The Canadian Press - ONLINE EDITION

Alberta energy regulator sued over denying First Nations right to speak

  • Print

EDMONTON - Two aboriginal bands are taking Alberta's energy regulator to court after it denied them the right to speak at hearings into an oilsands development near their traditional lands.

"Alberta's regulatory system silences concerns, which is more Third World than world class," said Chief Henry Gladue of the Beaver Lake Cree Nation. "Alberta is saying one thing and doing something very different."

Last March, the Alberta Energy Regulator told the Beaver Lake Cree Nation and the Whitefish Lake First Nation that they wouldn't be allowed to address hearings into Canadian Natural Resources Ltd.'s (TSX:CNQ) Kirby expansion proposal.

The two groups were among five First Nations and one environmental group that had asked to air their concerns about the 85,000-barrel-a-day project. All those applications were denied and the regulator cancelled planned public hearings.

Although the Beaver Lake band said the development would be on its traditional lands and on at least one member's trapline, the regulator ruled that wasn't enough to be considered directly and adversely affected.

It told the band it must “demonstrate actual use of land and other natural resources in the project area by its members.”

The regulator used a similar argument with the Whitefish Lake First Nation and added that the band's concerns about cumulative effects were “general in nature and not related to the project or the project lands.”

Whitefish Lake Chief James Jackson Jr. said in a release that his band has routinely been granted standing in the past.

"Our past participation in the regulatory process helped resource companies better understand our concerns and provided at least some motivation for industry to work with First Nations to address our concerns," he said.

"Resource development can co-exist 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."

Documents filed with the Alberta Court of Appeal say the regulator's decision was "flawed, arbitrary and unfair" and made public-interest rulings in a "factual vacuum."

"In refusing to grant a regulatory hearing, there can be no, or no adequate, consideration of the potential adverse impacts on the First Nations' constitutionally protected rights," the documents read.

"Without a hearing, the First Nations are effectively precluded from participating any mitigation or accommodation measures to mitigate these impacts," says the appeal.

At least one legal expert has suggested that the regulator's decisions on whose voice gets heard could be discriminatory.

"It seems unlikely that the (regulator) would ask whether a fee simple owner actually used her land as part of determining whether that person was directly and adversely affected," Nigel Bankes, a University of Calgary resource law professor, wrote in a recent analysis.

The regulator's dismissal of cumulative effects concerns undermines the agency's intended task, he added.

"The demanding nature of the tests suggests that a First Nation will never be able to establish direct and adverse effect based on a cumulative effects argument," Bankes wrote. "Such a conclusion is inconsistent with the statutory mandate of the (regulator)."

Bankes and opposition politicians have said the Kirby decision is an example of a new pattern of restricting who is entitled to express concerns about oilsands developments. Last fall, two different aboriginal groups were also denied standing to appear at public hearings on proposals adjacent to their traditional lands.

A Queen's Bench judge, on a separate matter, urged the government and the regulator to draw the circle widely when seeking public input on oilsands development.

The appeal is expected to be heard in the fall.

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes

    No

  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.

letters

Make text: Larger | Smaller

LATEST VIDEO

Stuart Murray announces musical RightsFest for CMHR opening weekend

View more like this

Photo Store Gallery

  • A Yellow-bellied Sapsucker hangs out on a birch tree in St. Vital. The Yellow-bellied Sapsucker is considered a keystone species. Other species take advantage of the holes that the birds make in trees. A group of sapsuckers are collectively known as a
  • A red squirrel peaks out of the shade in a tree in East Fort Garry, Sunday, September 9, 2012. (TREVOR HAGAN/WINNIPEG FREE PRESS)

View More Gallery Photos

Poll

What should the city do with the 102-year-old Arlington Street bridge?

View Results

View Related Story

Ads by Google