Aboriginals take legal route

Struggling to deal with rising costs, lengthier regulatory hearings, shortages of skilled workers and a rising tide of environmental opposition, the oil sands now face increasing legal challenges from Alberta aboriginal communities.

Two actions have been filed in Alberta Court of Queen’s Bench that could be more troublesome to the industry than any of the other issues.

There is no doubt it has the attention of the Alberta government, which created an Aboriginal Relations ministry in April and has just signed a protocol covering all First Nations in the province.

But that has not satisfied aboriginal leaders, who say they are tired of unfulfilled government promises to consult and have the backing of Canada’s highest court.

Earlier this decade, the Supreme Court of Canada ruled that federal and provincial governments are required to engage in meaningful consultation with First Nations before developments proceed on native lands.

That precedent underpins legal actions by the Chipewyan Prairie Dene First Nation and the Woodland Cree First Nation who have alleged a breach of Alberta’s constitutional duty to consult on two proposed oil sands projects.

The Chipewyan Prairie are trying to block further regulatory approvals for a project by MEG Energy, with China National Offshore Oil Corp., to expand its Christina Lake development.

Construction is under way on a 25,000 barrel per day project, approval is pending for a second phase of 35,000 bpd and MEG has plans to add another 160,000 bpd.

Meanwhile, the Woodland Cree have launched a similar action in an attempt to stall Shell Canada’s application to expand its Carmon Creek project in the Peace River area of northwestern Alberta to 100,000 bpd from 12,500 bpd.

Chipewyan Prairie Chief Vern Janvier said “our lakes, our land and the animals and fish we have relied on for thousands of years to support our way of life and cultural values are being destroyed by out-of-control oil sands developments.”

“Because our constitutionally protected rights are at risk in one of the few remaining places in our traditional territory where we can exercise them, we’ve asked the courts to step in before it’s too late.”

He said his community has warned the Alberta government for years about “the erosion of our rights through ever-increasing development and the lack of proper planning for resource development.

“If anything, Alberta has sped up the pace of its approvals,” Janvier said.

He said consultations take place after oil sands leases have been awarded and the legal responsibility for consultation is delegated to the oil and gas companies, he said.

As a result, the companies are in a conflict of interest and have no control over the cumulative impact of other projects that infringe on treaty and aboriginal rights, he said.

Attorney: consulting ‘broken’

He said the Woodland Cree lawsuit raises questions about whether the government can “continue to sell off lands (regarded as traditional territory by Natives) without talking to First Nations, without talking to the public.”

Freedman said the Chipewyan Prairie action is limited to the impact of the Christina Lake project on hunting, fishing and gathering rights, and involves no monetary compensation.

But he said there is an implied requirement for greater environmental protection in the oil sands region.

As a result, if the suit succeeds it could set a precedent for the way all oil sands leases and developments are approved, Freedman said.

The government, while unwilling to comment on specific cases before the courts, insists it takes seriously its dealings with aboriginal communities and by creating a new ministry is “going in the right direction.”

Aboriginal Relations Minister Gene Zwozdesky said he is “trying to develop some new approaches and establish some mutual trust,” describing the mood at several preliminary meetings as “very positive.”

Chief Jim Boucher of the Fort MacKay First Nation in the heart of the Athabasca oil sands region said many leaders now believe their only recourse is through the courts, although not all have abandoned talks.

—Gary Park