In the Matter of the Energy Resources Conservation Act R.S.A
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IN THE MATTER OF THE ENERGY RESOURCES CONSERVATION ACT R.S.A. 2000, C. E-10; AND THE OIL SANDS CONSERVATION ACT, R.S.A. 2000, C. 0-7; AND IN THE MATTER OF THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT, S.C. 1992, c.37; AND IN THE MATTER OF A JOINT PANEL REVIEW BY THE ALBERTA ENERGY RESOURCES CONSERVATION BOARD AND THE CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY; AND IN THE MATTER OF: TOTAL E & P JOSLYN NORTH MINE PROJECT ERCB Application No. 1445535 CEAR Reference No. 08-05-37519 ________________________________________________________________ NOTICE OF QUESTION OF CONSTITUTIONAL LAW, pursuant to Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3, s. 12, and Designation of Constitutional Decision Makers Regulation, Alta. Reg. 69/2006, Schedule 2 from FORT MCKAY FIRST NATION and FORT MCKAY METIS NATION LOCAL #63 ________________________________________________________________ TO: Minister of Justice and Attorney General of Alberta 1000, 10025-102A Avenue NW Edmonton, AB T5J 2Z2 Mr. Tom Rothwell Telephone: 780-422-9388 AND TO: Attorney General of Canada 211, 10199-101 Street NW Edmonton, AB T5J 3Y4 Mr. Kirk Lambrecht Telephone: 780-495-2983 AND TO: Joint Review Panel/Joslyn North Mine Project Energy Resources Conservation Board 2nd Floor, P.O. Box 15 9915 Franklin Avenue Fort McMurray, AB T9H 2K4 Phone: 780-743-7481 Fax: 780-743-7141 Gary Perkins Counsel to the Joint Review Panel Email: [email protected] FROM: Fort McKay First Nation and Métis Nation Local #63 Ackroyd LLP 15th Floor, First Edmonton Place 10665 Jasper Avenue Edmonton, AB T5J 3S9 Phone: (780) 412-2704 Fax: (780) 423-8946 Karin Buss and Meaghan Conroy Counsel for Fort McKay First Nation and Fort McKay Métis Nation Local #63 Email: [email protected] Email: [email protected] CC: Total E&P Joslyn Ltd. Stikeman Elliott LLP Barristers & Solicitors 4300 Bankers Hall West 888 - 3rd St. SW Calgary, AB T2P 5C5 Phone: (403) 266-9000 Fax: (403) 266-9034 Martin Ignasiak Counsel for Total E&P Joslyn Ltd. Email: [email protected] Date of Hearing: September 21, 2010 2 Fort McKay First Nation and Fort McKay Métis Nation Local #63 (collectively Fort McKay) intend to raise the following questions of constitutional law: 1. The Joslyn North Mine Project (the “Project”) is not in the public interest and will cause significant adverse effects on the constitutional rights of the Fort McKay First Nation because the effects of the Project, in combination with existing, approved and planned development will constitute an unjustifiable infringement of Fort McKay First Nation’s Treaty rights under Treaty 8, including their right to reserve land and their right to hunt, trap and fish, as modified by the Natural Resources Transfer Agreement, 1930 (Constitution Act, 1930, Schedule 2), paragraph 12, and such an infringement is contrary to s.35(1) of the Constitution Act, 1982. 2. The Project is not in the public interest and will cause significant adverse effects on the constitutional rights of the members of the Fort McKay Nation Local #63 because the effects of the Project, in combination with existing, approved and planned development, will constitute an unjustifiable infringement of the Aboriginal rights of the Fort McKay Métis Nation Local #63, and such an infringement is contrary to s.35(1) of the Constitution Act, 1982. 3. The Provincial Crown and the Federal Crown have failed to discharge, or to adequately discharge, their duty, which arises from s.35(1) of the Constitution Act, 1982, to consult and accommodate the Fort McKay First Nation and the Fort McKay Métis Nation Local #63, or any of them, regarding the taking up of land for this Project and the potential adverse effects of this Project, alone and in combination with existing, approved and planned developments. See attached Appendix “A” for materials filed in the proceedings in support of the constitutional argument, Appendix “B” for Will Say Statements, Appendix “C” for details of the constitutional arguments and Appendix “D” for the list of authorities to be relied upon. The Fort McKay First Nation and Fort McKay Métis Nation Local #63 seek the following relief: 1. From the Joint Review Panel, sitting as the Energy and Resource Conservation Board: a) Find that the Project is not in the public interest pursuant to the Energy Resources Conservation Act, R.S.A. c. E-10, section 3 and defer consideration of the application by Total Joslyn E&P Ltd for an approval pursuant to the Oil Sands Conservation Act, R.S.A. 2000, c. O-7, sections 10 and 11, and the Hydro and Electric Energy Act R.S.A.. c. H-16, section 11 (the “Approvals”); or b) In the alternative, deny the application for Approvals of the Project because the Project would: 3 i. unjustifiably infringe Fort McKay First Nation’s Treaty rights and thus contravene s.35(1) of the Constitution Act, 1982; and ii. unjustifiably infringe Fort McKay Métis Nation Local #63’s Aboriginal rights and thus contravene s.35(1) of the Constitution Act, 1982; or c) In the further alternative, determine the Project is not in the public interest and deny the application for Approvals because the provincial and federal Crown failed to adequately discharge their duty to consult and accommodate Fort McKay; d) In the further alternative, suspend the hearing of the application for the Approvals until the provincial and federal Crown adequately consult and accommodate Fort McKay First Nation and Fort McKay Métis Local #63. 