Canada: Fort McKay V. Prosper Boards, Tribunals And The Honour Of The Crown – Mondaq News Alerts

Canada: Fort McKay V. Prosper Boards, Tribunals And The Honour Of The Crown – Mondaq News Alerts

by ahnationtalk on June 10, 2020229 Views

The Alberta Court of Appeal recently held in Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163, that boards and tribunals are responsible for upholding the honour of the Crown where their decisions may affect an aboriginal right, regardless of whether it also assesses Crown-aboriginal consultations. The decision, while unique due to various promises made and documented by the Alberta government, expands the potential scope of considerations for boards and tribunals when adjudicating on questions where negotiations with First Nations or an aboriginal right hang in the balance.


The case was appealed by the Fort McKay First Nation (FMFN) to the Alberta Court of Appeal following the Alberta Energy Regulator’s (AER) June 2018 approval of Prosper Petroleum Ltd.’s (Prosper) application to build its proposed 10,000 barrel per day Rigel oil sands bitumen recovery project (the Project) within five kilometres of FMFN Reserves.

For some years prior to the AER’s decision, the Government of Alberta (Alberta) and the FMFN had been taking part in ongoing negotiations to develop the Moose Lake Access Management Plan (MLAMP) to address the cumulative effects of oil sands development on the First Nation’s Treaty 8 rights. The FMFN began negotiations with Alberta in 2001 to develop a plan protecting its traditional lands in the form of the MLAMP. The MLAMP was to be subsumed into the Lower Athabasca Regional Plan (LARP), and become a legally binding document. The FMFN specifically sought a 10-kilometre buffer zone around their lands from oil sands development as it had already lost 70 per cent of its traditional lands to the development. Alberta initially denied this request. In 2014, however, Alberta’s then Premier Jim Prentice, committed via a letter of intent to completing the MLAMP with provisions creating a 10-kilometre buffer zone under the LARP by September 30, 2015. This “Prentice Promise” was never further codified.

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