Canada: Adequacy Of Crown Consultation Not Required To Be Determined By Joint Review Panel

Métis Nation Of Alberta Region 1 v. Joint Review Panel

In a decision released November 26, 2012, the Alberta Court of Appeal, in Métis Nation of Alberta Region 1 v. Joint Review Panel,1 dismissed an application by the Athabasca Chipewyan First Nation, and the Métis Nation of Alberta Region 1 and others,2 requesting leave to appeal a decision by the Joint Review Panel for Shell Canada's Jackpine Mine Expansion Project. The Panel had concluded that it did not have jurisdiction to consider whether the Crown had complied with its obligation to consult with aboriginal peoples.

BACKGROUND

Shell Canada ("Shell") had applied to amend its license to expand its Jackpine oil sands mine and related processing facilities near Fort McMurray (the "Jackpine Expansion Project"). Regulatory approval was required from the Energy Resources Conservation Board (the "ERCB") and the Canadian Environmental Assessment Agency.

In September 2011, the ERCB and the Federal Minister of the Environment entered into an agreement (the "Agreement") creating a joint review panel (the "Panel").3 The Agreement set out the Panel's mandate, providing that it must "discharge the responsibilities of the ERCB under the Energy Resources Conservation Act." The Agreement also addressed the scope of the Panel's mandate respecting aboriginal issues, and specifically stated that the Panel was not required to make any determinations as to whether the governments of Alberta and Canada (collectively, the "Crown") had met their respective duties to consult or accommodate.

The Panel scheduled a public hearing of Shell's application in October 2012. The Athabasca Chipewyan First Nation and the Métis Nation (collectively, the "Applicants") filed Notices of Questions of Constitutional Law (the "Constitutional Questions") which related to whether the Crown had discharged its constitutional obligations to consult with aboriginal groups. The Panel held a preliminary hearing to consider the scope of the Constitutional Questions that would be considered at the main hearing.

On October 26, 2012, the Panel issued its decision, declining to consider the Constitutional Questions (the "Decision").4 The Panel gave a number of reasons for its Decision, including that it did not have express statutory authority to consider the adequacy of Crown consultation. The Panel further held that even if it had jurisdiction to hear the Constitutional Questions, it would be premature to make a finding because Crown consultation was still underway and the Panel's report would constitute part of the consultation process.

The Applicants indicated that they intended to apply for leave to appeal the Panel's Decision and requested that the Panel adjourn the hearing to allow it to do so. On October 30, 2012, the Panel decided that the hearing would continue as scheduled.5

The Métis Nations and Athabasca Chipewyan First Nation applied to the Alberta Court of Appeal for leave to appeal the Panel's Decision on a number of issues related to the Panel's refusal to consider the adequacy of Crown consultation, including whether the Panel had erred in determining: a) that it did not have jurisdiction to hear these issues; and b) that even if it had jurisdiction, it would have been premature for it to make any findings on them.

DECISION

The Court of Appeal found that in light of the potentially conflicting views in its prior decision in Dene Tha' First Nation v. Alberta,6 in which it was held that the panel had no jurisdiction over the Crown's duty to consult, and the Supreme Court of Canada's subsequent decision in Rio Tinto,7 relied upon by the Applicants, there was sufficient arguable merit to warrant further consideration of the Panel's jurisdiction. As well, the Panel's statement that all of its jurisdiction has to arise from statute, and the extent to which there are any limitations on the Panel's general jurisdiction to consider constitutional questions that arise within its mandate, also raised issues of arguable merit.

However, in dismissing the applications, it was held that the determination of the Constitutional Questions would not have any effect on the outcome of the hearing before the Panel. It was clear from the Agreement that the Panel was not required to decide whether the Crown had met its duties to consult. As a result, even if the Court of Appeal were to conclude that the Panel had jurisdiction to consider the proposed Constitutional Questions, it was entitled not to do so at this stage.

The Panel's determination that it was premature to consider the proposed Constitutional Questions, in addition to not being a question of law and, therefore, not an issue for which leave to appeal may be granted, was entitled to great deference. There would be no point considering whether the Crown had complied with its duty to consult when the Crown itself acknowledged that it had not done so, and the Panel had concluded that the consultation process was continuing and that the hearing constituted part of that process.

The Court went on to confirm prior decisions holding that it is generally preferable to wait until the tribunal has finished its work before considering whether leave to appeal should be granted on any issues. As held, if there are issues to be appealed, it is much better that they be appealed all at once, and in the context of a specific decision or result, since the tribunal's ultimate decision might be acceptable to the applicants for leave to appeal.8

Finally, it was noted that the Applicants are not left without a remedy. If the Jackpine Expansion is ever set to proceed prior to the completion of the required consultation, the Applicants would be able to pursue their remedies against the Crown in the Court of Queen's Bench of Alberta, as the issuance of a permit for the Jackpine Mine Expansion Project would not have the effect of extinguishing the Crown's duty to consult.

IMPLICATIONS

While this decision is largely fact driven having regard to the express wording of the Agreement, and while no conclusive findings were made as to whether the Panel has jurisdiction to consider the adequacy of Crown consultation, the Court of Appeal nonetheless commented that under the Agreement, "[t]he Joint Review Panel is to 'discharge the responsibilities of the ERCB', and it is not obvious that the Board's ability to consider constitutional issues is limited."9 That said, in light of section 21 of Bill 2: Responsible Energy Development Act, which provides that the single Alberta Energy Regulator will have no jurisdiction with respect to assessing the adequacy of Crown consultation10 (the Alberta Energy Regulator is expected to be appointed by June 2013 – see page 2 of our November 2012 Bulletin), the ongoing debate as to whether the ERCB has jurisdiction to consider the adequacy of Crown consultation, at least in terms of energy developments, will apparently assume much less significance once the new Regulator has been appointed.

The Applicants have indicated that they may apply for leave to appeal to the Supreme Court of Canada. We intend to monitor any further developments in this matter very closely.

Footnotes

1 Métis Nation of Alberta Region 1 v. Joint Review Panel, 2012 ABCA 352, per Slatter, J.A. (Application heard November 9, 2012, Reasons for Decision filed November 26, 2012) (the "CA Decision").

2 The latter group was representing the interests of various Métis people who live near the Jackpine mine (collectively, the "Métis Nation").

3 To reduce duplication, the provincial and federal governments had enacted provisions to allow for the joint review of projects by federal and provincial agencies by entering into an agreement creating a joint review panel under section 22(3) of the Energy Resources Conservation Act, RSA 2000, c. E-10 (the "ERCA"), and section 40 of the Canadian Environmental Assessment Act, 2012 SC 2012, c. 19.

4 The Panel's decision may be found at: http://www.ceaa.gc.ca/050/documents/p59540/83073E.pdf .

5 The Panel's ruling in relation to the motion for an adjournment of the hearing may be found at: http://www.ceaa-acee.gc.ca/050/documents/p59540/83115E.pdf .

6 Dene Tha' First Nation v Alberta (Energy and Utilities Board), 2005 ABCA 68 at para. 28, 45 Alta LR (4th) 213, 363 AR 234.

7 Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650.

8 In para. 15 of the CA Decision, the Court of Appeal noted the Crown's position that issues of the adequacy of consultation have rarely arisen, because in the end it has almost always been possible to satisfy all of the outstanding aboriginal issues during the approval process.

9 See para. 10 of the CA Decision.

10 Section 21 of Bill 2: Responsible Energy Development Act, which received Royal Assent December 10, 2012, provides as follows: Crown consultation with aboriginal peoples 21 The Regulator has no jurisdiction with respect to assessing the adequacy of Crown consultation associated with the rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982.

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