By Lloyd Dolha
The Alberta provincial government and Shell Canada filed motions in the Queen’s Court Bench on September 1st, requesting the dismissal of a case brought forward by the Athabasca Chipewyan First Nation (ACFN) last year that could threaten the continued expansion of Alberta’s tar sands developments. The First Nation is located on Lake Chipewyan about 600 kilometres northeast of Edmonton and is based around the site of the oldest fort settlement in Alberta (established in 1788). Their lands are downstream from Alberta’s tar sands.
The ACFN, one of Treaty 8 First Nations, said Alberta and Shell Canada are seeking to suppress much of the evidence the First Nation has brought forward. “It’s very clear to us why Alberta is pulling out all the stops to keep our case from being heard,” said Chief Allan Adam of the ACFN, who is supported by several other Treaty 8 chiefs. “If we’re successful,” he added, “it will threaten the expansion of the tar sands and fundamentally change how oil and gas are developed in Alberta.” The ACFN brought forward a cross-motion seeking a disclosure of all the province’s records if the First Nations’ evidence is suppressed.
In December 2008, the ACFN filed an action for a full judicial review, challenging Alberta’s refusal to consult with First Nations territorial lands are sold to industry for tar sands development. In that action, the ACFN asked for a review of how leases are granted to oil companies for development. The First Nation wants the court to order the province to consult with them before it grants such leases. Several provincial courts and the Supreme Court of Canada have previously ruled that governments in Canada have a legal duty to consult First Nations, and this case asks whether that process should start before Alberta leases the land. Rather than respond to the ACFN’s concerns, the Alberta government has worked with Shell Canada to stop the case from proceeding.
“In Alberta, government and industry are working as fast as they can behind closed doors to sell off the rights to develop the traditional homelands of First Nations without a word of consultation before these deals are done,” said Robert James, a lawyer representing the First Nation. James said unlike most provinces, Alberta delegates virtually all consultation duties to the oil industry itself. Alberta, he added, is the only province that refuses to carry out its own consultation on large projects that have substantial impacts on the land, such as seismic drilling.
Alberta also doesn’t hold consultations before tar sands rights are sold, while other provinces such as British Columbia consult with their First Nations before granting tenures to private companies. In late 2006 and early 2007, the Alberta government sold five oil sands exploration leases to Shell Canada, all within 20 kilometres of the First Nation’s reserve on lands traditionally utilized by the Athabasca Chipewyan people for hunting, fishing, and other subsistence activities such as gathering medicinal and sacred herbs.
Lawyers for the province and Shell argued that the application for disclosure should be dismissed because the First Nation didn’t file its objections until well after the six-month period allowed under provincial law. Lawyers for the ACFN said they weren’t informed by government that the leases had been sold. Both sides acknowledged that the ACFN was never officially notified of the sale. Alberta lawyer Stephanie Latimer pointed out that the information on the lease sales was posted on the Internet and that the ACFN was informed in June 2006 about an online link that posted lands about to come up for lease sale.
The ACFN said that granting a lease is a “critical step” in the development of lands, and consultation should not wait until after companies survey the land. They cited the terms of the lease sale that require companies to carry out work on the lands in question within a certain time period. That, they argued, creates the duty to consult even before the lease sales are considered. If the ACFN is successful in defeating motions to dismiss their case, a full hearing for a judicial review of the province’s records will likely take place next winter.