On October 26, 2012, the Joint Review Panel (the “Panel”) established to review the Jackpine Mine Expansion Project (the “Jackpine Project”) found that its statutory jurisdiction does not include the authority to adjudicate the adequacy of the Crown’s consultation with First Nations. As interested parties in the proceeding, the Athabasca Chipewyan First Nation, Fort McMurray #468 First Nation and Métis Nation of Alberta Region 1 filed notices of questions of constitutional law (“NQCLs”) all centering around whether the Crown in the right of the Alberta and/or Canada had adequately discharged the Crown’s duty to consult Canada’s aboriginal peoples in respect of the Jackpine Project.
Having been asked to review the Crown’s actions, the Panel first considered whether it had the necessary statutory jurisdiction to assess the adequacy of Crown consultation. The Panel reviewed the Supreme Court of Canada’s decision in Rio Tinto that the power of an administrative tribunal to decide questions of law implies a power to decide constitutional issues that are properly before it. Applying that principle to the facts of the proceeding before it, the Panel found that it had the jurisdiction to decide constitutional issues pursuant to the Energy Resources Conservation Act (“ERCA”) provided they were related to matters that were properly before the Panel or were related to the Panel’s statutory mandate. Turning to the ERCA for guidance on the duties it held, the Panel found that it does not have an express grant of statutory authority to consider the adequacy of Crown consultation in relation to the Jackpine Project. The Panel then considered whether it had an implied duty to do so. The Panel found that this case was distinguishable from the situation in Rio Tinto because unlike in that case, there was no Crown conduct being contemplated within the proceeding. The proponent was not a Crown agent. Neither of the Crown actors were involved in the proceeding before the Panel. And lastly, of the parties forming the Panel, the Canadian Environmental Assessment Agency was not exercising a decision-making function and the Energy Resource Conservation Board is not the Crown. The Panel further noted that it lacked the necessary remedies to require the Crown to consult. The Panel went on to state that even if it did have the jurisdiction to assess the adequacy of consultation, it would be premature to make a finding in this regard given the ongoing nature of the consultation for the Jackpine Project.
It is possible, if not probable, that this is not yet the final word on this issue. As some will recall, the same issue was also raised before the Alberta Court of Appeal by the Cold Lake First Nations in their application for leave to appeal a similar finding made by the ERCB in respect of a bitumen recovery project within that First Nation’s treaty territory. The Court of Appeal declined leave in that case as the proponent and the First Nation had reached an agreement on the project and therefore the necessary factual basis to decide the issue no longer existed. In rendering its decision, however, the Court of Appeal made note of the fact that this issue was arising again in the Jackpine Project proceeding, and hinted that the issue may end up back before the courts, calling it clearly an issue of public interest.