On November 26, 2012, the Alberta Court of Appeal released the
decision of Justice Slatter denying leave to appeal a decision made
by the Joint Review Panel (the Panel) established to evaluate Shell
Canada's application to expand its Jackpine oil sands mining
operations in Northern Alberta (the Project). The decision is
Métis Nation of Alberta Region 1 v Joint Review Panel,
2012 ABCA 352.
The Decision on Appeal
A number of aboriginal groups and individuals (the Applicants)
had requested that the Panel consider whether the Crown in right of
Alberta and in right of Canada had fulfilled its constitutional
obligations to consult with them in relation to the Project.
The Applicants argued that by virtue of the Panel's ability to
determine questions of constitutional law (pursuant to
Alberta's Administrative Procedures and Jurisdiction
Act) the Panel was required to assess the adequacy of Crown
consultation. However, on October 26, 2012, the Panel issued
a written decision concluding that it did not have the jurisdiction
to make this determination and that, in any event, it was neither
the appropriate forum nor the appropriate time to draw the
conclusions urged by the Applicants.
The Leave Application
The Applicants sought leave to appeal the Panel's decision
from the Alberta Court of Appeal, asserting, among other things,
that the Panel erred in deciding: 1) that it did not have
jurisdiction to determine whether the Crown fulfilled its
constitutional duty to consult; and 2) that it was premature for
the Panel to make a finding on consultation adequacy, in part
because the Panel process itself was a part of the consultation.
Justice Slatter considered the leave application with respect
to the first question only, as the second was not a question of law
(and thus could not be appealed according to Alberta's
Energy Resources Conservation Act).
In applying the test for leave to appeal outlined in Berger
v Alberta (Energy Resources Conservation Board), 2009 ABCA
158, Justice Slatter found that the jurisdictional issue was one of
"general importance" and that the Applicant's
assertions in this regard had "arguable merit."
However, he concluded that the answers to the constitutional
questions raised by the applicant aboriginal groups would not
affect the outcome of the Panel's process, and thus were not
significant to the hearing.
In that regard, the Court found that the Panel was entitled to
exercise its discretion to not consider the adequacy of the
Crown's consultation, an exercise of discretion that was not a
legal issue reviewable on appeal. Important to this
conclusion was the fact that the agreement between the provincial
Energy Resources Conservation Board and federal Canadian
Environmental Assessment Agency that established the Panel, and set
out its terms of reference, expressly stated that the Panel was not
required to make any determination as to whether the Crown met its
duty to consult.
The fact that the leave application was brought prior to the
completion of the Panel's process also weighed against granting
the applications, as it is generally inappropriate to grant leave
to appeal on interlocutory issues.
This decision is particularly significant to natural resource
industries where aboriginal groups are heavily involved in the
regulatory process. The Court has now clarified that where a
tribunal's ability to consider Crown consultation is
discretionary, its decision in that regard is not likely to be
subject to judicial interference.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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