The Athabasca Chipewyan First Nation and the Metis Nation of Alberta had asked the Alberta Court of Appeal to force a regulatory board to make a ruling on whether they had been adequately consulted on the massive project. They also wanted the board to rule on the issue before it made a decision on whether the project could go ahead.
But in a ruling released Monday, the court said the board was within its rights to refuse to deal with consultation, an aboriginal right guaranteed by the constitution.
"The Joint Review Panel is not required ... to make any determination as to the scope of the Crown's duty to consult ... or whether the Crown has met its respective duties to consult," wrote Justice Frans Slatter.
Slatter also agreed with Crown arguments that the panel's hearings on the Jackpine expansion were themselves part of the consultation process.
"As counsel for Shell put it," wrote Slatter, "the applicants' argument was essentially 'stop the consultation, because there hasn't been enough consultation.' "
But Athabasca Chipewyan spokeswoman Eriel Deranger said the band's don't consider the hearings to be consultation.
"The (board) says it's happening during this process," she said. "We don't feel it is happening."
She pointed out neither the provincial nor federal governments appeared before the regulatory board to give evidence as to whether the Crown's duty to consult had been carried out.
Because Slatter has upheld the board's decision not to look into the matter itself, Deranger said that means the board will make a Jackpine decision without anyone considering whether that duty has been fulfilled.
"Who has the jurisdiction to determine the adequacy of consultation?" she asked. "We don't really know.
"It's kind of become a bit of shell game."
Deranger said the bands are now considering whether to ask the Supreme Court to look at the issue.
Aboriginal consultation is becoming an increasingly thorny problem for the province.
The Tories' new energy bill, just passed last week, now specifically prohibits regulatory bodies from considering whether aboriginals have had enough input in development proposals.
In an attempt to provide some certainty, the province has produced a discussion paper that proposes a central consultation office that would give bureaucrats the final say over how much is enough. It would also include a matrix outlining different requirements for different types of developments.
That discussion paper was widely derided last week in a meeting between Aboriginal Relations Minister Robin Campbell and representatives of all the province's treaty groups.
The chiefs say it's not acceptable for government to determine appropriate levels of consultation on its own without input from those being consulted. They add the province's proposal reflects none of the numerous suggestions made over the years by First Nations.