Three First Nations from Alberta now have intervenor status in a B.C. case that is being heard by the Supreme Court of Canada.
The Duncan First Nation and Horse Lake First Nation received word late last month that together they would be allowed to provide a written submission to the SCC and may even be allowed to present verbally. The Mikisew Cree First Nation was granted intervenor status at an earlier date.
“The Supreme Court is deciding national issues of law . . . (that) could set down law in a way that affects First Nations and governments across Canada and that’s why they’ve granted intervenor status,” said Jay Nelson, counsel for Horse Lake and Duncan First Nations.
The SCC is scheduled to hear the appeal of a decision rendered by the lower British Columbia court in the Rio Tinto Alcan Inc. versus the Carrier Sekani Tribal Council case. The B.C. provincial government is also party to that case.
The B.C. Court of Appeal ruled that before the B.C. Utilities Commission issued approval to Rio Tinto Alcan Inc., the BCUC had a duty to ensure that the Crown had met its obligations by fully consulting with the Carrier Sekani Tribal Council.
“Basically the Supreme Court is deciding how much voice First Nations have in the regulatory process that are deciding the future of their traditional lands,” said Nelson, counsel with the law firm of Woodward and Company, out of Victoria.
Nelson said in Alberta, tribunals have held that they are not part of the Crown consultation process and do not permit First Nations to argue treaty rights during a tribunal hearing. If a First Nation doesn’t agree with a decision, its only recourse is to go to the courts, which is costly, time-consuming, and tedious.
“That’s why Duncan and Horse Lake First Nations really wanted to be involved in this appeal. Both are on the front line of energy development, often in front of the (Energy Resources Conservation Board), and often feel the Crown hasn’t properly accommodated their treaty rights. But they’re told by the ERCB that this is not the proper venue to decide that,” said Nelson.
But the SCC could say otherwise, which is what Nelson’s clients and the other dozen or so intervenors on the Carrier Sekani Tribal Council side are hoping for. Also joining the Alberta First Nations with intervenor status are the Assembly of First Nations and other First Nations from B.C. and Saskatchewan. The Alberta government also has intervenor status, along with a number of other provincial attorneys general, on the side of the B.C. government.
The case is scheduled to be heard May 21. Nelson expects the SCC will grant all intervenors a limited time to make verbal arguments “because (the SCC) is deciding one case out of the specific facts from B.C. (and that) doesn’t tell them how it will affect First Nations in Alberta or constitutional rights in the process.”
A decision could be rendered that day from the bench. However, Nelson anticipates a two or three month wait before a verdict is delivered.