In the MLAMP, the FMFN sought a 10-kilometer buffer zone surrounding the Moose Lake area in which no oil sands development would be permitted. MLAMP was to respond to the cumulative effects of oil sands development on the Treaty 8 rights of the FMFN, and obtain protection for the Moose Lake area. Backgroundīefore Prosper filed its application in 2013, FMFN had begun negotiations with the Government of Alberta to develop a Moose Lake Access Management Plan (MLAMP). It also comes in the wake of the 2018 Federal Court of Appeal decision on Trans Mountain in which the FCA found that the National Energy Board (now Canada Energy Regulator) failed to adequately consider the impact of project-related marine shipping in the scope of its review (and the impacts on Southern resident killer whales, in particular).īoth decisions tend to broaden the scope of issues that administrative tribunals must consider when exercising approval power over natural resource and infrastructure projects. The Court's expanded interpretation of public interest may create additional challenges for applicants seeking project approvals before a tribunal where the honour of the Crown may be an issue.
This decision has important consequences for tribunals that must consider the public interest when deciding on project applications that may implicate actions by other Crown agencies related to reconciling aboriginal and treaty rights with project development. As a result, the AER was obliged to consider other aspects of the honour of the Crown, and in this case Alberta's actions related to reconciling project development with the implementation of FMFN treaty rights. The Court decided that the AER interpreted its public interest mandate too narrowly by failing to consider issues raised by the Fort McKay First Nation (FMFN) about how the approval of the Rigel Project may affect their efforts with the Government of Alberta to develop a land use plan to respond to FMFN concerns about the cumulative effects of oil sands development on FMFN treaty rights.Īlthough the AER's legislative scheme explicitly excludes the AER's jurisdiction to consider the adequacy of Crown consultation ( REDA, s 21), the Court held that the AER's power to consider the "public interest" establishes an implied jurisdiction and "duty" to apply the Constitution to ensure its decisions comply with s 35 of the Constitution Act, 1982. In Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163 ( Prosper) the Alberta Court of Appeal set aside the Alberta Energy Regulator's (AER) approval of Prosper Petroleum Ltd.'s application for the Rigel bitumen recovery project. Written by Deirdre Sheehan, David Bursey, Keely Cameron and Micaela Zila
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