Fort McKay given go-ahead to appeal AER decision

Being granted the opportunity to be heard is not about setting legal precedent, it’s about doing what is best for Fort McKay First Nation traditional territory.

“We need to be clear that Fort McKay did not and has not taken on this position because we were trying to win bigger arguments. Essentially our argument has always been that the protection of our particular pieces of traditional territory was very important to us. By happenstance … we carry a bigger platform as we start to talk about constitutional issues,” said CEO George Arcand, Jr.
“Chief (Jim Boucher) and council really are quite … reserved about the fact that we’re really doing this for us. At the end of the day if it affects and supports other people, that’s bonus.”

Late last month the Alberta Court of Appeal ruled that Fort McKay First Nation could argue Constitutional and treaty rights in its appeal of the Alberta Energy Regulator’s approval of Brion Energy’s Dover project, a 250,000-barrel-per-day thermal oilsands venture.

AER declined to “inquire into the applicant’s treaty rights, and then the legislative competence of the province,” wrote Justice Frans Slatter in his decision. “There is a live issue respecting the regulator’s interpretation of its power to decide constitutional issues….The issue is of general importance, and leave to appeal is justified.”

However, Slatter ruled that Fort McKay First Nation could not argue cumulative environmental effects, one of the points of appeal put forward by the First Nation. He noted that AER’s focus was project-based and on project-level effects. “Different persons might disagree on the way that the (AER) balanced the various issues on cumulative effects, but that is not an issue of law,” wrote Slatter.

“I still see (the argument of cumulative effects as) relevant because the law is that Alberta cannot take up so much land that there’s not meaningful right to hunt, fish and trap anymore. So how do you assess if there’s any meaningful right left? There has to be necessarily some sort of understanding as a cumulative effect,” said Karin Bass, legal counsel for Fort McKay First Nation. “So we’re disappointed about that (decision) but we still think it’s relevant and it will come up again in this appeal in a different context and it will come again in many different forms.”

Among the issues that Fort McKay First Nation had asked both AER and Brion Energy to consider was the creation of a 20-kilometre no-development zone on part of the oilsands leases near Fort McKay’s traditional lands, which would include Moose Lake reserve, Gardiner Lake and Namur Lake. The AER rejected that argument, ruling that excluding reserves as part of a buffer zone would hinder economic progress for the province and municipality and was not in the public interest. Such a buffer zone would have been precedent-setting.

In response to the granting of the appeal, Brion Energy filed its written argument in court on Oct.28.

But that doesn’t mean there isn’t room for an out-of-court settlement, says Arcand, who confirms that Fort McKay and Brion Energy have been talking.

“The pressure is on everyone to determine whether we’re going to attempt to negotiate something that is favourable to both parties. As the clock ticks in terms of us going forward with the appeal, (it) becomes even more paramount for the First Nation and Brion to come up with a package that is essentially something that both of us can live with,” he said.

Arcand stresses that Fort McKay is not opposed to economic development and realized decades ago that to be a sustainable community it needed to provide economic opportunities for its members.

“At the end of the day, it’s important for us to ensure that there’s a long term, physical capability for the First Nation so that when everybody is gone, Fort McKay is still going to be here, so there’s still resources and ability for the First Nation to sustain itself,” he said.

Arcand adds that Boucher has cautioned that the appeal is “not necessarily a win. It’s just an opportunity for us to get on to the next challenge.”

Bass expects the appeal to be heard between February and June 2014.

If the appeal is successful, she says AER may have to specifically reconsider its decision on the Dover project, and generally consider constitutional rights for First Nations.

 “So it would likely result in more consistent consideration of constitutional rights and hopefully better protection for those rights. But first you have to consider them and assess the impacts in order to avoid the impacts and protect the rights,” she said.