Alberta Appeal Judge finds that unfounded fears, however genuine, do not qualify as harm to Aboriginal Rights


On January 16, 2019, Alberta Court of Appeal Justice Ritu Khullar issued a decision in Fort McKay Métis Community Association v Alberta Energy Regulator.

The Alberta Energy Regulator (AER) had approved Prosper Petroleum Ltd.'s oil sands project after hearing evidence from the Fort McKay Métis Community Association. The Fort McKay Métis requested permission from the Court to appeal the decision, which could only be granted if the AER had made an error of law or jurisdiction. The Court denied leave to appeal as, among other things, unjustified fears of contaminated fishing grounds were insufficient to show actual harm to aboriginal rights.

The decision illustrates that no actual harm to aboriginal rights arises from unfounded contamination fears or other subjective perceptions.

Summary of the Alberta Energy Regulator’s Decision

Prosper applied to the AER for various approvals for an oil sands project that would operate within 10 km of the Fort McKay First Nation's Moose Lake Reserves. The Fort McKay Métis claimed unextinguished, constitutionally protected Métis aboriginal rights to hunt, trap, and fish on their traditional territory on or near the reserves. In its hearing, the AER considered the Fort McKay Métis to be a rights-bearing community, and weighed the oral traditional knowledge that the Fort McKay Métis presented as evidence.

The Fort McKay Métis' genuine fear of eating the fish was unjustified

The AER accepted evidence from the Fort McKay Métis that some members would be genuinely afraid to eat fish from Moose Lake due to fear of contamination. The AER (1) determined that the project would neither harm the fishery, nor reduce the animals available for hunting and trapping, but (2) recognized a risk of a "negative social effect", in that, members might change how they value the lands and the animal resources. When weighing the public interest, the AER accounted for these fears and perceptions, but ultimately decided that the Fort McKay Métis would continue to be able to exercise their aboriginal rights in their traditional territory.

The AER concluded that the project was in the public interest

The AER granted conditional approvals under the Oil Sand Conservation Act, the Environmental Protection and Enhancement Act, and the Water Act, which were dependent on approval by Cabinet. Other conditions required that Prosper seek input (1) from the Fort McKay Métis on reclamation, and (2) from the Fort McKay Métis and the Fort McKay First Nation before further developing the surface-water-monitoring program.

Summary of the Court of Appeal's Decision

The Fort McKay Métis presented a number of grounds for leave to appeal. On one, the Court decided that AER's overall weighing of the public interest was not a matter of pure law (as opposed to mixed fact and law). Thus, no appeal was available on that ground.

On another ground, the Court determined that the Fort McKay Métis had no basis to argue that they shouldn't bear the burden of proving harm to their rights.

Fear of harm is not actual harm

The most fundamental ground of appeal claimed by the Fort McKay Métis was that the project would harm their Métis aboriginal rights under section 35 of the Constitution Act, 1982.

They argued that:

  • the project would cause them to perceive their traditional lands differently;
  • which would, in turn, cause them to avoid Moose Lake and reduce their fishing; and
  • reduced use of their fishery would objectively harm their fishing rights.

The Court reasoned that unlike any objectively proven harms to wildlife and water, merely subjective fears or perceptions do not qualify as actual impacts on Métis aboriginal rights. Unfounded fear does not negatively impact aboriginal rights.

The Right Holder Must Prove Actual Harm to its Rights

In hearings over aboriginal rights, the common law has had to grow to include evidence such as oral traditional knowledge. But when proving harm to aboriginal rights, the approach is standard. The relevant issue is whether a development project will actually harm aboriginal rights—not whether purely subjective fears and perceptions will hamper the exercise of aboriginal rights.

The full decision can be found here