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article imageOp-Ed: ACFN lawyer Larry Innes discusses oilsands expansion and more Special

By Grace C. Visconti     Jun 10, 2014 in Environment
Calgary - This is an interview with Athabasca Chipewyan First Nation’s lawyer Larry Innes about Enbridge’s Northern Gateway Project approval, the Jackpine mine consent, First Nations’ land and water rights, regulatory protection, a vision for Canada and more.
Larry Innes Bio: Larry is a partner at Olthuis, Kleer, Townshend LLP practicing in the area of Aboriginal rights and environmental law. Larry has worked with First Nations on lands and resources issues nearly 20 years, and has developed extensive experience in the negotiation of impacts and benefits agreements, environmental assessment, co-management measures and treaty provisions. He currently represents and advises First Nations dealing with major mining, forestry and energy developments, and is also involved in several leading First Nation conservation and land use planning initiatives across Canada. He is a frequent speaker on these issues at national conferences.
Larry is called to the bar in Ontario, Alberta, the Northwest Territories and Newfoundland and Labrador. He holds a JD from the University of Victoria, a Masters in Environmental Studies from York University, and is a graduate of McMaster University’s Arts & Science Programme. He serves on several not-for-profit boards, and divides his time between Yellowknife, NT and Goose Bay, NL (and all places in between).
(Bio and photo courtesy of Olthuis Kleer Townsend LLP)
INTERVIEW
Did the Joint Review Panel report allocate enough money for clean-up if in the future there are simultaneous spills for the Northern Gateway pipeline? What does this mean to the Canadian taxpayer if not enough money has been allocated for Enbridge to pay the clean-up bill?
ACFN wasn’t an intervener on Gateway, but is actively supporting the B.C. and Alberta First Nations who are opposing that project as it would facilitate further expansions of the oilsands in Alberta.
First Nations can challenge the approvals on Gateway on both administrative, constitutional and statutory grounds. Administratively, legal challenges could arise on the basis of an unfair process – such as bias on the part of a decision maker, a ‘closed mind’ to alternatives, etc. Constitutionally, First Nations have both procedural and substantive rights to be consulted and accommodated. Depending on the strength of the rights that could be affected by the development, the consultation and accommodation required may be significant and extensive.
The Crown also has a constitutional obligation to justify any infringements of Aboriginal and treaty rights, and to maintain in all dealings the ‘honour of the Crown.’ Given what we know about the direct impacts of pipeline and oilsands projects and the risks that they pose to the lands, waters, fish and wildlife that Aboriginal communities rely on, these will be high thresholds indeed. There are also statutory protections (although these are being eroded through ‘regulatory reforms’ that will likely provide a basis for legal challenges.
 
What are the legal differences regarding land and water rights for Alberta First Nations communities compared to B.C. since Alberta First Nations have treaties but B.C. First Nations do not?
The legal differences arise in treatment under Canadian law and policy. In both the treaty and non-treaty context, Aboriginal rights (flowing from the practices, traditions and customs of individual First Nations) continue to exist and are protected by s. 35 of the Constitution, and require consultation and accommodation on the part of the Crown.
Although the courts have established a low threshold for requiring the Crown to engage in consultation and accommodation with First Nations who have not fully proven the extent of their rights and titles, B.C. First Nations who are not parties to a treaty (several First Nations in northeastern B.C. are parties to Treaty 8) must bring forward evidence of their Aboriginal rights and titles before those rights and titles will be considered by the courts or the Crown. In contrast, treaties provide a foundation for rights that don’t have to be proven—the treaty itself is evidence of a treaty relationship.
B.C. First Nations who are not party to a treaty are able to assert their rights and title through legal actions (as is being done in the Tsilquot’in case now before the Supreme Court) or enter into modern treaty negotiations with the Crown. Treaty First Nations generally must assert rights and title through the context of the treaty. There is considerable disagreement between what First Nations understand their rights and titles to be, and how the courts and the Crown view them. For example, where the Crown takes the position that the treaties extinguished Aboriginal title through “cede and surrender clauses,” treaty First Nations maintain on historical and oral evidence that there was no surrender of title, and that the treaties instead are a basis for peace and friendship. This is an area where the law is developing very quickly, as dated assumptions about how the treaties should be interpreted are being challenged in the courts.
 
In The Star report Oilsands expansion raises red flags for regulators: Steward discussed the Jackpine bitumen mining operation by Shell Canada just 70 kilometres north of Fort McMurray. The Joint Review Panel were “very specific about the damage it would cause…that the project would likely have significant adverse environmental effects on wetlands, traditional plant potential areas, wetland-reliant species at risk, migratory birds and other wetland-reliant or species at risk, and biodiversity.” What are the legal implications of these effects on the ecosystems and species at risk?

This is a central issue in the application against the federal government’s subsequent decision to approve the Jackpine expansion project that ACFN has brought to judicial review. ACFN contends that governments and project proponents are not effectively preventing or mitigating impacts or accommodated ACFN’s Aboriginal and treaty rights, and that the Panel’s findings regarding impacts, and the Panel’s recommendations on mitigation, were not seriously considered by the government. Further, ACFN has raised additional concerns and made its own proposals in respect of mitigation that government has not seriously considered. Given that the government understood and acknowledged that this project is at the ‘high end’ of the consultation spectrum, ACFN contends that this is a significant breach of the Crown’s duties to consult and to accommodate. ACFN further believes that the decision fails to discharge the government’s statutory duties to protect the environment under legislation, including duties to protect endangered species, Aboriginal cultural heritage, traditional uses and values.
 
