Aboriginals take fight over energy to court
EDMONTON — Simmering disputes over the oilsands between Alberta aboriginals and the provincial and federal governments will break into the open in 2014 as virtually every one of the many changes in oversight of the controversial industry comes under legal and political 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 oilsands monitoring to the basic ground rules for environmental assessment has been changed.
The Fort McKay First Nation is appealing an approval of Brion Energy’s plans for a 50,000-barrela-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 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 oilsands 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 oilsands expansion that it says will violate both treaty rights and federal laws.
All six First Nations in the oilsands area have requested a statutory review of the Lower Athabasca Regional Plan, the government’s attempt to balance development and environmental values. Those bands, along with many others, also rejected the province’s plans to centralize and control aboriginal consultation.
Even the Lubicon Cree First Nation are back in court, with another attempt to win a reserve and get some royalties on energy extracted from what they say is their land.
“We work with aboriginal leaders and communities in a variety of areas and will continue to do so,” said environment ministry spokesman Kevin Zahara. “We will not speculate on possible legal challenges.”
A big part of the problem is simply the scale of development, said Nigel Bankes, professor of resource law at the University of Calgary.
“It’s really the intensity of the development,” he said. “The treaties give the province the power to take up lands and the argument is there must be a limit to that. That can’t be an entitlement to take away all lands (to) which First Nations have historically exercised hunting rights.”
Those concerns grow as governments narrow who has the right to air concerns and what concerns they’re allowed to raise.
“I think that’s a fair characterization,” said Bankes. “(There’s a) very narrow and stringent standing test and I think that does mean there’s a level of frustration out there.”
Not only are bands barred from raising aboriginal rights at regulatory hearings, two have recently been denied the right to even speak at ones dealing with 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.”’