ACFN Lawsuit Challenges Alberta Consultation Regime

How is Alberta’s new Aboriginal consultation regime faring? Not well, according to a court case filed in Alberta this week by the Athabasca Chipewyan First Nation (ACFN).

The lawsuit asserts that Alberta’s new Aboriginal consultation process is unaccountable, procedurally unfair and denies First Nations their constitutional rights. The case specifically alleges that the newly established Alberta Consultation Office made a serious error in deciding that ACFN had no right at all to be consulted about the enormous Grand Rapids pipeline.

Last year, I predicted that Alberta’s new Aboriginal consultation policy and regime would create more uncertainty and conflict over aboriginal consultation, not less, thus creating more economic and political uncertainty for First Nations and provincial economies. The ACFN challenge of the Grand Rapids pipeline project is an unfortunate case in point.

Trans Canada Pipelines and a Chinese joint venture partner plan to construct the Grand Rapds pipeline from west of Fort McMurray to the Hardisty terminal east of Edmonton. The pipeline will carry 900,000 barrels of diluted bitumen a day, more than the volume of the Keystone XL pipeline and almost double the volume of the contentious Northern Gateway pipeline. A fast–tracked regulatory process for approvals in Alberta, under the new “super regulator” the Alberta Energy Regulator, hit bumps along the way. And one big still-unresolved the bump is the impact of the project on ACFN.

Before any other steps are taken in an Aboriginal consultation process, a pivotal threshold decision must be made about whether a First Nation has any right to be consulted at all in the first place (even before deciding what level of consultation and accommodation may be necessary).

In the case of the Grand Rapids project, Alberta, through its Aboriginal Consultation Office (“ACO”), decided that ACFN had no right at all to be consulted. The ACO refused to move off of this position even though ACFN, had been consistently and directly providing the ACO information stating that ACFN’s rights to hunt, fish, and trap were threatened by the Project. The ACO has never provided any explanation as to why it ignored ACFN’s concerns or why it did not believe ACFN. Alberta also ignored the clear wording in Treaty 8 that ACFN has a right to harvesting throughout the whole Treaty 8 territory, which the Grand Rapids Pipeline cuts through the heart of. The lawsuit points out concerns about this and other serious procedural fairness issues in the new Alberta consultation process.

Aboriginal consultation processes will work only if they are procedurally fair, and perceived to be procedurally fair. It may be that Alberta will recognize this with proper reforms to the process. In November, newly appointed premier Jim Prentice indicated that it was time for Alberta to re-examine the new Aboriginal consultation regime as it was clearly not functioning properly. The ACFN lawsuit confirms the need for Alberta and First Nations to go back to the table to figure out how to get the Aboriginal consultation process right. If that doesn’t happen, the result can only be more conflict and less stability for both economic development and Aboriginal rights protection efforts.

For ACFN’s notice of judicial review in this case, please click here: 1501-00395 Originating Application 2015-01-14.

By Lorraine Land