Fort McKay Métis Community Association v. Alberta Energy Regulator, et al.

(Alberta) (Civil) (By Leave)


Constitutional law - Aboriginal law, Treaty rights, Natural resources, Oil and gas - Constitutional law — Aboriginal peoples — Treaty rights — Natural resources — Oil and gas — Whether specific guidance should be given to decision makers on the acceptance, priority and weight of evidence of Indigenous traditional knowledge when assessing potential adverse impacts on Aboriginal or treaty rights — Whether evidence of Indigenous traditional knowledge requires justification or corroboration from “western” science evidence when assessing adverse impacts to Aboriginal or treaty rights.


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Prosper Petroleum Ltd. is the proponent of a bitumen recovery project that will operate within 10 km of two of the Fort McKay First Nation’s reserves. In 2015, Prosper applied to the Alberta Energy Regulator (“AER”) for approval of the Project under the Oil Sands Conservation Act, R.S.A. 2000, c. O 7 (“OSCA”), the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E 12 (“EPEA”), and the Water Act, R.S.A. 2000, c. W 3. Fort McKay filed an objection to the Water Act application based on impacts to the groundwater and the surface water.

The AER allowed Fort McKay to participate fully in the hearing, and considered it to have rights to hunt and harvest for subsistence purposes and to exercise incidental activities on the lands and waters extending to lands included in the Prosper lease. The AER found that the Project was in the public interest, taking into account the burdens it placed on the Fort McKay Métis and the Fort McKay First Nation. While the Project might limit their choice of where and when to exercise their rights, those possible limitations did not tip the balance against the Project. The Project met the statutory goal of protecting the environment and promoting sustainable resource development while considering economic growth, and its surface water monitoring program exceeded the applicable regulatory requirements. It gave conditional approval to the applications under the OSCA, the EPEA, and the Water Act. As the approvals were conditional, Prosper was to seek input from the Fort McKay Métis and the Fort McKay First Nation before continuing with the development of its monitoring program, and the Project could not proceed without Cabinet approval. Fort McKay requested permission to appeal. When the Court of Appeal heard the application, Cabinet had not issued its decision on the Project. Permission was denied.