Supreme Court of Canada

Athabasca Tribal Council v. Amoco Canada Petroleum Co. Ltd. et al., [1981] 1 S.C.R. 699

Date: 1981-06-22

The Athabasca Tribal Council Appellant;

and

Amoco Canada Petroleum Company Ltd., Chevron Standard Limited, Dome Petroleum Limited, Gulf Canada Resources Inc., Hudson’s Bay Oil and Gas Company Limited, Pacific Petroleums Limited, Petrofina Canada Ltd., Shell Canada Resources Limited and Shell Explorer Limited

and

The Energy Resources Conservation Board of Alberta Respondents;

and

The Attorney General for the Province of Alberta Intervener.

1980: December 4 and 5; 1981: June 22.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA

Administrative law—Jurisdiction—Boards—Regulation of energy and energy resources—Affirmative action program—Whether or not Board had jurisdiction to make energy project approval conditional on inclusion of affirmative action project.

Civil rights—Discrimination—Affirmative action program—Racial criteria—Whether or not affirmative action criteria in breach of Alberta’s Individual’s Rights Protection Act—The Oil and Gas Conservation Act, R.S.A. 1970, c. 267, ss. 5, 43(1), (2), (3)—The Energy Resources Conservation Act, 1971 (Alta.), c. 30, ss. 2, 24(1), (2), 42(1)—The Individual’s Rights Protection Act 1972 (Alta.), c. 2, ss. 6(1), 7(1), (2), 11.1(1), (2), (3).

This was an appeal from a judgment of the Alberta Court of Appeal dismissing appellant’s appeal from a decision of the Energy Resources Conservation Board. The Board, although sympathetic to the wishes of the native peoples, had determined that it did not have jurisdiction under s. 43 of The Oil and Gas Conservation Act, or otherwise, to prescribe the implementation of an “affirmative action program” as a condition of its approval of a tar sands plant proposed by the respondent

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companies. Appellants contended that the Court of Appeal erred in holding that the Board did not have jurisdiction and that the affirmative action program would be in breach of The Individual’s Rights Protection Act.

Held: The appeal should be dismissed.

Per Laskin C.J. and Ritchie, Dickson and McIntyre JJ.: The Energy Resources Conservation Board did not have jurisdiction to prescribe the implementation of an affirmative action program as a condition of approval of a tar sands plant pursuant to The Oil and Gas Conservation Act. The Board’s jurisdiction was governed by statute and was limited by the purposes of those statutes to the regulation and control of energy resources and energy in Alberta. To extend the Board’s powers to include the responsibility for the social welfare of the inhabitants in natural resource areas, and therefore the affirmative action program, would require express language. The references to “the public interest” in The Energy Resources Conservation Act and The Oil and Gas Conservation Act were not a sufficient indication of the legislature’s intention to endow the Board with authority to recommend the affirmative action program.

The issue of whether or not the proposed affirmative action program breached The Individual’s Rights Protection Act, while not necessary to the determination of the appeal, warranted discussion. The Act would not be breached by such a program based on racial criteria. If the words “all persons are equal in dignity and rights without regard to race”, found in the Act’s preamble, were to have meaning and significance, the statute could not be read in a way to result in the very opposite effect of the declared purpose. The measures proposed by the affirmative action program should not be construed as “discriminating against” other inhabitants. The plan was not to displace non-Indians from their employment, but rather to advance the lot of Indians so that they could be in a competitive position to obtain employment without regard to the handicaps which their race inherited.

Per Martland, Beetz, Estey, Chouinard and Lamer JJ.: The Energy Resources Conservation Board, for the reasons given by Ritchie J., did not have jurisdiction to prescribe the implementation of an “affirmative action program” as a condition of approval of a tar sands plant pursuant to s. 43 of The Oil and Gas Conservation Act. This conclusion disposed of the appeal making it unnecessary to deal with the question of whether or not the

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proposed “affirmative action program” would constitute discrimination against non‑Indians contrary to s. 6(1) of The Individual’s Rights Protection Act.

Regents of the University of California v. Bakke, 98 S.Ct. 2733 (1978); United Steelworkers of America v. Weber, 99 S.Ct. 2721 (1979), distinguished.

