On November 26, 2012, the Alberta Court of Appeal denied several Aboriginal groups leave to appeal the Jackpine Joint Review Panel’s decision that it did not have to assess the adequacy of consultation and accommodation on the application before it (see our Bulletin). The Panel’s decision aligned with the earlier decision of the Alberta Energy Resources Conservation Board (ERCB) in Osum Oilsands Corporation in which the ERCB found that it lacked the jurisdiction to assess the adequacy of Crown consultation (see our Bulletin).

The Court of Appeal’s decision continues the current uncertainty as to who is responsible for assessing the adequacy of consultation and when this assessment needs to take place.

Background

The Court of Appeal was faced with an application for leave to appeal from a number of Aboriginal groups: the Métis Nation of Alberta Region 1, Métis communities near the proposed Shell Jackpine Mine project, and the Athabasca Chipewyan First Nation (the ACFN). The appeal arose out of the review of Shell’s proposed expansion of its existing Jackpine Mine, which would increase bitumen production by 100,000 barrels per day. Both the Métis Nation and the ACFN had filed Notices of Questions of Constitutional Law with the Review Panel, requesting that the Panel determine whether the federal and provincial Crowns had adequately discharged their duty to consult and accommodate them.

Ultimately, the Panel concluded that it did not have the jurisdiction to consider whether consultation had been adequate. Although the Panel found that it had the power to consider questions of law that were properly before it, it found that it could not consider the adequacy of consultation in this instance since there was no Crown conduct before it – distinguishing the Supreme Court of Canada’s decision in Rio Tinto v. Carrier Sekani Tribal Council, 2010 SCC 43 on this basis. The Panel went on to determine that, even if was wrong in this conclusion, the timing was inappropriate – the application before the Panel was still ongoing, and any assessment of the duty of consultation should be deferred until after the Panel proceeding was concluded.

Court of Appeal Decision

In considering the leave application, the Court of Appeal applied the six-part test for leave summarized in Berger v. Alberta (Energy Resources Conservation Board), 2009 ABCA 158.

In addressing the merits of the proposed appeal under the Berger test, the Court agreed that some of the Appellants’ arguments were potentially meritorious. In particular, the Court indicated that if the Panel had the jurisdiction to consider Shell’s application, this might be sufficient to confer the Panel with jurisdiction to consider all related constitutional issues. In addition, the Court noted that the Panel may have over-read the aspects of Rio Tinto addressing the responsibility of administrative tribunals in the duty to consult.

However, despite the potential merits of these arguments, the Court dismissed the leave applications on the basis that a determination at this point would not affect the outcome of the Panel’s hearing. From the Court’s perspective, the Panel had decided not to address the issues of adequacy of consultation at this time, which the Court found was a question of discretion that they were entitled to make. Given this, even a finding in the Appellants’ favour would not require the Panel to address the jurisdictional issues until after the hearing – and therefore would have no effect on the outcome. Finally, the Court referred to its general practice of not granting leave to appeal on interlocutory issues.

Implications

The Court of Appeal’s decision means that the uncertainty of who is responsible for considering the adequacy of consultation in Alberta remains unresolved. While an appeal of the Joint Review Panel’s decision may not have had broad application given the Panel’s terms of reference (which expressly provide that it is not required to make a determination on whether the Crown has satisfied its duty to consult), the Court’s decision to defer to the Panel’s discretion that it wouldn’t consider this question means that the answer to this question may be delayed even further in any given process.

It is important to note that this debate—the timing and responsibility for assessing the adequacy of consultation—is independent of the consultation that has actually occurred. This means that there is potential for the decision of an administrative body to be overturned not because there was inadequate consultation, but because the adequacy of the consultation wasn’t reviewed properly or at the right time. Pending a decision from the courts, project proponents and other applicants need to keep these issues in mind when planning their projects. Until a clear answer is provided, projects remain at risk for review regardless of the efforts at consultation.

Read the Court of Appeal’s decision.