ACFN battles Shell’s Jackpine project on two fronts

The first weeks of November saw the Athabasca Chipewyan First Nation fighting battles on two fronts: in the beginning of the week in Fort McMurray at the Joint Review Panel hearing for Shell’s Jackpine mine expansion and then on Nov. 9 in the Alberta Court of Appeal in Edmonton.

“Now we’re…double arguing,” said Eriel Deranger, spokesperson for ACFN. “The issues of concerns that we (raised) to the Alberta Court of Appeal (were) very similar to the arguments and evidence we (raised) at the hearing.”

The need to “double argue” came about after ACFN suffered back-to-back losses in October.

On Oct. 23, ACFN and Métis Nation of Alberta Region 1 contended that the Joint Review Panel hear arguments on whether the federal and provincial governments adequately carried out their duty to consult. On Oct. 26, the JRP ruled it did not have the jurisdiction to consider constitutional law. The JRP is an independent body mandated by the minister of the Environment and chair of the Energy Resources Conservation Board.

The ACFN then asked the JRP to adjourn its regulatory hearing until the Alberta Court of Appeal could make a ruling on the constitutional issues. ACFN filed papers with the Court of Appeal on Oct. 29. However, on Oct. 30, the same day the hearing was scheduled to begin, the JRP ruled the proceedings would not be delayed.

In issuing its ruling, the JRP stated, “In short, although the panel cannot assess the adequacy of Crown consultation for the purpose of a remedy for a breach of that duty, that does not mean the panel will not hear any evidence on the question of Crown consultation. The panel has a mandate to receive such information and to report what it hears to government. It intends to do so and it sincerely hopes that the Aboriginal groups and individuals participating in this hearing will be forthcoming with that information.”

“So ACFN has really been left with no other option but to continue to carry forward legal actions for the protection of our constitutional rights through the Alberta courts,” said Deranger.
However, she adds, this double blow has not slowed ACFN down.
“I think it makes us want to fight harder,” she said. “I think we’ve really proven that enough is enough. Enough is enough in the status quo in the way applications are pushed through the process. Enough is enough in the way that there has not been adequate consultation and accommodation to treaty rights.”

The court appearance was an application for leave to appeal JRP’s decision that it does not have jurisdiction to hear constitutional arguments about consultation, says Jenny Biem, counsel with Woodward and Company, which is representing ACFN.

 Biem is hopeful matters will move quickly.

“If we’re granted leave to appeal I assume that the court would be willing to hear it on an expedited basis. They’ve been really good about getting us in quickly so far,” she said.

However, even if the Court of Appeal rules that the ERCB has the jurisdiction to hear constitutional arguments, the ERCB could choose to refer the matter to the Alberta Court of Queen’s Bench.

If that happens, Biem says, any decisions in relation to the Jackpine mine expansion will be stayed and proceedings brought to a halt. Shell filed its project application in 2007.

While ACFN is targeting the Jackpine mine expansion and addressing Shell, Deranger says the issues go beyond the single project and speak to how both the federal and provincial government choose to enact the “duty to consult” that is required.

“Our treaty rights are ingrained and enwrapped in intact ecosystems and protected lands and until we have a better, clear understanding of (this), we can’t really address or mitigate them. And that’s basically what we’re saying to Shell. There hasn’t been adequate consultation and accommodation to our rights in this application and in many applications that have come through,” Deranger said.

Shell’s planned expansion would boost bitumen production by 100,000 barrels a day. The company currently produces 255,000 barrels a day. According to a cumulative study undertaken by Shell at the request of the JRP, the overall development across the oilsands region would result in a loss of 40 to 60 per cent of bird habitat, almost 50 per cent of woodland caribou habitat, almost 40 per cent of habitat for wood bison and important forests for lynx, wolverines, moose, beavers and black bears.

Caption: As lawyers battled with the Joint Review Panel to consider constitutional arguments, supporters, including Maude Barlow of the Council of Canadians, Grand Chief Bill Erasmus of Dene Nation, Clayton Thomas-Muller and Heather Milton Lightening of the Indigenous Environmental Network, Crystal Lameman of Beaver Lake Cree Nation and a busload from Sierra Club Prairie and Edmonton area made the trek to Fort McMurray to stand in solidarity with ACFN.