CALGARY — An Indigenous group that stands to benefit from Teck Resources Ltd.’s Frontier oilsands project, says it would launch a legal challenge against the federal government if it rejects the development.
“We do recognize that there are ways that we can go – and that’s one,” said Ron Quintal, president of the Fort McKay Metis Nation, about launching a legal challenge if the Frontier project is rejected. “We are prepared.”
Quintal says the government has yet to consult with his group.
The Fort McKay Metis are one of the 14 Indigenous groups that have signed benefits agreements with Teck; others include the Fort McKay First Nation and the Athabasca Chipewyan First Nation.
Quintal said his group is sending Environment and Climate Change Minister Jonathan Wilkinson a letter this week outlining his community’s concerns as Ottawa’s end-of-February deadline for a decision on the Frontier oilsands project approaches.
“From our perspective, no matter what decision is made, there needs to be consultation,” he said, adding that it’s “borderline insulting” that the federal government would look to cancel the $20.6-billion project that would directly benefit his community, then look to provide an aid package to the province more generally. The president was referring to an unconfirmed news report that the federal government was going to reject the project but will offer Alberta a financial package as compensation.
“We’ve already had one major industry taken from us — that’s the fur trade,” Quintal said, adding, “We want to earn our way.”
The Fort McKay First Nation declined to comment on whether they would also launch a legal challenge if Ottawa rejects the project, but the group reiterated its support for the project.
“We believe, with necessary government action on cumulative effects, that Frontier can strike the right balance between environmental and Treaty rights protection and create economic opportunities for Fort McKay and its members,” Chief Mel Grandjamb said in a release.
If a legal challenge is launched, it would mark a new type of challenge launched by an Indigenous community arguing their rights have been infringed by a project being rejected.
“There’s no precedent for or against this type of claim. It’s untested ground,” said Dwight Newman, a professor at the University of Saskatchewan and the Canada Research Chair in Indigenous Rights in Constitutional and International Law.
Newman said the Crown’s duty to consult normally arises when the government takes an action that would potentially infringe on an Indigenous group’s rights. For a group to argue that a rejection of a development requires consultation, he said, they would need to argue that rejection is also a violation of their rights.
He said it’s possible such an action could be successful, but there’s no relevant case law. “It’s just not really been tested in court,” Newman said.
Should the federal government substitute politics for the regulatory process, they will be betraying the 14 First Nations that have signed benefits agreements with Teck
Alberta Premier Jason Kenney
The Alberta government, which has steadily increased pressure on Ottawa to approve the Frontier project, said it is willing to support a legal challenge.
“Should the federal government substitute politics for the regulatory process, they will be betraying the 14 First Nations that have signed benefits agreements with Teck,” Alberta Premier Jason Kenney said in an interview over the weekend.
“I am sick and tired of politicians and environmental activists only listening to First Nations that are opposed to development,” Kenney said, adding that his government is open to financially supporting a legal challenge if the federal government rejects the project.
Last year, the Alberta government set up a $10-million litigation fund to support First Nations groups in favour of natural resource development. The fund was initially launched to help Indigenous groups opposed to Bill C-48, a federal law that banned oil tankers from the northern part of British Columbia’s coastline.
On Monday, Kenney also released a letter dated Feb. 5 to Prime Minister Justin Trudeau calling on the federal government to approve the Frontier project. In a handwritten post script, Kenney said, “We think it is essential that Canada has a regulatory process that is not substituted to politics.”
The letter’s release comes as Athabasca Chipewyan First Nation, one of 14 Indigenous groups that have signed onto the project, have asked Ottawa to postpone its decision on the project.
In the letter, Athabasca Chipewyan Chief Allan Adam asked the federal government to delay a decision on Frontier while it continues to consult with the Alberta government on the effects of the project. Adam said the Alberta government “has not yet taken the appropriate actions” to mitigate the effects of the project.
“We are still talking with Alberta and remain hopeful that progress can be made from now until the end of February, when Cabinet makes its decision on project approval,” Adam wrote. “However, this seems increasingly unlikely within the prescribed timelines for a final decision on the project.”
Finance Minister Bill Morneau told reporters in Calgary on Monday that cabinet would “take a look at the letter” but added the federal government has yet to make a decision on the project.
“We have not yet come to that decision. It has not come to cabinet formally and for that reason, I don’t have anything to say about that project at this time,” Morneau said.
On Monday, Morneau also said the federal government would begin consulting with Indigenous groups on the potential to buy a stake in the Trans Mountain pipeline expansion project, which is now estimated to cost $12.6 billion.
Multiple Indigenous groups in Alberta, Saskatchewan and British Columbia have expressed their interest in buying stakes in the pipeline project that will carry 590,000 barrels of oil per day from Alberta to B.C.
Some analysts also expect major institutional investors are interested in purchasing a stake.
Stifel First Energy analyst Ian Gillies wrote in a Monday research said Toronto-based private equity group Brookfield Asset Management Inc. could be in the running.
“One potential dark horse could be Brookfield (who owns North River Midstream) because it recently completed a $20 billion capital raise and continues to have excellent access to capital markets,” Gillies wrote. “We would also expect various Indigenous groups to pursue acquiring the pipeline.”
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