Alberta court declines to decide board’s role in duty to consult

Alberta court declines to decide board’s role in duty to consult by David Both and A.W. (Sandy) Carpenter, October 22, 2012, Fasken Martineau DuMoulin LLP
On October 18, 2012, the Alberta Court of Appeal denied an application from the Cold Lake First Nation (CLFN) for leave to appeal an Alberta Energy Resources Conservation Board (ERCB) decision. The ERCB had ruled that it did not have the responsibility to assess the adequacy of the Crown’s consultation with the CLFN on an application before it. The Court of Appeal determined that the issue was moot and, under the circumstances, there was no reason for it to exercise its discretion to hear the appeal. This leaves the question of whether the ERCB was right—and what happens if it wasn’t—for another day.   

Osum Oil Sands Corporation (Osum) applied to the ERCB for approval of a bitumen recovery scheme near Cold Lake, Alberta. The CLFN objected to Osum’s application and filed a Notice of Question of Constitutional Law, asking the ERCB to determine whether Alberta had discharged its duty to consult and accommodate the CLFN with respect to Osum’s project. The CLFN took the position that Alberta had not met its duty and, therefore, the project was not in the public interest. The ERCB decided that, while it has the power to decide constitutional questions, it does not have the jurisdiction to answer every constitutional question posed to it. In this case a member of industry, and not the Crown, was the applicant. The ERCB concluded that its mandate to review Crown consultation with respect to Aboriginal and treaty rights does not extend to circumstances where the proponent is not the Crown or an agent of the Crown. The following day, the CLFN reached an agreement with Osum and withdrew its objection to Osum’s project.

The Court of Appeal
Despite reaching an agreement with Osum, the CLFN sought leave to appeal the ERCB’s decision to the Alberta Court of Appeal. While the Court agreed that the question of whether the Crown has met its duty to consult was clearly an issue in the public interest, it decided that it wouldn’t exercise its discretion to answer the CLFN’s question. The Court noted that consultation between the CLFN and other First Nations and government is ongoing. Given this, the Court felt that there would likely be a matter that engages the same question in the near future. To emphasize this point, the Court appended to its decision similar notices of constitutional questions from the Athabasca Chipewyan First Nation and the Fort McMurray First Nation to be heard by the Canadian Environmental Assessment Agency’s and ERCB’s Joint Review Panel in Shell’s Jackpine mine expansion on October 23, 2012. The Court further highlighted that it is generally hesitant to decide important constitutional questions in a factual vacuum, specifically noting that jurisdictional questions cannot always be divorced from the underlying factual matrix. Based on this concern and others, the Court declined to grant leave.

Read the Court’s decision.

The Court of Appeal’s decision continues Canadian courts’ general reluctance to decide matters, particularly important questions of constitutional jurisdiction and treaty interpretation, in the absence of a live dispute. The real question seems to be what the Court will decide when they address the Board’s responsibility to assess the adequacy of consultation. In Rio Tinto, the Supreme Court of Canada did not have any trouble coming to the conclusion that the British Columbia Utilities Commission (BCUC) had a duty to assess the adequacy of consultation in similar circumstances. The distinction, as noted by the ERCB, is that the BCUC was considering an application by a Crown agent, rather than a private party.

It will be interesting to see if the Court of Appeal places as much weight on this distinction as the ERCB does. As the Court of Appeal noted, “[i]t is after all, of moment to all Albertans to ascertain the duty to consult in keeping with the honour of the Crown.” It should be noted that the ERCB’s jurisdiction itself may not be decided in the Jackpine application. This question in that case may be resolved by the Joint Review Panel’s Terms of Reference. However, given the ERCB’s reasoning, its jurisdiction appears almost certain to come before the Court again soon. This raises a further question: if the Court decides that the ERCB does not have this jurisdiction, who does – and have they fulfilled it? [Emphasis added]

[Refer also to: Joint Review Panel says it doesn’t have authority to rule on challenge to Jackpine Mine expansion, Constitutional challenge to Shell oilsands development raised by First Nation, Metis groups ]

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