Fort McKay First Nation v. Prosper Petroleum Ltd, 2020 ABCA 163

The administrative Tribunals while deciding any matter in their jurisdiction cannot ignore the considerations of Public Interest which is mandated by the constitutional principle of ‘Honour of Crown’.

The case is about an Appeal which is made by the Fort McKay First Nation (Appellant) to the Alberta Court of Appeal on June 2018 against an approval made by Alberta Energy Regulator (AER) to Prosper Petroleum Ltd to build 10,000 barrel per day Rigel oil sands bitumen recovery project within 5 kilometers of Appellant’s reserves. The grievance of the appellant was that before this decision of AER, the Government of Alberta and appellant were negotiating on developing Moose Lake Access Management Plan (MLAMP) to address to the growing effects of oil sands development on First Nation’s Treaty 8 rights. The appellant started its negotiations in 2001 to protect its traditional lands and sought its 10 kilometers buffer zone around its lands from oil sand development as it had already lost 70% of its lands. This was rejected by the Alberta Government but later in 2014, Alberta’s then Premier Jim Prentice signed a letter of intent to complete MLAMP and creating 10 kilometers buffer zone by 30 September, 2015. Nevertheless, this promise was never codified. In the light of series of these facts, the question before AER was whether the project of appellant was in public interest? The panel discussed about the project and found that it was not against public interest but even then declined the MLAMP negotiations and Prentice Promise as this was promise not concluded yet, hereby not providing enough reason to deny the application of Prosper.

The Alberta court of appeal allowed appeal by the appellant and on the point of AER’s jurisdiction to decide the concerned issue the court observed that the tribunals are empowered to discuss the question of law and have an implied jurisdiction to consider issues of constitutional law when they arise in absence of clear demonstrations that the legislature intended to exclude it from such jurisdiction. However, requirement of adherence to public interest mandate by it cannot be ignored. The court also noted that a project cannot be in public interest if it violates the constitutionally protected aboriginal rights, which in this case are vested in the appellant. Hence, AER’s failure to infuse performance to obligation under Treaty 8 and honour the promise of project of appellant were clearly in breach of constitutional principle of ‘Honour of the Crown’. The court also held that AER cannot avoid its statutory duty to assess the public interest by simply leaving the decision to be made by the Cabinet. The requirement of Cabinet approval does not immunize AER from its duty of MLAMP negotiations and issues as they implicate the Honor of Crown. The Appeal was allowed and AER was directed to rehear the matter considering the MLAMP negotiations and ‘Honor of the Crown’.