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 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.
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
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
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?
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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