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A Royal Dutch Shell PLC logo is seen under a canopy of trees at a petrol station in central London July 29, 2010.

Toby Melville/Reuters

The Athabasca Chipewyan First Nation has launched a constitutional challenge to Royal Dutch Shell PLC's application for approval of the proposed Jackpine oil sands mine expansion, saying neither the company nor the government has adequately consulted or accommodated its treaty rights.

If successful, the groundbreaking legal action by the Indian band would create a major new hurdle for oil sands proponents, forcing them to work with federal and provincial governments to fully consult aboriginal communities before they get a permit to proceed.

In a filing with the joint review panel released Monday, the Athabasca Chipewyan band argued the federal-provincial panel has a responsibility to hear constitutional issues, and, or if necessary, refer the matter to the courts for a decision on whether Shell's effort was sufficient to meet its constitutionally protected treaty rights, in the absence of engagement by the federal government.

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"The feds have a responsibility along with the province to fully engage the First Nations in consultation – which they refuse to do so – when it comes to major development, said Allan Adam, chief of the Athabasca Chipewyan First Nation, which represents people who live in Fort Chipewyan, downstream from Fort McMurray.

"This time we're going to take it all the way and we're going see first hand what the government were thinking when they went ahead and developed this plan without first nations' involvement."

Canada's ambition to develop its resource sector – a central focus of the Harper government – is increasingly running into challenges from aboriginal communities who say they must not only be consulted but have their concerns accommodated and be treated as full partners.

Last week, former Indian affairs minister Jim Prentice criticized the federal approach to the controversial Northern Gateway pipeline project. He argued Ottawa had yet to fulfill its constitutional duty to the aboriginal communities along the pipeline route, a shortcoming that could doom the project to endless court challenges.

The Fort Chipewyan community has challenged the constitutionality of the oil-sands approval process in the past, but either failed because it had filed its legal action long after the approval process had ended, or did not have the resources to carry the challenge to the end.

A Shell spokesman defended the company's efforts to consult with first nations.

"Shell has engaged extensively with ACFN over the last 15 years," David Williams said in an e-mail.

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"We're aware of their concerns around Treaty 8 and our door remains open."

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