Kearl Oil Sands Project

75. In ACFN’s submission, even if one accepts the Crown’s position on the
informative nature of the proceeding, the Panel process can also be helpful to the
Crown by pointing out to it the manner in which consultation has been inadequate. If,
as Alberta argues, the Crown intends to rely upon the Panel as having “an essential
role” (para 44) in the consultation process, ACFN’s request that the Panel assess the
adequacy of Crown consultation to date is consistent with that objective.
76. Finally, as held by Iacobucci J. in Quebec (Attorney General) v. Canada
(National Energy Board), the power to decide questions of constitutional law implies the
obligation to ensure that decisions do not offend the constitution. In that case, the
Supreme Court of Canada considered whether the National Energy Board had any
fiduciary duty or consultation duty vis-à-vis First Nations in relation to its functions. The
Court held that the NEB, as a quasi-judicial decision maker, is obliged to ensure that its
decisions do not offend s. 35 of the Constitution Act, 1982:
It is obvious that the Board must exercise its decision-making function, including the interpretation
and application of its governing legislation, in accordance with the dictates of the Constitution,
including s. 35(1) of the Constitution Act, 1982. Therefore, it must first be determined whether this
particular decision of the Board, made pursuant to s. 119.08(1) of the National Energy Board Act,
could have the effect of interfering with the existing aboriginal rights of the appellants so as to
amount to a prima facie infringement of s. 35(1). [emphasis added] 70
77. This reasoning is directly applicable to ACFN’s constitutional question: the ERCB
must satisfy itself that any decision made under the OSCA or the ERCA does not offend
s. 35 of the Constitution Act 1982, by facilitating adverse impacts upon ACFN’s Treaty
rights, in the absence of adequate consultation and accommodation.
70 Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, [1994] S.C.J. No.
13 at para. 40.
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