Alberta facing aboriginal legal onslaught over oilsands in 2014


EDMONTON – Simmering disputes over the oilsands between Alberta aboriginals and the provincial and federal governments will break into the open in 2014 as virtually every one of the many recent changes in oversight of the controversial industry comes under legal and political attack.

“All litigation, all the time, is what I see on the horizon,” said Larry Innes, lawyer for the Athabasca Chipewyan First Nation.

Over the last 18 months, Ottawa and Edmonton have rewritten the book on resource development. Everything from how aboriginals will be consulted to land use planning to oilsands monitoring to the basic ground rules for environmental assessment has been changed.

Governments say the new regime is more efficient, predictable and transparent. Aboriginals say it violates their rights and ignores their recommendations.

So as aboriginal groups in British Columbia prepare for an expected attack on the Northern Gateway pipeline proposal, Alberta aboriginals are pushing back with a long list of lawsuits either now or soon to be before the courts.

The Fort McKay First Nation is appealing an approval of Brion Energy’s plans for a 50,000-barrel-a-day operation northwest of Fort McMurray. It says the province has violated the constitution by setting up an energy regulator expressly forbidden to hear arguments based on aboriginal rights.

The Mikisew Cree and Frog Lake First Nation are before the courts arguing that Ottawa’s recent amendments to the Fisheries and Navigable Waters Acts run afoul of their rights.

The Beaver Lake Cree is fighting both levels of government in a case that seeks to force them to consider the cumulative effects of oilsands development when issuing new permits.

A total of 17 First Nations from around Alberta are trying to get legislation on access to public lands tossed out in a long-running case expected to go to trial this year.

The Athabasca Chipewyan First Nation plans to file a lawsuit in January attacking Ottawa’s new environmental assessment legislation after the approval of a major oilsands expansion that it says will violate both treaty rights and federal laws.

At the same time, the Alberta government’s other major oilsands initiatives are running into heavy weather.

All six First Nations in the oilsands area have requested a statutory review of the Lower Athabasca Regional Plan, the government’s attempt to balance development and environmental values. Those same bands, along with many others, have also rejected the province’s plans to centralize and control aboriginal consultation.

One major band — the Fort McKay First Nation — has pulled out of the Joint Oilsands Monitoring program, the showpiece federal-provincial effort to monitor environmental change in the oilsands.

Even the Lubicon Cree First Nation are back in court, with another try in a decades-long attempt to win a reserve and get some royalties on energy extracted from what they say is their land.

Alberta Environment and Minister Robin Campbell declined to be interviewed.

“We work with aboriginal leaders and communities in a variety of areas and will continue to do so,” said spokesman Kevin Zahara. “We will not speculate on possible legal challenges.”

A big part of the problem is simply the scale of development, said Nigel Bankes, professor of resource law at the University of Calgary.

“In the oilsands area, it’s really the intensity of the development,” he said.

“The treaties give the province the power to take up lands and the argument is there must be a limit to that. That can’t be an entitlement to take away all lands (to) which First Nations have historically exercised hunting rights.”

Those concerns grow as governments narrow who has the right to air concerns and what concerns they’re allowed to raise.

“I think that’s a fair characterization,” said Bankes, who said that process has been going on for years. “(There’s a) very narrow and stringent standing test and I think that does mean there’s a level of frustration out there.”

Not only are bands barred from raising aboriginal rights at regulatory hearings, two have recently been denied the right to even speak at ones concerning oilsands projects on their doorstep. Lawsuits happen when discussion fails, said Joe Jobin, chief operating officer of the Fort McKay First Nation.

“First Nations have always tried to work with the government on developing a policy that works for First Nations and for industry,” he said.

“The frustration is that the input is not being meaningfully considered. It’s almost like this attitude, ‘Well, if you don’t like it, take us to court.'”

The result is higher costs for everyone and uncertainty for industry, said Bankes. He added Alberta is increasingly resembling lawsuit-happy British Columbia, which has few treaties.

