As Long As the Rivers Flow: Indigenous Law and the Consequences of Development Conflicts

May 31-Jun 1, 2014 the Athabasca Chipewyan First Nation and Olthuis, Kleer, Townshend LLP hosted the Indigenous law and industrial development conference As Long As the Rivers Flow: Coming Back to the Treaty Relationship in our Time. The conference offered a showcase of social and environmental issues facing Indigenous communities in the oil sands region along with the legal strategies that are being implemented to mitigate the consequences of development and maximize benefits.

The ACFN are openly critical of the oil sands industry. They see the treaty relationship as broken: the adverse public health, environmental, social and economic impacts of bitumen extraction and infrastructure development are not justified by the service contracts and employment opportunities that have improved the financial position of many Indigenous individuals and communities. Yet they are not seeking to arrest development. Rather they are calling for the federal and provincial governments to fulfill their duty to regulate the industry. Chief Allan Adam stated: “we don’t want to stop development, we don’t want to shut down the industry, we want the governments of Canada and Alberta to do their jobs and properly regulate the industry and pursue sustainable development. Somewhere along the way they have forgotten that, and our way of life has suffered.”

John Olthuis, a founding partner at OKT Law called for a general renewal of Treaty 8 to rectify the legal uncertainty of the treaty and the conflicting understandings of the Crown and First Nations signatories. He cited Justice Morrow’s finding in the 1973 Paulette Case that “notwithstanding the language of the two treaties, there [is] a sufficient doubt on the facts that aboriginal title was extinguished.” Mr. Olthuis called for a moratorium against future development until the treaty was re-negotiated.

While Indigenous peoples have historically been disregarded in oil sands development decisions by federal and Alberta governments, they are beginning to gain traction. Eamon Murphy, a partner at Woodward and Company LLP who represents the ACFN maintains that development approvals are being slowed down by strategic litigation. The Shell Muskeg River Mine was approved within three years in 2000, while the Shell Jackpine Expansion has been in hearings for over six years and is facing court challenges from First Nations. Meanwhile, the Beaver Lake Cree Nation and the Whitefish Lake First Nation are suing the Alberta Energy Regulator for denying them the right to address hearings for Canadian Natural Resources Ltd.’s Kirby Expansion Project. The dispute between Athabasca Oil Corp and the Fort McKay First Nation delayed the Dover oil sands project by at least a year and reduced AOC’s share values. Poor consultation and neglect of the concerns of Indigenous communities have resulted in significant adverse social and environmental consequences for communities and increasing financial consequences for developers.

In the past decade Supreme Court Decisions such as Haida Nation v. British Columbia (2004) and Mikisew Cree First Nation v. Canada (2005) have strengthened section 35 rights of First Nations by establishing the duty to consult. In last week’s Tsilhqot’in Nation v. British Columbia decision the Supreme Court ruled that Aboriginal rights supersede both federal and provincial law, that nomadic and semi-nomadic Indigenous communities have title to lands occupied at the time of confederation and, that developers and governments must now obtain the consent of Indigenous communities prior to commencing industrial projects. It is unclear how much the land claims aspect of this decision will affect the numbered treaties, but it has undoubtedly strengthened Aboriginal rights, and will probably ensure that the government’s decision to approve the Northern Gateway Pipeline will be challenged in court for years ahead, effectively delaying the project.

The Métis have also won significant Indigenous rights victories. The Supreme Court ruled in R. v. Powley (2003) that if Métis communities that can demonstrate a descent from a distinct community prior to effective European legal and political control, their historic practices would classify as section 35(1) Aboriginal rights. In April, the Federal Court of Appeal upheld the Federal Court of Canada’s decision in the Daniels et al. v. Canada (2013) case, which clarified that Métis and non-status Indians are included in federal jurisdiction under section 91(24) of the Constitution Act, 1867. This decision eliminates the argument long held by the federal government that by lack of jurisdiction it is not required give Métis and non-status Indians access programs and services provided to status Indians and Inuit. These decisions have opened the door to Métis rights and allowed communities to increasingly significant players in industrial development questions.

2014 marks the 40th anniversary of the Mackenzie Valley Pipeline Inquiry (1974-1977). Headed by Justice Thomas Berger, the MVPI examined the potential social, economic, and environmental impacts of the proposed natural gas pipeline from the Beaufort Sea to northern Alberta. The Berger Commission found that there were significant environmental risks and few economic benefits for communities along the pipeline right of way. The commission also found that industrial development processes had generally neglected issues of Indigenous sovereignty and culture. Berger argued that while Indigenous peoples were not fundamentally opposed to development, development had to proceed with substantial community participation and control, and that outstanding land claims associated with Treaties 8 and 11 must be settled before any development take place.

Forty Years after the Berger Report many Indigenous communities such as the ACFN maintain that they are not inherently opposed to development on their traditional territories, but want control over where, when and how development takes place. Communities want to see clear benefits and revenue sharing, and a central role in effective and impartial environmental monitoring. In the 2012-2013 fiscal year the Department of Aboriginal Affairs and Northern Development racked up $106 million in legal fees, more than any other department including the CRA, most of which was land claims litigation. Rather than maintaining the tradition of disregard and conflict in resource development issues, it is time for government and project proponents to move from the courtroom to the cheaper and more equitable option: the negotiating table.

Hereward Longley is a research analyst with Willow Springs Strategic Solutions and a PhD student in Indigenous environmental history at the University of Alberta.