Supreme Court won’t hear ACFN appeal challenging consultation process

Athabasca Chipewyan First Nation Chief Allan Adam disagrees with the Supreme Court of Canada’s stand that the consultation process in Alberta is not a national issue thus dismissing the appeal that was before it.

“What that states is the fact that corporations and industry can continue to buy out leases right across the country. So it is a national issue right across this whole thing because they all follow the same guidelines that are put forward by the provinces,” said Adam.

The ACFN had asked the Supreme Court to hear an appeal on the Alberta Court of Appeal’s decision that 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 had 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 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 Adam.

But the Supreme Court of Canada in its ruling last month said it upheld the finding of the Alberta Court of Appeal. 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 ruling, said ACFN counsel Larry Innes, with Olthuis Kleer Townshend LLP, was a surprise.

 “We viewed the Alberta decision as a departure from what First Nations have come to expect from the Crown and a rather harsh result in which rules of civil procedure regarding a six-month limitations period were allowed to trump legitimate concerns about the lack of consultation when it comes to real infringements of Aboriginal rights,” said Innes in an email interview.

Adam said ACFN is reviewing its legal options, noting there are a number of considerations from the lower court ruling that may be grounds for further legal arguments.

 “The take-away message for ACFN and for all First Nations is to become more active in asserting rights, and setting out clear expectations with both the government and industry regarding the forms of acceptable consultation. That, and to bring the next case within the six-month limitations period so that Treaty rights are never again subject to a legal technicality,” said Innes.
Adam said he is disappointed with the Supreme Court’s decision but not surprised.

 “We have a Conservative government here in Alberta, Conservative government nationally and appointed Conservative judges. They all work together, cohab with each other,” he said.

Meanwhile, Innes is working with the ACFN on another case that involves Shell Canada, this one dealing with the Royal Dutch Shell PLC, which is in the early stages of litigation.

“(It) concerns alleged breaches by Shell of contractual obligations to ACFN under benefits agreements for oil sands projects,” said Innes.

Agreements were signed between the two parties in 2003 and 2006.

Both the ACFN and Shell have filed their statements of claim and defense and soon will be providing each other with the evidence each has. A hearing is expected in the near future.