Permission to Appeal – Denied
In this decision, the Alberta Court of Appeal (“ABCA”) considered an application by the Fort McKay Métis Community Association (“Fort McKay Métis”) for permission to appeal a decision of the AER dated June 12, 2018, approving Prosper Petroleum Ltd. (“Prosper”)’s oil sands project.
The ABCA denied permission to appeal.
Prosper applied for a bitumen recovery project (the “Project”) that would be located approximately 64 km from Fort McKay. The Project would operate within 10 km of two of the Fort McKay First Nation’s reserves (the “Moose Lake Reserves”). The lands that surround the Moose Lake Reserves, including the 10 km buffer around the reserves, is referred to as the “Moose Lake Area.”
Prosper applied to the AER for approvals under the Oil Sands Conservation Act (“OSCA“), the Environmental Protection and Enhancement Act, (“EPEA“), and the Water Act.
Fort McKay Métis has 97 members, who live mostly in Fort McKay. Fort McKay Métis asserted that it has unextinguished, constitutionally protected Métis Aboriginal rights to hunt and harvest in its community harvesting area and in its traditional territory and that the Project would adversely affect these rights. The community used and continues to use lands on and near the Moose Lake Reserves for hunting, trapping, and fishing.
The AER Decision
The AER found that the Project was in the public interest and it granted conditional approvals of Prosper’s OSCA, EPEA, and Water Act applications. However, the Project required Cabinet approval before it could proceed. When the application for permission to appeal was heard, Cabinet had not yet issued its decision on the Project.
For the purposes of the AER’s decision, the AER considered Fort McKay Métis to be a rights-bearing community with the rights to hunt and harvest for subsistence purposes and to exercise incidental activities on the lands and waters extending from Fort McKay west to Moose Lake and south to lands included in the Prosper lease.
The AER accepted evidence from Fort McKay Métis and found that “some members of the community might be afraid to eat fish from Moose Lake if more oil sands development occurs in the Moose Lake Area”. It noted that “[t]he fear expressed [by community members] [wa]s genuine,” and that “oil sands development around Fort McKay has interfered with Fort McKay Métis community members’ relationships with and connections to the land.”
The AER concluded that there was no evidence that the Project “itself will cause a loss of connection and relationship” to the land in the Moose Lake Area. More specifically, it found that “no persuasive evidence was provided in this hearing to establish that it is probable that Prosper’s project will result in harm to the fishery at Moose Lake.” The AER also found no evidence to conclude that the Project would impair surface water quality in the Moose Lake Area.
Although the AER found it reasonable to expect that the Project’s footprint would affect the wildlife use of habitat in the immediate vicinity of the Project land, there was no evidence that the Project would “result in fewer animals available for Fort McKay Métis to harvest.” The AER found that the evidence did not demonstrate that the Project would interfere with Fort McKay Métis’ ability to learn and pass on traditional knowledge and practices in the Moose Lake Area.
The AER found that the Project would not prevent Fort McKay Métis from continuing to exercise its Métis Aboriginal rights in its traditional territory.
The AER found the Project was in the public interest as required for an OSCA application, taking into account burdens on Fort McKay Métis and Fort McKay First Nation. It found that the Project “might limit Fort McKay Métis community members’ choice of where and when to exercise their Aboriginal rights,” and that “the possible limitation is significant enough to weigh in the public-interest balance but not significant enough to tip the balance against the Rigel project.”
With respect to Prosper’s EPEA application, the AER concluded that the Project was consistent with the statutory objective of protecting the environment and promoting sustainable resource development while considering economic growth. It approved the Project on the condition that Prosper would seek input from Fort McKay Métis concerning reclamation.
Alleged Grounds for Appeal
Fort McKay Métis sought permission to appeal on the following grounds under section 45(1) of the Responsible Energy Development Act (“REDA“):
(a) the AER erred in law and breached procedural fairness when it misapprehended the legal test to assess potential adverse impacts on rights protected by section 35 of the Constitution Act;
(b) the AER erred in its application of the test for assessing the public interest;
(c) the AER erred in law in reversing the burden of proof; and
(d) the AER erred in law in concluding that the Project was in the public interest due to Prosper’s commitment to meet or exceed the minimum regulatory requirements.
