Environmental, Indigenous and Natural Resources Blog

In a previous post, we highlighted the October 26, 2012 decision of the Joint Review Panel (“JRP”) in the Shell Jackpine Mine Expansion hearing regarding its jurisdiction to determine whether Crown consultation obligations had been discharged. The JRP concluded in that decision that its statutory jurisdiction did not include the authority to determine the adequacy of Crown consultation with First Nations. The JRP found that it did not have express authority or an implied duty to consider the adequacy of consultation, that Rio Tinto was distinguishable because there was no Crown agent involved in the proceedings, and that even if the JRP did have the necessary jurisdiction to consider the adequacy of consultation, any decision would be premature given the ongoing nature of consultation for the project.

The Alberta Court of Appeal has now weighed in on whether the JRP is required to consider the adequacy of Crown consultation for the Jackpine Mine Expansion, dismissing an application for leave by the Athabasca Chipewyan First Nation, the Métis Nation of Alberta Region 1, and the Fort Chipewyan Métis Local 125.

The key grounds on which these parties sought leave to appeal included that the JRP erred in (i) deciding that it has the jurisdiction to determine some questions of constitutional law, but not those raised in respect of the adequacy of Crown consultation, and (ii) deciding that, even if it had jurisdiction over those questions, it would be premature for the JRP to determine the adequacy of Crown consultation.

The Court denied leave to appeal the JRP’s decision on the grounds that the JRP was not required by its mandate (as established by the Agreement creating the JRP) to determine whether the Crown had met its duty to consult. The Court found that it was clear that the JRP’s mandate included consideration of aboriginal issues. However, the express language in the Agreement specified that the JRP was “not required… to make any determinations as to… whether the Crown has met its …duties to consult or accommodate…” With this language curtailing the scope of the JRP’s mandate with respect to aboriginal issues, the Court concluded that even if the JRP had the jurisdiction to assess the adequacy of Crown consultation, the JRP was not required to do so, and great deference was owed to the JRP’s discretionary decision not to consider those issues. Because of this finding, the Court also concluded that any determination of the jurisdictional issues raised by the First Nations and Métis groups would not affect the outcome of the hearing.

In response to the argument that after the JRP decision report is issued, meaningful opportunities to consult will be lost, the Court noted that if the Jackpine Expansion is ever set to proceed before the required consultation has been carried out, aboriginal groups can seek their remedies against the Crown in court.

The Court of Appeal’s decision is the next in a growing line of cases that can be argued to support the assertion by the ERCB that it is not correctly situated to assess the adequacy of Crown consultation. It now appears that the appropriate time for an aboriginal group to raise concerns with the adequacy of Crown consultation for a project may not be during a hearing conducted by an energy regulator, but rather through the courts, later in the process.

However, this Court of Appeal decision is likely not the last in this line of cases. The circumstances in this case were unique, given the express language in the JRP Agreement regarding its mandate over aboriginal issues. This ruling does not put these issues to rest as regards the ERCB, especially given the Court’s comment that it is not obvious why the ERCB should consider its ability to consider constitutional issues limited. As noted by the Court, these questions regarding the jurisdiction to assess the adequacy of Crown consultation are of general importance, and of interest to a wider audience of aboriginal peoples and participants in the resource extraction industry. Although the Responsible Energy Development Act settles this question for the new Alberta Energy Regulator, it is possible that this decision will not be the final word on the ERCB’s jurisdiction in this regard.