Stoney challenge INAC’s decision to disallow health bylaw

The Stoney Nakoda Nations is taking legal action against Indian and Northern Affairs Canada because the department is refusing to accept a bylaw passed by SNN.
The health bylaw would require the setback on a level three sour gas pipeline be 1.5 km from the reserve’s boundaries. INAC says SNN has overstepped its jurisdiction by setting development restrictions on lands that fall outside the reserve.

The provincial government and Suncor Energy Inc. are lining up on-side of the federal government and both parties have been granted intervener status by the federal court.

Taking steps to protect the safety and health of members of the Stoney Indian Reserve with a bylaw that gives power through the federal government is an unusual move, said Douglas Rae, legal counsel for SNN.

“Bylaw power under the Indian Act has a number of connotations among First Nations and my experience is that First Nations are reluctant to attempt to use the bylaw power . . . because it relegates them to something equivalent to a municipality,” said Rae.

Last June the Energy Resources Conservation Board ruled that Eden Valley was not designated an urban centre therefore Suncor did not have to restrict its development to 1.5 km from the reserve boundary. The ERCB gave Suncor the go-ahead on the Sullivan development which would see 11 sour gas wells, pipelines, and other facilities 320 m from the reserve’s boundary.

The ERCB’s decision was appealed by SNN and a group of ranchers. The Alberta Court of Appeal granted the appeal based solely on the designation ERCB gave to Eden Valley. The appeal is set to be heard in October in Calgary.

However, SNN decided to pursue another avenue while waiting. The health bylaw would supersede ERCB’s designation of Eden Valley and reinforce the 1.5 km guideline.

“We’ve been looking at various options and this seemed to be the most viable option to serve the needs of Eden Valley and the Stoney tribe,” said Norm Brennand, Eden Valley administrator.

“All we’re seeking is to undo the minister’s disallowance (of the bylaw),” said Rae. “We’re saying let the bylaw stand on its own. If someone wants to challenge it, they can in the courts, not in the minister’s office.”

With the provincial government and Suncor Energy stepping in, Rae said they introduce the constitutional argument.

“Suncor and the province are arguing constitutionally that the Indian Act can’t do what the Stoneys want it to do. So it’s actually them arguing the federal legislation doesn’t apply,” he said.

In applying for intervener status, the province claimed “if the federal court were to quash the INAC decision and confirm the Stoney have jurisdiction to enact a bylaw that purports to have extraterritorial effect, this could have significant negative implications on Alberta’s ability to manage its provincial Crown lands and natural resources.”

Approximately 40 per cent of the Bearspaw First Nation’s residents live in Eden Valley. Bearspaw, Chiniki and Wesley First Nations comprise the Stoney Nakoda Nations.

“Eden Valley as a community has not been directly leading this fight. It’s been more global in scope by the Stoney tribe,” said Brennand.