Test for Permission to Appeal
The ABCA set out that permission to appeal may only be granted on questions of law or jurisdiction. When deciding whether to grant permission, the Court considers the following factors:
(a) whether the issue is of general importance;
(b) whether the issues are of significance to the decision itself;
(c) whether the appeal has arguable merit (which may include consideration of the applicable standard of review); and
(d) whether the appeal will unduly hinder the progress of the proceedings.
The burden is on the applicant to meet this test. Mere assertions of importance and arguable merit, for instance, are not sufficient. These have to be demonstrated to the ABCA on the record before it.
Do the Issues Raised Satisfy the Test?
The ABCA found that Fort McKay Métis’ position was essentially reduced to three alleged legal errors which said resulted in unfairness. The AER erred:
(a) in its interpretation of rights protected by section 35 of the Constitution Act, 1982;
(b) in misapprehending the public interest test; and
(c) in incorrectly imposing what the applicant called “fabricated” evidentiary burdens.
Section 35 Rights
Fort McKay Métis submitted that:
(a) “[t]he AER failed to grasp that a negative effect on the exercise of a right is, objectively, an impact on the right itself”;
(b) the avoidance of a water body used to exercise fishing rights was, in fact, an objective impact on a Métis Aboriginal right; and
(c) therefore, the AER misapprehended the legal test to establish an adverse impact on the exercise of rights protected under section 35 of the Constitution Act, 1982.
The ABCA rejected this argument. The ABCA determined that while the AER found the fear of contamination was genuine, the AER implicitly found that the fear was not justified. Therefore, there was no impact on Aboriginal rights to harvest, although the AER took members’ fears into account when it weighed the public interest. The ABCA dismissed permission to appeal on this ground, based on the following findings:
(a) it was not arguable that the Métis Aboriginal right asserted here protected community members from fears arising from oil sands development, rather than from objectively demonstrated harms to wildlife and water, for example;
(b) none of the applicant’s authorities supported the view that genuine fears about the effects of the Project, which were not objectively reasonable, were sufficient by themselves to constitute interference with a right protected under section 35 of the Constitution Act, 1982;
(c) the AER recognized that the Fort McKay Métis had subjective fears about the potential impact of the Project; and
(d) Fort McKay Métis did not raise an arguable case that avoidance of land and water resources by community members due to fear was a negative impact on Aboriginal rights.
Public Interest Test
The ABCA found that Fort McKay Métis did not show an arguable error of law. At best, the issue was one of mixed fact and law concerning the AER’s overall weighing of the public interest.
The ABCA found that the AER’s reasons disclosed that the panel considered not only Prosper’s satisfaction of the relevant minimum statutory requirements but also its efforts to minimize the impacts of the Project to the hearing participants and others and the Project’s substantial economic benefits. It weighed these with the Aboriginal rights and negative social effects.
In the ABCA’s view, the applicant’s complaint seemed to be one of mixed fact and law about whether the AER gave enough weight to Métis Aboriginal rights in the public interest balancing. Alternatively, the complaint was that the AER considered members’ fears about the effect of the Project on the exercise of Métis Aboriginal rights under the heading “negative social effects”, not as an infringement of rights.
Reversal of the Burden of Proof
Prosper was required to establish that the Project was in the public interest. Fort McKay Métis submitted that the AER erred in law by reversing the burden of proof; it claimed that the AER began by presuming that the Project was in the public interest and required the hearing participants to bring evidence to rebut this presumption. Specifically, the Fort McKay Métis argued that the AER wrongly put the burden on it to establish that the Project would adversely affect their Métis Aboriginal rights over their traditional territory. The applicant argued that it was never Fort McKay Métis’ obligation to discharge this evidentiary burden.
The ABCA found that whether the AER incorrectly imposed an evidentiary burden on the Fort McKay Métis was a question of law. Normally, if a party asserted in the course of a hearing that its rights were adversely impacted, it has the burden of substantiating those assertions. Fort McKay Métis was in the best position to explain and establish the claimed impact on its rights.
Fort McKay Métis did not provide the ABCA with any relevant authority to suggest that the AER was responsible for gathering evidence about the likely impacts of the Project on Métis Aboriginal rights.
The ABCA concluded that the AER’s finding of insufficient evidence did not amount to a reversal of the burden of proof. In any event, the AER’s findings with regard to the sufficiency of evidence were findings of fact or mixed fact and law and did not raise a question of law.
The ABCA denied the application for permission to appeal.