[1]               This appeal and cross-appeal arise out of a September 2019 decision by Alberta’s Minister of Indigenous Relations not to move forward with the development of a draft Métis Consultation Policy, and to instead continue relying on a Credible Assertion Process, for assessing non-settlement Métis rights claims for the purposes of consultation (the Decision). Alberta had been engaging with the Métis Nation of Alberta (MNA) and other Métis organizations to develop a Métis Consultation Policy since 2014. The MNA sought judicial review to quash the Decision on the grounds it was made without prior notice, without opportunity to be heard, and without reasons being provided. The MNA argued the Decision breached the honour of the Crown. Alberta argued the Decision was a matter of general public policy and was not amenable to judicial review.

[2]               The judicial review judge found the Decision was amenable to judicial review and that the honour of the Crown was engaged. However, she concluded Alberta did not act contrary to the honour of the Crown. She held the Decision was reasonable and that the MNA had been afforded adequate procedural fairness. She dismissed the application: Métis Nation of Alberta Association v Alberta (Indigenous Relations), 2022 ABQB 6 [Chambers Decision].

[3]               The MNA appeals, arguing the judicial review judge erred in finding Alberta had not breached the honour of the Crown and the related duty to negotiate. The MNA emphasizes Alberta was obliged to provide reasons for the Decision and seeks to quash the Decision. Alberta cross-appeals, arguing the judicial review judge erred in finding that the Decision was amenable to judicial review. Several non-settlement Métis organizations, not represented by the MNA, were granted leave to intervene on the question of whether the Decision was reasonable: Métis Nation of Alberta Association v Alberta (Indigenous Relations), 2022 ABCA 250.

[4]               Both the appeal and cross-appeal are dismissed. The question of whether Alberta breached the honour of the Crown and the related duty to negotiate is justiciable. We conclude that Alberta was not obliged to provide reasons for the Decision, that the duty to negotiate was not engaged, and that the honour of the Crown was not breached.

[5]               As recognized by the judicial review judge, “Any legal analysis concerning the Métis people of Canada, the honour of the Crown and duties arising thereunder, including the duty to negotiate, must take place against a background which acknowledges the distinct history of the Métis in Canada and how this history is situated in the legal arena”: Chambers Decision at para 172.

[6]               Following the Royal Proclamation of 1763, the Crown did not provide collective reservations, land bases, or other benefits to the Métis in the same way as it did for other Indigenous groups. As described by the Supreme Court of Canada in Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37 at paras 6-7 [Cunningham]:

[7]               In 1982, section 35 of the Constitution Act, 1982 expressly recognized the Métis as distinct Aboriginal peoples entitled to Aboriginal and treaty rights. Section 35(1) provided, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(2) explained, “aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada.” The term “Métis” as used in section 35 “refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears”: R v Powley, 2003 SCC 43 at para 10 [Powley].

[8]               In 1990, with the objective of creating a Métis land base, Alberta granted the Métis Settlements General Council title to the lands of eight Métis communities and passed a suite of related legislation, including the Metis Settlements Act, RSA 2000, c M-14: Cunningham at para 17. Métis who do not belong to the communities established and administered under the Metis Settlements Act are referred to herein as non-settlement Métis.

[9]               In 1996, in R v Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 SCR 507 [Van der Peet], Lamer C.J. set out the test for identifying section 35 Aboriginal rights. He explained “in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right”, with the time period for assessing whether the right is integral being “the period prior to contact between aboriginal and European societies”: Van der Peet at paras 46, 60.

[10]            In 2003, in Powley, the Supreme Court modified the Van der Peet test in order to identify Métis Aboriginal rights and the holders of those rights. Modification was necessary, because while the Van der Peet test focused on the pre-contact time period, “Métis cultures by definition post-date European contact”: Powley at para 16. Specific guidance was also required for determining membership in a Métis community, because “different groups of Métis have often lacked political structures and have experienced shifts in their members’ self-identification” over time: Powley at para 23. The Court endorsed three broad factors as indicia of Métis identity for the purpose of claiming section 35 rights: self-identification, ancestral connection, and community acceptance: Powley at paras 30-35. The overall test for determining Métis entitlement under section 35 involved eight steps.

