Duty to Consult Works Both Ways

Fort McKay sees it’s fair share of oil and gas development. The Fort McKay First Nation (“FMFN”) is currently seeking judicial review of decisions made by the Minister of Environment and Sustainable Resource Development (“ESRD”) involving consultation and approvals pertaining to a project advanced by Prosper Petroleum Ltd.

Unfortunately, during the ‘informal’ consultation process, FMFN failed to provide a large number of, what it now says are, relevant records to ESRD.

In a preliminary application, FMFN argued that ESRD should produce a further and better record of specific documents or, in the alternative, the Court should allow the filing of an Affidavit which contained ‘voluminous’ records.

FMFN suggested that even though it did not provide documentation during the consultation process, it had produced documentation in relation to prior projects and, as such, ESRD had a duty to inform itself about the scope of the decision it must make and as a part of this process, had a duty to decide whether it had sufficient information to make that decision.

The Alberta Court of Queen’s Bench noted that the duty to consult has two parts. Not only is the Crown obligated to consult, but there is a reciprocal onus on the first nation to make their concerns known. FMFN is not permitted to remain silent and rely upon the Crown’s duty to inform itself. FMFN failed in its onus to cooperate with ESRD.

The Court also struck the Affidavit that FMFN had hoped would be admitted into evidence for the judicial review. A judicial review application is not a trial de novo on the issues, and further evidence should not be permitted on a judicial review unless it is relevant.

It did not help FMFN’s case that the electronic exhibits to the Affidavit contained sub-folders in sub-folders, documents that would not open, and other blank documents that were “helpfully labelled “Blank Document””.

The lesson? Where there is a consultation process, the first nation being consulted must engage in that process, as the duty to consult is not a one-way street.

For the full text of the decision, see: Fort McKay First Nation v ESRD et al, 2014 ABQB 32 (CanLII).

By James Early.