APPEAL from the judgment of the Alberta Court of Appeal[^1], dismissing an appeal from a decision of the Energy Resources Conservation Board. Appeal dismissed.

Kenneth E. Staroszik, for the appellant.

D.O. Sabey, Q.C., and Brian O’Ferrall, for the respondents Amoco Canada Petroleum Company Ltd., Chevron Standard Limited, Dome Petroleum Limited, Gulf Canada Resources Inc., Hudson’s Bay Oil and Gas Company Limited, Pacific Petroleums Limited, Petrofina Canada Ltd., Shell Canada Resources Limited and Shell Explorer Limited.

Michael J. Bruni and Keith F. Miller, for the respondent the Energy Resources Conservation Board of Alberta.

B.A. Crane, Q.C., for the intervener the Attorney General for the Province of Alberta.

The judgment of Laskin C.J. and Ritchie, Dickson and McIntyre JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of Alberta dismissing the appellant’s appeal from a decision of the Energy Resources Conservation Board of Alberta (the Board) whereby it was determined that the Board did not have jurisdiction under s. 43 of The Oil and Gas Conservation Act, R.S.A. 1970, c. 267, or otherwise to prescribe the implementation of an “affirmative action” program as a condition of its approval of a tar sands plant proposed to be created by the respondent corporations (hereinafter collectively referred to as Alsands) in the Fort McMurray region of Alberta.

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The facts giving rise to this appeal are accurately stated in the reasons for judgment of Mr. Justice Laycraft speaking on behalf of the majority of the Court of Appeal of Alberta and it appears to me to be desirable to reproduce the following excerpts from those reasons which are now conveniently reported in 1980 ABCA 141, [1980] 5 W.W.R. 165 at pp. 167 and 168:

The respondent oil companies joined together in a project known as “the Alsands Project” to manufacture synthetic crude oil from the bitumen deposits in the tar sands located in northeastern Alberta. The scale of the project is indicated by the proposed expenditure of more than 4 billion dollars (in 1978 dollars) on the required facilities. They applied to the ERCB under s. 43… of the Oil and Gas Conservation Act, R.S.A. 1970, c. 267, for approval of the project. The procedure prescribed by this section requires a public hearing by the board which may disapprove the project, or, with the authorization of the Lieutenant-Governor in Council, may approve the scheme proposed by the application. The board conducted a public hearing lasting several weeks, commencing in June 1979.

The Athabasca Tribal Council consists of the chiefs of five Indian bands living in the general area of the proposed plant. The tribal council, with the assistance and support of the federal Department of Indian Affairs and Northern Development, intervened in the hearing before the ERCB calling witnesses and making submissions through counsel. The tribal council, in general, supported the proposed project but did so “only if certain terms and conditions are imposed on the applicant” giving preference in employment and business opportunities to the members of the five bands. Terms and conditions imposed for the benefit of groups suffering from economic and social disadvantages, usually as a result of past discrimination, and designed to assist them in achieving equality with other segments of the population are referred to as “affirmative action” programs.

No issue was raised in this court whether the Athabasca Tribal Council is an entity entitled to sue or be sued. Whether or not it is that type of entity the tribal council clearly represents persons having a direct interest in the project who would be entitled, under ERCB rules, to intervene in the hearing. Such persons could appear in this court with appropriate amendments to the procedure. We therefore assume for purposes of

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this decision that the tribal council was entitled to launch this appeal.

The members of the five Indian bands do not comprise the sole population of the area in the vicinity of the proposed project. Some Metis and white persons also live in the area. We are told that all of the people in the general area may be said to suffer economic, educational and social disadvantage when compared to other Albertans. In some of the communities in the area, unemployment rates exceed 50 per cent compared to an overall rate of 5 per cent for the province as a whole.

In applying to the Board under s. 43 of The Oil and Gas Conservation Act, Alsands indicated its readiness to include in its proposal provisions designed to assist the Indian population in adapting to the dramatic changes which the scheme involved, and this was apparent also from the attitude taken by Alsands at the public hearing before the Board, but in intervening at the Board’s hearing the Athabasca Tribal Council insisted on the Board’s approval being made conditional upon the incorporation of further provisions for the benefit of Indians in the area and for the assurance of their welfare under the altered conditions which would inevitably flow from the implementation of the plan. It is these provisions which have come to be collectively referred to as an “affirmative action” program. This so-called program proposed by the Tribal Council was for the most part phrased in general terms, but it is clear that its main objective was to afford the Indians insofar as conditions would allow, an equal opportunity with other inhabitants to participate in the tar sands plant undertaking.

