Judge grants stay on order requiring Alberta government to make decision on proposed oilsands project

An aerial view of Fort McKay, Alta., Monday, Sept. 19, 2011.
The Alberta government and the Fort McKay First Nation have agreed to meet again in three months to decide the fate of one of the last areas in the band's territory that hasn't been impacted by oilsands development. THE CANADIAN PRESS/Jeff McIntosh

A judge has issued a stay of a court order that required the Alberta government to make an immediate decision on a proposed oilsands project near Fort McMurray.

Prosper Petroleum Ltd. has been waiting 19 months for the province to decide on its Rigel project, while similar projects have been approved in a third of the time.

The 10,000-barrel-a-day, steam-driven mine would be built in the Moose Lake area, about 70 kilometres northwest of Fort McMurray. It was initially proposed in 2013 and approved by the Alberta Energy Regulator in June 2018.

Last week, Court of Queen’s Bench Justice Barbara Romaine gave the province 10 days to make a decision on the project.

READ MORE: Alberta government given 10 days to make decision on Rigel oilsands project

Lawyers for the Alberta government argued Wednesday that the order was unreasonable and would have required cabinet to make a decision by Friday, before an appeal could be heard.

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Court of Appeal Justice Jo’Anne Strekaf said the appeal needs to be argued.

“Having considered the competing interests, I am of the view that the balance of convenience favours granting the stay so that the appeal will not be rendered nugatory [pointless],” Strekaf said.

“The decision will be stayed pending appeal on the condition that the appeal proceed on an expedited basis.”

Strekaf noted a busy court schedule so ordered the appeal be heard on April 27 in Edmonton.

Prosper president and CEO Brad Gardiner said he was frustrated by the stay.

The project, if it does get approved, will be delayed “at least another year” and is costing his company $130,000 a day, he said.

“We are now faced with a two-month delay for an appeal date and however long it’s going to take to make a decision from that appeal,” Gardiner told The Canadian Press.

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Gardiner said his company in a difficult situation and simply wants a yes or no answer from the government.

“It’s getting more difficult every day and this is just another nail in the coffin.”

The Moose Lake region is sacred to the Fort McKay First Nation. An agreement to protect the area was reached under former Alberta premier Jim Prentice but was never ratified.

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READ MORE: Alberta oilsands project wins regulator approval despite Indigenous objections

The project was recently the subject of a meeting between Indigenous leaders and members of the provincial cabinet. The two sides agreed to meet again in April.

Strekaf ruled that the Fort McKay First Nation will be granted intervener status for the upcoming appeal.

READ MORE: Fort McKay First Nation chief calls for treaty rights to be upheld as legal battle over oilsands project continues

Late Wednesday afternoon, the chief and council of the Fort McKay First Nation released a statement about the judge’s statement. You can view the statement in its entirety at the bottom of this article.

Government lawyer Doreen Mueller told court Wednesday it wasn’t in the public interest to force cabinet to make a decision earlier than intended.

“There’s no evidence here that cabinet is acting in any improper way or for any improper motive. It’s just taking longer.”

Maureen Killoran, a lawyer for Prosper Petroleum, argued that issuing a stay would be an extraordinary move and called cabinet a “reluctant decision-maker.”

She said her client has already invested $65 million in the project over seven years.

“What Alberta seems to miss and, with respect, what this court might miss is Prosper may not be here if the delay goes any further,” she said.

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“Delay has harmed Prosper to the point that the survival of the project and the survival of the company is in jeopardy.”

Read the statement from the chief and council of the Fort McKay First Nation on the Prosper Petroleum Ltd. case below.

“The Fort McKay First Nation is pleased that the Alberta Court of Appeal has granted the Alberta government’s request for a stay of the Queen’s Bench order issued Tuesday, February 18.

Last week, the Queen’s Bench judge instructed Alberta to deliver a decision by this coming Friday, February 28 whether to approve Prosper Petroleum’s Rigel oil sands project located in close proximity to our Moose Lake reserves.

Instead, today’s decision will allow us to complete the three-month roadmap to finalize the Moose Lake Plan to which Fort McKay and Alberta agreed at the end of January following the Moose Lake Together Summit.

As many Albertans are now aware, the current configuration of Prosper’s project would have significant adverse effects on the Moose Lake area. Our community was encouraged when Alberta appealed the Queen’s Bench decision.

Alberta’s action signalled this government’s commitment to a collaborative solution that recognizes the importance of Moose Lake to Fort McKay and respects our constitutionally recognized and affirmed right to exercise Aboriginal and Treaty rights and traditional land uses.

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The three-month roadmap gives us the time we need to resolve outstanding issues to complete the Moose Lake Plan together in partnership. We can’t forget what a historic moment this was for Fort McKay and for Alberta. After 20 years in which previous governments fell short, we now have the finish line in sight.

We are working together with industry participation to develop a management plan that protects the exercise of Treaty rights, preserves ecosystem integrity, and permits carefully managed, responsible resource development.

Fort McKay and Alberta have, together, already made significant progress in our shared goal to complete the Moose Lake Plan, which will give leaseholders like Prosper immediate clarity regarding operating parameters that will inform business decisions.

Moose Lake can show Canadians a way forward: it can show how responsible resource development can be a tool for reconciliation in Canada.”

Read below: On Wednesday, Justice Strekaf granted a stay application on the order directing cabinet to decide within 10 days whether or not to authorize the construction of the Prosper’s Rigel oilsands project.