Two aboriginal bands are taking Alberta’s energy regulator to court after it denied them the right to speak at hearings into an oilsands development they say is near their traditional lands.

“Alberta’s regulatory system silences concerns, which is more Third World than world class,” charged Chief Henry Gladue of the Beaver Lake Cree Nation. “Alberta is saying one thing and doing something very different.”

Meanwhile, the company making the application, Canadian Natural Resources Ltd., says it will contest the appeals. It says it has consulted extensively with local native groups and it defends the regulator’s process as “comprehensive and rigorous.”

Last March, the Alberta Energy Regulator told the Beaver Lake Cree Nation and the Whitefish Lake First Nation that they wouldn’t be allowed to address hearings into Canadian Natural’s Kirby expansion proposal.

The two groups were among five First Nations and one environmental group that had asked to air their concerns about the 85,000-barrel-a-day project. The regulator cancelled planned public hearings because no intervener was “directly and adversely affected” by the project.

Although the Beaver Lake band said the development would be on its traditional lands and on at least one member’s trapline, the regulator ruled the band must “demonstrate actual use of land and other natural resources in the project area by its members.”

The regulator used a similar argument with the Whitefish Lake First Nation and added that the band’s concerns about cumulative effects were “general in nature and not related to the project or the project lands.”

Whitefish Lake Chief James Jackson Jr. said in a release that his band has routinely been granted standing in the past.

“Our past participation in the regulatory process helped resource companies better understand our concerns and provided at least some motivation for industry to work with First Nations to address our concerns,” he said.

“Resource development can coexist with First Nations and can happen in a way that respects our traditional way of life — but not if we are frozen out of the process by the Alberta Energy Regulator.”

In an e-mail to the Herald, Canadian Natural spokeswoman Zoe Addington said the company has consulted with 10 communities including both native bands while planning its expansion of two existing approved projects, one of which, Kirby South, is already operating.

“Canadian Natural believes it has made every reasonable effort to provide opportunities to Beaver Lake Cree Nation and Whitefish Lake First Nation to participate in consultations, including offering substantial consultation capacity funding to support their participation in consultations,” she wrote.

“We have existing processes in place with Beaver Lake Cree Nation and Whitefish Lake First Nation to provide services to Canadian Natural operations in Alberta and we continue to develop this relationship.”

Addington added Canadian Natural will continue to work to deliver the project on time. She said the communities located closest to the project are supportive of it.

Documents filed with the Alberta Court of Appeal on behalf of the bands say the regulator’s decision was “flawed, arbitrary and unfair” and made public-interest rulings in a “factual vacuum.”

“In refusing to grant a regulatory hearing, there can be no, or no adequate, consideration of the potential adverse impacts on the First Nations’ constitutionally protected rights,” the documents read.

“Without a hearing, the First Nations are effectively precluded from participating any mitigation or accommodation measures to mitigate these impacts,” says the appeal.

Nigel Bankes, a University of Calgary resource law professor, wrote in a recent analysis the regulator’s dismissal of cumulative effects concerns undermines the agency’s intended task.

Bankes and opposition politicians have said the Kirby decision is an example of a new pattern of restricting who is entitled to express concerns about oilsands developments. Last fall, two different aboriginal groups were also denied standing to appear at public hearings on proposals adjacent to their traditional lands.

A Queen’s Bench judge, on a separate matter, urged the government and the regulator to draw the circle widely when seeking public input on oilsands development.

The appeal is expected to be heard in the fall.

dhealing@calgaryherald.com