The proposal to this end is described in the following terms in the Report to the Lieutenant Governor in Council filed by the Board after the hearing:

Alsands’ proposed recruitment policies and procedures received general approval from interveners, but native communities wanted the applicant to establish specific goals and mechanisms for recruitment, training, counselling, and support of native business development.

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The Athabasca Tribal Council asked that Alsands establish a native employment office, and employ a native industrial co-ordinator to liaise with the native communities; that the federal government and Alsands finance full-time native recruiters for Fort Chipewyan, Fort MacKay, and other native communities; and that native communities be encouraged to run their own training programs with funding from the federal government. The Tribal Council also wanted Alsands to sponsor a native business opportunities program for a period of ten years from approval of the project.

The Department of Indian Affairs and Northern Development supported the position of the Tribal Council in the matter of affirmative action programs and also urged that contractual arrangements be made between Alsands and native communities. In fact the Department endorsed the recommendation that affirmative action programs be made a condition of the Board’s approval of the plan. It is clear that the Board and Alsands were generally sympathetic to the plight of the Indians and looked with favour on the taking of steps to assimilate these native people into the new environment which the tar sands proposal would bring about, but, as will hereafter appear, I am of opinion that the “steps” recommended in the “affirmative action program” are beyond the powers of the Board.

In the course of the reasons for judgment which he delivered on behalf of the majority of the Court of Appeal, Mr. Justice Laycraft recognized that the approval of the Alsands project was initially governed by the provisions of The Energy Resources Conservation Act, 1971 (Alta.), c. 30, and by The Oil and Gas Conservation Act. It is the former Act which establishes the Board and controls its powers and procedures, and, like Mr. Justice Laycraft, I find it to be a central consideration in determining the issue before us to examine the purposes of the Act which are set forth in s. 2 thereof and which provide:

2. The purposes of this Act are

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(a) to provide for the appraisal of the reserves and productive capacity of energy resources and energy in Alberta,

(b) to provide for the appraisal of the requirements for energy resources and energy in Alberta and of markets outside Alberta for Alberta energy resources or energy,

(c) to effect the conservation of, and to prevent the waste of, the energy resources of Alberta,

(d) to control pollution and ensure environment conservation in the exploration for, processing, development and transportation of energy resources and energy,

(e) to secure the observance of safe and efficient practices in the exploration for, processing, development and transportation of the energy resources of Alberta,

(f) to provide for the recording and timely and useful dissemination of information regarding the energy resources of Alberta, and

(g) to provide agencies from which the Lieutenant Governor in Council may receive information, advice and recommendations regarding energy resources and energy.

It will be seen that the purposes of the Act are limited to matters concerning energy resources and energy in the Province of Alberta, considerations which govern the Board’s jurisdiction. This becomes all the more apparent from a consideration of s. 24 of the Act which provides:

24. (1) The Board may, and at the request of the Lieutenant Governor in Council shall, at such places, at such times and in such manner as it considers advisable

(a) make inquiries and investigations and prepare studies and reports on any matter within the purview of any Act administered by it relating to energy resources and energy, and

(b) recommend to the Lieutenant Governor in Council such measures as it considers necessary or advisable in the public interest related to the exploration for, production, development, conservation, control, transportation, transmission, use and marketing of energy resources and energy.

(2) The Board may recommend to the Lieutenant Governor in Council the making of such arrangements as it considers desirable for co-operation with governmental or other agencies in or outside Alberta in respect of matters relating to energy resources and energy.

