The Court took note of this fact, commenting that through the Jackpine Mine Expansion Project review process, the issue will come back before the ERCB in the context of a “concrete dispute”. Ultimately, the Court accepted that the issue at the heart of the appeal was one of public interest, but found that the necessary factual basis in which questions of jurisdiction and treaty interpretation should be decided did not exist in the present case.
The Court of Appeal’s decision is by no means the final word on this issue. Given the evidence put before the Court, it appears that this issue will once again be put before the ERCB, through its role in the Joint Review Panel assessing the impacts of the Jackpine Mine Expansion project, and will likely end up back at the Court of Appeal, though the
nuances of the issue may be affected by its consideration in the context of a Joint Review Panel proceeding. The Court of Appeal’s comments in this application regarding the importance of the question and the need for it be considered in the context of a relevant fact situation suggest that the result may be different the next time leave is sought on this