Kearl Oil Sands Project
Kearl Oil Sands Project
Kearl Oil Sands Project
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35. It must also be noted that not providing any authority (“no specific section of any<br />
legislation was pointed out” 32 ) is much different from there being no legal basis for the<br />
proposition that the ERCB has a supervisory role.<br />
36. In any event, an important distinction must be made. There is a marked<br />
difference between the Panel assessing the Crown’s consultation record and the Panel<br />
supervising Crown consultation. The former requires that the Panel review the<br />
adequacy of Crown consultation and make a ruling on whether the Crown has<br />
discharged its duty to consult and accommodate the ACFN. The latter proposition<br />
denotes an ongoing role for the Panel in supervising the Crown. ACFN is asking for<br />
the former. The Panel can certainly rule that the Crown has not discharged its duty to<br />
consult and accommodate ACFN. The Panel can also determine that the proposed<br />
<strong>Project</strong> is not in the “public interest” unless and until the Crown has remedied any<br />
failures in its duties to consult and accommodate First Nations. Whether the Crown<br />
remedies any deficiencies is up to the Crown; the Panel need not play any further role.<br />
ii) Irrelevant whether the Crown is a party to application<br />
37. In Osum, as here, Alberta argued that the Board had no authority to determine<br />
the adequacy of Crown consultation as it had no jurisdiction over the Crown because<br />
the Crown was not a party to Osum’s application. 33 The Board accepted this argument<br />
and, in so doing, distinguished Rio Tinto on the basis that the proponent in Rio Tinto<br />
was accepted by the parties as being the Crown or a Crown agent. 34<br />
38. With respect, ACFN submits that it is legally irrelevant whether or not the<br />
proponent is the Crown or its agent as the duty to consult is always owed by the<br />
32 Dene Tha’, at para 28.<br />
33 ERCB, “Reasons for July 17, 2012 Decision on Notice of Question of Constitutional Law”, dated August<br />
24, 2012, at p. 2. See also: Preliminary Submissions by the Minister of Justice and the Attorney General<br />
of Alberta Respecting the Jurisdiction of the Energy Resources Conservation Board dated June 14, 2012<br />
at paras. 4,16.<br />
34 ERCB, “Reasons for July 17, 2012 Decision on Notice of Question of Constitutional Law”, dated August<br />
24, 2012, at p. 7.<br />
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