Canada: Provincial Government Wins Prelude to the Fight for Aboriginal Water Rights

On April 28, 2010, the Alberta Court of Appeal dismissed a claim by the Tsuu T'ina Nation and Samson Cree Nation regarding the adequacy of consultation and accommodation with respect to Alberta's Water Management Plan for the South Saskatchewan River Basin. This decision takes a factual approach towards determining whether a duty to consult exists and, if so, whether consultation has been adequate. It also provides a preview to more innovative claims likely to come regarding Treaty and Aboriginal rights to water.

The Decision

Tsuu T'ina Nation v. Alberta (Environment), 2010 ABCA 137 (the Decision) 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.

Separate from this appeal, the Tsuu T'ina and Samson Cree have also commenced actions concerning the nature and extent of their Treaty and Aboriginal rights as they pertain to water rights and water management. These actions are still in their early stages and, among other things, the First Nations are seeking declarations that they possess Treaty and Aboriginal rights to water; a property interest in the water resources, beds and foreshores of water courses and water bodies within and adjacent to their reserve lands; and that the Water Act constitutes an unjustified infringement of their Treaty water rights and right to self-government because it vests all water in the Crown.

Whether the Duty to Consult Arose

At the outset of the Decision, the Court observed that while the Crown's legal duty to consult and, if appropriate, accommodate the concerns of First Nations is well established, it is "not yet fully developed in all aspects of its application." The mixture of circumstances in this case made it difficult to apply the tests set out in previous case law. Elements of the case involved a completed government action similar to R. v. Sparrow, [1990] 1 SCR 1075, unproven claims similar to Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, and proven treaty rights similar to Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69. 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.

Scope of the Duty to Consult

The Court found that the duty to consult in this case was at the very low end of the spectrum. The claims ranged from serious proven claims (i.e., express treaty right to hunt) to challenged unproven claims (i.e., claim for ownership and title to river beds). The Court noted that most of the concerns related to the priority system and water market arising from the transfer of water licences established in the Phase I planning. The adverse impacts alleged were not attributable to Phase II of the SSRB Plan. In fact, the success of Phase II of the SSRB Plan would improve environment and aquatic health, and potentially enhance the exercise of Treaty and Aboriginal rights, not impair them.

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.

Significance of the Decision

The Decision moves beyond the typical application of tests outlined in earlier cases to determine whether a duty to consult has arisen. Instead, it recognizes that the analysis is grounded in the honour of the Crown and must be sensitive to differing factual circumstances.

The Decision also provides an example of what can constitute adequate consultation and affirms that aboriginal groups have a corresponding obligation to participate and act reasonably in the consultation process.

As noted above, the Decision is a prelude to more innovative claims for Treaty and Aboriginal rights to water that are currently before the courts in Alberta. Although the Court noted that the Tsuu T'ina and Samson Cree's claims to water and management rights would "not be an easy case to win," a ruling on these issues could have significant implications for future Crown consultation obligations for government decisions relating to water use.

Shawn Denstedt's practice focuses on environmental, regulatory and aboriginal law issues. Terri-Lee Oleniuk's practice focuses on project-related issues in the energy sector with a specialization in regulatory, environmental and aboriginal law issues. Jessica Ng's practice focuses on regulatory matters including environmental, aboriginal consultation, facilities applications and climate change issues in the energy sector.

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