[11]           In 2004, the Supreme Court explained in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation] that a duty to consult “arises when the Crown has knowledge, real or constructive, of the potential existence of [an] Aboriginal right or title and contemplates conduct that might adversely affect it” [emphasis added]. Knowledge of “a credible but unproven claim suffices to trigger” the duty. Claimants are to “outline their claims with clarity, focussing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements”, and the Crown is “to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation to consult and accommodate” on a preliminary basis. The Court explained it is “open to” governments to set up regulatory schemes and policies to address these procedures: Haida Nation at paras 35-37, 51.

[12]           In 2007, the Alberta government established an internal process for assessing the credibility of rights asserted by the Métis to assist in determining when its duty to consult (as described in Haida Nation) was triggered with respect to Métis rights as described in Powley. This process is referred to as the Credible Assertion Process (CAP). The CAP relies on the criteria set out in Powley to assess the credibility of asserted rights on a case-by-case basis. It requires applicants to demonstrate their authorization to represent the Métis group asserting the right, and to establish the representativeness of the group. The CAP was not initially published.

[13]           Between 2012 and 2015, a formalized Métis Settlement Consultation Policy was developed and approved by Cabinet for consultation with settlement Métis.

[14]           In 2014, Alberta took steps to begin developing a formalized Métis Consultation Policy (MCP) for non-settlement Métis to replace the CAP. Alberta communicated to the Métis Nation of Alberta (MNA) – an association that represents many, but not all, non-settlement Métis in Alberta – that it was interested in “entering into a dialogue with the MNA to address consultation-related issues” with the “intended outcome” being “the development of main elements of a potential Métis Consultation Policy for non-settlement Métis communities in Alberta”. Alberta recognized the MNA as a “stable partner that understands the issues related to non-Settlement Métis consultation”.

[15]           In the fall of 2015, the Ministry of Indigenous Relations was officially provided a mandate to begin coordinated engagement with the MNA and other non-settlement Métis organizations to develop an MCP. A 2016 government presentation stated that development of the MCP was “a complex process requiring extensive engagement with stakeholders”. A 2017 government paper highlighted the “issue of authorized representation” as constituting a challenge to the development of the MCP:

[16]           The MNA took the position that consultation should be on a regional basis, with the MNA acting as the authorized representative for each of a number of large regions. But certain MNA local councils objected to this approach, advocating for more localized consultation and representation. Other Métis organizations not affiliated with the MNA also advocated for local consultation and representation. The MNA argued these groups did “not legitimately represent Métis rights-holders and regional rights-bearing Métis communities”. Alberta took the position that the MCP would apply more broadly to any Métis organization that could successfully satisfy a set of Powley-based criteria.

[17]           Alberta engaged extensively with the MNA and other Métis organizations, as well as with municipal and industry stakeholders through to 2019 towards development of the MCP. An Alberta briefing note recorded, “Engagement during policy development is not negotiation.”

[18]           In February 2019, Alberta circulated a draft MCP that included a set of criteria for making decisions about which Métis organizations to consult, and parameters for determining authorized “single points of contact” for those organizations.

[19]           Following a provincial election on April 16, 2019, a new government was formed.

[20]           In July 2019, the President of the MNA wrote to the newly appointed Minister of Indigenous Relations. She asserted the February 2019 draft “fail[ed] to respond to Alberta’s needs”, in part because the draft did not accept that, for the purposes of the consultation policy, a “Métis community must be regional in nature”, not settlement-based [emphasis original]. She proposed consultation be performed “with the MNA’s Regional Consultation Offices on behalf of the regional, rights-bearing communities”, as opposed to with local councils or associations.