“What we’re seeing now is the same sort of litigation that we’ve been seeing in B.C. for a long time. This is now being transplanted to the treaty context of Alberta.

“Government has said to itself, ‘Things are clearer here, there’s more security precisely because we’ve got treaties.’ I guess what the litigation that we’re seeing now is calling into question is, is that really true?”

Innes said Alberta bands that have traditionally preferred to negotiate are increasingly through with talking.

“First Nations who have been investing in the process find the process is stacked against them,” he said.

“Things are coming to a head.”

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Alberta facing aboriginal legal onslaught over oilsands in 2014

  1. Canadians are standing united with First Nations to help make these cases happen.. It is Harper and big oil who are the non-compliant ones towards our Charter Rights and First Nation Treaties. They have been acting like Mafia and citizens and First Nations people are sick and tired of this. It is A battle against corruption that has been killing people and polluting communities. Enough is enough!

    • Not all Canadians speak for yourself. Your platitudes are as meaningless as your exaggerations. Try some substance in your next post.

      • The truth hurts.

        • That explains the platitudes and exaggerations.

          • yeah, its not like we are just digging up the bitumen and sending it, without upgrading, out for others to upgrade

            you see, we are basically selling a very valuable resource for pennies on the dollar, a handout to the companies involved – and the upgrading jobs pay very well, but those are all in Houston because our Prime Minister is a traitor


          • Excatly, well put sir, but only in regards to this particular post.

    • It’s far too narrow and simplistic to blame the mess that is the relationship between First Nations and provincial and federal governments on big oil and Harper. These parties are only limbs in a very large body, and that body is the colonial ideology. The parties who stand to benefit the most from this system will naturally continue to vigorously defend the mindset that natural resources are commodities whose only value is represented by what they can fetch on the stock market. The huge majority of the financial wealth derived is funneled to private entities and their shareholders. If we as a country do not begin to recognize, on an institutional and societal level, that natural resources and ecosystems at large have incalculable value and that they support life systems on which humans will always depend, then we will not have health, peace or justice. I believe that Canadians such as myself (and yourself) who stand firm as allies represent an important factor in freeing our civilization from a destructive way of life. Indigenous societies the world over have developed philosophies and practices that have allowed them to live in harmony with diverse environments for thousands of years. It’s time for us to listen to what they have to say.

    • So…… the poor natives haven’t received enough blood money from Canadian taxpayers yet?
      It would be in their best interests to resolve this pipeline issue quickly; before the world moves away from fossil fuels, and the golden goose gets slain.

      • Comments like this make my skin crawl. I think that perhaps you should do your homework before you make racist comments like this. The First Nations behind all of the litigation are not looking for money. On the contrary they are spending MILLIONS of their own dollars that they earned through various entrepreneurial enterprises (First Nation owned businesses that are not limited to casino’s FYI) to try and preserve what is left of ecosystems that are under attack from out of control development.

        How do I know this? Because I am from one of these Nations and work directly with leadership and our businesses.

        I completely understand the need for oil and gas at this point (it drives our cars and economy) and agree with your statement that we are moving away from fossil fuels (because we can no longer ignore the long term enviromental implications). However, there is a crisis that is a part of this moving away from this energy sector. ‘Dig/Drill it all up as quickly as possible and sell it as fast as possible to make the most of it while it’s still here.’ That sir, is the mentality of the current pro petro governments of the globe and Canada and our government is not the only ones playing this game. As long as our economy is driven by oil and gas our leaders, that are in the pockets of big corporation, will do what needs to be done to access it and sell it.