Additionally, in In The Star report Oilsands expansion raises red flags for regulators: Steward, it states: “Regulators increasingly want governments to take more responsibility for oilsands projects and their consequences. As it stands now, regulators are forced to deal with complicated social, environmental, political and constitutional scenarios that should be deliberated in a much larger arena.” Can you give some examples of how difficult it would be in a court of law if these “scenarios” make it impossible for oilsands expansion in Alberta?

What is ultimately at issue here is that the governments are moving the goal posts to facilitate rapid expansion of the oilsands, pipelines and other resource industries. Canada and Alberta in particular have rolled back long-standing regulatory protections. Bills C-38 and C-45, for example, dramatically changed Canada’s environmental legislation, removing many for water, fisheries, and the environment, and narrowed the scope of what can be considered in environmental assessments and other regulatory forums.
This has the effect of ‘scoping out’ issues of concern that political decision-makers either don’t think are significant or don’t want to address. If these issues aren’t matters that can be reviewed by a regulatory authority, or if Aboriginal peoples and other affected groups aren’t granted standing to bring forward their concerns in the first place, the system is effectively being rigged in order to give the green-light to more projects.
However, this is actually having the opposite effect, as many First Nations are then forced to seek recourse before the courts in order to challenge the inadequacies of the regulatory process. Governments, proponents and First Nations are all drawn into expensive and time-consuming litigation after approvals are issued, instead of being able to deal with the issues at an earlier stage. This is frustrating for all concerned, as the courts are not the most appropriate forum for dealing with these kinds of issues, but because the constitutionally-protected rights of Aboriginal people are at issue, they will have to take them on if there is nowhere else they can be addressed.
 
With the Jackpine Mine expansion permitted and the Joint Review Panel’s approval of the Enbridge Northern Gateway pipeline once the 209 conditions are met, has anyone talked to the Athabasca Chipewyan First Nation about the state of the art monitoring system that’s supposed to be in place by now for the oilsands industry?
Not in any meaningful way. This is one of the concerns that ACFN is putting before the courts.
 
What would be the legal ramifications if it were discovered that oilsands development is indeed responsible for serious illnesses and death of First Nations people and Albertans in the oilsands development regions?
ACFN is concerned that the governments who are approving these projects do not appear to be interested in science, unless it can be applied to advancing the development of the oilsands resources.
Concerns about air and water quality, tailings and toxics and carbon emissions are issues that governments prefer to deal with through ‘monitoring plans’ and ‘adaptive management’ after projects are approved. We believe this is just another way of saying that they think those issues are ‘someone else’s problem’ and will somehow be addressed at some undetermined point in the future. That’s not science-based decision-making – it’s irresponsible and wishful thinking. Canadians want to believe that science is informing our government’s approach resource development, but that’s simply not the case.
If science and monitoring is to be meaningful, it needs to be carried out in a precautionary way that places the onus on developers to show that their projects are safe and sustainable today, instead of shifting the risks onto First Nations or future generations.
The real question that ACFN keeps asking – and the governments keep dodging – is how the very real impacts that people are seeing in the environment today will be addressed, and where the bright lines are that will cause governments to say ‘enough’ or ‘no more’. How much damage is acceptable, and how will that be justified in the circumstances? Do governments intend to permit the land, waters, wildlife and the ways of life of Aboriginal people to be sacrificed ‘in the public interest?’ That’s not what the treaty ever contemplated, and it would clearly be an infringement of what the Crown promised First Nations.
The question of treaty infringement by development is one that is being litigated now by the Beaver Lake Cree First Nation – they are going to trial to show how the developments within their territory have adversely affected their treaty rights, and that the Crown has failed to manage the direct and cumulative impacts of development in ways that would allow them to continue to meaningfully exercise those rights.
If Aboriginal people are successful in showing infringements of their treaty rights by unchecked development, it would be up to a court to consider what remedies would be appropriate. It would be within the power of a court to order a halt to certain activities that are causing the infringements, or to order the restoration of lands or the protection of lands, waters or wildlife deemed necessary to carry out treaty rights.

 
In this Digital Journal article, WCEL Senior Lawyer Jessica Clogg explains Bill C45, First Nations Rights, FIPA, Jessica states: “In my experience change often occurs when a configuration of political, economic, legal and social pressures come to bear. I believe that true recognition of Aboriginal and Treaty Rights has the potential to be a force of progressive, transformative change for Canada at all levels.” Can you comment on this statement and how do you foresee a new vision for Canada emerging from this current conflict for First Nations people and Canadians?
As ACFN Chief Adam has noted, “ACFN is not anti-development. We are anti-out of control, irresponsible development.” While the courts provide a venue of last resort for protecting rights, they are not the best place for meaningful reconciliation to occur. As Canadians, are we comfortable with the knowledge that our governments are willing to sacrifice First Nations traditional lands, livelihoods and culture in the ‘public interest’ when better, more sustainable and just outcomes are possible?
Responsible energy development represents tremendous wealth and opportunity for industry, First Nations people, and all Canadians. In order to avoid further conflicts, as citizens we must demand that our governments honour the treaties by forging effective partnerships with First Nations that are premised not on fine words and grudging concessions, but on meaningful commitments to respect the land and future generations, to share benefits, and to build new institutions that reflect our shared values and mutual obligations.
LINKS
For Harper, Approving Northern Gateway Is a Lose-Lose
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com
More about Lawyer Larry Innes, ACFN, Athabasca Chipewyan First Nation, Northern gateway pipeline, Oilsands
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