First Nations lose oil sands case

Two aboriginal groups in Alberta have been denied the right to make a constitutional challenge of Royal Dutch Shell’s proposed C$12 billion expansion of its Jackpine oil sands mine and a new mine, arguing that neither the company nor the Alberta government had properly consulted or accommodated treaty rights.

The Alberta Court of Appeal rejected a bid by the Athabasca Chipewyan First Nation and the Metis Nation of Alberta that would have delayed work on increasing output from the existing mine to 300,000 barrels per day from 100,000 bpd in 2017 and add another 200,000 bpd from the Pierre River mine in 2018.

Shell filed applications for both projects in 2007, but the hearing has been delayed until now because of Canada’s drawn out regulatory process.

Justice Frans Slattery agreed with an earlier ruling by a review panel convened to hear arguments about the project that the aboriginal nations’ request to stall work was beyond its jurisdiction.

Slattery said that since the First Nations were given an opportunity to raise their objections to Shell’s project with the panel they could not issue a constitutional challenge.

Frustration with verdict

“We anticipated the court would hear our arguments. The fact remains that there was a breach of protocol and the judge should have taken that into account,” he said.

“A project of this magnitude couldn’t possibly be in the public interest if our rights have not been upheld and we have not been adequately consulted. I don’t think the judge understands aboriginal law.”

During hearings over the past month, the First Nations said the development would adversely affect their rights to hunt, fish and trap.

The Athabasca Chipewyan community has previously challenged the oil sands approval process, but failed either because it filed its legal action long after the approval process had ended, or did not have the resources to carry a challenge to conclusion.

Shell has defended its efforts to consult with First Nations over the past 15 years.

Also making their case before the joint review panel of the Canadian Environmental Assessment Agency and the Alberta Energy Resources Conservation Board have been environmentalists and individual citizens, including the Oil Sands Environmental Coalition, an umbrella organization of three groups.

—Gary Park