Alberta oil sands faces legal fight

Beaver Lake Cree Nation, Whitefish First Nation sue regulator after it denies them right to speak at Kirby project hearings

Gary Park

For Petroleum News

Another layer has been added to the aboriginal court challenges of oil sands development in Alberta, this time locking horns with Canadian Natural Resources over a planned 85,000 barrels per day addition to its Kirby project.

The Beaver Lake Cree Nation and Whitefish Lake First Nation are taking the Alberta Energy Regulator, AER, to court after the province’s regulatory body denied them the right to speak at Kirby hearings.

Beaver Lake Chief Henry Gladue said the Alberta regulatory system “silences concerns, which is more Third World than world class. Alberta is saying one thing and doing something very different.”

The two communities were among five First Nations and one environmental group that were blocked in their efforts to voice concern about the project when the AER cancelled public hearings after deciding that no intervener was “directly or adversely affected” by the project.

It ruled Beaver Lake has not shown the development would affect its traditional lands and had failed to “demonstrate actual use of land and other natural resources in the project area by its members.”

The AER also said Whitefish Lake concerns about cumulative impacts of oil sands development were “general in nature and not related to the project or the project lands.”

Whitefish Lake Chief James Jackson Jr. said his community has routinely been granted standing in the past and had provided “at least some motivation” for resource companies to understand and address First Nations’ concerns.

“Resource development can coexist with First Nations and can happen in a way that respects our traditional way of life, but not if we are frozen out of the process by the Alberta Energy Regulator,” he said.

Canadian Natural said it has consulted with 10 communities, including both First Nations, and helped fund their participation in the talks.

Documents filed in the Alberta Court of Appeal by the two First Nations claim the AER decision was “flawed, arbitrary and unfair” and allowed public interest rulings to be made in a “factual vacuum.” The appeal is expected to be heard this fall.

University of Calgary resource law professor Nigel Banks and opposition members of the Alberta legislature said the AER’s refusal to consider cumulative efforts of oil sands development points to a new pattern of restricting who is entitled to participate in the regulatory process, adding to two rulings last fall that denied standing to aboriginal groups.