Kearl Oil Sands Project

42. Furthermore, the core purpose of a Notice of Question of Constitutional Law is to
alert the Crown to a challenge to the constitutionality of a provision or enactment, and to
ensure that the Crown has a full opportunity to understand the questions raised in the
NQCL and to respond appropriately. 39 In some instances, the Crown is not yet a party
to the proceeding and only becomes a party upon receipt of the Notice. 40 To deny
jurisdiction on the basis that a Crown is not a proponent would render numerous
Notices without effect. This clearly undermines the intent and purpose of the Notice of
Question of Constitutional Law and the related provisions of the APJA.
43. Finally, there is nothing in the Supreme Court of Canada’s decision in Rio Tinto
that suggests the Commission would not have had the jurisdiction to assess the
adequacy of the Crown’s consultation if the proponent had been a third party. Indeed, in
determining whether a duty to consult existed, the Commission was required to consider
the test from Haida, which arose from forestry authorizations sought by a private
proponent – not the Crown.
iii) Panel is a Crown entity
44. The ERCB’s reasoning and decision in Osum overlooks the fact that the Panel
itself is a Crown entity. Like the tribunal in Carrier Sekani Tribal Council v. British
Columbia (Utilities Commission), while the Panel is a quasi-judicial tribunal bound to
observe the duty of fairness and to act impartially, it is also a creature of government,
subject to government direction on energy policy. Consequently, “[t]he honour of the
Crown requires not only that the Crown actor consult, but also that the regulatory
tribunal decide any consultation dispute which arises within the scheme of its
regulation.” 41
45. In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control
and Licensing Branch), the Supreme Court of Canada contrasted the ordinary courts
with administrative tribunals. The Court explained that administrative tribunals, unlike
39 Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3, ss. 10(d)(i)-(ii), 12 [APJA]; and
Imperial Oil Resources Ventures Ltd., EUB Decision 2007-113 at s. 4.1.6, p. 10.
40 APJA, s. 14.
41 Carrier Sekani, at para. 54 [underscore added].
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