[21]           On September 5, 2019, the Minister advised the MNA that Alberta would “not be moving forward” with the MCP, and that the CAP remained “open and available” (the Decision):

[22]           In December 2019, the Ministry of Indigenous Relations published the CAP on its website.

[23]           The MNA sought judicial review of the Decision, arguing that by unilaterally ending discussions regarding development of the MCP without providing reasons or an opportunity to be heard, Alberta had breached the honour of the Crown. It sought an order quashing the Decision.

[24]           The judicial review judge determined the Decision was amenable to judicial review. Although she stated government policy was not generally judicially reviewable, she found the “engagement between the parties was more than a mere policy discussion”. She noted the parties “entered into protracted discussions in an attempt to create a process through which the Crown could more clearly address its duty to consult”. On that basis, she held the Decision was “not shielded from judicial review”: Chambers Decision at paras 140, 156-159.

[25]           In assessing whether the honour of the Crown was breached, the judicial review judge concluded that it was not necessary to decide “whether… the duty to negotiate was triggered”, because she was satisfied “that the dealings between Alberta and the MNA was a negotiation”. As a result, she held, Alberta “was required to act in a manner consistent with the honour of the Crown”: Chambers Decision at paras 195, 203.

[26]           She concluded Alberta met that obligation. After noting that “what was being negotiated was a new process or approach to consultation” and reviewing the outstanding issues between the parties as of the time of the Decision, the judicial review judge concluded that the “duty placed upon the Crown in this case was closer to the ‘lower end’ of the spectrum”. She concluded, “having received the July 2019 Letter, together with evidence that certain Locals did not wish to be represented by the MNA and knowing that industry’s support of a MCP hinged on buy-in at the Local level, Alberta acted reasonably in falling back upon the Credible Assertion Process”: Chambers Decision at paras 224, 299, 302, 306.

[27]           The judicial review judge went on to review the Decision for reasonableness and procedural fairness. She held it was a substantively reasonable decision, because, among other things, a full review of the record “makes clear that Alberta was not going to unconditionally adopt an ‘Alberta-MNA’ policy” and “the Decision did not leave the MNA without recourse”: Chambers Decision at paras 358, 362. As to procedural fairness, the judicial review judge applied the factors from Baker v Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, noting among other things that the process “remained government-centric”, involved a “wide variety of stakeholders”, and that the ultimate decision was “discretionary in nature”. She determined that the duty of procedural fairness owed was “on the lower end of the spectrum”, “did not require an elaborate adjudicative process” and had not been breached: Chambers Decision at paras 367-389.

[28]           The MNA appealed, arguing the judicial review judge erred in concluding Alberta acted in accordance with the honour of the Crown. It also appealed her determinations on reasonableness and procedural fairness. The intervenors – Fort McKay Métis Nation Association, Cadotte Lake Métis Nation Association and Willow Lake Métis Association – intervened on the reasonableness question, arguing that it was reasonable for Alberta to terminate development of the MCP, because the MNA was improperly insisting that it should speak for all Métis in Alberta.

[29]           In argument before us, counsel for the MNA explained that its appeal really comes down to one “very narrow” issue: did Alberta breach a duty owed to the MNA to provide reasons for the Decision? Counsel conceded Alberta was conducting itself honourably until the time of the Decision and that Alberta “had an absolute policy discretion… to cancel the negotiations”. The MNA’s argument is that “in cancelling them they owed reasons or to identify what the relevant factors were”. The MNA submits that because Alberta had reached out to it and engaged with it to develop the MCP over the course of five years, the honour of the Crown – and in particular the duty to negotiate – required that reasons be provided. Alberta argues that question is not justiciable, as development of the MCP was a matter of general public policy.

[30]           Therefore, the issues raised by the appeal and cross-appeal can be stated as follows:

[31]           Justiciability limits the extent to which courts may engage with decisions. It relates to the subject matter of a dispute and asks the general question, “Is the issue one that is appropriate for a court to decide?”: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 at para 32.

