In a case that sums up many of the issues Alberta aboriginals have with the way the province's energy industry is regulated, the Athabasca Chipewyan First Nation is asking the court in Vancouver to overturn Environment Minister Leona Aglukkaq's approval of Shell's Jackpine project.
The massive plan was approved last December, despite significant concerns from the review panel that considered it, which included 88 recommended conditions.
"The federal government made no real mention of the recommendations, saying (they) would be looked at and the project approved," said band spokeswoman Eriel Deranger.
Court documents filed by the government argue that Environment Canada did meet with band representatives and responded to concerns that weren't under provincial jurisdiction.
Shell first applied for the Jackpine mine expansion in 2007. The project would open new mines, build processing facilities and increase Shell's output by 100,000 barrels a day.
However, the joint federal-provincial review panel concluded that environmental cost would be significant and irreversible. It said the project would mean the permanent loss of thousands of hectares of wetlands. It predicted the expansion would harm migratory birds, caribou and other wildlife and wipe out traditional plants used for generations.
The panel also said Shell's plans for mitigation are unproven. It warned that some impacts, together with those of surrounding mines, would probably approach levels the environment couldn't support.
In addition, the band says the approval process violates at least three federal statutes — the Canadian Environmental Assessment Act, the Species At Risk Act and the Migratory Birds Convention Act — as well as several international agreements Canada has signed.
Ottawa maintains the band was consulted throughout.
"In view of the unfolding of the environmental assessment process, the consultation process implemented by Canada, (the band's) participation in the process, the consultation process carried out at each stage, and the (panel's) findings ... Canada engaged with the (band) in a honourable fashion," say court filings. "The evidence is also clear (the band) will be consulted going forward."
Environment Canada staff held five meetings with the Athabasca Chipewyan after the panel released its report and before the project was approved by the federal cabinet on Dec. 6, 2013.
"Meetings are not meaningful consultation," said Deranger. "Meaningful engagement with First Nations would be doing things like developing parameters, developing thresholds and baselines that are necessary for the continuation of our treaty rights."
The band points out that the government released its decision before the consultation period was complete.
Shell also argues the band was consulted from the beginning. It adds that consultation will continue if the project proceeds and will also occur under such provincial programs as regional land-use plans.
Alberta's land-use plan for the area is also being challenged by all First Nations near the oilsands.
Athabasca Chipewyan lawyer Eamon Murphy said government and industry may have held meetings, but the band's concerns remain unaddressed.
"You met with us a few times, we exchanged some pieces of paper, but ultimately there was no real attempt to implement those recommendations."
The Jackpine review echoes frequent concerns from First Nations about Alberta's energy industry.
They say the industry's growth is damaging treaty rights by leaving less and less land on which to practise them. They say the province is systematically narrowing the scope of public hearings to exclude treaty-based arguments and, in some cases, the bands themselves.
They accuse the province of wanting to control how much consultation is necessary. And they say Alberta's land-use policies place aboriginal concerns on the same level as a local snowmobile club or other "stakeholders."
Premier Jim Prentice, who also serves as aboriginal affairs minister, has promised to work to improve those relations.
— By Bob Weber in Edmonton