Requlatory Appeal – Consultation
In this decision, the AER considered the request from the Fort McMurray Métis Local Council 1935 (“McMurray Métis”) for a regulatory appeal of the decision to issue the Horizon South Lease 24 (“Horizon South”) approvals to Canadian Natural Resources Limited (“CNRL”). The AER decided that McMurray Métis was not directly and adversely affected and, consequently, dismissed the request for a Regulatory Appeal.
McMurray Métis’ Request for Regulatory Appeal
McMurray Métis’ filed its request for regulatory appeal on the following basis:
The AER misapprehended the information provided by McMurray Métis and, as a result, made conclusions that were not supported by the facts.
The AER misapplied the test established by the Court of Appeal in Dene Tha’ First Nation v. Alberta (Energy and Utilities Board), (2005) ABCA 68, by finding that more evidence was required for the AER to find that the McMurray Métis were directly and adversely affected.
The AER did not fulfill its public interest mandate by discarding the clear issue that McMurray Métis have Aboriginal rights that may be impacted and have not been considered in the approval process.
McMurray Métis disagreed with the finding of the AER that they are not directly and adversely affected by the application solely based on the fact that the applications relate to lands that are within Métis’ harvesting area without providing further factual connection evidence.
McMurray Métis stated that the statement of concern (“SOC”) submitted provided additional factual information in support of the direct and adverse effect on the McMurray Métis. This included 94 Indigenous Knowledge and Use (“IKU”) intersections, including the categories of hunting, fishing, transportation, Indigenous knowledge, and access. McMurray Métis submitted that their SOC includes the required factual connection in accordance with the Kelly vs. Alberta (Energy Resources Conservation Board), 2009 ABCA 349 (Kelly No. 1), Kelly vs. Alberta (Energy Resources Conservation Board), 2011 ABCA 325 (Kelly No. 2) and Kelly vs. Alberta (Energy Resources Conservation Board), 2012 ABCA 19 (Kelly No. 3).
The AER’s decision to dismiss the SOC was based on the understanding that the impacts of the Horizon Oil Sands Mine and Processing Plant and Joslyn North Mine Oil Sands Project projects on the McMurray Métis have been assessed through previous project approvals and that because the Horizon South integration project will have a smaller footprint, impacts will be minimized. McMurray Métis argued that these findings overlook the fact that concerns have never been before any decision maker since McMurray Métis have never been engaged by CNRL or Total E&P Canada Limited. As a result, no traditional land use information was gathered in respect of the project areas, and no Indigenous knowledge information was included in any of the applications, which in turn means that none of the McMurray Métis concerns in the SOC have been addressed.
The AER found that it does not have jurisdiction to assess Crown consultation and that the Aboriginal Consultation Office determined that no consultation was required. McMurray Métis were of the view that the AER has a public interest mandate and that Directive 056: Energy Development Applications and Schedules requires the proponent to engage with affected parties.
McMurray Métis advised the AER that consultation had not taken place, and the AER interpreted this concern as a request for compensation. This was not a request for compensation, and, in McMurray Métis view, it is clearly within the AER jurisdiction to ensure that the proponent has assessed the impact to Indigenous people who have rights to harvest in the project area when making a decision in the public interest.
Reasons for Decision
The AER noted that the Supreme Court of Canada has held, regarding prior consultation, the claimant must show a causal relationship between the decision in question and a potential adverse impact on the Aboriginal rights. The direct and adverse effect must be as a result of the decision in question and, prior and continuing breaches will only trigger a duty to consult if the decision under consideration has the potential of causing a novel impact on an existing right.
As a result, the scope of this regulatory appeal is limited to assessing the direct and adverse effects on McMurray Métis that are the result of the approvals under appeal.
The AER found that McMurray Métis have not provided sufficient evidence to establish the required degree of location or connection between the proposed project and the impacts on their rights in the vicinity of the project. Because the integration project does not involve a new project, new activities, or disturbance of any additional lands, it does not create an additional risk for direct and adverse effects by the decision.
The AER found that McMurray Métis are not directly and adversely affected by the decision and dismissed the request for regulatory appeal.