[32]           In its cross-appeal Alberta submits that its Decision not to proceed with an MCP and to continue to rely on the CAP was a policy decision that was not amenable to judicial intervention. While Alberta acknowledges a duty to consult Métis in relation to credibly asserted section 35 rights, it argues the Crown is entitled to decide how to fulfill those consultation obligations. It argues judicial review of the development of Alberta’s consultation policy, from either a substantive or procedural perspective, would be inconsistent with the division of powers amongst the legislative, executive and judicial branches of government.

[33]           It is a fundamental principle of Canadian constitutional law that each branch of government has a different role. In the constitutional context, “courts must ensure that government behaviour conforms with constitutional norms but in doing so must also be sensitive to the separation of function among the legislative, judicial and executive branches”: Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 33 [Doucet-Boudreau]. Deference should be afforded where appropriate, but courts cannot abdicate their responsibility when called upon to determine whether legislative or executive conduct is consistent with the Constitution: Doucet-Boudreau at paras 35-36.

[34]           Development of the MCP in this case was an exercise of the executive branch of government, as opposed to the legislative branch. There is no question that decisions of the executive branch can properly be subject to judicial review. However, an important consideration when assessing the obligation to afford procedural fairness – which is the obligation asserted by the MNA here – is the type of decision that is at issue. While the word “legislative” is used to identify one of the three separate branches of government, it is also sometimes used to describe a type of decision, regardless of the branch of government. Such decisions “usually have two characteristics: generality (the power is of ‘general application and when exercised will not be directed at a particular person’) and a broad policy orientation in that the decision creates norms rather than decides on their application to particular situations”: Potter v Halifax Regional School Board, 2002 NSCA 88 at para 40, leave to appeal to SCC refused, 29303 (27 March 2003).

[35]           The common law duty of procedural fairness arises where a public authority makes “an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual”: Cardinal v Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 SCR 643 at 653; Baker v Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para 20 [Baker]; and Dunsmuir v New Brunswick, 2008 SCC 9 at paras 79, 87. The word “legislative” in this context refers to the type of decision, not the branch of government. A duty of fairness is engaged where a decision maker “makes a decision that affects the ‘rights, privileges or interests of an individual’ by, for example, imposing a suspension, not when it acts in a legislative capacity to make rules of general application in the public interest” [emphasis added]: Green v Law Society of Manitoba, 2017 SCC 20 at para 54.  

[36]           At issue here is the Decision of the Minister not to move forward with developing the MCP but to instead continue relying on the CAP for assessing non-settlement Métis rights claims for the purposes of consultation. The Decision was “of a legislative nature” and did not affect “the rights, privileges or interests of an individual”, because:

[37]           As the Decision was of a general policy nature and did not affect the rights, privileges or interests of an individual, it did not attract the common law duty of procedural fairness or the attendant duty to provide reasons. The Decision is not, therefore, reviewable on that basis.

[38]           During oral argument, counsel for the MNA conceded that the obligation to provide reasons in this case was not driven by normal administrative law principles. Instead, the MNA argues that the obligation arose as a result of the “suis generis” relationship between the Crown and the Métis under section 35 of the Constitution Act, 1982. It submits the engagement by Alberta triggered the honour of the Crown, and in particular the duty to negotiate, which in turn gave rise to a duty to provide reasons.

[39]           Whether the honour of the Crown was breached in particular circumstances does raise issues that are within the purview of the courts. The circumstances are somewhat analogous to those at issue in Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 [Hupacasath]. The issue there was whether the exercise of a federal Crown prerogative to enter into a foreign investment promotion and protection agreement with the People’s Republic of China was justiciable on the basis that the Hupacasath First Nation had not been consulted. The Federal Court of Appeal recognized that, “Justiciability, sometimes called the ‘political questions objection,’ concerns the appropriateness and ability of a court to deal with an issue before it. Some questions are so political that courts are incapable or unsuited to deal with them, or should not deal with them in light of the time-honoured demarcation of powers between the courts and the other branches of government”: Hupacasath at para 62. However, where the issue was whether the appellant had an enforceable legal right to be consulted before the agreement went into effect, the Court concluded (Hupacasath at para 70):

[40]           We agree with their approach. Whether the Decision breached the honour of the Crown is a justiciable question that is appropriate for us to decide. Therefore, Alberta’s cross-appeal is dismissed.

