Alberta Court of Appeal Leaves Question of ERCB’s Jurisdiction to Assess Crown Consultation to Another Day

The Alberta Court of Appeal has denied the Cold Lake First Nations’ (CLFN) application to appeal a decision by Alberta’s Energy Resources Conservation Board (ERCB) that it did not have the jurisdiction to determine the adequacy of Crown consultation in respect of a bitumen recovery project within the CLFN’s treaty territory. The ERCB held that although it has the authority to consider questions of constitutional law generally, it does not have the authority to consider all questions of constitutional law – its authority is limited by the scope of its mandate, which does not include assessing and supervising Crown conduct. The CLFN applied for leave to appeal the finding despite ultimately having reached an agreement with the proponent on the project. The CLFN submitted that although it no longer opposed the project, there remained merit in pursuing an appeal as the ERCB’s jurisdiction in respect of Crown consultation was a matter of public interest. The ERCB, Alberta and Canada opposed the application for leave on the basis that important questions, such as the constitutional one raised in this case, should not be decided in a factual vacuum. In addition, these parties filed evidence that the issue of assessment of Crown consultation was in the process of being put back before the ERCB through a Notice of Question of Constitutional Law filed by the Athabasca Chipewyan First Nation in the context of the joint review proceeding for Shell Canada’s Jackpine Mine Expansion Project.

The Court took note of this fact, commenting that through the Jackpine Mine Expansion Project review process, the issue will come back before the ERCB in the context of a “concrete dispute”. Ultimately, the Court accepted that the issue at the heart of the appeal was one of public interest, but found that the necessary factual basis in which questions of jurisdiction and treaty interpretation should be decided did not exist in the present case.

The Court of Appeal’s decision is by no means the final word on this issue. Given the evidence put before the Court, it appears that this issue will once again be put before the ERCB, through its role in the Joint Review Panel assessing the impacts of the Jackpine Mine Expansion project, and will likely end up back at the Court of Appeal, though the nuances of the issue may be affected by its consideration in the context of a Joint Review Panel proceeding. The Court of Appeal’s comments in this application regarding the importance of the question and the need for it be considered in the context of a relevant fact situation suggest that the result may be different the next time leave is sought on this question.


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