        First Nations interests in fighting the development has nothing to do with making money, it has to do with saving the planet. This struggle is echoed globally. Indigenous people (and many others) world wide have a different relationship with the planet. It’s an intimate relationship that requires balance and in-tact ecosystems that provide what is necessary to survive FOR EVERYONE. The modern city lifestyles of the human species have led to a disconnection who we really and our reliance on the planet as an ecosystem. We are a living breathing organism that require clean air, water and food. The current status quo of development (be it tar sands, oil & gas, coal, metals or gems) has devalued ‘the environment’ to a point that it is easily discarded and treated as a necessary causality in the business as usual mentality of oil and gas development. Someone has to do something, whether it’s indigenous people or not, something has to give. Right now, it’s Indigenous people world wide that are utilizing a human rights approach and our unique rights (which in Canada are the only thing left due to the weakening of environmental laws and legislation sanctioned by Harper) to challenge this status quo that is killing us all….

        Also, tax payers don’t pay for First Nations. Tax payers pay for the health, safety and lifestyles of ALL CANADIANS including First Nations. The costs of the same privileges that we all receive as Canadians (roads, schools, municipal services, etc) are treated separately because of Treaty agreements and the Indian Act. However, if you look at the average money spent of these services for a ‘regular Canadian’ you’d see that we spend more on YOU then the often ‘under-privileged’ and ‘racially oppressed’ First Nation. Go back to school and learn something cause you just got schooled by a Native woman.

        • Reading your post, I can only conclude that some FNs have adopted some sort of martyr’s complex. Saving the world? Really? Face it, you act with self interest like any other human being. Nothing wrong with that, but don’t paint it as something else. Your bragging about schooling anyone is laughable. Natives were never ecologists. They were nomads. When one area was depleted, they moved on. They had neither the technology nor the numbers to do any lasting damage. And don’t pull the racist card on me either. My own ancestors were Métis Red River settlers.

          • Wow, you missed the point. I stated that something and someone needs to stand up. In this instance it’s First Nations. In others instances it’s been Farmer and private landowners and other non-indigenous groups. I pointed out that it’s Indigenous people and OTHERS. Generally speaking it’s PEOPLE that have a intimate relationship with the land/planet that are standing up to challenge the status quo of development. The article is about First Nation litigation and I replied to someone that said it was all about money for First Nations and his comment was racist.

            Yours, well, it’s just ignorant.

            Yes, First Nations were nomadic, in fact most of our human ancestors were. In all likelihood, the people that we now refer to as ecologist have ancestors that were nomadic as well. Does that revoke them of their credibility to care for and about the planet? I think not.

            You are right and wrong about the self-interest part though. Humans act in the interest of carrying on their DNA just like any other species. It’s less individualistic then you allude to. Humans are actually pack animals. We look out for our kin.

            Once you travel farther enough down the line of consequences to impeding ones ability to carrying on an individual’s DNA you can easily conclude that destroying the planet and the finite resources we need for survival as the enemy. You don’t need to have ancestral ecologist bloodlines to care about the future of your children or the planet. You just need a sense of survival and general common sense.

            We should all adopt the same sense of urgency in saving the planet and what you so eloquently called martyr complexes.

            The people in my community are suffering from elevated (higher then similar communities of size and location) rates of cancers, auto-immune diseases and other ailments that are linked to petrochemical pollutants. Again, don’t need to be an ecologist or scientist to put two and two together. Many groups, non-First Nations, have and are attempting to battle oil and gas and government on similar fronts. Yet, they lack the traction and ability to move things to high levels of courts because of the lack of human rights implications which government and industry easily wash over with propaganda that everything is fine.

            First Nations rights in Canada are uniquely tied to the land, water and other species which makes our challenges of the status quo of development much more complex and harder to placate with the standard propaganda.

            I have worked along side various organizations and individuals fighting for the survival of this planet, and hamnity by default. I don’t call them martyr’s I call them realist.

            The human species is on a trajectory of destruction. I will stand behind and beside anyone those that are challenging the status quo and trying to create a pathway that creates a FUTURE for all people. My Nation is trying to salvage whats left of our lands and territory so that species will survive, waterways will continue to flow and our nation will continue to thrive.

            Again, your arguments are weak and ill thought out.

