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Cold Lake First Nations v. Alberta (Energy Resources Conservation Board)

Country/Territory
Canada
Type of court
National - higher court
Date
Oct 18, 2012
Source
UNEP, InforMEA
Court name
Court of Appeal of Alberta
Seat of court
Edmonton
Judge
Berger, R.
Reference number
2012 ABCA 304
Language
English
Subject
Mineral resources, Legal questions
Keyword
Mining Constitutional law Traditional rights/customary rights Indigenous peoples
Abstract
Osum Oil Sands Corporation (Osum) applied to theAlberta Energy Resources Conservation Board (ERCB)for approval of a bitumen recovery scheme near Cold Lake, Alberta. The Cold Lake First Nation (CLFN) objected to Osum’s application and filed a Notice of Question of Constitutional Law, asking the ERCB to determine whether Alberta had discharged its duty to consult and accommodate the CLFN with respect to Osum’s project. The CLFN took the position that Alberta had not met its duty and, therefore, the project was not in the public interest. The ERCB decided that, while it has the power to decide constitutional questions, it does not have the jurisdiction to answer every constitutional question posed to it. In this case a member of industry, and not the Crown, was the applicant. The ERCB concluded that its mandate to review Crown consultation with respect to Aboriginal and treaty rights does not extend to circumstances where the proponent is not the Crown or an agent of the Crown. The following day, the CLFN reached an agreement with Osum and withdrew its objection to Osum’s project. Despite reaching an agreement with Osum, the CLFN sought leave to appeal the ERCB’s decision to the Alberta Court of Appeal. While the Court agreed that the question of whether the Crown has met its duty to consult was clearly an issue in the public interest, it decided that it wouldn’t exercise its discretion to answer the CLFN’s question. The Court noted that consultation between the CLFN and other First Nations and government is ongoing. Given this, the Court felt that there would likely be a matter that engages the same question in the near future. To emphasize this point, the Court appended to its decision similar notices of constitutional questions from the Athabasca Chipewyan First Nation and the Fort McMurray First Nation to be heard by the Canadian Environmental Assessment Agency’s and ERCB’s Joint Review Panel in Shell’s Jackpine mine expansion on October 23, 2012. The Court further highlighted that it is generally hesitant to decide important constitutional questions in a factual vacuum, specifically noting that jurisdictional questions cannot always be divorced from the underlying factual matrix. Based on this concern and others, the Court declined to grant leave.
Full text
COU-159834.pdf