Canada: Aboriginal Newsletter - January 16, 2013



Métis Nation of Alberta Region 1 v. Joint Review Panel, 2012 ABCA 352, Court of Appeal of Alberta (Slatter J.A.), 26 November 2012

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 2011.

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 Crown.

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.

Decision available here.


The Winter 2012-13 issue of the Columbia contains the following articles and book reviews of potential interest:


Green, Michael K., "Father Joseph Joset's Campaign to Save the Salish from Smallpox"

Fisher, Andrew H., "Beyond the Boarding School" The Columbia River Indians' Dilemma over Formal Education


Danisi, Thomas C., Uncovering the Truth About Meriwether Lewis (Amherst: Prometheus Books, 2012, 466 pp.) – Reviewed by Happy Avery

Reid, John Phillip, Forging a Fur Empire: Expeditions in the Snake River Country, 1809-1824 (Norman, Okla.: Arthur H. Clark Company, 2011, 240 pp.) – Reviewed by Robert Carriker

Anderson, Steve A., Angus McDonald of the Great Divide: The Uncommon Life of a Fur Trader, 1816-1889 (Coeur d'Alene: Museum of North Idaho, 2011, 232 pp.) – Reviewed by Robert Carriker

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