Alberta won’t review excluding bands from oilsands hearings by Bob Weber, The Canadian Press October 20, 2013, Edmonton Journal
The Alberta government says it won’t reconsider recent decisions to bar two aboriginal groups from voicing concerns about oilsands developments on or near their traditional territories. That refusal comes despite urgings from a Queen’s Bench judge to loosen restrictions on who has the right to appear before boards making decisions on how development in the province can proceed. The government “doesn’t see that it’s necessary to review those cases,” said Nikki Booth, spokeswoman for Alberta Environment.
Earlier this year, the Metis Local 1935 from Fort McMurray and the Fort McKay First Nation filed statements of concern regarding oilsands developments. The Metis are concerned about the Thickwood project proposed by Grizzly Oilsands Ltd., which would produce about 12,000 barrels of oil per day about 60 kilometres northwest of Fort McMurray. The group says the project is in an area used for hunting and other traditional activities and two of its members live there. The Fort McKay band filed a statement of concern regarding an Athabasca Oil Sands Corp. (TSX:ATH) proposal for a 6,000 barrel a day pilot project about 20 kilometres from one of its reserves. It says the project will add to the ongoing extinction of moose and caribou from the area as well as damage traditional ceremonial sites used by Fort McKay. “There are quite a few concerns that were filed,” said band spokeswoman Dayle Hyde.
But in September, both groups were told they failed to make their case. Neither will be able to air their concerns to the body that decides how — or if — projects should proceed. Fort McKay was told it hadn’t provided hard evidence to show Athabasca’s project would affect it. “A connection between the alleged (traditional) activities, even if they are carried out in and around the project area, and the project has not been shown,” said a Sept. 19 letter from the Alberta Energy Regulator. No hearings at all will be held for the Athabasca proposal.
The Metis were told that having only two members that live on the land in question weren’t enough. “The … filer must demonstrate that the majority of the group is directly affected by the aforementioned project,” the department wrote on Sept. 20. But Kyle Harrietha, manager of Local 1935, said his group hasn’t even had a chance to figure out how it could be affected. “There hasn’t been any consultation, there’s never been a traditional land use study, so we can’t fully say what the traditional land use was,” he said. The government said the local could appear on behalf of its two members who live in the area, but Harrietha said that’s not the same as speaking as a group. “Aboriginal rights aren’t held by the individual,” he said. “What they’re asserting is that we’re basically a community association. “They’re treating us like a boy’s and girl’s club.”
Alberta’s policy on who has the right to speak at such hearings was criticized in an Oct. 1 court judgment. Justice Richard Marceau overturned a decision to bar two environmental groups from presenting concerns, largely because of a document suggesting the decision was made for political reasons. Marceau added in a non-binding part of the ruling that restrictive rules on who can speak violate both the government’s own legislation and previous court rulings. “The process of identifying who is ‘directly affected’ should not be decided by the application of rigid rules,” Marceau wrote. He said hearings should seek a broad range of information and that doubts should be resolved in favour of the applicant.
“I think it’s fair to say that (Marceau) was encouraging a wider application of the standing test than he perceived is being applied,” said Sandy Carpenter, a Calgary lawyer whose practice focuses on resource and regulatory law. Carpenter added that Harrietha has a point when he complains about the government dealing with individual aboriginals instead of communities. “When First Nations and Metis say their rights are collectively based, they’re right in saying that. If an aboriginal group can put forward the exercise of rights by members of the community in the area in question, that’s something that should be taken into account.”
Booth said the government decides who can speak at hearings based on the circumstances of each case. “Each case has their own different impacts,” she said. She said the courts are available to groups that disagree with the government’s ruling. Harrietha said Local 1935 is considering its options.
“We’ll be asking the government for a review. Depending on their response we’ll have to determine whether further action is required.” [Emphasis added]
Update: Oilsands project faces months of delay, Athabasca stock crashes in wake of court decision on oilsands facility by Dan Healing, October 18, 2013, Calgary Herald
The Dover oilsands project in northern Alberta could face a year or more of uncertainty due to an appeal court challenge of its approval, says the lawyer for a native band opposing the facility. Edmonton lawyer Karen Buss, who is working for the Fort McKay First Nation, said the exercise could have wide-ranging implications for the entire industry.
