Authority of new ACO challenged in court

Once again, a First Nation is seeking legal action against the Alberta government.

The Athabasca Chipewyan First Nation filed an application in Calgary court on Jan. 15 challenging the province’s newly created Aboriginal Consultation Office.  The court action goes beyond questioning ACO’s direction to the Alberta Energy Regulator that “consultation with ACFN is not required with regard to” TransCanada Pipeline’s Grand Rapids Project, to questioning the overall authority ACO had in the process of consultation for this specific project.

“We were shocked to learn that Alberta had decided that we had no right at all to be consulted about this project—and that they had advised TransCanada of their decision without even informing us,” said ACFN Chief Allan Adam in a statement. “This shows just how profoundly disrespectful Alberta’s process has become.”

The ACFN holds that the provincial government policy that created the ACO did not come into force until July 2014 and instead consultation regarding Grand Rapids fell under 2005 policy and 2007 guidelines.

“If … the ACO does not have any authority to determine whether the Crown’s duty to consult is triggered, then either a Minister of the Crown must make this determination or Alberta’s Aboriginal consultation region is unconstitutional as there is no Crown body with authority to make this determination with respect to Crown decisions,” states the application.

ACFN holds that it should have been consulted on the project because it holds Treaty 8 rights and members hunt, trap, gather and fish in the region that would be impacted by the project.  The pipeline would also cross a number of major waterways upstream from ACFN’s communities. The 500-km pipeline will transport 900 barrels per day of diluted bitumen from west of Fort McMurray to the Hardisty terminal southeast of Edmonton.

ACFN also holds that the map used to determine whether or not ACFN should have been consulted was outdated and the ministry conceded it was “in the midst of a mapping project to establish a Consultation Area for each First Nation.”

ACFN is asking that the decision approving the Grand Rapids project be quashed and that the Crown consult and accommodate ACFN.

The ACO and the new matrix for consultation for economic and industrial development, first released by the government in 2013, has come under continued criticism from First Nations.  The ACO would determine if and how much consultation was required depending on the projects being proposed. After initially saying the province would move ahead on what had been established by his predecessor, Premier Jim Prentice said he would be willing to revisit the process as First Nations leaders remained vocally opposed.

Adam is calling for “meaningful government-to-government discussions to reform this process.” However, following a meeting with Prentice, when the premier travelled to Fort Chipewyan in December, Adam was not optimistic about changes.

“To me at this point in time, I don’t think anything will come to fruition in regards to what our issues are in the community of Fort Chip. I think it’s just a one way street here and it’s going down that path right now,” said Adam in an earlier interview with Sweetgrass. “Best just leave it alone and let the courts drag it out and deal with it then.”

On Feb. 4, the province released the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities, which takes effect on March 2. The procedures outline new requirements for applications as well as detailed administration and coordination of operations between ACO and AER. The ACO still determines the level of consultation adequacy, including if no consultation is necessary, before the AER makes the final decision.