          • I like your second post a lot better. However, I do believe you are exaggerating the effects of the tar sands, pipelines, etc. like many are. The fact is, we need some balance between development and the environment. Sometimes ecosystems can be altered severely, then brought back to where they were once the industry has run its course. We don’t always need to paint industry as an enemy. We all depend on industry for our living in some way or another.

      • The globe is not moving away from fossil fuels any time soon. They’re still by far the best source of energy and will be far into the future.

        Even if the supply-demand curve drives up the price of oil and gas, we’ll start to use coal as part of the feedstock for liquid fuels.

    • Wrong. You speak for no one but yourself.

      Is your house warm and cozy?
      What’s that computer you’re using made of?

      • primarily silicates and gold

        you do realize that while petroleum products are used in computers, we are discussing the burning of oil for heat and fuel

        • Incorrect.

          The majority of that ‘puter, is plastic….

          You do realize that petroleum products are refined into many products, from the same source?
          No, you missed that….

      • I dunno, but I do know that the computers and everything else that you or me own, is ALL Made in China, and just like our RAW oil being piped “South” first, before it comes back up north to us, is NOT going to do any canadians’, any good.
        Canadians are going to end up paying a much higher premium for that gas,…, than our American neighbours, -we screwed ourselves.

        Sooo, how does that help you or me ? -it doesn’t. It simply lines the pockets of those mostly “foreign” Oil Corps who own that idiot-Harper.

        • Read my comment and went WAY off on a tangent.

          Instead of going off on a Harper hating rant, you should have tried reading up on the refinery capacity in Canada.
          Refinery row in Edmonton, for instance.

          • your comment: “..Whats that computer you’re using made of…?” you call that ON tangent?

            we’re ALWAYS gonna pay more at the pumps than americans, yet with all this oil you’d think maybe, ?, it’s not just a Harper rant it’s getting screwed anyway, even if we have the 2nd largest supply of oil on earth.
            “Refinery row in Edmonton”? show me the savings at Canadian pumps, but it’s not there, ’cause it’ll never happen, except in your Federally-promised “pipe” dreams eh ?

          • Yes, it is.

            I will use small words, for you.

            Here, you have people crying about the production of petroleum, yet they seem to have no problem using the products from that production.

            See the hypocrisy?

            Now, translate your rant into coherent English. Thanks.

          • Nuthin’ wrong with my coherent English, except maybe in your so-called “Right” world chump.
            People aren’t crying about “production of petroleum”, but many are crying about the needless “over-production of petroleum” just for the sake of “profit” <- "See the hypocrisy?"
            The world will always need petroleum, we just won't need as much of it anymore, with efficient alternatives via R&D, Science/engineering, ….
            So wake up and start supporting the latter, NOT the former.

          • Oh, there’s plenty obviously wrong on your end.


            Where is this so called ‘over production’ being kept?

            If there’s ‘overproduction’ the market prices would crash.

            Spend less time memorizing the Liberal red book, and a lot more time getting an education in economics, specifically market reactions to supply and demand.

            “The world will always need petroleum, we just won’t need as much of it anymore…”?

            Wow, you are really out of touch with reality.
            Pro-pot supporter, I bet?

            You fail to take into account the developing economies of China, India, Brazil, etc., not to mention the unbridled population increase on this planet.

            Go back to bed. You’re sleep walking.

  2. Chickens…home…..roost etc. About time.

  3. Your’e either with us or against us mentality of the Harper Cons, is biting him in the a*s.

  4. It is clear to me that Harper has no regard for the Constitution, the rule of law or any sense of fair play. He prorogues Parlement when ever he is asked questions he does not like. He is found in contempt of Parlement. He will likely lose in court challenges by First Nations. He muzzles debate. Disregards science in environmental issues and stifles debate because he has no case to argue. Finally, he labels citizens who disagree with him as terrorists or traitors. It is time that all opposition parties serve notice to the world and big business that when they form government that they will not feel bound by ANY agreement Harper makes because he is not representing most Canadians. Desperate circumstances demand desperate measures and Harper has created desparate circumstances. His government no longer has moral authority to govern and if Canadians were more like other countries, there would be a popular uprising to depose him.

