Athabasca Chipewyan First Nation (ACFN) could be heading to the Supreme Court of Canada with its bid to stop Shell’s proposed Jackpine oilsands mine expansion project on its traditional territory following another negative ruling by an Alberta court.
The Alberta Court of Appeal dismissed ACFN’s application to appeal the rejection of its constitutional challenge against the oilsands project last Tuesday, Nov. 26.
The First Nation took on proponent Shell Canada and the Joint Review Panel, composed of both federal and provincial regulators, before the Alberta Court in Edmonton on Nov. 9, after the review panel’s decision to boot ACFN’s challenge from the project’s hearings in Fort McMurray the following week.
Justice Frans Slatter of the Appeals Court concluded that it was within the rights of the review panel to refuse making a decision on ACFN’s constitutional challenge. ACFN argues the expansion project, which would see 100,000 more barrels per day of oil mined from its territory, negatively impacts its treaty and Aboriginal rights.
“The Joint Review Panel ‘is not required…to make any determination as to…whether the Crown has met its respective duties to consult,’” Slatter said. “The Joint Review Panel has clearly decided not to engage this issue, at least at this stage of its proceedings. It is entitled to do that.”
The ruling came as a great disappointment to the First Nation, which is currently reviewing its legal options with respect to contesting Shell’s proposed open-pit oilsands mine expansion.
“We are definitely looking towards the Supreme Court of Canada at this point,” said Eriel Deranger, communications coordinator for ACFN, who indicated the First Nation has 30 days to make the decision.
“Our rights are being overlooked, and that is a truth that cannot be denied,” said ACFN Chief Allan Adam. “If there is a violation of our constitutionally protected treaty rights, it should be dealt with before this project is found to be in the public interest. 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.”
The Joint Review Panel ruled on Oct. 23 that it would not make a decision on ACFN’s constitutional challenge, which claims the Crown did not meet its duty to consult with the First Nation. The panel concluded there will be many more opportunities for the federal government to consult with the First Nation throughout the process.
Adam said they are being given the runaround by all levels of government.
“Who has better jurisdiction to deal with our rights and the adequacy of consultation more appropriately than the bodies that grant approval?” he asked. “Our rights are shuffled from agency to agency with no real remedy. There has been a complete devolution of the Crown’s duty to consult, pushing consultation into the hands of the proponents and downgrading First Nation rights.
Our people are being failed by all levels of government.”
Bill 2 removes constitutional challenge from hearings
ACFN was the first to follow through with a constitutional challenge based on Aboriginal rights at the provincial tribunal level with its opposition to Shell’s Jackpine Mine expansion, and will likely be the last.
Alberta’s newly-proposed single energy regulator for upstream oil and gas, coal and oilsands mining will no longer hear questions of constitutional challenge based on Aboriginal and treaty rights.
Bill 2, introduced on Oct. 24, will render extinct existing regulatory bodies in the province, most notably the Energy Resources Conservation Board.
If approved, the new single energy regulator will come into effect in June 2013.