Canada: Two Significant Duty-To-Consult Cases Released In Alberta And British Columbia Courts

Alberta: Lameman v. Alberta, 2013 ABCA 148

The Beaver Lake Cree Nation (BLCN) brought a Statement of Claim before the Alberta Court of Queen's Bench alleging that the Alberta and federal governments have failed to adequately discharge their duty to consult in issuing 19,000 authorizations for 300 projects related to oil sands development in Alberta. The BLCN argues that the cumulative effects of the 300 projects have hindered or prevented the BLCN from exercising its treaty rights. The BLCN alleges that by failing to consider cumulative effects during the approval process, the governments have not satisfied their duty to consult. The governments made a motion before the Alberta Court of Appeal to strike out portions of the Statement of Claim; however, on April 30, 2013, the Court of Appeal ruled against the governments' motion and, in doing so, found that the BLCN Statement of Claim gives rise to grounds for trial.

The outcome of this trial may have a significant impact on resource development in Alberta if the Court of Queen's Bench requires these governments to consider the cumulative effects for all oil sands projects in order to adequately discharge their duty to consult.

This case can be found here.

British Columbia: Dene Tha' First Nation v. British Columbia, 2013 BCSC 977

On June 3, 2013, the British Columbia Supreme Court (BCSC) released its decision dismissing the petition of the Dene Tha' First Nation to review a decision by the British Columbia government to dispose of 21 parcels of subsurface oil and gas tenures. The Dena Tha', an Alberta First Nation and Treaty 8 signatory, alleged that the government had breached its duty to consult with and accommodate the Dene Tha' in relation to potential adverse impacts from the parcel sales. As a result of this failure to consult and accommodate, the Dena Tha' sought to have the parcel sales set aside. In deciding that the Crown engaged in a reasonable process of consultation, the Court emphasized that the consultation process was ongoing and likely to broaden as development of the tenures proceeded. The Court found that the Crown had adequately considered the rights of the Dene Tha', while recognizing and respecting the rights of the broader community.

This case is significant in the context of resource development because it emphasizes that the assessment of the duty to consult at the pre-tenure stage is confined to ensuring that appropriate processes are in place to provide for adequate consultation in the future.

This case can be found here. 

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