    • You lefty envirotards really are special.

      Chretien and PET prorogued parliament more than Harper ever did.

      Chretien did it to avoid being dragged into the Adscam inquiry.
      Might want to read up on his ruthless treatment of any liberal dissenters, also…

      • you rightards are about to get a swift kick in the azz

        Canadians have had enough of your idiotic policies

        I support the oil sands, but I support RESPONSIBLE development that includes upgrading of bitumen into petroleum products AT HOME

        I dont support the free for all it is now, nor sending the oil out un-upgraded for other countries to profit on..period

        • Blah, blah, blah….

          All you lefties do is whine, and hold your hand out for free stuff.

          Try to do some informed reading.

          Say, for instance, how refined products cannot all be shipped through one pipeline…

          Unrefined oil is piped closer to the required market, so refineries can produce what is needed, when it is needed.


      • The mark of people who cannot defend their position is to attack people personally. Name calling does not make your argument valid. It makes your position suspect. Maybe your intellect is too ” challenged” to carry on a civil discussion. I will ignore you now as you are unworthy for debate.

        • The mark of people who cannot back up their argument is to run away at the first sign of facts and truth.

          You post uninformed opinion, with no facts.

          I can’t reason with ignorance like yours.

  5. it takes 3 barrels of water to make one barrel of oil, so one oil plant makes 300,000 barrels a day, that’s 900000 barrels of water use that day. But, you have to think about the other oil companies in the area, Lets see there is suncor, syncrude, cnrl, total, and shell and know the expansion shell, teck and fort hills. So, 5*900,000= 4500,000lillters of water a day, lots of water. But here is the big catch, there is only one river. and its dry up…

    • Over 95% of the water used is recycled water, so only 1/20th (at most) of that volume is new water.

    • The water is recycled.
      Try reading a credible source of information.

  6. I think Mike4444 & Debaucherous Donny should first go read a book and learn a bit of history. I also don’t understand people that use fake names and can’t stand behind what they write but yet hide behind made up names, shows a lot about their character.

    • Made up names like “Guest”, for example?

    • I’ve read over a thousand books in my life, possibly several thousand. And hope to read at least that many more before I’m done. By the way, is ‘Guest’ your first name or last name? Since only cowards post under pseudonyms… I just had to ask.

    • Sure told them didn’t you ‘guest’….

  7. Constitutional rights and treaty obligations are simply a matter of opinion for Harper, and increasingly it seems AB.

    • These supposed ‘rights’ keep getting created by the Supreme Court out of an ideological framework that defies all common sense.

      • Where the hell do you think yours come from – out of a cereal box? Or are you one of those who thinks his rights are from God; someone who thinks the mythology ofthe do trine of discovery justifies everything that came afterward?

        • Mine are actually in the constitution, though the SC has removed some, for example protection against discrimination. And all of those are enjoyed by the indians as well.

          But much of the ‘first nation’ rights (as well as some indian rights) are merely invented.

          • Isn’t just it convenient that your constitutional rights were first promulgated by Europeans that didn’t actually have any claim on the land. That same constitution that you claim gave aboriginals the same rights you enjoy also came up with the Indian act. Now that we are attempting to rectify that you claim the courts are inventing rights out of whole cloth. I’m having a hard time seeing you as anything other than an ignorant racist.

          • That makes no sense at all, kcm.

            The treaties, for example, are quite clear that the ‘first nations’ ceded all privileges whatsoever over the land to the Crown, yet the Court has invented all manner of rights for ‘first nations’ to interfere with and even control development on Crown lands.

            The Indian Act is simply an administration document, not connected to section 35 rights, either the ones that existed prior to 1980 or the ones created afterward by the Court.

          • The taking up and ceeding clauses are in dispute. FNs have claimed from the onset of the treaties this was the case. To this day provincial and federal negotiators remove any mention of sharing from negotiated documents. Not that I expect you to be aware of this.