On Friday, a justice of the Alberta Court of Appeal gave the First Nation leave to appeal the Alberta Energy Regulator’s Aug. 6 approval of the 250,000-barrel-per-day thermal oilsands project.
“There is a live issue respecting the regulator’s interpretation of its power to decide constitutional issues,” wrote Justice Frans Slatter in the court decision posted online. “The issue is of general importance, and leave to appeal is justified.”
Buss said her clients will now file the appeal. She said the three-judge panel likely won’t start hearing it for six months, given its busy schedule, but it would likely deliver a ruling fairly quickly thereafter. She added it’s unlikely the panel would simply overturn the AER decision, if it finds in favour of the First Nation, but it could order the regulator to start its process over with direction to consider treaty rights issues identified by the band. “That means their approval wouldn’t be any good, it would be suspended,” she said. “That’s what Brion (Energy Corp.) wouldn’t like, because that would put them back another year. “It has implications for all the oilsands projects.”
Athabasca spokesman Andre De Leebeeck told the Herald the project can still win final provincial approval — it needs endorsement by cabinet and then final environmental approval in addition to the AER decision — despite the appeal court ruling. “We’re told by senior (Alberta) ministry officials that the regulatory process is independent of the appeals process so, according to that, there should not be an impact on the timing of the regulatory approvals,” he said. AER spokesman Bob Curran said that interpretation is correct and province won’t delay its ruling based on the appeal court news.
Final provincial approval is important because that is the trigger on a put/call option for PetroChina to buy Athabasca’s stake for $1.3 billion, confirmed De Leebeeck. In a note to investors Friday, RBC Dominion Securities analyst Mark Friesen said the news is “significantly negative” for Athabasca. “While this decision begins an appeals process that may technically run in parallel to the remaining official regulatory approval process, the fact that the right to challenge the constitutional argument was granted by the court of appeal significantly increases the risk of regulatory approval delay, in our view,” he wrote. … In its August decision, the AER rejected the Fort McKay First Nation’s request for a 20-kilometre no-development zone on part of the oilsands leases near its traditional lands at Moose Lake, ruling that Dover’s development would have “little if any impact” on neighbouring lands. [Emphasis added]
Natives allowed to appeal oilsands approval, Athabasca stock crashes in wake of court decision on Dover project by Dan Healing, October 18, 2013, Calgary Herald
A native band fighting approval of the Dover thermal oilsands project has been granted leave to appeal an Alberta Energy Regulator ruling in its favour. Shares in Calgary-based Athabasca Oil Corp., owner of a 40 per cent stake in the 250,000-barrel-per-day proposal, lost more than a fifth of their value and were halted from trading Friday morning. The company then issued a news release confirming the Alberta Court of Appeal decision in favour of the Fort McKay First Nation. “Leave to appeal is not a judgment on merits of the case and does not impact the validity of the AER approval, but is restricted to a specific question of law or jurisdiction,” noted Athabasca. “The appeal on the specific question will be heard at a later date, yet to be determined.”
The Dover project is operated by Brion Energy Corp., a joint venture between Athabasca and Chinese oil giant PetroChina. If the project wins final approval, it would trigger an option for PetroChina to buy out Athabasca for $1.3 billion. In its decision posted online, the appeal court states it granted the appeal on issues related to the question of whether the regulator committed “any reviewable error of law or jurisdiction in the assessment of the type of constitutional questions they could or should consider.” The appeal process is handled through the courts and doesn’t affect the provincial approval process, although a successful appeal could result in an order for the AER to review or even change all or part of its decision.
In a note to investors, RBC Dominion Securities analyst Mark Friesen said the news is “significantly negative” for Athabasca. “While this decision begins an appeals process that may technically run in parallel to the remaining official regulatory approval process, the fact that the right to challenge the constitutional argument was granted by the court of appeal significantly increases the risk of regulatory approval delay, in our view,” he wrote. “We see this announcement as significantly increasing the timing risk of the company receiving the put option proceeds before year-end, thereby jeopardizing the company’s winter drilling program.”
In its decision, the regulator rejected the Fort McKay First Nation’s request for a 20-kilometre no-development zone on part of the oilsands leases near its traditional lands at Moose Lake, ruling that Dover’s development would have “little if any impact” on neighbouring lands. The AER said preventing development there would exclude 1.2 billion to 1.4 billion barrels of bitumen from being produced.