[41]           Resolution of this appeal involves consideration of the principle of the honour of the Crown, a foundational principle of Aboriginal law that governs the relationship between the Crown and Aboriginal peoples: Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 at para 21 (per Karakatsanis J) [Mikisew Cree]. The honour of the Crown is a constitutional principle: Beckman v Little Salmon / Carmacks First Nation, 2010 SCC 53 at para 42. The majority in Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 [Manitoba Metis] explained that the honour of the Crown dates back to the Royal Proclamation of 1763. Its ultimate purpose is the reconciliation of pre-existing Aboriginal sovereignty and territorial rights with the assertion of Crown sovereignty (Manitoba Metis at paras 66-67):

[42]           While the honour of the Crown is always at stake in Crown dealings with Aboriginal people, “not all interactions between the Crown and Aboriginal people engage it”: Manitoba Metis at para 68; Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163 at para 54. It has been found to be engaged in situations involving reconciliation of Aboriginal rights with Crown sovereignty, where the Crown defines section 35 rights and reconciles them with other rights and interests, and where there is an explicit obligation to an Aboriginal group enshrined in the Constitution: Manitoba Metis at paras 68-70; Haida Nation at para 20. Determining what constitutes honourable dealing, and what specific obligations are imposed by the honour of the Crown, depends heavily on the circumstances: Mikisew Cree at para 24 (per Karakatsanis J); Manitoba Metis at para 74; Haida Nation at para 18.

[43]           The majority in Manitoba Metis at para 73 provided that the honour of the Crown applies in at least four situations:

[44]           Of these four situations, number (2) is most potentially applicable here: contemplation of Crown action affecting a claimed but unproven Aboriginal interest. However, in this case, there was no specific Crown action contemplated or interest at issue. Instead, Alberta was developing a general policy for assessing claims, so that it could identify and satisfy its duty to consult in the future should a specific Crown action be contemplated in the context of a specific claimed Aboriginal right. This is not the type of interaction where the honour of the Crown has been found to give rise to enforceable duties.

[45]           Neither the honour of the Crown nor the duty to consult required engagement regarding development of the policy. Indeed, Haida Nation at para 51 stated that it was “open to governments to set up” such regulatory schemes or policies, so long as they did “not simply adopt an unstructured discretionary administrative regime”. The MNA acknowledges engagement with it was not required. It concedes that if Alberta had not engaged with it, then it would not have been able to challenge the Decision.

[46]           MNA characterizes its claim as based upon a “duty to negotiate”, rather than a “duty to consult”. MNA relies upon Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12. It submits that because Alberta did engage with it, and because that engagement took place over a protracted period of time, the “duty to negotiate” was triggered. The MNA cites Ross River Dena Council v Canada (Attorney General), 2017 YKSC 59 at para 349 for the further proposition that the duty to negotiate includes the duty to disclose relevant factors, which it says is synonymous with the duty to provide reasons.

[47]           While the Supreme Court has been clear that the duty to negotiate applies to the negotiation of substantive Aboriginal rights claims, this has not been extended to the development of policies for consultation. The Court noted that Haida Nation, Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot’in Nation] and Powley “already recognize a context-specific duty to negotiate when Aboriginal rights are engaged”: Daniels at para 56. However, those cases all addressed the duty to negotiate in relation to specific Aboriginal rights claims.

