Aboriginal title ruling could affect oil patch

Supreme Court decision has Albertans thinking


EDMONTON – A Supreme Court decision giving a British Columbia First Nation title to land it uses for hunting and fishing could affect many Alberta court cases between First Nations and governments over oilsands development, lawyers say.

“I can think of a few law firms that are probably redrafting their briefs right now,” said Larry Innes, a member of a Toronto law firm that represents the Athabasca Chipewyan, a band downstream from the Fort McMurray region.

Roger Townshend, a member of the same firm, said while the Tsilhqot’in decision didn’t break any new legal ground, it did show the court wants governments to interpret aboriginal rights broadly on traditional lands.

“Really what was happening was Canada and B.C. were interpreting those doctrines in an extremely narrow and rigid way and the court said, no that’s not the way to do it. You’ve got to look at things more holistically.”

An Alberta Justice spokeswoman said the government is examining the ruling and considering its impact for the province.

But Victoria-based lawyer Robert Janes, who represents a number of Alberta bands, said the court has raised the bar for governments seeking to approve major developments that could infringe on aboriginal land-use rights.

“The court seems to be sending quite a strong message that infringement should not be allowed to drift to being a general public-interest type of analysis,” he said.

“It’s expected to be more rigorous than how it’s been approached in the past. Likewise, the duty to consult is not intended to be a polite chit-chat and do what you’re planning to do anyway.”

The Alberta and federal governments are facing a number of court actions that attack many of the recent changes made to regulating energy development. Many involve issues around aboriginal consultation, consent and the impact of development on treaty rights.

The Beaver Lake Cree, for example, are in court arguing that so much piecemeal development has been approved on their lands that their treaty rights are increasingly meaningless — an issue close to the heart of Thursday’s decision, said Innes.

“When (governments) consider the public interest they must do so in a way that balances the rights of all Canadians with the rights of aboriginal Canadians,” he interprets. “You can’t simply do it on the basis of what’s good for the economy.

“You cannot, as a Crown, go in and say ‘It’s good for the guys in Calgary, too bad about Fort Chipewyan.’ You actually have to turn your mind to what would be the best outcome for both.”

Although British Columbia has few treaties, Janes agreed the Tsilhqot’in ruling will be a factor in the Alberta cases.

“We will certainly be using this case in our arguments,” he said.

“When you get to stage where you’re looking at these large-scale developments in northern Alberta which potentially infringe rights, where you’re really looking at life-changing events, then the court’s saying you’re going to be held to a very high standard. There has to be a compelling public purpose.”

Innes said he expects to cite the judgment at regulatory hearings into TransCanada’s Grand Rapids pipeline project from Fort McMurray to Edmonton, now under way.

“The validity in which the way consultation issues are addressed by the Alberta Energy Regulator or rather summarily dispensed with by the Alberta Consultation Office is what we’re putting forward,” he said. “There is no way in way in hell that the process that has been set up could possibly meet those duties.”

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Aboriginal title ruling could affect oil patch

  1. And it’s only taken 300 years for us to figure this out!

  2. This is fundamentally simple. If the bands want the self-government that comes with the land title, then they have to assume responsibility for self-funding. You can’t opt out of potential economic development with one hand while still holding out the other for federal funding of schools, band housing, and so forth. This is where the feds and the provinces need to step up to the plate and challenge these activist natives.
    If certain bands don’t want roads and oil wells and logging on their lands, so be it. But, when they opt out, they need to be required to opt out all the way. If you want to obstruct economic development, then you opt out of federal payments. It’s called fairness.
    There is no point in teaching people who claim to want to “live off the land” to read and write. There is no need for those who claim to wish to live the way they did before the white man came to have modern medicine, or electricity, or snowmobiles or TV or internet. That’s called being honest.

    • And what do you call it when a government signs a treaty and then violates it, what do you call that?

    • I’m sure that as soon as you grant them full sovereignty over their entire original territories they’ll be happy to forgo further funding. Of course, there’d be no BC left to provide funding, but that’s called “being honest”.

    • ….sounds like Quebec’s future 3rd referendum ? -not again.!

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