Transcript
Speaker: I'm Jane Williams, this is the Red Eye Podcast, produced at the studios of Vancouver Cooperative Radio. In our episode today, James Mingy talks with Ben Parfit about a court decision in Alberta, which has huge implications for treaty rights in BC.
Speaker: In 2015, former Alberta Premier Jim Prentiss promised the Fort McKay First Nation that the Alberta government would help them develop a plan to limit industrial activity within the nation's traditional harvesting areas near Moose Lake, northwest of Fort McMurray. But the promised management plan never materialized. In 2018, the Alberta energy regulator approved an application for a 10 ,000 barrel a day oil sands project adjacent to the lake.
Speaker: The McKay First Nation went to court and, in late April, the Alberta Court of Appeal ruled in their favour. Ben Parfit has written about issues related to water, energy, forestry and climate for many years from his base in Victoria. He is also a long -time analyst with the BC Office of the Canadian Centre for Policy Alternatives.
Speaker: Ben joins me on the line to discuss the recent court decision. Hello, Ben. Hello. Can you tell me what precisely did the court conclude in late April?
Speaker: Well, the Court's ruling was a very interesting one. What the judges of the Appeal Court, the highest court in Alberta, found was that the First Nation and the provincial government, going back many, many years, had agreed that there would be
Speaker: some careful study and planning done around the Moose Lake area, which had been long flagged by the First Nation as an area of great concern. And the former Premier of the province indeed promised the nation that there would be the development of a special access management plan for this critical area.
Speaker: And in fact, the former Premier, Mr. Prentice, was quoted as saying, when Chief Boucher asked for our support to protect the small parcel of land near Moose Lake for his communities, I didn't hesitate to say yes. So the court took that
Speaker: promise quite seriously. The plan never materialized, yet the Alberta Energy Regulator effectively approved the proposal by a company called Prosper Petroleum Limited for a 10 ,000 barrel a day facility.
Speaker: and that of course prompted the nation to go to court and the appeal court justices concluded that the regulator had failed to properly consider the public interest in making the decision that it had and in failing to consider or declining to consider the proposed and promised planning process. So effectively what the court has said is that the approval was to be rescinded and now it falls to the
Speaker: Alberta Energy Regulator, if it chooses to, to go back and re -review the proposal, but it would have to do so, bearing in mind the public interest. And the public interest, of course, includes an interest to honour, for example, treaties. And in this case, a treaty that had been signed by many, many nations, the Treaty 8 nations, going back to the beginning
Speaker: of the previous century. So there is a promise in that treaty that First Nations will be able to continue to practice their hunting, trapping, and fishing rights. And the nation basically had concluded, as other nations have,
Speaker: that the ability of the nation's members to carry out those treaty protected rights have dwindled dramatically. And in fact, the Moose Lake area as far as the Fort McKay First Nation was concerned was really one of the last areas that had not been developed, particularly by the oil and gas industry.
Speaker: And I think it's very interesting to note in this particular case that we're talking about a nation who has been actively involved in oil sands projects, but it had made a very strong indication going back many, many years that this particular area was an area of significant importance to the nation and should be protected.
Speaker: Was it only the lack of consultation that were the grounds for the nation to sue the Alberta, or did they express other concerns in the lawsuit?
Speaker: Well, looking at the different affidavits that were filed in support of the action before the courts, it was very, very clear that individual nation members held this area to be a very, very important area for them to be able to continue to exercise their treaty protected rights.
Speaker: And I think that it's very important, and that really is the context to this decision, which is what does it mean to honor a treaty in the context of ongoing developments and cumulative impacts. So cumulative impacts and the combined effect of multiple developments on treaty lands is a very, very important backdrop to this particular decision.
Speaker: What's the regulators, well the Alberta Energy Regulators legal obligation in this case?
Speaker: Well, the obligation is that if they are to go back and consider the proposal, they are going to essentially be obliged to do so, bearing in mind the court's decision. And I think very importantly, the writing that came at the end of that decision by Justice Breckle, and she wrote a very clear, I think unambiguous direction to the regulator.
Speaker: I think it's very important what she said, which was that warmer of the crown may not mandate that the parties agree to any particular settlement, but it does require the crown, in this case, the regulator, to keep promises made during negotiations to protect treaty rights. And I think that that's a very, very important instruction. And she concluded by saying essentially that it certainly demands that
Speaker: the crown or the regulator, do more than just allow one development after another to essentially trample the nation's treaty rights into obliteration. And obliteration was the word that she used. You mentioned earlier something called Treaty 8, and I understand all the legal decisions fall under this umbrella of Treaty 8. What is Treaty 8?
Speaker: Well, Treaty 8 was negotiated between representatives of the Crown and various First Nations through a vast area of Northern Alberta, Northeast British Columbia, and portions of the Northwest Territories.
Speaker: Really what the treaty did, and it covered an area of land equivalent in size to France, it set out relations between the Crown and First Nations in that vast area, and essentially the two important components of that treaty.
