Kearl Oil Sands Project

28. Further, the object of the ERCA includes controlling pollution and ensuring
environmental conservation, and the Panel’s mandate here is to consider whether the
project applied for is in the public interest. 25 ACFN’s constitutional question arises from
the anticipated impacts of the Project on the environment, upon which ACFN depends
for the exercise of its section 35 rights. Approval of a project that would impact such
rights would not be in the public interest, and approval cannot be made by the Panel
without first considering whether the Crown has adequately consulted and
accommodated ACFN with respect to the potential adverse impacts.
29. In summary, given the Panel’s mandate found in the Terms of Reference, the
plain wording of the Regulation and the clear decisions of the Supreme Court of
Canada, there is no legal basis to find that the Panel has the power to decide only some
constitutional questions but not the NQCL submitted by ACFN in this matter.
30. On point, the Alberta Court of Appeal has confirmed that the ERCB has the
jurisdiction to hear and decide Charter issues raised in the course of its proceedings. 26
As the Supreme Court of Canada held in Paul, “[t]here is no persuasive basis for
distinguishing the power to determine s. 35 questions from the power to determine other
constitutional questions, such as … a right under the Charter”. 27
c) Panel Jurisdiction over Alberta
i) Taking a supervisory role
31. In Osum, the Board cited the Alberta Court of Appeal in Dene Tha’ First Nation v.
Energy and Utilities Board (Alta.) 28 (“Dene Tha’”) for the proposition that the Board’s
predecessor, the Alberta Energy & Utilities Board, had no supervisory role over Alberta
25 ERCA, ss. 2(d), 3.
26 Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 52 at paras. 17-19 [Kelly].
27 Paul, at para. 37.
28 2005 ABCA 68.
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