The Alberta Court of Appeal has denied leave to appeal the Jackpine mine expansion Joint Review Panel’s finding that it lacks jurisdiction to decide whether the federal and provincial governments have discharged their constitutional obligations to consult with aboriginal groups.
In a decision released last Monday, the ABCA found that granting leave would be inappropriate because the decisions on appeal would not affect the outcome of the Joint Review Panel hearing. The Court found that even if the Panel had such jurisdiction, the jurisdiction would have to be exercised in accordance with the Panel’s mandate. The Agreement between the Federal and Provincial Crowns and the Energy Resources Conservation Board that established the Joint Review Panel had clearly mandated that the Panel was not required to make decisions in respect of the satisfaction of consultation obligations. The Court also rejected the aboriginal groups’ argument that the ability to consult would be lost after the Joint Review Panel issued its decision, noting that an ERCB license does not extinguish the Crown’s consultation obligations, and therefore the groups would have remedies against the Crown if such requirements were not met.
The ABCA also denied leave to appeal an interlocutory question prior to the completion of the Joint Review Panel hearing.