          • No indian leaders I know of disputed the treaties until the SC decided to create new rights not found in treaties.

            Now any sort of supposed story can be claimed to be oral history and the Court has decided to accept such hearsay despite it being without foundation.

            That’s an ideological bias on the part of the Court that appears to be directly intended to exacerbate the isolation of modern day indians from the rest of society, and to tie them in even closer dependency to the ‘first nations’ in which they were born.

            It’s a feudal system of diverging rights, sometimes associated with land, sometimes associated with ancestry, sometimes associated with political entities (ie- ‘first nations’)

          • The Court has indeed decided to accept ‘oral history’ as if it had the weight of actual evidence.

            Consider if there’s anyone else who could get away with rubbish like that.

            For example, I could claim that my gt gt gt gt grandfather was promised that his family would not have their lands stolen in Westchester County, New York in 1783, but no court is going to believe me no matter how many generations of my family knew about it.


            For god’s sake educate yourself. All your posts amount to nothing more then your utterly ignorant opinions. Do you really think the SCoC was simply content with…my dad said so, so it must be so, period? These guys amount to the sharpest minds in the country. Don’t worry, they won’t sell you out on a mere bit of unsubstantiated hearsay – even if you would sell out FNs based on the opinions of self interested govts going back more then a century or more.

          • And yeah, the only possible explanation for the Court going so far out of its way to present deliberately biased judgements, even going as far as to direct lower courts to apply bias in their judgements, it has to be ideological.

            It’s certainly not jurisprudence.

            So the question is one of WHY the Court is being so obtuse, and ignoring the terrible damage they’re wreaking on the indians who are stuck on dysfunctional ‘first nations’.

          • The CBC is your source? LOL!

        • Glynmhor isn’t entirely incorrect. The courts have “read in” countless rights that simply do not exist in the original treaties. Cradle to grave free healthcare, including prescription drugs, glasses & dental (which the rest of us do not get) were never included in the original treaties. But judges decided long ago that the “one medicine basket per year” that was promised to most tribes at the time represented the full extent of healthcare then available, and therefore we should continue to provide them with the full extent of healthcare available today, regardless of whether or not everyone else gets similar benefits (and we don’t). That’s not an exaggeration, that’s the type of decision that has produced today’s extensive treaty rights. Look into it a bit. You’d be surprised. They sound like exaggerations because they are so bloody ridiculous.

          • I don’t think “reading in” is in dispute. But My oriiginal comment accused the right of reducing this (treaty rights and section 35) to a mere matter of opinion; and sure enough GM pipes up on cue.
            Judges don’t make rulings completely out of context – rights evolve. Once upon a time women had no right to vote and Aboriginals weren’t persons.
            A BC SC ruling dismissed FNs claims that oral history had standing in land claims, but eventually the SCC ruled they did. This is not making crap up as GM (or a Harperite) would claim.
            I’m not aware that reading in was charged against the courts with regard to treaty, rather then section 35 charter rights. No matter. If Canada is going to arbitrarily claim this point on the grounds of common sense( really do you think a $4 or $5 payment is appropriate today?) then we should give equal weight to the FNs pov: that they intended the original treaties to “share” the land and its resources. The “taking up”and ceeding clauses were added w/o their consent. Now…that is arguably “reading in” of another order altogether.

          • Many of the bands insisted on good translators, ones independent of the government, to make sure and certain what they were signing.

            They may have envisioned sharing the hunting and trapping, but certainly not the mining or other resources.

    • Your opinion is made up from thin air.

      • yours is based on your complete lack of education

        in fact, most of Harpers supporters have difficulty forming a coherent sentence – boys in short pants indeed

        • LMAO!

          My education included English classes, unlike you.
          I learned to capitalize words at the beginning of a sentence, and to use periods at the end of them.
          I also learned how and where apostrophes are used.

          Learn to form a proper sentence, before you try, and fail to insult me.

          In fact, you Trudeau fan club members are chosen for your illiteracy levels.
          Boys in diapers, obviously.