Athabasca Jackpine Mine Expansion Update (Canada)

The information set out below is informed by:
(A) Shell Canada here;
(B) the Athabasca Chipewyan First Nation (ACFN) request filed January 3, 2014 of the Federal Court to review the Crown’s December 2013 decision to approve the Joint Review Panel report and decision to authorize Shell’s Jackpine Mine Expansion project proposal, and declare the decision invalid and unlawful, here; and
(C) the article by Catherine Lyons and Joseph Hoffman of Goodmans LLP here.

The Jackpine Mine Expansion is a potential future development of Athabasca oil sands mining leases in northern Alberta that extend to the north of the current Jackpine Mine, operated by Shell on behalf of the Athabasca Oil Sands Project owners, Shell Canada Energy (60%), Chevron (20%) and Marathon Oil Canada (20%).

The regulatory application was submitted in 2007 and describes a potential 100,000 barrels per day oil sands mining expansion, including additional mining areas, associated processing facilities, utilities and infrastructure.

In October 2012, a public hearing held in Fort McMurray, Alberta, gave interested individuals and organizations an opportunity to ask questions about the Project and to provide their views to the Joint Review Panel.

The Joint Review Panel for the Jackpine Mine Expansion Project is an independent federal-provincial body, mandated by the Canadian Minister of the Environment and the Chairman of the Alberta Energy Regulator (formerly Alberta Energy Resources Conservation Board) to assess the environmental effects of the proposed project and ultimately decide whether it is in the public interest.

In July 2013, the Joint Review Panel issued its Decision Report, deeming the Jackpine Mine Expansion Project to be in the public’s interest and recommending it for approval. The Decision Report made 88 recommendations, however, to mitigate the adverse impacts identified.

In December 2013, the Federal Minister of Environment issued a Decision Statement, setting out the conditions with which Shell must comply during the development, operation and reclamation of Jackpine Mine Expansion. This Decision (issued December 6) is the first to be made under the Canadian Environmental Assessment Act, 2012 S.C. 2012 c. 19, s. 52 (“CEAA 2012”), and is issued alongside referral to the Federal Cabinet.

In his consideration of the report of the Panel, the Federal Environment Minister held that the Project would likely cause significant adverse environmental effects. This determination triggered the provisions of the CEAA 2012, requiring a referral to Federal Cabinet. The Federal Cabinet subsequently determined that the significant adverse environmental effects are justified in the circumstances. The Project could therefore proceed subject to conditions set out by the Environment Minister in the Decision Statement. Generally, the conditions can be classified as:

1. preserving plants, aquatic and terrestrial wildlife;

2. implementing environmental mitigation measures;

3. considering Project effects on First Nations;

4. submitting annual reports; and

5. establishing plans for closing Jackpine Mine.

If Shell Canada does not comply with the conditions set out in the Decision Statement, it will face compliance and enforcement action. This may include financial penalties of up to $400,000 per day if convicted for a continuing offence.

A final decision to proceed with the Project would come in the form of a Final Investment Decision by the Athabasca Oil Sands Project joint venture owners, Shell (60%), Chevron (20%) and Marathon (20%).

The Project is within ACFN’s traditional lands. It is part of the ACFN application to the Federal Court that it participated in the various processes relating to the Project over the course of six years, including lengthy regulatory hearings before a Joint Review Panel, and it consistently and repeatedly raised its concerns about the Project with Canada and sought meaningful protection for its Treaty 8 rights, as promised by section 35 of the Constitution Act, 1982.

ACFN assert that (the nation of) Canada breached its duties to consult and accommodate ACFN with respect to the Project and the manner in which the Project will impact ACFN’s constitutionally protected section 35 rights. In addition, the process, and mitigation offered, was inconsistent with the requirements of the federal Species at Risk Act, the Migratory Birds Convention Act, as well as international agreements and conventions to which Canada is a signatory.

In addition, ACFN assert Canada did not implement many central recommendations of the Joint Review Panel, and with very limited exceptions did not implement ACFN’s proposals either. Also Canada did not provide concrete and equivalent alternative accommodation to address the serious impacts of the Project.

In addition, ACFN assert the Federal Cabinet in approving the project, provided no reasons nor explanation at all for why the significant adverse impacts of the Project were justified.

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