On October 26, 2012, the Joint Review Panel considering Shell’s Jackpine Mine Expansion found that it did not have the jurisdiction to assess the adequacy of Crown consultation in respect of Shell’s Project. The Panel went on to find that, even if it did have this jurisdiction, a decision would be premature since consultation had not been completed. The Jackpine Panel’s decision comes on the heels of an earlier decision by the Alberta Energy Resources Conservation Board (ERCB) that it did not have the jurisdiction to assess the adequacy of Crown consultation on a similar application by Osum Oil Sands Corporation. (View Bulletin published October 22, 2012)

These decisions highlight a new arena that is emerging in Aboriginal law, regardless of whether consultation has taken place, who is responsible for assessing this – and when.

Background

The Joint Review Panel’s decision arose in the context of an application by Shell for an amendment to its existing Jackpine Mine approval. The amendment would add additional oil sands mining locations and related infrastructure and result in an increase in bitumen production of 100,000 barrels per day. The Joint Review Panel is also responsible for making recommendations to the federal Minister of the Environment under the Canadian Environmental Assessment Act, 2012 (CEAA 2012).

On October 1, 2012, the Athabasca Chipewyan First Nation (ACFN) and Métis Nation of Alberta Region 1 (Métis Nation) filed Notices of Constitutional Questions asking the Panel to determine whether the Crowns in Right of Alberta and Canada had adequately discharged their duty to consult and accommodate the ACFN and Métis Nation with respect to the potential effects of the Jackpine Mine expansion. (A Notice from a third Aboriginal group, the Fort McMurray #468 First Nation, was also filed but subsequently withdrawn.) In the absence of adequate consultation and accommodation the ACFN and Métis Nation asked the Panel to deny Shell’s application or to defer it until adequate consultation and accommodation had taken place.

On October 23, 2012, the Panel heard oral submissions on its jurisdiction to consider the Constitutional Questions. View the Proceedings at Hearing (PDF).

The Panel’s Decision

The Panel began its decision by setting out various extracts from the Supreme Court of Canada’s decision in Rio Tinto v. Carrier Sekani Tribal Council, 2010 SCC 43, which establishes the test for the role of administrative tribunals in the duty to consult. In short, the Supreme Court found that, depending on a statutory body’s mandate, a decision-maker could be required to carry out the duty to consult, assess the adequacy of consultation, undertake both tasks or neither. The statutory body’s role is determined by the express terms of its constituting statute or, in the absence of express provisions addressing this question, by inferring what was intended by reviewing the decision-maker’s powers as a whole, including the ability to address questions of law and the body’s remedial powers.

Based on the Supreme Court’s framework, the Panel concluded that it did not have the express statutory authority to consider the adequacy of consultation. The Panel then went on to consider whether they had the implied power to do so. While the Panel confirmed that they had the power to consider questions of law in relation to matters properly before it, the Panel distinguished Rio Tinto on the basis that there was no Crown conduct before it; effectively adopting the ERCB’s conclusion in Osum. The Panel went on to find that it also did not have the ability to grant a remedy that would require the Crown to fulfill its consultation obligations.

In the alternative, the Panel concluded that, even if it did have jurisdiction over the Constitutional Questions, it would be premature to make a decision on Shell’s application based on a finding that consultation had been inadequate when the Crown had acknowledged that it has a duty to consult and stated that it would continue to address this duty after the Panel proceeding was concluded. The Panel found that the appropriate time to assess the adequacy of consultation is when the Crown has concluded its consultation process. At that time, Aboriginal groups can decide if they are satisfied with the results of the consultation process or if they wish to seek a remedy to enforce the Crown's obligations to them.

The Panel concluded its decision by highlighting that, even though they had found that they did not have the jurisdiction to consider the adequacy of consultation, it would consider all evidence and argument relating to the potential effects of the Project on Aboriginal groups and individuals in accordance with its Terms of Reference.

View the Panel’s decision (PDF).

Discussion

The Joint Review Panel’s decision came a week after the Alberta Court of Appeal’s decision in Cold Lake First Nations v. Alberta. In Cold Lake, the Court of Appeal denied Cold Lake’s application for leave to appeal the ERCB’s Osum decision on the basis that the issue was moot (since Cold Lake had withdrawn its objection to Osum’s application). However, the Court expressly pointed to the fact that the issue was to be addressed by the Jackpine Panel as evidence that they expected the matter to be back before the Court in the near future.

It remains to be seen if the Athabasca Chipewyan or the Métis Nation Region 1 will seek to appeal the Joint Review Panel’s decision and, if so, when. If leave to appeal the Panel’s decision is sought and granted, it will be interesting to see if the Court of Appeal agrees with the Panel’s conclusion that there was no contemplated Crown conduct before it. As indicated in our bulletin on the Cold Lake decision, the Supreme Court of Canada concluded that the British Columbia Utilities Commission (BCUC) had the responsibility to consider the adequacy of consultation on the facts before it in that case.

There are distinctions between the Joint Review Panel’s Terms of Reference and the role of the BCUC in Rio Tinto, including the fact that the Agreement establishing the Panel expressly indicated that the Panel “is not required to make any determinations as to whether the Crown has met its respective duties to consult or accommodate in respect of rights recognized and affirmed by section 35 of the Constitution Act, 1982.” While the Review Panel did not rely heavily on this provision in its decision, it is difficult to see how it would have the responsibility to consider the adequacy of consultation in the face of this.

While offered as an alternative to the Panel’s primary conclusion, an interesting issue also arises in the context of the Panel’s further conclusion that, even if they had the jurisdiction, a conclusion on the adequacy of consultation at this time would be premature. In Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, the Supreme Court of Canada noted that consultation to the Environmental Assessment stage of a project could be reviewed for adequacy notwithstanding that other steps still needed to be taken in relation to the project.

Implications

Prior to the Supreme Court of Canada’s seminal decision in Haida, numerous court cases were argued on the basis that the Crowns did not have a duty to consult on the facts of the case; regardless of the consultation that had in fact occurred in any given circumstance. From a somewhat similar perspective, we are now seeing a steady stream of administrative decision-maker and court decisions addressing the role of various statutory bodies in the consultation process. Again this is regardless of the consultation that has taken place in any given circumstance, raising the possibility of an adverse decision even if the consultation undertaken were adequate.

The vast majority of statutes, including CEAA 2012, do not expressly address this question, leaving a decision-maker’s role up to interpretation. The court review of that interpretation can take many years, as it did in Haida, Taku, and Rio Tinto as those cases worked their way to the Supreme Court of Canada.

Even if a tribunal such as the Joint Review Panel is right in its assessment of its role, this does not end the inquiry. As pointed out by the Supreme Court of Canada in Rio Tinto, the duty to consult is a constitutional imperative and must be met: “If the tribunal structure set up by the legislature is incapable of dealing with a decision’s potential adverse impacts on Aboriginal interests, then the Aboriginal peoples affected must seek appropriate remedies in the courts.” Given this, the question arises: if a specific tribunal does not have the power to assess consultation, where and when will this assessment take place in the Crown process in relation to any given decision? Since there must be a venue to consider the adequacy of consultation in relation to Crown conduct, if it is not the specialized tribunal, it will—by necessity—be the Courts.

In the meantime, project proponents and other applicants will have to carefully consider these issues in their own processes. It seems likely that this issue will not be conclusively resolved by the courts, or the legislatures, any time soon.