OTTAWA - The Supreme Court of Canada has refused to hear the Athabasca Chipewyan First Nation's bid to block a ruling on Shell's Jackpine oilsands mine expansion in northern Alberta.
Legal advisers for the band said Thursday its options to force the company to take its concerns into account aren't over.
The First Nation wanted a regulatory board to rule on whether the band had been adequately consulted before the board decided if the Shell (NYSE:RDS) project could go ahead.
The board said governments should determine how much consultation is adequate. The Alberta Court of Appeal agreed and the high court has refused to hear an appeal of that decision.
"We are truly disappointed with this decision as we have diligently proceeded through legal avenues to have our rights upheld," Athabasca Chipewyan Chief Allan Adam said in a statement.
"We understand that this joint review panel was supposed to uphold everyone's constitutional rights. Why has there been an exception with regards to First Nations’ consultation rights? Government must be held accountable to their treaty obligations."
The First Nation also says the decision means the board will make a Jackpine decision without anyone considering whether the band's right to adequate consultation has been fulfilled.
It hinted it may mount another bid to block the ruling.
"We do not know the reasons why the Supreme Court did not grant (Athabasca Chipewyan First Nation) a hearing. It is clear that we will not find access to justice within Alberta," Adam said.
"We will have to decide if we move ahead with different legal strategies to uphold our rights."
Band lawyer Eamon Murphy said from Vancouver that the First Nation still has legal options.
Once the review panel issues its recommendation, permits for specific aspects of the project must still be issued by federal and provincial authorities. Murphy said the band is considering legal challenges at those levels.
"On those approvals, we would have to look at them and see if there's any possibility of reviewing those in court," he said. "It becomes more difficult, frankly."
The issue of aboriginal consultation is heating up in Alberta.
Under legislation passed during the Jackpine hearings, the province's new regulatory board is specifically prohibited from hearing concerns about consultation. Alberta is trying to set up a provincial office to handle such a task, but bands from all three of Alberta's treaty groups say the draft policy ignores their concerns and defines the issue on the government's terms.
The Supreme Court is also refusing to hear an appeal by B.C.'s Adams Lake Indian Band, which claims it was not adequately consulted before the province established a municipality on lands the band claims as its own.
As is its usual practice, the high court did not release reasons for its decisions.