Alberta’s highest court today released a seminal decision in Fort McKay First Nation v. Prosper Petroleum and Alberta Energy Regulator, which will redefine the relationship between the Crown and First Nations in Alberta’s energy sector, and has broad implications for Treaty First Nations across the country.
This decision is the latest round in the ongoing fight by the Fort McKay First Nation (FMFN), a Treaty 8 Nation whose traditional territory is in the heart of oil sands country, to save Moose Lake, one of the last refuges for FMFN to exercise its treaty rights to hunt, fish and trap. FMFN has been for years attempting to negotiate a management plan for the Moose Lake area that would take into account cumulative impacts and see its treaty rights preserved, a plan which former Premier Jim Prentice promised would be completed years ago before any further development approvals were issued. Despite ongoing negotiations, the Alberta Energy Regulator (AER) approved Prosper’s Petroleum application for a $400 million oil sands project in the heart of Moose Lake, saying it had no jurisdiction to take into account those negotiations.
The Alberta Court of Appeal overturned the approval, saying that the AER was constitutionally obligated to take into account the “Honour of the Crown” and how it might be implicated in the negotiations around the management plan and the specific promise made by Premier Prentice. The Court held that the Honour of the Crown can impose significant substantive obligations on the Crown to ensure a mutually respectful treaty relationship. Those obligations are not limited to consultation, and require decisions about land use to consider whether the proposed use is consistent with honourable dealings between treaty partners, taking into account all of the factors which may render First Nations treaty rights less meaningful. In a concurring judgment, Justice Greckol put it in these blunt terms: “[The honour of the Crown] certainly demands more than allowing the Crown to placate FMFN while its treaty rights careen into obliteration. That is not honourable. And it is not reconciliation.”
Arvay Finlay LLP was co-counsel for FMFN in this appeal. The reasons are indexed as 2020 ABCA 163