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OIL AND GAS - Environmental impact

Friday, March 01, 2019 @ 7:01 AM  

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Application by the Fort McKay Métis Community Association for permission to appeal a decision by the Alberta Energy Regulator approving an oil sands project proposed by Prosper Petroleum. The applicant alleged that a proposed bitumen recovery project within ten kilometres of two of its reserves would adversely affect unextinguished, constitutionally protected Métis aboriginal rights to hunt, fish and harvest. In 2013, Prosper applied for the required approvals for the project. In 2015, the applicant objected to the Water Act application due to concerns about groundwater and surface water impacts and was granted full participation rights. In 2018, the Regulator found that there was no evidence that the project would harm the fishery, reduce available wildlife, or impair surface water quality in the applicant's area. The Regulator concluded that although there might be a negative social effect arising from the project concerning the applicant's perception of the lands, it would not prevent further exercise of the applicant's aboriginal rights in its traditional territory. The Regulator ruled that any possible limitation on the applicant's rights did not outweigh the public interest in the project. The project was approved with conditions. The applicant sought permission to appeal the approval to the Court of Appeal.

HELD: Application dismissed. It was not arguable that the Métis aboriginal rights protected community members from fears arising from oil sands development, rather than from objectively demonstrated harms to wildlife and water. The finding by the Regulator that the project might cause a change in the perception of the lands did not clearly demonstrate a negative impact on aboriginal rights. The issue of whether the Regulator gave sufficient weight to Métis aboriginal rights in the public interest balancing exercise was a question of mixed fact and law that did not give rise to an arguable error of law. A finding of insufficient evidence in respect of the assessment of the public interest did not involve an improper reversal of the burden of proof. In the absence of an arguable question of law or jurisdiction, permission to appeal was denied.

Fort McKay Métis Community Assn. v. Alberta Energy Regulator, [2019] A.J. No. 41, Alberta Court of Appeal, R. Khullar J.A., January 16, 2019. Digest No. TLD-February252019011