[48]           In Haida Nation, the Court provided, “Where treaties remain to be concluded, the honour of the Crown requires negotiation leading to a just settlement of Aboriginal claims” [emphasis added]: Haida Nation at para 20. It explained, the “honour of the Crown requires that these rights be determined, recognized and respected” which “in turn, requires the Crown, acting honourably, to participate in processes of negotiation” [emphasis added]: Haida Nation at para 25. It described the duty to consult and accommodate as a duty that arises while the overall process of negotiating rights claims continues: Haida Nation at para 25. Thus, the duty to negotiate as addressed in Haida Nation is directed at the settlement of substantive claims, not at determining policies for consultation. Similarly, the Court in Tsilhqot’in Nation at para 17 referred to a “legal duty to negotiate in good faith to resolve land claims” [emphasis added], and the Court in Powley at para 50 referred to “negotiation… of the Métis right to hunt” [emphasis added].

[49]           Put simply, there is no basis to find that the “duty to negotiate” as described in the jurisprudence is engaged by discussions with Indigenous groups towards developing a policy for how consultation should occur in the future. This remains true regardless of the judicial review judge’s characterization of those discussions as “a negotiation”. Nothing determinative flows from that characterization. What matters are the facts of the engagement. While the engagement occurred over a number of years during which the parties collaborated with and provided extensive input to each other, the purpose of the engagement was not the settlement of any substantive rights claim. It was the development of a government policy to replace the existing government policy for addressing the duty to consult should the Crown contemplate an action that might affect a claimed Métis right in the future.

[50]           In our view, the honour of the Crown does not go so far as to impose obligations of procedural fairness in these circumstances. As Alberta points out, if it did, governments might well become hesitant about consulting with Indigenous stakeholders on policy development, a result antithetical to reconciliation. Imposing procedural obligations on the policy development process would unduly interfere with that process. “It is for each jurisdiction, federal, provincial and territorial, to decide on the modalities for consultation”: Mikisew Cree at para 155 (per Rowe J). Imposing procedural obligations on the policy development process goes well beyond the types of duties identified in Manitoba Metis at para 73 as flowing from the honour of the Crown, all of which relate to specifically asserted interests.

[51]           Both the MNA and Alberta referred to Mikisew Cree where the issue was “whether the honour of the Crown gives rise to a justiciable duty to consult when ministers develop legislation that could adversely affect the Mikisew’s treaty rights”: Mikisew Cree at para 29. This case is of no application here because it addresses whether a duty to consult arises when the legislative branch of our system of government has an obligation to consult when it is making laws. Nevertheless, comments from the case are apt. In concurring reasons, Justice Karakatsanis concluded, “the law-making process – that is, the development, passage, and enactment of legislation – does not trigger the duty to consult. The separation of powers and parliamentary sovereignty dictate that courts should forebear from intervening in the law-making process”: Mikisew Cree at para 32. Justice Karakatsanis explained:

[52]           While Alberta concedes the development of policy in this case was an exercise by the executive branch of government, as we have outlined above, the subject Decision was still “of a legislative nature” in that it involved making rules or policies of general application. We recognize that similar practical concerns arise if a duty to provide reasons were superimposed and the judiciary were to get involved with supervising the development of consultation policies, rather than at the stage when those policies are implemented and applied in the context of specific Aboriginal rights claims.

[53]           The MNA takes no issue with the Decision apart from the lack of reasons. In our view, the honour of the Crown did not impose any obligation on Alberta to provide reasons for the Decision. Nor was the duty to negotiate engaged here. It follows that the honour of the Crown was not breached.

[54]           In closing, we emphasize that the substantive content of neither the CAP nor the draft MCP was at issue on this appeal. Regardless of whatever policy Alberta has in place, it has a constitutional duty to consult with non-settlement Métis when it has knowledge, real or constructive, of the potential existence of an Aboriginal right and contemplates conduct that might adversely affect it: Haida Nation at paras 35. Compliance with that duty in the context of particular rights claims is subject to judicial review.

[55]           Both the appeal and the cross-appeal are dismissed.