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Court case pits Treaty rights against the ‘public interest’

With its victory to appeal an AER decision, Fort McKay First Nation puts rights to the test

Tim Querengesser is senior editor with Alberta Venture. Email Tim

Oct 22, 2013

by Tim Querengesser

The courts are where Canada typically hashes out the hierarchy between aboriginal rights and “the public interest,” and so it’s proving again, this time in Alberta. But what’s perhaps most interesting this time around is that it’s happening right in the heart of the oil sands.

On Monday, Alberta’s highest court okayed a request by the Fort McKay First Nation to appeal an Alberta Energy Regulator (AER) decision that denied the First Nation’s request for a buffer zone. That buffer would stand between a proposed oil-sands development and its reserve lands. The court’s ruling in favour of the First Nation was unexpected by many in the energy industry, and as Alberta Venture managing editor Max Fawcett wrote yesterday, it could now have significant ramifications for the corporate players involved.

But the case could also be big news for everyone else – from industry to government to common folk. The upcoming appeal will in many ways test the authority of the AER to make rulings about environmental-mitigation for proposed energy projects whenever there’s the potential that those decisions might limit Treaty rights. Since Fort McKay is one of several First Nations in Alberta asserting constitutionally protected Treaty rights in attempts to limit or block energy developments, well, the case is being watched closely by many.

Just how are aboriginal Treaty rights involved? At the root of the case is the Dover Commercial Project, a joint venture between Athabasca Oil Corp. and PetroChina that would result in a 250,000-barrel-per-day thermal oil sands project. Fort McKay First Nation argued to the AER that a 20-kilometre buffer zone was necessary to protect animal habitat and therefore to protect its constitutionally protected Treaty rights, which predate the creation of Alberta, to hunt, fish and trap. In its ruling, however, the AER held that to create a buffer zone would exclude between 1.2 and 1.4 billion barrels of bitumen from production and therefore would “not be in the public interest.”

Which right trumps the other could be put to the test by this case. And as reported in the Financial Post, Monday’s ruling means the First Nation will be able to question why the AER did not consider its arguments in its final decision, which is perhaps the most pressing question at hand.

The wildcard here, of course, is the provincial government and how it responds to the courts. At the same time as Fort McKay was celebrating victory, in an odd bit of timing, Alberta’s decision to bar two First Nations from speaking to energy regulators about projects on or near their traditional territory were upheld – despite calls from Appeals Court judges to allow them to participate.

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