Aboriginals threatening to take Alberta oil sands projects to court
Simmering disputes with aboriginals are expected to boil over into the courtroom as new energy legislation and recent changes to Alberta oil sands development come under legal attack.
“All litigation, all the time, is what I see on the horizon,” said Larry Innes, lawyer for the Athabasca Chipewyan First Nation.
Over the last 18 months, Ottawa and Edmonton have rewritten the book on resource development. Everything from how aboriginals will be consulted to land use planning to Alberta oil sands monitoring to the basic ground rules for environmental assessment has been changed.
Governments say the new regime is more efficient, predictable and transparent. Aboriginals say it violates their rights and ignores their recommendations.
So as aboriginal groups in British Columbia prepare for an expected attack on the Northern Gateway pipeline proposal, Alberta aboriginals are pushing back with a long list of lawsuits either now or soon to be before the courts.
The Fort McKay First Nation is appealing an approval of Brion Energy’s plans for a 50,000-barrel-a-day operation northwest of Fort McMurray. It says the province has violated the constitution by setting up an energy regulator expressly forbidden to hear arguments based on aboriginal rights.
The Mikisew Cree and Frog Lake First Nation are before the courts arguing that Ottawa’s recent amendments to the Fisheries and Navigable Waters Acts run afoul of their rights.
The Beaver Lake Cree is fighting both levels of government in a case that seeks to force them to consider the cumulative effects of Alberta oil sands development when issuing new permits.
A total of 17 First Nations from around Alberta are trying to get legislation on access to public lands tossed out in a long-running case expected to go to trial this year.
The Athabasca Chipewyan First Nation plans to file a lawsuit in January attacking Ottawa’s new environmental assessment legislation after the approval of a major Alberta oil sands expansion that it says will violate both treaty rights and federal laws.
At the same time, the Alberta government’s other major oilsands initiatives are running into heavy weather.
All six First Nations in the Alberta oil sands area have requested a statutory review of the Lower Athabasca Regional Plan, the government’s attempt to balance development and environmental values. Those same bands, along with many others, have also rejected the province’s plans to centralize and control aboriginal consultation.
One major band – the Fort McKay First Nation – has pulled out of the joint oil sands monitoring program, the showpiece federal-provincial effort to monitor environmental change in the Alberta oil sands.
Even the Lubicon Cree First Nation are back in court, with another try in a decades-long attempt to win a reserve and get some royalties on energy extracted from what they say is their land.
Alberta Environment and Minister Robin Campbell declined to be interviewed.
“We work with aboriginal leaders and communities in a variety of areas and will continue to do so,” said spokesman Kevin Zahara. “We will not speculate on possible legal challenges.”
UBC law professor Gordon Christie says both federal and provincial ignore First Nations at their own peril. Christie says First Nations have legal tools that can massively delay future energy extraction.
“Used wisely and strategically these tools can put a real wrench in the plans of the government to push ahead with resource extraction,” he said. “At the end of the day, if the government really wants to be bull-headed, they can push through all this. But even doing that, it takes time.
“I think that’s the big mistake the government is making right now, is that they think that maybe it’s little bumps on the road and we’ll speed right through them. I don’t know if that’s going to happen.”
Not only are bands barred from raising aboriginal rights at regulatory hearings, two have recently been denied the right to even speak at ones concerning Alberta oil sands projects on their doorstep. Lawsuits happen when discussion fails, said Joe Jobin, chief operating officer of the Fort McKay First Nation.
“First Nations have always tried to work with the government on developing a policy that works for First Nations and for industry,” he said.
“The frustration is that the input is not being meaningfully considered. It’s almost like this attitude, ‘Well, if you don’t like it, take us to court.”’
Innes said Alberta bands that have traditionally preferred to negotiate are increasingly done with talking.
“First Nations who have been investing in the process find the process is stacked against them,” he said. “Things are coming to a head.”
Failing to properly consult with First Nations on resource development leads to many tough situations similar to Northern Gateway in B.C., Christie says.
“And that’s what’s missing too, is the realization on the government’s side that it’s a very delicate situation and they shouldn’t be trying to run roughshod over First Nations because that’s going to backfire on them.”
With files from the Canadian Press.
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