Alberta Legal News - Year in Review 2012

Court continues as important forum
Over the years, First Nations have been no strangers to the legal system and that familiarity continued in 2012. There were some victories but there were also some losses.

Eden Valley to be treated as urban centre
In March, the Alberta Court of Appeal vacated the Energy Resources Conservation Board’s decision that Eden Valley reserve did not require the same setbacks established for an urban centre stating that the ERCB’s decision was not made in a “justifiable, transparent or intelligible way. Its decision not to qualify the reserve as an urban centre falls outside of the range of acceptable and rational outcomes that are defensible in respect of the facts and law.” The ERCB’s ruling in June 2011 cleared Suncor Energy Inc. from having to restrict its Sullivan development to 1.5 km from the reserve boundary. The Sullivan development consists of 11 sour gas wells, pipelines, and other facilities. A portion of the pipeline carrying sour gas would be located 320 m from the reserve’s boundary. The ERCB said Eden Valley was not defined as an urban centre under ERCB regulations. This decision was challenged by the Stoney Nakoda Nation at an ERCB hearing, but the ERCB upheld the designation. “The (court’s) decision shows that we should be entitled to the same safety concerns as off-reserves or anywhere else in Alberta,” said Robert Shotclose, CEO for Bearspaw First Nation.

Overall impact on traditional territory to be considered
In a ruling handed down March 28, Madame Justice B. A. Browne, of the Alberta Court of Queen’s Bench, rejected arguments presented by the federal and provincial governments to strike down court action initiated by Beaver Lake Cree Nation. Browne ruled that a First Nation has the right to challenge the governments in court to ensure their treaty rights are protected into the future. “It’s a vindication of what Beaver Lake has said that their treaty protects the core right to the meaningful exercise of treaty rights in that the government can be held accountable for failing to protect that,” said BLCN’s legal counsel Jay Nelson, with Woodward and Company. The court action was initiated in 2008. BLCN’s claims were broad, referring not to specific development in the traditional territory but to the overall impact the gas, oil, forestry and mining industries have had and will continue to have.

Onus on First Nation to provide timely feedback
In a decision rendered in February, the Supreme Court denied the request by the Athabasca Chipewyan First Nation to hear an appeal on the Alberta Court of Appeal’s decision which upheld a lower court ruling that the ACFN should have acted within the six-month period provided by the provincial government to respond to long-term oil sands leases that the government had granted to Shell Canada for development in close proximity to ACFN’s Poplar Point reserve lands. ACFN argued they were not aware of the lease grants and that the Crown should have initiated the consultation. The leases were granted in 2006 and 2007 by the Energy minister. The ACFN asked for a judicial review of that decision in 2008. The Alberta Court of Appeal upheld the lower court’s decision that the onus was on ACFN to be aware of potential leases on its land and for the First Nation to initiate the consultation process. “(The provincial government) put a package together and we only had six months to respond to that. That’s what we challenged the case on. We should be able to continue on talking when it affects our First Nation territory long after six months,” said ACFN Chief Allan Adam.

Taxation issue could be heard by Supreme Court
In July, the Court of Appeal ruled that the Crown did not have a duty to advise the Blood Tribe on whether it would be subject to taxation due to the government’s obligations in providing services to all Canadians. The dispute stems from a decision 14 years ago when the band developed a plan to purchase the Parkland oil refinery in Bowden and convert the site into reserve land. To go ahead with the refinery project, the band sought assurance from the Crown that any production of oil would be exempt from federal excise tax under the Indian Act. That assurance was not given, so in 2005 the Blood Tribe sued the federal government alleging breach of fiduciary duty and unjust enrichment. Even if the Crown did have some obligation to assist with the commercial venture, the Court of Appeal said in Blood Tribe v. Canada (Attorney General) (2012), that it “was not obliged to agree with the position of the Blood Tribe that the product of the proposed refinery operation was exempt from excise tax pursuant to section 87 of the Indian Act.” The Blood Tribe is seeking leave to appeal to the Supreme Court.

ERCB not in position to judge consultation
Two back-to-back rulings at year’s end by the Alberta Court of Appeal dismissed applications from the Cold Lake First Nation and the Athabasca Chipewyan First Nation requesting leave to appeal decisions of the Joint Review Panel that the ERCB did not have the jurisdiction to determine the adequacy of Crown consultation. CLFN’s application was made in regards to a bitumen recovery project within its treaty territory, while ACFN’s application was regarding Shell’s Jackpine Mine expansion project. The ERCB held that although it has the authority to consider questions of constitutional law generally, it does not have the authority to consider all questions of constitutional law – its authority is limited by the scope of its mandate, which does not include assessing and supervising Crown conduct.

Case on Métis harvesting rights goes to next level
On Jan. 23, the Alberta Court of Appeal in Calgary granted the Métis Nation of Alberta leave to appeal in the Hirsekorn case. The decision was released by Madame Justice Constance Hunt of the Alberta Court of Appeal in Calgary. The R. v. Hirsekorn case was initiated as a test case as part of the Métis Nation’s strategy to further Métis harvesting rights. “In her reasons for judgement, Justice Hunt clearly recognizes that this is a case about fulfilling the promise of section 35(1) of the Constitution Act, 1982 to Alberta Métis,” said MNA President Audrey Poitras. The MNA has argued that as the Métis were a migratory population, they should have the right to hunt, trap and harvest throughout Alberta and not be restricted to a prescribed area which the province has done. According to the Alberta government, Métis are only allowed to harvest without a license in a 150-km radius around the settlement in which they reside. Those settlements are concentrated in the northern and central parts of the province. Garry Hirsekorn was charged in 2007 for hunting out of season and illegal possession of wildlife in the Cypress Hills area, where there are no Métis settlements. The MNA has suffered setbacks at both the Provincial Court and the Court of Queen’s Bench. A 40-day trial in Medicine Hat in 2010 resulted in a guilty verdict being handed down to Hirsekorn by the Provincial Court. In November 2011 the Court of Queen’s Bench upheld that ruling. The appeal will be heard in Calgary on Feb. 7, 2013. Judicial experts hold that regardless of the Court of Appeal’s decision, the case will go to the Supreme Court of Canada.