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 reported as 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, 2010, 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.