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Province vulnerable to oilsands lease lawsuits
News Articles Featured | Calgary Herald | February 11, 2011
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The Alberta government is failing in its constitutional duty to properly notify First Nations of oilsands leases on their traditional lands -a practice that could lead to a Supreme Court challenge, says a University of Calgary aboriginal law expert.
Nigel Bankes, who is also the university’s chair of Natural Resources Law, said the government’s policy of simply posting lease sales online and not going to First Nations directly doesn’t stand up to scrutiny.
“I’d say the province isn’t doing a good job,” Bankes said. “Particularly when it comes to granting oilsands rights, because they basically say, ‘We can fulfil our duty simply by posting stuff on our website.’ I don’t think that’s real consultation.”
The issue is a part of a number of cases being brought to Alberta’s courts by Athabasca River aboriginal communities who are fighting the pace of oilsands development.
Bankes wrote about the issue of consultation in his blog following last month’s Alberta Court of Appeal decision, which dismissed part of a case brought forward by the Athabasca Chipewyan First Nation.
The justice ruled that a lower court was correct in dismissing the Dene First Nation’s objections to leases granted for their traditional Treaty 8 lands in 2006 and 2007, because a six-month time frame to respond had long passed.
However, Bankes and the Athabasca Chipewyan argue the system isn’t fair.
“The decision at trial was essentially that the First Nation missed the deadline for commencing its judicial review,” Bankes said. “I am suggesting that that’s incorrect, and that time should start to run . . . when the First Nation gets actual notice from the Crown.”
Alberta Energy’s policy is to consult with aboriginal groups when development has the potential to adversely impact traditional uses and their constitutionally protected rights to hunt, trap, and fish. But the Alberta government says it broaches the issue with aboriginal communities a bit later in the process. It does not consult at the preliminary lease-granting stage because there are many steps to go before any oilsands development actually occurs -if it actually occurs at all.
Tagged with: first nations, alberta