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In the same context it is essential to consider the “purposes” of The Oil and Gas Conservation Act as the Alsands’ application is made pursuant to s. 43 of that Act. These purposes are set forth in s. 5 of the Act which provides:

5. The purposes of this Act are

(a) to effect the conservation of, and to prevent the waste of, the oil, gas and crude bitumen resources of Alberta,

(b) to secure the observance of safe and efficient practices in the locating, spacing, drilling, equipping, completing, reworking, testing, operating and abandonment of wells and in operations for the production of oil, gas and crude bitumen,

(b.1) to provide for the economic, orderly and efficient development in the public interest of the oil, gas and crude bitumen resources of Alberta,

(c) to afford each owner the opportunity of obtaining his share of the production of oil or gas from any pool or of crude bitumen from any oil sands deposit,

(d) to provide for the recording and the timely and useful dissemination of information regarding the oil, gas and crude bitumen resources of Alberta, and

(e) to control pollution above, at or below the surface in the drilling of wells and in operations for the production of oil, gas and crude bitumen and in other operations over which the Board has jurisdiction.

It will be seen that while these purposes, like those of The Energy Resources Conservation Act, relate to energy resources in the Province of Alberta, they are specifically directed to “the oil, gas and crude bitumen resources of Alberta”, and it was accordingly appropriate that the Alsands’ application for approval of tar sands plant should be initiated under s. 43 of the Act which reads:

43. (1) No scheme or operation for the recovery of oil sands, crude bitumen or products derived therefrom shall be proceeded with unless the Board, upon application, has approved it in accordance with this section.

(2) Upon receipt of an application pursuant to subsection (1), together with any information prescribed or

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required by the Board, the Board shall hold a hearing of the application and may, if so authorized by the Lieutenant Governor in Council, approve the scheme or operation proposed in the application, or make such other disposition of the application as it considers suitable.

(4) An approval granted under this section shall be subject to the terms and conditions therein prescribed and, without restricting the generality of the foregoing, may stipulate the period during which the approval will be in force and the maximum volume or rate of production of oil sands, crude bitumen or products derived therefrom.

As has been indicated, a hearing was duly held by the Board and after several weeks an extensive report was made to the Lieutenant Governor in Council which clearly reflected the Board’s sympathy for and interest in the native peoples of the area but which failed to include the affirmative action program upon which the intervenant Tribal Council had insisted. In due course an appeal from the Board’s recommendations as contained in this report was taken to the Appellate Division of the Supreme Court of Alberta pursuant to s. 42(1) of The Energy Resources Conservation Act which reads:

42. (1) Subject to subsection (2), upon a question of jurisdiction or upon a question of law, an appeal lies from the Board to the Appellate Division of the Supreme Court of Alberta. [The italics are my own]

The question of jurisdiction involved in the appeal related to whether or not the Board was clothed with the authority to recommend the proposals entailed in the affirmative action programs. On behalf of the majority of the Court of Appeal, Mr. Justice Laycraft held that the provisions of the enabling statutes did not extend so as to include the area of social rehabilitation which the program envisaged for the Indians.

In asserting this appeal from that judgment the appellant has put the following points in issue:

1. That the Court of Appeal erred in holding that The Energy Resources Conservation Board did not have jurisdiction to prescribe the implementation of an “affirmative action” programme as a condition of the approv-

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al of a tar sands plant, pursuant to s. 43 of The Oil and Gas Conservation Act.

2. That the Court of Appeal erred in holding that an affirmative action programme based on racial criteria would be in breach of The Individual Rights Protection Act.

As to the first point, I take the view, which I have perhaps indicated, that the Board’s jurisdiction is governed and controlled by the statutes to which I have referred and in conformity with the purposes for which these statutes were enacted, that jurisdiction is limited to the regulation and control of the development of energy resources and energy in the Province of Alberta. The powers with which the Board is endowed are concerned with the natural resources of the area rather than with the social welfare of its inhabitants, and it would, in my view, require express language to extend the statutory authority so vested in the Board so as to include a program designed to lessen the age-old disadvantages which have plagued the native people since their first contact with civilization as it is known to the great majority of Albertans.

It is however true that the expenditure of four billion dollars in the creation of a new town and a new industry in an area formerly enjoyed exclusively by the native peoples undoubtedly presents new problems for those people and it may well be that some form of legislation could be devised and adopted to meet their needs. No such legislation appears to have been enacted in Alberta and in my opinion it is no compensation for this lack of authority to seek to apply legislation designed for the conservation of energy resources to the amelioration of social inequalities.

