First Nation asks for delay as it consults over effects

“There’s no precedent for or against this type of claim. It’s untested ground,” said Dwight Newman, a professor at the University of Saskatchewan and the Canada Research Chair in Indigenous Rights in Constitutional and International Law.

Newman said the Crown’s duty to consult normally arises when the government takes an action that would potentially infringe on an Indigenous group’s rights. For a group to argue that a rejection of a development requires consultation, he said, they would need to argue that rejection is also a violation of their rights.

He said it’s possible such an action could be successful, but there’s no relevant case law.

“It’s just not really been tested in court,” Newman said.

The Alberta government, which has stepped up pressure on Ottawa to approve the Frontier project, said it is willing to support a legal challenge.

“Should the federal government substitute politics for the regulatory process, they will be betraying the 14 First Nations that have signed benefits agreements with Teck,” Alberta Premier Jason Kenney said in an interview over the weekend.

“I am sick and tired of politicians and environmental activists only listening to First Nations that are opposed to development,” Kenney said, adding that his government is open to financially supporting a legal challenge if the federal government rejects the project.

Last year, the Alberta government set up a $10-million litigation fund to support First Nations groups in favour of natural resource development. The fund was initially launched to help Indigenous groups opposed to Bill C- 48, a federal law that banned oil tankers from the northern part of British Columbia’s coastline.

On Monday, Kenney also released a letter dated Feb. 5 to Prime Minister Justin Trudeau calling on the federal government to approve the Frontier project. In a handwritten postscript, Kenney said, “We think it is essential that Canada has a regulatory process that is not substituted to politics.”

The letter’s release comes as Athabasca Chipewyan First Nation, one of 14 Indigenous groups that have signed on to the project, have asked Ottawa to postpone its decision on the project.

In the letter, Athabasca Chipewyan Chief Allan Adam asked the federal government to delay a decision on Frontier while it continues to consult with the Alberta government on the effects of the project. Adam said the Alberta government “has not yet taken the appropriate actions” to mitigate the effects of the project.

“We are still talking with Alberta and remain hopeful that progress can be made from now until the end of February, when Cabinet makes its decision on project approval,” Adam wrote. “However, this seems increasingly unlikely within the prescribed timelines for a final decision on the project.”

Finance Minister Bill Morneau told reporters in Calgary on Monday that his government has yet to make a decision on the project.

“We have not yet come to that decision. It has not come to cabinet formally and for that reason, I don’t have anything to say about that project at this time,” Morneau said.

I DON’T HAVE ANYTHING TO SAY ABOUT THAT PROJECT AT THIS TIME.