Alberta Tourism, Parks and Recreations (“Parks”) sought to redevelop and expand a campground on lands adjacent to the Cold Lake First Nations (“First Nations”). The Alberta Government appealed the Order of Madam Justice Browne (the “Review Judge”), who held that Parks failed to fulfill its duty to consult and accommodate the First Nations with respect to the campground redevelopment and expansion (the “Project”). The Order set aside the decision by Parks to end the consultation and to commence construction.

The Majority of the Court allowed the Appeal, holding that Parks adequately discharged its duty and the decision to end consultation was reasonable. O’Ferrall J.A. dissented, emphasizing that the standard of review was reasonableness and deference was to be afforded to the Review Judge’s findings with respect to the adequacy of Parks’ discharge of its duty to consult.

In particular, O’Ferrall J.A. disagreed with the Majority’s decision that the record was sufficient to make an assessment of the impact of the Project for the purposes of determining the adequacy of consultation. The Review Judge held that a traditional land use and occupancy study, submitted by the First Nations, was inadmissible because it had been prepared after the consultation had closed and was not part of the record being reviewed. O’Ferrall J.A. opined that the dispute was best characterized as one between two parties over whether the party owing a duty had in fact discharged that duty. Thus, the decision to exclude the study “may have been a misapplication of administrative law principles to what … was a lis inter partes”.

While the First Nations expressly sought judicial review of Parks’ decision in its Originating Application, O’Ferrall J.A. noted that judicial review is discretionary. Rule 3.12 permits the Court to direct an Action by Statement of Claim, even when an Action is commenced by way of an Originating Application. In such a case, it would have been appropriate for the First Nations to adduce evidence as to the strength of the rights asserted and the seriousness of potentially adverse effects of the Project.

Regardless of the proper characterization of the dispute, O’Ferrall J.A. held that the record was unduly one-sided in favour of Parks and, as such, the Court could not assess the impact of the Project on the First Nations’ rights. O’Ferrall J.A. would have sent the matter back to the Trial Court to assess the adequacy of consultation based on the evidence which the Parties wished to adduce.