Category Archives: Aboriginal

The First Ministerial Direction to the Alberta Energy Regulator: The Aboriginal Consultation Direction

By: Giorilyn Bruno and Nigel Bankes

Direction commented on: Ministerial Order 141/2013, The Aboriginal Consultation Direction

PDF version: The First Ministerial Direction to the Alberta Energy Regulator: The Aboriginal Consultation Direction

On November 26, 2013, the Minister of Energy issued Ministerial Order 141/2013, the Aboriginal Consultation Direction. The Direction was issued to ensure that “the AER considers and makes decisions in respect of energy applications in a manner that is consistent with the work of the Government of Alberta” (Direction at 2) in meeting its consultation obligations associated with the existing rights of Aboriginal people. The Direction gives eight specific directions to the Alberta Energy Regulator (AER) and sets up a process on Aboriginal consultation that the AER must follow. This post comments on the content of the Direction, its implications, and identifies some of the issues that are unclear under the current legislation.

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Crown Oil Sands Dispositions and the Duty to Consult

By: Nigel Bankes

Case commented on: Buffalo River Dene Nation v. Ministry of Energy and Resources and Scott Land and Lease Ltd., 2014 SKQB 69

PDF version: Crown Oil Sands Dispositions and the Duty to Consult

In this decision Justice Currie of the Saskatchewan Court of Queen’s Bench concluded that the Crown owes no duty to consult a Treaty 10 First Nation when issuing Oil Sands Special Exploratory Permits (OSSEPs) in the traditional territory of that First Nation. In reaching this conclusion Justice Currie focused on his assessment that in issuing a permit the Minister did not make a decision that could affect the use of the land. Justice Currie also distinguished the Supreme Court of Canada’s decision in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, where that Court held that the Crown’s decision to authorize the assignment of tree farm licence could trigger the duty to consult on the basis that it was a high level strategic planning decision that could have subsequent on-the-ground effects. Justice Currie took the view in this case that there was no Crown “plan of action” and no high level strategic planning decisions and therefore no duty.  Continue reading →

What are the Rules Governing Consents to Assignments of Pipeline Easements across Indian Reserves?

PDF Version: What are the Rules Governing Consents to Assignments of Pipeline Easements across Indian Reserves? 

Case commented on: Coldwater Indian Band v Minister of Indian Affairs and Northern Development, 2013 FC 1138

This case raises the question of the leverage available to a First Nation to claim hold-out rents where a pipeline crosses reserve lands and the current owner/operator of the pipeline has failed to obtain required consents to an assignment of the pipeline easement.

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Constitutional Questions and the Alberta Energy Regulator

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Decisions commented on: (1) ERCB Letter Decision, April 18, 2013, re Fort McKay First Nation, Notice of Question of Constitutional Law; (2) ERCB Letter decision, May 23, 2013, reasons for decision in relation to Fort McKay First Nation, Notice of Question of Constitutional Law; (3) 2013 ABAER 014, Dover Operating Corporation, Application for a Bitumen Recovery Scheme Athabasca Oil Sands Area, August 6, 2013; and (4) Fort McKay First Nation v Alberta Energy Regulator, 2013 ABCA 355

The Alberta Court of Appeal has granted leave to the Fort McKay First Nation (FMFN) to appeal two questions of law or jurisdiction in relation to decisions made by the Energy Resources Conservation Board (ERCB) (the predecessor to the Alberta Energy Regulator (AER)) and the AER itself in approving, subject to the further approval of the Lieutenant Governor in Council, Dover’s application for a major steam assisted gravity drainage (SAGD) bitumen recovery project. The two questions on which leave was granted are as follows:

(a) Whether the Tribunal erred in law or jurisdiction by finding that the question whether approval of the project would constitute a meaningful diminution of the Treaty rights of the Fort McKay First Nation and therefore be beyond provincial competence was not a question of constitutional law as defined in the Administrative Procedures and Jurisdiction Act;

(b) Whether the Tribunal erred in law or jurisdiction by finding that it had no jurisdiction to consider constitutional issues other than those defined as “questions of constitutional law” in the Administrative Procedures and Jurisdiction Act.

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The Crown Owes No Duty to Consult Indigenous Communities Before Ratifying a Bilateral Investment Treaty

PDF Version: The Crown Owes No Duty to Consult Indigenous Communities Before Ratifying a Bilateral Investment Treaty

Case commented on: Hupacasath First Nation v Minister of Foreign Affairs Canada and the Attorney General of Canada, 2013 FC 2009

In this case Chief Justice Crampton of the Federal Court Trial Division rejected the application of the claimant Hupacasath First Nation (HFN) for a declaration that Canada is required to engage in a process of consultation and accommodation with First Nations, including HFN, prior to ratifying or taking other specific steps that will bind Canada to the terms of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) (text available here). It was common ground (at paras 11 and 12) that while the Department of Foreign Affairs and International Trade had consulted with stakeholders, that consultation did not extend to HFN or other First Nations.

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