On October 18, 2013 the Alberta Court of Appeal granted the Fort
McKay First Nation ("Fort McKay") leave to appeal a
decision of the Alberta Energy Regulator ("AER")
approving Brion Energy Corporation's ("Brion")
proposed steam assisted gravity drainage ("SAGD")
oilsands project (the "Project").
Fort McKay raised a number of issues with respect to the Project
during the hearing before the AER pertaining to the cumulative
effects of the Project and the potential impacts of the Project on
its constitutionally protected rights. Fort McKay requested that
the AER establish a twenty kilometer buffer zone around the Moose
Lake Reserves to protect the reserves from the effects of oil sands
Prior to the hearing, Fort McKay had provided notice to the
Board that it intended to raise a number of constitutional issues
including: the adequacy of the Crown's consultation with
respect to the project; and whether the AER's approval of the
project would constitute an infringement of its treaty rights.
In a prehearing ruling, the AER Hearing Panel concluded that it
did not have the jurisdiction to consider the constitutional
questions raised by Fort McKay on the basis that it only had the
authority to address constitutional issues defined in the
Administrative Procedures and Jurisdiction Act. The AER
proceeded to the oral hearing of Brion's application and
ultimately approved of the Project.
Fort McKay applied for leave to appeal on four issues:
Whether the Tribunal erred by finding that it had no
jurisdiction to consider whether approval of the project would
constitute an infringement of the First Nation's treaty
Whether the Tribunal erred by finding that it had no
jurisdiction to consider constitutional issues other than those
defined as "questions of constitutional law" in the
Administrative Procedures and Jurisdiction Act;
Whether the Tribunal erred by reason of its narrow
interpretation of its inquiry jurisdiction and its remedial
jurisdiction to consider and respond to cumulative environmental
Whether the Tribunal erred by reason of the process through
which it purported to make findings respecting project impacts on
constitutionally protected Treaty rights of Fort McKay.
In granting leave, the Alberta Court of Appeal concluded that
there were live issues with respect to Fort McKay's first two
grounds of appeal pertaining to the Regulator's interpretation
of its power to decide constitutional issues under the
Administrative Procedures and Jurisdiction Act, and found
that these issues were of general importance.
The court was less receptive to grounds three and four and
determined that the Regulator had considered cumulative effects in
approving the project and concluded that Fort McKay's process
concern had been worded too broadly to constitute a suitable issue
for an appeal.
The granting of leave to appeal is of particular note as Brion
Energy's SAGD project is one of the first approvals issued by
the AER under the recently enacted Responsible Energy
Development Act, which significantly modified the regime under
the former Energy Resources Conservation Act and clarified
that the AER lacks the jurisdiction to assess the adequacy of Crown
consultation associated with the rights of aboriginal peoples.
This appeal may provide clarity with respect to the AER's
authority to consider constitutional issues generally and in
particular, under the Administrative Procedures and
Jurisdiction Act. The case may also have broader implications
pertaining to Alberta's ability to approve projects that might
result in a "meaningful diminution" of the Treaty rights
of First Nations residing in areas subject to extensive industrial
development, such as those associated with oil sands
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