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The Carbon Courts

Fort McKay joins several other First Nations in Alberta in arguing that its Treaty rights are being restricted by oil sands development

Tim Querengesser is senior editor with Alberta Venture. Email Tim

Sep 13, 2013

by Tim Querengesser

As promised, Fort McKay is going to the courts – and what happens as a result of the outcome of its push, and other aboriginal Treaty infringement claims with the oil sands industry in Alberta, could be decisive for the province.

In filings submitted last week to the Appeal Court of Alberta and obtained by Alberta Venture, the First Nation argues that the Alberta Energy Regulator has potentially overstepped its jurisdiction by approving the Dover oil sands project. The First Nation argues the project, as approved – without the buffer zone that the aboriginal government requested – will potentially restrict its constitutionally protected Treaty rights. More on that later.

But first, it helps to know that the Dover project is a joint-venture between Athabasca Oil and PetroChina that, as this blog reported previously, could result in PetroChina as full owner, if all the pieces fall into place. If completed to proposed plans, the Dover project will see about 250,000 barrels of bitumen produced each day from more than 500 steam-assisted drainage wells located in an area about 95 kilometres north of Fort McMurray.

You may recall that Fort McKay, one of the most pro-industry First Nations in Canada and one that its chief, Jim Boucher, told this blog derives more than 90 per cent of its revenues from companies linked to oil sands production, requested the AER create a 20-kilometre buffer zone between its Moose Lake reserve to the north and the proposed Dover project to the south. The AER denied this request, arguing in its early August decision that a buffer would exclude more than one billion barrels of bitumen from production and would therefore not be in the public interest.

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The First Nation’s central concern, expressed in its court filing, is the cumulative effects of the many roads, pads, cutlines and other developments for the project, and others around the community, will diminish its ability to hunt, fish and trap, and will therefore threaten the Moose Lake reserve. Essentially, the buffer zone is necessary, according to the First Nation, because the Moose Lake area is some of the last land left for them to hunt, trap and fish on. And without animals left to hunt, its aboriginal rights, which are constitutionally protected as well as protected through Treaty, become effectively meaningless.

Treaty 8, signed between Canada and several First Nations, including Fort McKay, in 1899, predates the foundation of Alberta in 1905. The Treaty commits Canada and therefore Alberta to preserving aboriginal lifeways. The Moose Lake reserve was created in 2005, after Fort McKay filed a specific claim with Canada, and effectively makes the First Nation the area’s landowner. The area has several burial grounds and is a late-summer settlement for hunters, and is thus central to the community’s identity.

Aboriginal Treaty rights are coming to the fore in Alberta as industry accelerates its search for bitumen. In June, the Beaver Lake Cree Nation won an appeal to have its argument – that its Treaty 8 rights are being restricted by the cumulative impacts of industrial development – put before a court. But Treaty right arguments have not been successful for aboriginal groups in past cases. In 2012, the Alberta Court of Appeal denied the Athabasca Chipewyan First Nation a request for leave on a Joint Review Panel decision to approve the expansion of Shell’s Jackpine project. In that decision, the First Nation asked the appeal court to rule whether the board had adequately consulted them on the Jackpine expansion. The court, however, ruled that governments, not the courts, should rule on adequate levels of consultation. In April, the Supreme Court of Canada further refused to hear the First Nation’s case.

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