Kearl Oil Sands Project

must consider evidence concerning these effects, and measures to manage, mitigate
and compensate identified effects on same. Evidence of Aboriginal and Treaty rights,
and adverse impacts on same, is at the heart of the scope of the duty to consult. While
the Panel Agreement does not require a determination regarding consultation, the
foundation for such a determination has been well laid. Subsection 6.3 of the
Agreement cannot reasonably be interpreted as excluding jurisdiction over such
questions, particularly in light of subsection 6.4. No such provisions were referenced in
the Osum decision.
82. Third, on the application by Cold Lake First Nation for leave to appeal the Osum
decision to the Court of Appeal, Alberta has argued that leave should be denied
because the issue is now moot. The ERCB similarly argued that the issue is no longer
significant because Cold Lake First Nation reached an agreement with the proponent,
removed its objection, and the Project has been approved. A decision from the Court of
Appeal on leave is still pending. 74
83. With respect, it is troubling that Alberta is encouraging the Panel to follow the
Osum decision while actively seeking to avoid judicial scrutiny of that decision by
arguing against leave to appeal the Osum decision not on its merits, but based on
mootness.
84. The mandate, or otherwise, of the ERCB and Joint Review Panels to assess
Crown consultation is a matter of paramount importance to First Nations and the public
generally. The Osum decision is a departure from previous ERCB and Panel decisions,
which acknowledged the ERCB’s jurisdiction to determine section 35 based questions
of constitutional law, including questions related to adequate consultation. 75 As
reviewed above, the soundness of the reasoning in Osum is subject to debate. To date,
the Court of Appeal has not considered this issue squarely or on the basis of full
74 Alberta and ERCB submissions to the Court of Appeal.
75 Imperial Oil Resources Ventures Ltd., EUB Decision 2007-113 at s. 4.1.6; see also ERCB Decision
Letter dated November 25, 2011 re MEG Energy Corporation Application No. 1571384 Re. Christina Lake
Phase 3 Project.
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