April 11th, 2013 Edmonton, AB- This morning the Supreme Court of Canada released its decision to not hear the Athabasca Chipewyan First Nation’s (ACFN) appeal of the Joint Review Panel’s refusal to hear ACFN’s Section 35 constitutional challenge of Shell Oil Canada’s Jackpine Mine expansion project.
“We know that approximately only one out of ten applications are heard by the Supreme Court of Canada. However, we are truly disappointed with this decision as we have diligently proceeded through legal avenues to have our rights upheld,” said Chief Allan Adam, Athabasca Chipewyan First Nation. “We understand that this Joint Review Panel was supposed to uphold everyone’s constitutional rights; why has there been an exception with regards to First Nations’ consultation rights? Government must be held accountable to their Treaty obligations. ”
In October 2012, ACFN put forth a constitutional challenge asking the Joint Review Panel to decide whether Crown consultation on the Shell application was good enough. The project would result in direct and adverse effects on ACFN’s ability to continue its treaty and associated aboriginal rights to hunt, fish, trap and gather protected by the Canadian Constitution Act, 1985, section 35 and Treaty No. 8.
On October 26 the Joint Review Panel ruled that they did not have the jurisdiction to consider ACFN’s constitutional questions and that in any event a determination of Crown consultation would be premature. Following this decision ACFN filed a motion to adjourn the hearings; the motion was denied leaving no other option but to file a motion for a stay and a motion for leave to appeal to the Alberta Court of Appeal. On November 26, 2012 the Athabasca Chipewyan First Nation received a decision from the Alberta Court of appeal dismissing their application for leave to appeal.
ACFN filed an appeal of the Alberta Court of Appeal’s decision with the Supreme Court of Canada in January 2013.
A decision not to hear a case means the Supreme Court doesn’t think the issue is “nationally important”. It does not mean that the Court is saying that the Alberta Court of Appeal got it right. For example, in 2012 the SCC declined to hear an appeal of the Alberta Court of Appeal’s decision that ACFN’s challenge to the granting of oil sands leases around Poplar Point Reserve was barred by a limitation period. However, in its recent decision on the Manitoba Metis’ Federation’s Land Claim, the SCC said that “limitations acts cannot prevent the courts from issuing a declaration on the constitutionality of the Crown’s conduct” – this was precisely the type of relief ACFN sought in its Poplar Point judicial review.
The ACFN also stressed that the Supreme Court of Canada has already ruled in the Rio Tinto decision that so long as a tribunal has been given the power to determine questions of law and public interest, it will be able to decide constitutional questions before it, such as assessing the adequacy of consultation, unless this power has been specifically removed from its jurisdiction by the legislature.
The ACFN argues the devolution of consultation in the province is failing First Nations. Court challenges to the many operational decisions that happen at the end of the oil sands application process will be too late, and difficult to manage because the challenges would have to be brought in three different courts. This leaves bodies such as the Joint Review Panelto be more appropriate and, given their early strategic decision making, close relationship and access to information on projects being reviewed, also the best equipped to provide independent review of Crown efforts arising from its Treaty 8 obligations.
“We do not know the reasons why the Supreme Court did not grant ACFN hearing, it is clear that we will not find access to justice within Alberta,” stated Adam. “We will have to decide if we move ahead with different legal strategies to uphold our rights.”
For more information:
Chief Allan Adam, ACFN 780-713-1220
Eriel Deranger, Communications Coordinator ACFN 780-903-6598
Eamon Murphy, Legal Council 250-383-2356.