Opponents of Shell Canada's oil sands expansion plans may take their case to the Supreme Court of Canada, after the Alberta Court of Appeal rejected their constitutional challenge against the firm's plan to expand its Jackpine Mine.
Justice Frans Slatter, in a November 26 ruling, rejected the appeal by the Athabasca Chipewyan First Nation (ACFN) and the Métis Nation of Alberta's Region 1—both located near the proposed project in the Alberta oil sands—which had hoped the court would order a review of the extent of aboriginal consultation before approving the project, arguing that their constitutional rights were abrogated.
“The Joint Review Panel is not required to make any determination as to the scope of the Crown’s duty to consult,” Slatter stated in his ruling, “or whether the Crown has met its respective duties to consult. As counsel for Shell put it, the applicants’ argument was essentially 'stop the consultation, because there hasn’t been enough consultation.' ”
Shell's expanded Jackpine Mine, located nearly 50 miles north of the oil sands-focused city of Fort McMurray, Alberta, would extract 300,000 barrels of crude daily. But ACFN argued that the mine would damage more than 30,000 acres of the nation's traditional territories and destroy a stretch of the Muskeg River. As a result, the band claimed, members’ treaty rights to fishing, hunting, trapping and other uses would be infringed.
“Generally, ACFN participants were disappointed and kind of surprised that the court took the stand that it did,” John Rigney, ACFN's special projects manager, told Indian Country Today Media Network. “But it's not surprising either; this is Alberta, where we feel that everything is stacked against us. It'll take more than a court order to get this government to listen. ACFN is seriously considering its options, on whether it can take this to the Supreme Court of Canada.”
For Shell Canada, however, the decision validates its claim that it has consulted adequately with ACFN and other aboriginal communities in the Jackpine vicinity.
“We respect the decision of the court,” David Williams, spokesperson for Shell Canada, told ICTMN. “We've had over 600 consultations over six years with Athabasca Chipewyan First Nation; we've engaged extensively with ACFN. There are other First Nations close to our mine operation down there as well who don't oppose this mine. We work with all those communities in terms of learning to improve our environmental performance.”
But Rigney argued that the constitutionally protected obligation to consult Indigenous Peoples rests with the Crown, not the company.
“If consultation is just telling us what they're going to do, then sure—there's lot of consultation,” Rigney retorted. “But if consultation is negotiation, there's been almost no consultation at all. We take a stand that consultation is about more than informing us—more than greeting us, putting on Christmas dinners and handing out trinkets at meetings.”
Willy Landstrom, president of the Métis Nation of Alberta's Region 1, which includes the proposed Jackpine mine site, declined to comment on the case, explaining that lawyers were still reviewing the ruling.
Williams said that environmental concerns about the oil sands, particularly about pollution of waterways and long-lasting toxic tailings ponds, are being heeded.
“Protecting water and watercourses is key to the way we run our business,” he said. “We ensure that no water from our mining operations goes directly into the Athabasca River. This is a long-term business. We need to be able to compete economically, and we also need to work on our technologies to improve our environmental performance. Tailing ponds come into that work with a number of projects; we have our own tailings pond technology that we're working on. In terms of reclamation itself, it obviously wouldn't happen until the end of a mine's life, [about] 40 years.”
Which is precisely the problem, said Rigney—the cumulative impact of overall expansion of the Alberta oil sands on aboriginal communities is not taken into account by the provincial government.
“It's a monster mine,” he said. “We see almost no evidence, over the past 40 years, that the mining industry has made significant progress in protecting the environment. This Shell expansion is part of a major expansion of industry in the Fort McMurray region. It's one of several projects that'll have to be challenged on environmental grounds.”