Lubicon appeal six-month Penn West fracking protest ban

“Outrage was the reaction,” Lubicon Lake Nation spokesman Garrett Tomlinson told Windspeaker, “but there wasn’t a lot of surprise.”

That was his response to a sweeping six-month court order issued Dec. 16 against a community blockade camp against sour gas drilling by Calgary-based Penn West Petroleum Ltd., which had only qualified and applied for a week-long injunction, Tomlinson said.

Community members complained the order prevented them from accessing a large area of their hunting and trapping territories.
Sitting nearly 500 kilometres north of Edmonton, Lubicon Lake Nation has vowed to fight the ruling, arguing the Alberta Court of Queen’s Bench judge failed to consider constitutional obligations for Aboriginal consultation, which Tomlinson said led to the Nov. 26 anti-fracking blockade.

Lubicon Lake Nation Chief Bernard Ominayak issued a statement that “Penn West, the province of Alberta, and the courts cannot simply choose to ignore our inherent rights and assist industry at the expense of our land and our people.”

But behind the land dispute is a protracted and murky battle within the community over federal government recognition, and who is authorized to represent the Lubicon people in negotiations. Until the election of the separate legal entity Lubicon Lake Band’s Chief Billy Joe Laboucan last February, Aboriginal Affairs and Northern Development Canada refused to recognize any leader in the community. Ottawa does not recognize Ominayak as legally representing anyone, nor the status of his Lubicon Lake Nation. Following last February’s elections, Alberta instructed Penn West that only Lubicon Lake Band could negotiate over resources. Meanwhile, in May, Ominayak’s ousted faction – which had boycotted an election they said was “rigged” in favour of the government’s “puppet council” — held its own vote which they said reinstated the long-time chief.

But carrying the only government-approved mandate, Chief Laboucan approved Penn West’s operations following the elections, while Ominayak’s faction maintained their longstanding opposition to oil and gas operations they say lack the Lubicon people’s consent.

Ominayak says his group has filed a Notice of Appeal with Alberta’s Court of Appeal to overturn the ruling. Refusing an interview request with Windspeaker, the company has in the past argued that it had extensively consulted with the Lubicon band, and that its drilling is legally permitted and therefore should not be impeded by protests.

“Our goal is to create and maintain long-term relationships with Aboriginal communities in all areas of our operations,” the company states on its website. “Working together, we can develop mutually beneficial community, education and economic opportunities.”

The Lubicon are no strangers to the courts, nor to contentious resource disputes. The band was for years not recognized by Canada under the Indian Act, nor did it ever sign a treaty when negotiators swept through Indian Country in the late 19th century. Unlike most other Alberta bands covered by Treaty 8, the Lubicon nation has long argued they never ceded title to their traditional lands.

In the 1980s, the community came to international prominence with campaigns by Amnesty International and even favourable United Nations rulings over their right to have a say in oil and gas development on their traditional territories.

In the decades since, several factions in the community have attempted to gain recognition from the government, and twice new rival bands have been formed with overlapping jurisdictions. Tomlinson claimed the “divide-and-conquer” tactics are the same ones used by government every time the Lubicon gain wider attention for their land title dispute.

“I do think it’s retaliation,” he alleged. “Every time the government tries these tactics, it follows a period of time when the Lubicon gain public attention and people are beginning to notice... This is no different.

“Lubicon Lake Nation has been to court before. We’ve seen how the courts in Calgary react to First Nations issues; it’s always an uphill battle.”

Tomlinson said it is “very important” that First Nations don’t allow what he termed a “very poor legal decision” to grant a six-month protest ban to set a precedent for other resource disputes.

“We need to try to protect not only ourselves, but other First Nations as well – to make sure this doesn’t become case law in the future that can be drawn on,” he said.

Penn West Petroleum said it has spent $95 million drilling roughly 70 wells in the Lubicon’s traditional territories, where the firm has operated since 2008.

Lubicon Lake Band could not be reached for comment and does not have a website. But in a press release, Chief Laboucan condemned the blockade and restated his support for gas fracking.

“As the elected governing chief and council – recognized as such by the provincial and federal governments – we do not agree with or condone these actions,” he stated. “We have been working with Penn West Exploration on an ongoing basis as the legitimate representatives of the Lubicon people and don’t want this jeopardized.”