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ARTICLE · 11 MAY 2020

Prosper Rigel Project Decision Overturned: Increased Complication For Project Development

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In Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163 (Prosper) the Alberta Court of Appeal set aside the Alberta Energy Regulator's (AER) approval of Prosper Petroleum Ltd.'s application for the Rigel bitumen recovery project.

CanadaGovernment, Public Sector
Martin Ignasiak KC
Martin Ignasiak KC
Keely Cameron
Keely Cameron
Micaela Zila
Micaela Zila
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In Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163 (Prosper) the Alberta Court of Appeal set aside the Alberta Energy Regulator's (AER) approval of Prosper Petroleum Ltd.'s application for the Rigel bitumen recovery project. The Court decided that the AER interpreted its public interest mandate too narrowly by failing to consider issues raised by the Fort McKay First Nation (FMFN) about how the approval of the Rigel Project may affect their efforts with the Government of Alberta to develop a land use plan to respond to FMFN concerns about the cumulative effects of oil sands development on FMFN treaty rights.

Although the AER's legislative scheme explicitly excludes the AER's jurisdiction to consider the adequacy of Crown consultation (REDA, s 21), the Court held that the AER's power to consider the "public interest" establishes an implied jurisdiction and "duty" to apply the Constitution to ensure its decisions comply with s 35 of the Constitution Act,

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