IN THE MATTER OF THE ENERGY RESOURCES CONSERVATION ACT R.S.A. 2000, C. E-10; AND THE OIL SANDS CONSERVATION ACT, R.S.A. 2000, C. 0-7; AND IN THE MATTER OF THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT, S.C. 1992, c.37; AND IN THE MATTER OF A JOINT PANEL REVIEW BY THE ALBERTA ENERGY RESOURCES CONSERVATION PANEL AND THE GOVERNMENT OF CANADA; AND IN THE MATTER OF ERCB APPLICATION No. 1554388 and CEAR No. 59540, JACKPINE MINE EXPANSION, FORT MCKAY, ALBERTA SUBMISSION BY ATHABASCA CHIPEWYAN FIRST NATION AS REPRESENTED BY WOODWARD & CO. LAWYERS LLP in response to the October 12, 2012 letter from Counsel to the Joint Review Panel to Shell Canada Energy and the Parties Submitted to: Joint Review Panel Energy Resources Conservation Board 160 Elgin Street, 22nd Floor Place Bell Canada Per: Gary Perkins & Meighan LaCasse Ottawa, Ontario K1A 0H3 Counsel for the Joint Review Panel Attention : Jill Adams, Panel Manager Email: Email : [email protected] Submitted by: Athabasca Chipewyan First Nation Per: Jenny Biem & Eamon Murphy Woodward & Co. Lawyers LLP Counsel for Athabasca Chipewyan First Nation 2nd Floor, 844 Courtney Street Email: Victoria, BC V8W 1C4 Jurisdiction of the Panel to determine the questions in the NQCL I. Introduction 1. The Athabasca Chipewyan First Nation (“ACFN”) submitted to the Joint Review Panel (the “Panel”) on October 1, 2012 its Notice of Question of Constitutional Law (the “NQCL”). In the NQCL, the ACFN asked the Panel to determine whether each of the Crown in right of Alberta, and the Crown in right of Canada, have discharged the duty to consult and accommodate ACFN with respect to the potential adverse effects of Shell’s Jackpine Mine Expansion (the “Project”) on ACFN’s treaty rights. 2. Alberta applied to the Panel, by letter dated October 9, 2012, for an order dismissing ACFN’s NQCL. Shell wrote to the Panel on October 11, 2012 in support of Alberta’s application. 3. The Panel, by way of correspondence to all parties dated October 12, 2012, requested submissions on matters relating to the NQCLs that may bear on the Panel’s jurisdiction. Alberta and Shell provided additional submissions on jurisdiction on October 15, 2012 and Canada provided submissions on October 15, 2012. 4. ACFN’s submissions herein are in response to Alberta’s letter of October 9, 2012, Shell’s letter dated October 11, 2012, the Panel’s letter dated October 12, 2012, Alberta’s additional submissions, particularly paragraphs 33-50 and 62-63, Shell’s additional submissions and Canada’s submissions of October 15, 2012. 5. ACFN submits that the governing legislation, the Panel’s mandate, and the relevant Supreme Court of Canada’s decisions, all make it clear that the Board has the jurisdiction and the responsibility to assess the adequacy of Crown consultation and accommodation in determining Shell’s application for approval of the Project. [ 1 ] Table of Contents I. Introduction ............................................................................................................. 1 II. Jurisdiction of the Board ....................................................................................... 2 a) According to the Panel’s mandate, the governing legislation and the Supreme Court of Canada .................................................................................................... 2 b) With reference to the Public Interest ..................................................................... 8 c) Panel Jurisdiction over Alberta ............................................................................ 10 i) Taking a supervisory role ................................................................................. 10 ii) Irrelevant whether the Crown is a party to application ...................................... 12 iii) Panel is a Crown entity .................................................................................... 14 III. The Panel is the Proper Forum to Decide Consultation Questions .............. 16 IV. It is not premature to assess the adequacy of the Crown’s consultation .... 20 V. Judicial Comity and Stare Decisis ...................................................................... 25 VI. Summary of submissions as they relate to the Panel request of October 12, 2012. ................................................................................................................... 27 i) Adequacy of the NQCL .................................................................................... 27 ii) Extent to which the reasoning in the Osum decision should apply in this case 27 iii) Whether the Panel should assess the adequacy of consultation at the outset of the hearing ....................................................................................................... 