The Fort McKay First Nation has asked the Alberta Court of Appeal for clarification on whether the Alberta Energy Regulator can decide constitutional questions related to the duty to consult Aboriginal Peoples.
Dover Operating Corp. (now known as Brion Energy Corporation) would like to build and operate a large scale bitumen extraction project in northeastern Alberta using steam-assisted gravity drainage technology. Production is intended to reach 250,000 barrels per day and the project life-span is 65 years.
The Dover leases cover 367.8 km2. A central processing facility would be located only 13 km —and some well pads only 1500 m— from two Fort McKay First Nation reserves. At Energy Resources Conservation Board (the AER’s predecessor) hearings this spring, FMFN requested a 20 km buffer zone around the reserves. FMFN argued this would help maintain wildlife and reduce the effects of pollution and noise on traditional activities. Dover opposed the creation of such a buffer zone, as this would put up to 1.4 billion recoverable barrels of bitumen off limits.
In the course of the hearing, FMFN raised two constitutional questions:
- Would project approval constitute a prima facie infringement of FMFN’s Treaty 8 and Indian Act rights so as to be of no force and effect or otherwise inapplicable because Alberta lacks jurisdiction over Indians and Lands Reserved for the Indians (“Inter-jurisdictional Immunity Argument”)?
- Has the Crown discharged its duty to consult and accommodate FMFN with respect to adverse impacts on their Treaty 8 and Natural Resources Transfer Agreement rights (“Inadequate Consultation Argument”)?
In reasons refusing to answer these questions, dated May 23, 2013, the ERCB concluded that constitutional questions must be limited to matters within its legislated mandate. It found that determination of the extent of aboriginal rights, the “basic minimum unassailable core” of a federal head of power, and whether that core was impaired, were all outside its mandate. The Board also concluded it is not allowed to assess Crown conduct, and as only one part of a much broader consultation process, it would be premature for the Board to consider its adequacy.
On August 6, 2013, the AER approved the project and rejected FMFN’s request for a 20km buffer zone. The AER was not persuaded that the buffer would make a significant difference to wildlife, found that reserve land would not be directly impacted by the project and concluded it was contrary to the public interest - given the economic impacts - not to develop the reserves found in the area of the buffer zone.
The AER adopted the ERCB’s reasoning in refusing to answer the constitutional questions. It added that s. 21 of Alberta’s new Responsible Energy Development Act precludes the AER from assessing the adequacy of the Crown consultation, depriving it of jurisdiction to answer the second question.
FMFN applied to the Alberta Court of Appeal for leave to appeal the AER’s decision, pursuant to s.45 of REDA, which restricts such appeals to questions of law. On October 18, 2013 leave was granted on the following, revised questions:
- Did the Tribunal err in law or jurisdiction by finding that the question whether approval of the project would constitute a meaningful diminution of the Treaty rights of Fort McKay First Nation and therefore be beyond provincial competence was not a question of constitutional law as defined in the Administrative Procedures and Jurisdiction Act?
- Did the Tribunal err in law or jurisdiction by finding that it had no jurisdiction to consider constitutional issues other than those defined as “questions of constitutional law” in the Administrative Procedures and Jurisdiction Act?
The appeal will be argued on March 26, 2014 and will be the first interpretation of these REDA provisions. The decision in this case will be significant for companies and First Nations appearing before the AER, as it will determine the scope of the AER’s jurisdiction to consider constitutional issues relating to aboriginal and treaty rights.
About the Author
Jeff Langlois and Clare Truesdale are associates with Janes Freedman Kale in British Columbia.