It will accordingly be apparent that I do not find any error in the judgment of the Court of Appeal holding that The Energy Resources Conservation Board did not have jurisdiction to prescribe the implementation of an “affirmative action” program as a condition of the approval of a tar sands plant pursuant to s. 43 of The Oil and Gas Conservation Act.

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In reaching the above conclusion I have not overlooked the argument of the appellant to the effect that the references to “the public interest” in s. 24(1)(b) of The Energy Resources Conservation Act and s. 5(b.1) of The Oil and Gas Conservation Act are of themselves a sufficient indication of the intention of the legislature to endow the Board with authority to recommend measures directed towards the development and control of the social welfare of the Indian people. As I have indicated, however, I do not feel that such an interpretation can be attributed to the enabling statutes which are exclusively concerned with the development of “energy resources and energy”.

Notwithstanding all the above, there are grounds for thinking that Alsands, and indeed the Board itself, might possibly have gone further than they did in meeting the demands of the Indians had it not been for the fact that legal advice had been received to the effect that any provision made for the implementation of the program would have been held to be inoperative as being in conflict with the provisions of The Individuals Rights Protection Act of Alberta, 1972 (Alta.), c. 2. The Court of Appeal held that the program was based on racial criteria and it would thus be in breach of that statute and it is this finding which gives rise to the second point placed in issue by the appellant.

Having regard to the opinion which I have expressed concerning the first point, I do not consider that it is necessary for the determination of this appeal to deal at any length with the second issue raised by the appellant, but as it was made the subject of considerable argument on the appeal before this Court and as I reach a different conclusion from that of the Court of Appeal, I think it desirable to express my views separately.

The preamble to The Individual’s Rights Protection Act contains the following recital:

WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in dignity and rights without regard to race, religious beliefs, colour, sex, age, ancestry or place of origin;…

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It is contended on behalf of the respondent that implementation of the proposals contained in the affirmative action program would result in the preferment of Indians for employment in the Alsands tar sands plant or at least in certain aspects of the development envisaged by that plan. This contention is founded on the proposition that the benefits which the plan would confer on Indians would involve discrimination against non-Indians in the area in contravention of s. 6(1) of The Individual’s Rights Protection Act which provides that:

6. (1) No employer or person acting on behalf of an employer shall

(b) discriminate against any person with regard to employment or any term or condition of employment,

and it is also urged on behalf of the respondent that the terms of s. 7(1) of the same statute support the same contention and provide additional mechanics for the enforcement of s. 6. Section 7 of the statute reads as follows:

7. (1) No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant,

(a) that expresses either directly or indirectly any limitation, specification or preference as to the race, religious beliefs, colour, sex, age, ancestry or place of origin of any person, or

(b) that requires an applicant to furnish any information concerning race, religious beliefs, colour, ancestry or place of origin.

(2) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational qualification.

The core of this contention is concerned with that portion of s. 6(1)(b) which precludes any employer from discriminating against any person with regard to employment. Adoption of the respondent’s contention would in my view mean that in the Province of Alberta it would be unlawful to pursue a policy favouring any individual or group of individuals on the ground that in so doing

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other individuals would be discriminated against. This theory has been characterized as “reverse discrimination” and it has been considered in the United States Supreme Court where it has met with differing treatment in the case of Regents of the University of California v. Bakke[^2], where a special admission program applying to “‘economically and/or educationally disadvantaged’ …members of a ‘minority group’” was held to be invalid, and the case of the United Steelworkers of America v. Weber[^3] where an affirmative action program was upheld.

I find no material assistance in a consideration of these American authorities because each of them is dealing with a situation fundamentally different from that facing the Athabascan Indians.

In the present case what is involved is a proposal designed to improve the lot of the native peoples with a view to enabling them to compete as nearly as possible on equal terms with other members of the community who are seeking employment in the tar sands plant. With all respect, I can see no reason why the measures proposed by the “affirmative action” programs for the betterment of the lot of the native peoples in the area in question should be construed as “discriminating against” other inhabitants. The purpose of the plan as I understand it is not to displace non-Indians from their employment, but rather to advance the lot of the Indians so that they may be in a competitive position to obtain employment without regard to the handicaps which their race has inherited.

