Kearl Oil Sands Project

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.
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