Alberta aboriginals file court challenge to province's system of oilsands leasing

Canadian Press, December 11, 2008 -- An aboriginal band has threatened the very basis of Alberta's oilsands industry by filing a court challenge to the province's system of granting land tenure.

A notice filed Wednesday in Edmonton Court of Queen's Bench by the Athabasca Chipewyan First Nation claims that a series of oilsands permits the provincial government sold to Shell Canada and other companies are invalid.

Selling off rights to explore the land without consulting area aboriginals breached the Crown's duty to consult, say legal documents prepared by the First Nation.

"(Alberta) breached the duty to consult the (Athabasca Chipewyan First Nation) by failing to consult the ACFN, adequately or at all, prior to granting the challenged tenures," the document reads.

The First Nation is asking the court to either quash the permits or order the companies to stop further development until consultation has occurred.

"It's a big question," said Monique Ross, a researcher at the University of Calgary's Institute of Resource Law. "(The government) would have to revisit the way they deal with the industry."

The Alberta government has long argued that, because no actual development occurs when an exploration permit is sold, no consultation is necessary.

Alberta Energy regulations specifically state that consultation does not take place before such rights are granted.

But the notice argues that when permits are sold, companies are obliged to begin work on them within a certain time or risk losing them.

"One of the goals of Alberta's oilsands tenure system is to ensure that oilsands tenures are in the hands of those who are committed to developing them," the notice says.

"Because oilsands tenures confer upon the company the exclusive rights to win, work, recover and remove the oilsands deposits, government decision-makers are effectively compelled to authorize the tenure holder to exercise those rights.

"The challenged tenures represent critical strategic planning decisions taken in contemplation of and to facilitate activities which adversely affect the treaty rights of the Athabasca Chipewyan First Nation.

Accordingly, (Alberta) was charged with a duty to consult with the ACFN prior to issuing the challenged tenures."

The tenures were sold in 2007 and 2006 to Shell Canada, Standard Land Company, Saskatoon Assets Inc. and Canadian Coastal Resources. All are within 20 kilometres of the band's reserve.

Ross points out that the Supreme Court has compelled British Columbia to consult with area aboriginal groups in advance of allocating forestry tenure.

"The principle is that governments have to make themselves aware of the existence of rights and how those rights may be impacted by the allocation of mineral rights," she said.

"It's not enough to consult at the stage when forestry activities are occurring. You have to consult at the stage of reallocations.

"It's at that stage when key decisions are being taken in anticipation of actual decisions on the ground."

The First Nation points out that the land in question is extensively hunted, trapped and fished by the members of the band.
"Parts of our traditional lands have been completely changed by industry," writes Chief Allan Adam in an affidavit.

"These lands were once hunting and trapping grounds, but now they are covered by oil and gas wells and blanketed by seismic lines roads and pipelines."

Adam said the band is particularly concerned about an area near the reserve called the Richardson backcountry, which is important for both hunting and spiritual practices. He wrote the provincial government has repeatedly granted oilsands exploration permits in the area despite the band's concerns.

"It is deeply troubling to our First Nation that Alberta has granted these tenures within our traditional lands and set the stage for exploration and potentially massive oilsands production without any consultation with our First Nation before the grants of tenure."

A preliminary date for the first hearing on the motion has been set for Jan.13 in Edmonton.

NEWS RELEASE from ACFN
1:00 a.m. Mountain Standard Time Thursday December 11, 2008
Contact: Chief Allan Adam, Athabasca Chipewyan First Nation (780) 713-1220;
Robert C. Freedman, Miller Thomson, LLP, Barrister and Solicitor (250) 818-3719

Alberta First Nation Takes Legal Action Against Alberta Government on Duty to Consult on Oil Sands Tenures
(Edmonton Alberta) On December 10, 2008, the Athabasca Chipewyan First Nation (“ACFN”) filed a legal action in the Alberta Court of Queen’s Bench for a Judicial Review of the Government of Alberta’s refusal to consult with the ACFN prior to the grant of certain oil sand tenures located within ACFN’s Traditional Territory, and in close proximity to ACFN Reserves and registered trap lines.

A Judicial Review is a legal process to challenge a decision made by a government official. In this case, the Alberta Minister of Energy is the government official who has declined to consult with the ACFN prior to granting oils sands tenures to industry.

ACFN are signatories to Treaty 8 and hold Treaty Rights which are protected by section 35 of the Constitution Act, 1982. ACFN Chief Allan Adam says: “The refusal of the Government of Alberta to consult with us prior to granting oil sand tenures within our Traditional Territory is a breach of the Crown’s constitutional duty to consult and creates unnecessary uncertainty for our people and industry.”

Robert C. Freedman, legal counsel for ACFN says, “Consultation prior to the grants of tenure is the only realistic stage at which my client’s concerns can be addressed. Once the tenures are granted, there is an inevitable momentum to develop the tenures. There is no legal impediment to consultation at this early stage. Alberta simply chooses not to do it.”

ACFN is seeking a number of declarations from the Court, including asking the Court to rule that the Alberta Government has:
1. A duty to consult and accommodate ACFN prior to granting the challenged tenures;
2. Breached their duty to consult by failing to consult prior to granting the Challenged tenures; and
3. A duty to consult on the scope and extent of the ACFN’s Treaty Rights and other Aboriginal interests and concerns, prior to granting the challenged tenures.

ACFN is ultimately asking the Court to grant remedies which will allow for a meaningful consultation process so ACFN people can continue to exercise their Treaty Rights today and into the future. As Chief Adam states, “We have been asking for such consultation for years. We need to have meaningful consultation to protect what is left of our rights before it is too late.”

The first court appearance for the Judicial Review has been set for January 13, 2009 in the Court of Queen’s Bench in Edmonton. It is likely that the dates for the full hearing will be determined at that time.