plan). Phase I of the SSRB Plan dealt with the transfer of water under existing licences and was approved in 2002. Phase II of the SSRB Plan dealt with water conservation objectives and was approved in 2006. The proposed government action at issue was Phase II of the SSRB Plan. Tsuu T’ina Nation’s reserve lands are located within the SSRB. Samson Cree’s reserve lands were not located within the SSRB, but alleged that it would be affected by impacts to the Red Deer River Sub-basin in the SSRB. The lower court found that, although a duty to consult existed, any infringement was justified and that sufficient consultation had taken place. The Alberta Court of Appeal affirmed the judgment of the lower court and dismissed the appeal. The Court concluded that there should not be three separate tests to determine whether a duty to consult exists. Rather, the question is always whether the honour of the Crown requires that consultation and appropriate accommodation take place when a proposed government action threatens to adversely affect aboriginal peoples. The Court proceeded on the basis that the Crown owed a duty to consult the Tsuu T’ina and Samson Cree. The fact that the SSRB Plan was adopted by a legislative action (i.e., an order in council) did not immunize the persons developing the plan from a duty to consult, if such a duty arose based on the facts of the case. The potential for the SSRB Plan to adversely affect the express treaty rights and claimed water rights of the Tsuu T’ina and Samson Cree and the Crown’s knowledge of the proven and claimed rights was sufficient to meet the low threshold for triggering a duty to consult. The Court went on to analyze the consultation that had taken place and concluded that the Crown’s duty to consult had been met. In particular, it noted that the timeframe for completing the SSRB Plan had been extended for many months to allow for consultation; the Samson Cree had been provided with sufficient information and opportunity to express their concerns; the government provided funding to the Tsuu T’ina for expert technical assistance; the protection of the SSRB required immediate action; there was accommodation from the allocation of water from the Crown Reservation to First Nation Reserves; and the government committed to further consultation. The Court also noted that the Tsuu T’ina’s principle concerns were very broad and not within the scope of Phase II of the SSRB Plan, and the terms of consultation insisted by the Tsuu T’ina could not reasonably have been accepted by the government (i.e., requiring meetings between the Minister and Chiefs, requesting terms beyond the scope of the proposed government action, etc.). Furthermore, the Tsuu T’ina had dismissed early attempts by the government to obtain their participation in the development of the SSRB Plan.