I have already referred to the preamble of The Individual’s Rights Protection Act and in this regard I adopt the view expressed by Mr. Justice Morrow in the course of his dissenting reasons in the Court of Appeal where he said:

I am fortified in my approach by what I read from the preamble, which as my brother Laycraft has observed can be useful in indicating the purpose of the Act, remembering always those cautionary limitations put on such approach as he sets forth in his reasons. Of particular significance in my opinion is the use of the words ‘all persons are equal in dignity and rights without regard to

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race’. If these high sounding words have any meaning and significance at all, surely one cannot read the statute in a way to result in or to have the effect of reaching the very opposite effect to the declared purpose.

It will accordingly be seen that as to the second point placed in issue by the appellant, I am of opinion that the Court of Appeal was in error in holding that an affirmative action program based on racial criteria would be in breach of The Individual’s Rights Protection Act.

In the result, I agree with the reasons for judgment of Mr. Justice Laycraft in respect of the first isssue but differ from the majority of the Court of Appeal in the conclusion reached on the second issue.

In view of all the above, I would dismiss this appeal but, like the Court of Appeal, I would award no costs.

The judgment of Martland, Beetz, Estey, Chouinard and Lamer JJ. was delivered by

LAMER J.—I have had the advantage of reading the opinion set out by my brother Ritchie. For the reasons given by him I agree that there is no error in the judgment of the Court of Appeal holding that the Energy Resources Conservation Board did not have jurisdiction to prescribe the implementation of an “affirmative action program” as a condition of the approval of a tar sands plant pursuant to s. 43 of The Oil and Gas Conservation Act. As this conclusion disposes of the appeal we need not pronounce upon the question whether the proposed “affirmative action program” would, if implemented, involve discrimination against non-Indians in contravention of s. 6(1) of The Individual’s Rights Protection Act. Furthermore, I find support in choosing not to do so in the fact that, immediately after the Court of Appeal’s decision, the Alberta Legislature, reacting to the concerns voiced by Mr. Justice Morrow of that Court (reiterated by our brother Ritchie and which I earnestly share), amended The Individual’s Rights Protection Act, 1972 (Alta.), c. 2, by 1980 (Alta.), c. 27, (proclaimed in force on September 1, 1980) enact-

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ing a mechanism for “affirmative actions programs” when needed.

By that amendment, s. 11.1 was added to the Act:

11.1 (1) The Lieutenant Governor in Council may make regulations

(a) exempting a person, class of persons or group of persons, or the Crown or any agent or servant of the Crown, from the operation of this Act or any of the provisions of it,

(b) authorizing the undertaking by a person, class of persons or group of persons, or by the Crown or any servant or agent of the Crown, of programs that, in the absence of the authorization, would contravene this Act, and

(c) respecting the procedure to be followed by the Commission in carrying out its functions under this Act.

(2) The Lieutenant Governor in Council may by regulation delegate to the Commission any of his powers under subsection (1).

(3) A regulation made under subsection (1)(a) or (b) may

(a) be specific or general in its application, and

(b) provide that the exemption or authorization that it grants is subject to any terms and conditions that the Lieutenant Governor in Council or the Commission, as the case may be, considers advisable.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Walsh Young, Calgary.

Solicitors for the respondents Amoco Canada Petroleum Company Ltd., Chevron Standard Limited, Dome Petroleum Limited, Gulf Canada Resources Inc., Hudson’s Bay Oil and Gas Company Limited, Pacific Petroleums Limited, Petrofina Canada Ltd., Shell Canada Resources Limited and Shell Explorer Limited: Jones, Black, Calgary.

Solicitor for the respondent the Energy Resources Conservation Board: M.J. Bruni, Calgary.

Solicitor for the intervener the Attorney General for the Province of Alberta: W. Henkel, Edmonton.

[^1]: 1980 ABCA 141, [1980] 5 W.W.R. 165; (1980), 112 D.L.R. (3d) 200; (1980), 22 A.R. 541.

[^2]: 98 S.Ct. 2733 (1978).

[^3]: 99 S.Ct. 2721 (1979).