Treaty 8 nations reject consultation policy

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Legal council for Lesser Slave Lake Indian Regional Council says Alberta's draft consultation policy on land management and resource development was developed in a high-handed and arrogant manner and is entirely unconstitutional.

Jeff Rath says the draft policy doesn't meet the standards set out in the recent Supreme Court of Canada Haida and Taku decisions.

The court said a provincial government has an obligation to consult in a meaningful way with First Nations on any project in their territory where it would impact Aboriginal rights or claims to the land, whether or not the claim has been proven in court.

Regional Council Grand Chief Rose Laboucan charges that Alberta did not seek the active participation of the Treaty 8 leadership when it was developing the consultation policy. Further to that assertion, she says a number of Treaty 8 First Nations have submitted to the government consultation policies of their own design and those policies have not been given the consideration they deserve.

"As far as I'm concerned, I'm not accepting the provincial consultation policy that's being put forward to us in draft form," said Laboucan. "I would like some credibility for the work we've done in our consultation policy that we presented to the minister almost a year ago now."

The short-shrift given to the Treaty 8 leadership's position on consultation policy development has created uncertainty for industry in Alberta, said Rath.

"At he end of the day, given what the Supreme Court of Canada is saying, there is currently no shortage of remedies available to Alberta First Nations within the domestic courts, including simply seeking declarations to shut down projects where the government hasn't consulted adequately. And given that they refuse to talk about mineral title, I think that it's pretty much a given that we can win those cases."

Treaty 8 First Nations claim they have an unextinguished right to land and resources and mineral resources within the treaty territory.

"And the government doesn't recognize that, doesn't understand that there is an outstanding claim or refuses to acknowledge that there is an outstanding claim to mineral resources and mineral title in the province and refuses to consult about it," said Rath. "Haida says that if there is even a claim to Aboriginal title, the province has an obligation to consult. Alberta isn't doing that."

Rath said there are outstanding treaty land entitlement claims right across the treaty territory.

"Has Alberta ever consulted with those First Nations about whether it should be granting oil and gas dispositions where there are outstanding treaty land entitlement claims? I don't think so."

Rath said Alberta has got to get its head around meaningfully negotiating in good faith "or be prepared for injunction applications with regard to resource development."

"They claim that they are consulting with regard to the policy," said Rath. "They go around to the meetings with First Nations and they say 'This is our policy.' First Nations say, 'That's nice. Here's our policy. Your policy doesn't accord with the law.' The government says, 'OK, well, thank you very much. We'll now ignore you and carry on.' They consider that their consultation."

Rath said the Treaty 8 chiefs are developing a strategic plan to move the issue forward, and are examining legal options both domestically and internationally.

But Chief Rose Laboucan is hoping the government will just sit down and talk. An invitation was extended to Aboriginal Affairs minister Pearl Calahasen to attend Treaty 8's last tribal council meeting, but it was declined, said Laboucan.

Laboucan said the province has indicated it will sit with the chiefs, but only to discuss its policy.

"But I'm saying, 'What about ours? We're telling you we already have something in place. Why are you duplicating the process?'"

Laboucan said the next step for Treaty 8 is to form a letter indicating that e 23 First Nations reject Alberta's consultation policy with the hope it will open doors for discussion, "serious ones, meaningful ones."

"Meaningful would mean putting all the consultation policies we have put forward... We've all put forth documentation already, and we don't want to put those on the back-burner and have to live up to, once again, someone managing us under their policy," she said.

Raven's Eye spoke to the minister's office just before we went to press. Director of communications, Eoin Kenny, said Minister Pearl Calahasen met with the Treaty 8 chiefs on Feb. 8 and explained that the process to develop the policy was ongoing. He challenged the idea that the Treaty 8 leadership had not been consulted when forming the policy.

"This whole process began nearly five years ago ... and in that time the minister has met on, I'll say, dozens of occasions, but with officials from this department, the number goes up to more than 100 meetings. So it's difficult to say how Treaty 8 nations were not consulted...

"Our position is that the minister and the officials of this department and the department as a whole have been negotiating, have been consulting, have been taking everyone's position into consideration."

Kenny said the government of Alberta acknowledges that the Haida and Taku decisions are not something it can ignore.

"They have to be taken into consideration, so yes they are being taken into consideration... you can't be selective about which [laws] you will consider and which ones you won't. The court is the high court and as such when it rules, when it makes a decision, that's the rules you have to abide by." He said the fallout of not meeting the standard set by such decisions as Haida is years of litigation.

"And that's what this whole process is designed to get us away from."

Cabinet approval for the consultation policy will be sought in June, said Kenny, but he promises "a lot of backing and forthing that will go on beten now and June, and the meeting last night is just the latest in gathering the input that's necessary to put a policy framework before Cabinet that Cabinet will find acceptable.

"But not just Cabinet. I mean the First Nations have to find it acceptable, the minister has to find it acceptable. And the five other departments that are involved in this process ... so it's not an easy process, it was probably never meant to be an easy process, and there are a lot of views and points of view that have to be taken into consideration, and I'm submitting that they are being taken into consideration."

Treaty 8's complaint that Alberta doesn't acknowledge there are treaty land entitlement claims in their territory was described by Kenny as a bargaining position. And in response to the complaint that Alberta is still granting dispositions in the disputed area, Kenny said "Life goes on ...You can't just stand still in terms of investment and development. There's so much at stake in terms of jobs, revenues, you can't stop one process until the other is done."

The Treaty 8 communications officer described the meeting with the minister as a positive step, but the First Nations' position as previously stated remains the same.