A federal court has rejected the Athabasca Chipewyan First Nation’s claims that Ottawa poorly consulted First Nation leadership during its review of a proposed Shell Canada project.
The First Nation was hoping the court would overturn Environment Minister Leona Aglukkaq’s approval of Shell Canada’s planned Jackpine Mine expansion, a project located 70 kilometres north of Fort McMurray. The June 2013 approval came with 88 recommended conditions.
“Regardless of this decision, it’s obvious to ACFN there has not been adequate consultation to thoroughly understand the long term impacts or proven ways to mitigate the destruction of these massive development projects,” said Chief Allan Adam of the ACFN in a statement.
The legal challenge was filed last fall in Vancouver. ACFN’s legal team was based in the province and the band feared an Alberta court would be biased against their Treaty arguments. Spokesperson Eriel Deranger also said that, at the time, First Nations are typically big winners in B.C. courts.
However, Justice Daniele Tremblay-Lamer ruled she could not find anything wrong with the consultation process.
“Within its jurisdictional authority, Canada has endeavoured to accommodate the ACFN with conditions binding on Shell and through more expansive regulatory schemes; in areas of exclusive provincial jurisdiction, Canada has committed itself to collaborating with Alberta and offering support,” she wrote in her conclusion.
“The Project’s conditions were designed with a measure of flexibility precisely so that they could adapt to changes and developments in the Project, which is still at the preliminary stage,” wrote Tremblay-Lamer. “Canada’s accommodations, adequate in themselves, bear witness to the attentive, responsive consultation that Canada has afforded the ACFN throughout the process.”
Shell applied for the Jackpine expansion in 2007. The project would increase output by 100,000 barrels a day, bringing the total to 300,000.
During a 2012 joint review panel, the ACFN and the Mikisew Cree, as well as local non-status Indians, joined the Metis Nation of Alberta and several Metis locals in opposition. All parties argued they had not been adequately consulted by Shell Canada or the federal government.
They also argued the project would disturb 12,719 hectares of land and destroy 21 kilometres of the Muskeg River, territory they all said was culturally, historically and traditionally significant.
The panel approved the project, but agreed with many of those points, concluding the project would permanently destroy thousands of hectares of wetlands, disrupting the migration patterns of birds, caribou and other local wildlife. It also said Shell’s mitigation and reclamation strategies were inadequate or unproven.
“The parameters around consultation are so loose in this country that we have seen a devolution of who in fact is supposed to do consultation,” said Deranger.
Deranger says when Treaty 8 was signed in 1899, consultation would be done with the federal government via agents of the Crown.
But in recent years, she says Ottawa has shifted that burden to the province’s after provincial governments were given more authority over resource development.
“Governments deal with our rights by ‘ticking boxes’ and not dealing with the real issues,” said Adam in a statement. “If the Crown continues to treat consultation as a game, we won’t be playing.”
Since the project was first submitted, both Shell and both levels of government have argued they have regularly met with ACFN. Shell Canada spokesperson Jeff Mann said the company would not comment on the judge’s decision, but said the company plans to continue meeting with ACFN in 2015.
Deranger says the band does not yet plan to appeal the ruling, since Tremblay-Lamer suggested some of the band’s concerns could be addressed by the provincial government.
“We are looking at how they will address our concerns, but if things are not looking favourable, then we will look at other options for recourse.”