Energy regulator decision sees First Nation consider the courts
Legal challenge would be first for Fort McKay and its long relationship with industry
Tim Querengesser is senior editor with Alberta Venture. He once snowmobiled to the Arctic Ocean to interview a guy in elf shoes about reindeer. Really. Peace Pipe is his critical look at the intersection between Indigenous peoples and industry. Email Tim
by Tim Querengesser
One of the most pro-industry First Nations in Alberta’s oil patch is considering taking its grievance with a new development proposal – and an unsuccessful request to the Alberta Energy Regulator for a buffer zone between the project and its traditional territory – to a higher court.
“I think we will be looking towards Treaty  as a way of ensuring that our rights are … protected,” said Fort McKay First Nations Chief Jim Boucher, in an interview with Alberta Venture. “It’s possible that we will appeal [the AER ruling]. We’re preparing for a judicial review. I imagine that we will be building up a [legal] team.”
As sister publication Alberta Oil recently reported, the AER on Tuesday gave conditional approval to Brion Energy, Corp., a joint venture between Athabasca Oil Corp. and PetroChina, to proceed with developing its 250,000-barrel-per-day thermal oil sands lease, without a buffer zone between it and Fort McKay’s reserve lands.
The First Nation had argued the AER should consider creating a potentially precedent-setting 20-kilometre buffer between its Moose Lake Reserve and the Dover project’s SAGD extraction sites. But the company argued during the review, which began back in 2010, that its development would have “negligible to minor effects” on the hunting and wildlife concerns raised by the First Nation.
While the AER disagreed with several of the company’s assertions in its ruling, noting the buffer proposal could have substantial impacts on moose and the ability of the First Nation’s members to hunt them (and therefore feed themselves), it nonetheless ruled the buffer would exclude 1.2-1.4 billion barrels of bitumen from production. This, it argued, meant that the economic impacts of creating a buffer on Alberta and the Wood Buffalo region “are significant and would not be in the public interest.”
Fort McKay First Nation has some 40,000 hectares of reserve lands, created starting in 1915, near the proposed Dover development. The aboriginal government also has legal rights to continue its traditional usage of the land because of Treaty 8, signed by the First Nation and the Crown in 1899. The treaty predates the creation of Alberta in 1905.
Boucher said that Fort McKay is considering an appeal and even a legal challenge based on its Treaty rights, and notes that this is a marked change to what had, until now, been business as usual. “We haven’t had any legal cases with respect to the oil sands industry,” he said. “It’s going to be new ground.”
Nearly 98 per cent of Fort McKay First Nation’s revenues come from money generated by aboriginal-owned and joint-venture companies that work in the oil sands, Boucher said. Still, he said development has started to grow too close to the remaining areas left for hunting. “We have a real concern with respect to what’s left for our people to eat, and we have to address that some time. We’re completely surrounded by oil sands development.”