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Too late to object to oilsands project: province
| Edmonton Journal | Alexandra Zabjek | September 02, 2009
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A debate over when aboriginal groups should be consulted during the development of an oilsands site came before a Court of Queen’s Bench justice on Tuesday, with the province arguing the time to object to specific oilsands leases had passed.
The Athabasca Chipewyan First Nation filed a court challenge last year, questioning leases granted to Shell Canada and other oil companies on lands that are part of their traditional territory, without consultation.
The First Nation argues that granting a lease is a “critical step” in the industrial development of lands, and consultation should not wait until after companies assess the land and lay their plans on the table.
“The current regime limits consultation solely to providing minimal input on terms and conditions in developments that are essentially approved,” the court document reads.
Since leases are granted with the expectation that companies will explore and, if possible, use the land for resource extraction, granting a lease “creates momentum for the development of the resource,” the band argues.
“Because oilsands tenures confer upon the company the exclusive rights to win, work, recover and remove the oilsands deposits, government decision-makers are effectively compelled to authorize the tenure holder to exercise those rights.”
The Energy Department and Shell Canada argued on Tuesday the band’s application for a judicial review should be dismissed since the time frame for responding to the grant of the leases had expired.
The leases in question were granted in 2006 and 2007.
Lawyers for the aboriginal group argued the First Nation was not told the leases had been sold.
The question of when to consult First Nations is an “enormous issue,” said Ellen Bielawski, dean of the faculty of native studies at the University of Alberta.
“There’s enormous impact from the very beginning of an exploration process.”
Bielawski said that in northern Canada in the 1990s, a company with exploration rights for mineral extraction was allowed to build an airstrip without consulting the area’s aboriginal people.
Once a lease is granted and companies begin to assess land for development opportunities, there will inevitably be an impact on local residents and the environment, whether it’s from helicopters flying overhead or snowmobiles on the ground, she said.
“If we don’t trigger consultation and enter into it with an open mind, by the time consultation happens, the land has already changed to the point where you can’t hunt, fish or trap on it.”
Energy Department guidelines state there is no requirement to consult aboriginal groups prior to land being leased.
“The leasing of Crown mineral rights does not, in and of itself, adversely impact First Nations rights and traditional uses,” the guidelines read.
The document says such leases don’t automatically guarantee the right to conduct surface activities, such as seismic exploration, drilling, or road construction. It states that only small portions of a leased area are affected where development does occur.
The guidelines also urge companies and the government to begin consultations with First Nations groups as early as possible.
Chief Allan Adam of the Athabasca Chipewyan First Nation said in a news release that if the group is successful in its application, it would “fundamentally change how oil and gas is developed in Alberta.”
The band is asking the court to quash the permits or order a stop to development until consultation takes place.
The Athabasca Chipewyan First Nation is located on the southwestern tip of Lake Athabasca, about 600 kilometres northeast of Edmonton.
Arguments on the latest motions in the case are expected to last until Thursday.
azabjek@thejournal.canwest.com
Tagged with: canada, indigenous, athabasca chipewyan first nation, shell canada, the energy department
