On February 16, 2005, the Alberta Court of Appeal issued its written reasons in
Dene Tha' First Nation v. Alberta (Energy and Utilities Board) and Penn West Petroleum Limited, 2005 ABCA 68, dismissing the Dene Tha's appeal.
The Court of Appeal's decision confirms, not surprisingly, that First Nation's treaty rights are sufficient to meet the initial requirement of a legally-recognized right under the EUB's test for standing. More significantly, the decision confirms that, once First Nations have been provided with sufficient information regarding the location and nature of a potential development, they have an obligation to put forward sufficient information regarding their activities and the impact of a potential development on those activities to allow the EUB to conclude whether their rights will be directly and adversely impacted. Ultimately, the Court holds that this factual determination is the responsibility of the EUB and the Court will not interfere with this. This will likely result in much more detailed submissions on the part of First Nations seeking standing. In theory, First Nations should also bring these specific concerns to the attention of a industry during the consultation process leading up to an application.
Sandy Carpenter of our Calgary office and Kevin O'Callaghan of our Vancouver office appeared for Penn West on the appeal.
A more complete analysis of this decision can be found by linking directly with the full text of our
Aboriginal Bulletin.
Although the judgement was not posted at the date of this news release, a link directly with Dene Tha' First Nation v. Alberta (Energy and Utilities Board) and Penn West Petroleum Limited, 2005 ABCA 68, can be found by
clicking here.