On Thursday June 2, 2016, the Supreme Court of Canada (SCC) dismissed an application by the O’Chiese First Nation (OFN) for leave to appeal a decision of the Alberta Court of Appeal. The decision of the Court of Appeal confirmed that, when development is proposed on treaty land, it does not necessarily follow that a First Nation is “directly and adversely affected”. The Court of Appeal had declined to hear an appeal by the OFN regarding whether it was “directly and adversely affected” by approvals issued by the Alberta Energy Regulator (AER) pertaining to operations located in the OFN’s consultation area. The dismissal by the SCC confirms the Court of Appeal’s decision as the law in Alberta.
The OFN is part of the Saulteaux First Nation and is located in an area encompassed by Treaty 6. Shell Canada Limited (Shell) applied for approvals from the AER relating to oil and gas interests and operations on Treaty 6 lands, within the consultation area of the OFN. The consultation area is a region established by the Government of Alberta to assist the Crown in discharging its duty to consult. When the AER granted the approvals, the OFN filed requests to the AER to conduct a regulatory appeal.
The AER declined these requests on the basis that the OFN was not “directly and adversely affected” by the approvals, as required by the Responsible Energy Development Act. Though the land was located within the OFN’s consultation area, the AER determined that this fact alone was insufficient to merit a regulatory appeal. Specific evidence was needed to demonstrate that the approvals issued by the AER “directly and adversely affected” the OFN, and the OFN did not provide such evidence.
The OFN sought permission from the Court of Appeal to appeal the AER’s decision. However, the Court of Appeal dismissed the OFN’s application. The Court reiterated that the mere fact that the developments in question were located within the OFN’s consultation area does not mean that the approvals “directly and adversely affected” the OFN. The SCC declined to grant leave and awarded costs to Shell.
These decisions highlight that, even when AER decisions relate to treaty land or land within a consultation area, First Nations must adduce specific evidence to demonstrate that their rights are directly and adversely affected to warrant a regulatory appeal. While the nature of the evidence that is required to satisfy this test is not specified in these decisions, what is clear is that the location of the work proposed and the rights asserted is not sufficient.