27 iv) Whether the Court of Queen’s Bench is the more appropriate forum for some or all of the issues ................................................................................................ 28 VII. List of Authorities .............................................................................................. 29 II. Jurisdiction of the Board a) According to the Panel’s mandate, the governing legislation and the Supreme Court of Canada 6. To determine the Panel’s mandate and jurisdiction in this matter, reference must be made to three sources: the Amended Agreement To Establish a Joint Review Panel for the Jackpine Mine Expansion Project (the “Terms of Reference”); the Administrative Procedures and Jurisdiction Act (“APJA”), and; the Designation Of Constitutional Decision Makers Regulation (Alberta Regulation 69/2006) (the “Regulation”). 7. The Terms of Reference, which the ERCB agreed to, provide: 6.1 The Joint Review Panel may receive information from Aboriginal groups related to the nature and scope of asserted or established Aboriginal and treaty rights in the area of the project, as well as information on the potential adverse environmental effects that the project may have on asserted or established Aboriginal and treaty rights. The Joint Review Panel may also receive information provided in this regard by other participants, federal authorities or government, and provincial departments or government. 6.2 The Joint Review Panel shall reference in its report: a. the information provided by participants regarding the manner in which the project may adversely affect asserted or established Aboriginal and treaty rights; and b. the information provided by participants regarding the strength of claim in respect of Aboriginal and treaty rights asserted by a participant, including information about the location, extent, bases and exercise of those asserted Aboriginal and treaty rights in the area of the project. For the purposes of its report, the Joint Review Panel shall document claims of Aboriginal and treaty rights as presented by participants and consider the effects of the project on the Aboriginal and treaty rights so presented. The Joint Review Panel may use this information to make recommendations that relate to the manner in which the project may adversely affect the Aboriginal and treaty rights asserted by participants. 6.3 Notwithstanding articles 6.1 and 6.2, the Joint Review Panel is not required by this agreement to make any determinations as to: a. the validity of Aboriginal or treaty rights asserted by a participant or the strength of such claims; b. the scope of the Crown’s duty to consult an Aboriginal group; or c. 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. [ 2 ] 6.4 Nothing in this article 6 limits the application of Part 2 of the Administrative Procedures and Jurisdiction Act to the ERCB, and the Joint Review Panel (in its capacity as a division of the ERCB) remains at all times subject to the requirements of, and entitled to exercise the powers under Part 2 of the Administrative Procedures and Jurisdiction Act, including but not limited to section 13 thereof. (emphasis added) 8. Alberta’s submissions omit any reference, at all, to the Terms of Reference. Canada’s submissions quote section 6 (see paragraphs 6 and 88) but omit any reference to subsection 6.4. Subsection 6.4 is fundamental to determining whether the Panel can assess the adequacy of the Crown’s duty to consult; any restrictions that may have been placed on the jurisdiction of the Panel are removed. 9. The APJA provides, under Part 2: 10 (d) “question of constitutional law” means (ii) a determination of any right under the Constitution of Canada or the Alberta Bill of Rights. Lack of jurisdiction 11 Notwithstanding any other enactment, a decision maker has no jurisdiction to determine a question of constitutional law unless a regulation made under section 16 has conferred jurisdiction on that decision maker to do so. (emphasis added) 10. The Regulation provides: Authorization 2 The decision makers listed in column 1 of the Schedule have jurisdiction to determine the questions of constitutional law set out opposite them in column 2. Schedule 1: Workers’ Compensation questions of constitutional Board law arising from the federal or provincial distribution of powers under the Constitution of Canada Energy Resources all questions of Conservation Board constitutional law [ 3 ] 11. The Alberta Hansard proceedings1 dated March 21, 2005 set out the rationale for amendments to the APJA, in part arising out of the Supreme Court of Canada decision Paul v. British Columbia (Forest Appeals Commission), a case centered on section