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Amended Notice of Question of Constitutional Law – Prosper Petroleum Ltd. Rigel Project (AER Procedural Decision, Proceeding ID 350)

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Notice of Question of Constitutional Law


On June 22, 2017, Fort McKay First Nation (“FMFN”) filed a Notice of Question of Constitutional Law (the “Notice”) pursuant to the Administrative Procedures and Jurisdiction Act (“APJA”).

The panel wrote to the parties suspending the date for FMFN reply and asking the parties to provide comments regarding the relevance of two recent Supreme Court of Canada (“SCC”) decisions, Clyde River v. Petroleum Geo-Services Inc. and Chippewas of the Thames First Nations v. Enbridge Pipelines Inc., to the matters raised in the Notice. In its response to the Panel’s request for comment, FMFN asked that it be permitted to file an amended Notice, which was granted by the AER. FMFN filed an amended Notice on August 30, 2017.

In this decision, the AER panel determined that it could not consider the questions or refer them to court because:

(a)     FMFN did not satisfy the notice requirements of the APJA; and

(b)     FMFN did not raise questions of constitutional law that fell within the AER’s jurisdiction.

Notice

The AER explained that the APJA and its Designated Decision Maker Regulation (“DMR”) govern the AER’s consideration of a question of constitutional law. The AER found that the prescribed notice requirements under that scheme “are strict and compliance is mandatory.”

The AER explained that the notice requirements, set out in section 12 of the DMR, ensure that the responsible branch of government is notified of any Constitutional challenge so that it has a full opportunity to support the constitutional validity of their legislation or to defend its action or inaction.

No relief sought or specified

The AER noted that the Notice stated in the request for relief that FMFN was asking “… the AER form the opinion that the Court of Queen’s Bench of Alberta is a more appropriate forum to decide the questions.”

The AER panel found that FMFN’s Notice was deficient because it did not specify what relief FMFN sought nor did it describe a question for the AER to decide.

Conclusion

The AER panel concluded that the notice requirements in the APJA were not met and that the matters raised by the Notice did not fall within the AER’s jurisdiction. Because all of the threshold criteria must be met for the AER to consider a question of constitutional law and whether to refer it to Court and because the panel found that two of the notice criteria were not met, that was sufficient to dispose of the matter.

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