Métis Nation of Alberta Region 1 v. Joint Review
Panel, 2012 ABCA 352, Court of Appeal of Alberta (Slatter J.A.), 26
A justice of the Alberta Court of Appeal dismissed an
application by various Aboriginal groups, including the
Métis Nation of Alberta Region 1, for leave to appeal an
interlocutory decision made by a Joint Review Panel created to
review an application for the Jackpine Mine Expansion Project.
Shell Canada operates the Jackpine oil sands mine and related
facilities near Fort McMurray, Alberta. It applied to amend its
license to expand the mine and increase the capacity of the
facility. It requires approval from both provincial and federal
authorities for the expansion. A joint review panel was created
under the provincial Energy Resources Conservation Act and the
federal Canadian Environmental Assessment Act in September
The agreement establishing the Panel specifically dealt with the
scope of the Panel's mandate respecting Aboriginal issues. It
is clear that the Panel is to consider Aboriginal issues as part of
its mandate. However, clause 6.3 stated that the Panel is
"not required" to make any
determinations relating to the validity of Aboriginal or treaty
claims, or "whether the Crown has met its respective
duties to consult or accommodate".
Prior to a hearing in October 2012, the Métis Nation and
the Athabasca Chipewyan First Nation filed Notices of Questions of
Constitutional Law. The Joint Review Panel agreed to hold a
preliminary hearing to consider the scope of the constitutional
issues. On 26 October 2012, the Panel made a decision declining to
consider the question of whether the Crown (federal and provincial)
had discharged their obligations to consult. The Panel held that
its authority related to approval of the Project, and there was no
express grant of authority to consider the adequacy of Crown
consultation. The terms of the Agreement stated that the panel was
not obliged to consider the issue. Even if the Panel had
jurisdiction over the issue, it was premature to make a finding
since Crown consultation was still underway.
The Aboriginal groups sought leave to appeal the 26 October
decision, and the Panel hearings were adjourned. Slatter J.A.
dismissed the leave application.
Slatter J.A. held that there was sufficient merit in the
appellants' proposed appeal to satisfy the test for granting
leave. It was not obvious as to why the Panel would not have
jurisdiction over the constitutional issues raised. It was arguable
that the Panel's decision involves an
"over-reading" of the Rio Tinto case.
However, the Court also found that the determination of the
proposed questions would not have any effect on the outcome of the
hearing. The Panel is not required to consider the Crown's duty
to consult when determining whether the mine expansion is in the
public interest Slatter J.A. seemed to accept the arguments of the
respondents that the Panel hearing itself was part of the
consultation process, and that the proposed appeal was tantamount
to: "stop the consultation, because there hasn't
been enough consultation". The Court held that the
Panel's decision about prematurity is not a question of law,
and is not subject to appeal.
The Panel's decision was interlocutory in nature, and it is
generally inappropriate to grant leave on such issues. It is
preferable to wait until the tribunal has completed its work.
Slatter J.A. disagreed with the appellants' submission that the
decision of the Panel is essentially final. The issuance of a
permit by the Panel does not extinguish the Crown's duty to
consult. The appellants can still seek their remedies against the
Slatter J.A. concluded that the issues raised by the appellants
are "interesting in the abstract", but
it would not be appropriate to grant leave to appeal. The
applications were dismissed.
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