Alberta won’t review excluding bands from oilsands hearings

 By Bob Weber, The Canadian Press October 20, 2013

EDMONTON – The Alberta government says it won’t reconsider recent decisions to bar two aboriginal groups from voicing concerns about oilsands developments on or near their traditional territories.

That refusal comes despite urgings from a Queen’s Bench judge to loosen restrictions on who has the right to appear before boards making decisions on how development in the province can proceed.

The government “doesn’t see that it’s necessary to review those cases,” said Nikki Booth, spokeswoman for Alberta Environment.

Earlier this year, the Metis Local 1935 from Fort McMurray and the Fort McKay First Nation filed statements of concern regarding oilsands developments.

The Metis are concerned about the Thickwood project proposed by Grizzly Oilsands Ltd., which would produce about 12,000 barrels of oil per day about 60 kilometres northwest of Fort McMurray. The group says the project is in an area used for hunting and other traditional activities and two of its members live there.

The Fort McKay band filed a statement of concern regarding an Athabasca Oil Sands Corp. (TSX:ATH) proposal for a 6,000 barrel a day pilot project about 20 kilometres from one of its reserves. It says the project will add to the ongoing extinction of moose and caribou from the area as well as damage traditional ceremonial sites used by Fort McKay.

“There are quite a few concerns that were filed,” said band spokeswoman Dayle Hyde.

But in September, both groups were told they failed to make their case. Neither will be able to air their concerns to the body that decides how — or if — projects should proceed.

Fort McKay was told it hadn’t provided hard evidence to show Athabasca’s project would affect it.

“A connection between the alleged (traditional) activities, even if they are carried out in and around the project area, and the project has not been shown,” said a Sept. 19 letter from the Alberta Energy Regulator.

No hearings at all will be held for the Athabasca proposal.

The Metis were told that having only two members that live on the land in question weren’t enough.

“The … filer must demonstrate that the majority of the group is directly affected by the aforementioned project,” the department wrote on Sept. 20.

But Kyle Harrietha, manager of Local 1935, said his group hasn’t even had a chance to figure out how it could be affected.

“There hasn’t been any consultation, there’s never been a traditional land use study, so we can’t fully say what the traditional land use was,” he said.

The government said the local could appear on behalf of its two members who live in the area, but Harrietha said that’s not the same as speaking as a group.

“Aboriginal rights aren’t held by the individual,” he said. “What they’re asserting is that we’re basically a community association.

“They’re treating us like a boy’s and girl’s club.”

Alberta’s policy on who has the right to speak at such hearings was criticized in an Oct. 1 court judgment. Justice Richard Marceau overturned a decision to bar two environmental groups from presenting concerns, largely because of a document suggesting the decision was made for political reasons.

Marceau added in a non-binding part of the ruling that restrictive rules on who can speak violate both the government’s own legislation and previous court rulings.

“The process of identifying who is ‘directly affected’ should not be decided by the application of rigid rules,” Marceau wrote.

He said hearings should seek a broad range of information and that doubts should be resolved in favour of the applicant.

“I think it’s fair to say that (Marceau) was encouraging a wider application of the standing test than he perceived is being applied,” said Sandy Carpenter, a Calgary lawyer whose practice focuses on resource and regulatory law.

Carpenter added that Harrietha has a point when he complains about the government dealing with individual aboriginals instead of communities.

“When First Nations and Metis say their rights are collectively based, they’re right in saying that. If an aboriginal group can put forward the exercise of rights by members of the community in the area in question, that’s something that should be taken into account.”

Booth said the government decides who can speak at hearings based on the circumstances of each case.

“Each case has their own different impacts,” she said.

She said the courts are available to groups that disagree with the government’s ruling.

Harrietha said Local 1935 is considering its options.

“We’ll be asking the government for a review. Depending on their response we’ll have to determine whether further action is required.”