Kearl Oil Sands Project

contrary to Canada’s submission, the Panel should not place any weight on prior
consultation on other projects, including the original Jackpine application, as evidence
that Aboriginal groups have been, or will be consulted. The Panel must consider each
case separately and should not use past dealings as a reason to avoid assessing the
adequacy of consultation at this time.
IV. It is not premature to assess the adequacy of the Crown’s
consultation
62. It does not matter that consultation may not yet be complete or is still ongoing.
The Panel’s constitutional duty is to consider whether the Crown’s constitutional duty of
consultation has been fulfilled with respect to the subject matter of the application
before it. 62 That is, whether the Crown’s duty to consult and accommodate has been
met up to the point of the Panel’s decision. 63
63. The Panel cannot avoid the duty to consider the adequacy of the Crown’s
consultation on the basis that Alberta has put in place the Policy and Guidelines under
which it claims to retain the responsibility for making such determinations. 64 To suggest
that ACFN and other First Nations are free to put evidence before the Board as to the
adverse impacts of the Project on their rights and interests and then state the Crown’s
consultation efforts with regard to those impacts can be evaluated by Alberta at some
future date, “is to miss the point of the duty to consult.” 65
64. Alberta, following the ERCB decision in Osum, says that it would be premature
for the Panel to determine the adequacy of Crown consultation when a) this is all part of
a broader consultation process and there is more consultation on the way; and b) the
Panel process will provide the Crown with an opportunity to assess what further
consultation is required. Canada takes a different approach to the prematurity
argument, arguing that the Panel process is a planning tool which guides and informs
62 Kwikwetlem, at para. 13.
63 Ibid. at paras. 15, 70.
64 Ibid. at paras. 13-14, 67-70.
65 Ibid. at para. 67.
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