2. From the Joint Review Panel, pursuant to the Canadian Environmental Assessment Act, 1992, c.37, recommend to the Minister that: a) Federal authorities be prohibited from exercising any power or performing any duty or function with respect to the Project because, after taking into consideration the environmental effects of the Project, and taking into account the implementation of appropriate mitigation measures, the Project is likely to cause significant adverse environmental effects, including on the current use of lands and resources for traditional purposes by Aboriginal persons, that cannot be justified until Fort McKay’s traditional land use and rights are protected from further infringement and its rights accommodated; b) Federal authorities be prohibited from exercising any power or performing any duty or function with respect to the Project until the Fort McKay First Nation and Fort McKay Métis Nation Local #63 are consulted regarding the potential adverse effects of the Project and their rights and interests, and until their rights are accommodated. Estimated time needed to call evidence and make arguments before the decision maker: 4 days Dated: September 3, 2010 Signed: _______________________ Karin Buss, Ackroyd LLP Counsel for Fort McKay First Nation and Fort McKay Métis Nation Local #63 4 APPENDIX “A” List of Materials and Documents that Have Been Filed With the Decision-Maker 1. Fort McKay has filed the following documents with the Decision-Maker: • 2010-08-27 Fort McKay Submission to the Joint Review Panel o Appendix A - Map of Reserves: Fort McKay First Nation Regional Influences (UMA 2008) o Appendix B - Map of Traplines and Traditional Lands: Fort McKay First Nation Regional Influences – Traplines Overlay (UMA 2008) o Appendix C - Map of Priority and Other Uses – Culturally Significant Ecosystems: Utilization Distribution of All Uses with Traplines (Stantec 2010) o Appendix D - There is Still Survival Out There ( Fort McKay, 1994, 1996) o Appendix E - Copy of Treaty 8 and Commissioner Report o Appendix F - WMU 531 Arial Moose Survey, (Alberta Sustainable Resource Development, 2009) o Appendix G - Map of Current Land Disturbances (2007), Fort McKay Intense Use Lands, Fort McKay Community Assessment o Appendix H - Traditional Ecological Knowledge and Land Use Report: Joslyn North Mine Project (FMA Consultants, January 2006 for Deer Creek Energy Limited) o Appendix I - Fort McKay Air Quality Standards o Appendix J - Fort McKay Healing the Earth Strategy – Air o Appendix K - Review of Deer Creek Energy Limited, Joslyn North Mine Project, Environmental Assessment (EIA) 2006 o Appendix L - TOTAL Joslyn Mine 2010 Project Update Review, May 2010 o Appendix M - Control Technologies Review, Cogeneration Units (Jacobs, 2010) o Appendix O - Fort McKay Specific Assessment; Supplemental Information to the Shell Application for the Jack Pine Expansion and Pierre River Mine (March, 2010) These documents are available on the on-line CEAA Registry at: http://www.ceaa.gc.ca/050/document-eng.cfm?document=44867, with one exception, Appendix O. It is enclosed on a DVD. 1 2. Fort McKay also relies on the Application filed by TOTAL E&P Joslyn Ltd. including the Supplemental Information and Project Updates including the following Traditional Land Use and Traditional Environmental Knowledge Reports: (a) Traditional Ecological Knowledge and Land Use Report, Deer Creek Energy Ltd., Joslyn North Mine Project (FMA Heritage Resources Consultants Inc., 2006) (b) Fort McKay First Nation Traditional Knowledge Report for the TOTAL E&P Canada Ltd. Joslyn North Mine Project Update (FMA Heritage Resources Consultants Inc., 2008) (c) Traditional Land Use Report for the Deer Creek Joslyn SAGD Project (FMA Heritage Resources Consultants Inc., 2005). (d) Fort McKay First Nation Traditional Knowledge Report – Jackpine Mine Expansion and Pierre River Mine Environmental Impact Assessment (FMA Heritage Resources Consultants Inc., 2008). We enclose a copy of document 2(c) because it is not yet posted to the on-line CEAA Registry. 3. Fort McKay adopts and relies upon: (a) The Submissions of Canada in this proceedings which can be accessed on the CEAA Registry at: http://www.ceaa.gc.ca/050/05/documents- eng.cfm?evaluation=37519&type=5 (b) The submission of the Mikisew Cree First Nation and specifically the Treaty 8 documents at Appendix A and the Cultural Reports at Appendix D of the submission, all of which can be accessed at: http://www.ceaa.gc.ca/050/document-eng.cfm?document=44838 4.