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Alberta energy regulator sued over denying First Nations right to speak

An oil worker holds raw tar sand near Fort McMurray, on July 9, 2008. THE CANADIAN PRESS/Jeff McIntosh

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An oil worker holds raw tar sand near Fort McMurray, on July 9, 2008. THE CANADIAN PRESS/Jeff McIntosh

EDMONTON - Two aboriginal bands are taking Alberta's energy regulator to court after it denied them the right to speak at hearings into an oilsands development near their traditional lands.

"Alberta's regulatory system silences concerns, which is more Third World than world class," said Chief Henry Gladue of the Beaver Lake Cree Nation. "Alberta is saying one thing and doing something very different."

Last March, the Alberta Energy Regulator told the Beaver Lake Cree Nation and the Whitefish Lake First Nation that they wouldn't be allowed to address hearings into Canadian Natural Resources Ltd.'s (TSX:CNQ) Kirby expansion proposal.

The two groups were among five First Nations and one environmental group that had asked to air their concerns about the 85,000-barrel-a-day project. All those applications were denied and the regulator cancelled planned public hearings.

Although the Beaver Lake band said the development would be on its traditional lands and on at least one member's trapline, the regulator ruled that wasn't enough to be considered directly and adversely affected.

It told the band it must “demonstrate actual use of land and other natural resources in the project area by its members.”

The regulator used a similar argument with the Whitefish Lake First Nation and added that the band's concerns about cumulative effects were “general in nature and not related to the project or the project lands.”

Whitefish Lake Chief James Jackson Jr. said in a release that his band has routinely been granted standing in the past.

"Our past participation in the regulatory process helped resource companies better understand our concerns and provided at least some motivation for industry to work with First Nations to address our concerns," he said.

"Resource development can co-exist with First Nations and can happen in a way that respects our traditional way of life — but not if we are frozen out of the process by the Alberta Energy Regulator."

Documents filed with the Alberta Court of Appeal say the regulator's decision was "flawed, arbitrary and unfair" and made public-interest rulings in a "factual vacuum."

"In refusing to grant a regulatory hearing, there can be no, or no adequate, consideration of the potential adverse impacts on the First Nations' constitutionally protected rights," the documents read.

"Without a hearing, the First Nations are effectively precluded from participating any mitigation or accommodation measures to mitigate these impacts," says the appeal.

At least one legal expert has suggested that the regulator's decisions on whose voice gets heard could be discriminatory.

"It seems unlikely that the (regulator) would ask whether a fee simple owner actually used her land as part of determining whether that person was directly and adversely affected," Nigel Bankes, a University of Calgary resource law professor, wrote in a recent analysis.

The regulator's dismissal of cumulative effects concerns undermines the agency's intended task, he added.

"The demanding nature of the tests suggests that a First Nation will never be able to establish direct and adverse effect based on a cumulative effects argument," Bankes wrote. "Such a conclusion is inconsistent with the statutory mandate of the (regulator)."

Bankes and opposition politicians have said the Kirby decision is an example of a new pattern of restricting who is entitled to express concerns about oilsands developments. Last fall, two different aboriginal groups were also denied standing to appear at public hearings on proposals adjacent to their traditional lands.

A Queen's Bench judge, on a separate matter, urged the government and the regulator to draw the circle widely when seeking public input on oilsands development.

The appeal is expected to be heard in the fall.

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