Speaker: was that the First Nations that signed were told that their hunting, fishing, and trapping rights would be honored. At the same time, the Crown was allowed to, in the words of the treaty, take up land for settlement and other purposes.
Speaker: And obviously, there's an inherent tension there. On the one hand, the rights to hunt, fish, and trap are to be protected. On the other, the crown is allowed to take up lands for other purposes. At some point in time,
Speaker: there's going to come into play tension between those two things. And I think this is what the court case highlighted. You can't continue to approve and approve and approve and approve developments to the point where there is no meaningful opportunity to hunt fish and trout. And I think at its core, that's what this particular case is about.
Speaker: It obviously has significance for other cases that are currently winding their way through the courts. I think most notably an action being taken by the Blueberry River First Nation in northeast British Columbia, which has at its heart the issue of cumulative impacts.
Speaker: And I think it's going to be very interesting to see how that case plays out, how another case plays out involving the West Moberly First Nation, which is before the courts on the matter of impacts on their lands from hydroelectric developments and the ongoing development of
Speaker: of the Site C project. Again, what the nations in those cases are trying to get the courts to acknowledge is that cumulative impacts are essentially turning their treaty rights into something that is meaningless because there is less and less opportunity to carry those rights out. In 2005, there was a similar case involving the Mikasu Cree. Can you tell us about that?
Speaker: Yes, well, that was a very interesting case and is considered to be a landmark case. So that was a case that involved the Miggasu Cree First Nation and the federal government, which was essentially trying to push a road through a reserve.
Speaker: and had basically approved that without consulting the nation and then subsequently approved a road that skirted around the reserve, again, without prior consultation with the First Nation. And essentially, that case
Speaker: really kind of look into and address the issue of cumulative impacts. And really it turned around the issue of what constituted a meaningful, and I think that's the key word, a meaningful right to hunt, fish and trap.
Speaker: At the end of the day, what you're left with is a situation where the land base over time becomes more and more altered as a result of numerous industrial developments, all of which have been approved by the Crown. And at some point in time, the ability of First Nations to be able to carry out their treaty protected rights become compromised.
Speaker: So in that particular case, the issue of cumulative impacts really was front and center. And I think what we're seeing now as these other cases play out is that very thing. What constitutes a meaningful right? And incidentally, the Mikasu Cree case, was that also in Alberta? Yes, it was in northern Alberta. What impact could this Treaty 8 ruling have in BC?
Speaker: Well, I think it could be lawyers that I spoke to that are representing the Blueberry River and West Moberly and Prophet River First Nations all feel that the Alberta Appeal Court ruling is significant because it parallels arguments that their clients have been making. So in the case of the Blueberry River First Nation, you're at a point now where on 75 %
Speaker: So three quarters of the nation's territory, you are never further away than 250 meters from some kind of industrial disturbance, which is, you know, it's a very, very significant number. And bear in mind that energy industry developments
Speaker: natural gas drilling, fracking, all in the service potentially one day of LNG is going to further increase the amount of development that's happening in that territory and other territories covered by Treaty 8. So when you think about that reality and you think about the reality of
Speaker: the situation in Alberta with the Fort Mackay Nation, there are significant parallels. The Fort Mackay Nation was acutely aware of the combined effect of multiple developments on their lands over decades. And that really was the backdrop to their case because they were saying, we're running out of opportunities,
Speaker: to be able to carry out our traditional practices. And we want this particular area protected. And that essentially is, in a nutshell, is what's happening in Northeast BC. You have rapidly diminished prospects for hunting, fishing, and trapping.
Speaker: and ongoing developments and what that is forcing the nations to do is to go to the courts to try and get recognition that cumulative effects have significantly compromised what they are able to do on their own lands or on their own treaty lands. Would the impact of the Site C dam up in northern BC be affected by this ruling?
Speaker: Well, we're going to find out. I mean, the nations have gone to the courts and, you know, you've got to recognize that in the case of major hydroelectric developments, once those developments occur, there is zero prospect for carrying out treaty protected rights. I mean, the lands are gone. So, you know, time will tell. The court case is a long ways away from being heard.
Speaker: The backdrop to that case will be the historical impacts to the nation's lands, which have already occurred as a result of the construction of the WAC Bennett and Peace Canyon dams, and forecasting ahead to what will happen if there's a third reservoir on the Peace River and what impacts that would have on the nation's treaty protected rights. It's been great to have a chance to talk with you, Ben. Thanks for joining us today.
Speaker: Thank you so much for having me. I've been speaking with Ben Parfitt. Ben is a Victoria -based journalist focusing on water, energy, forestry, and climate issues. He's also an analyst with the BC Office of the Canadian Centre for Policy Alternatives. You can read his article on this Treaty 8 decision at thenarwall .ca. The Red Eye podcast is produced at the studios of Vancouver Co -op Radio. You can support us by supporting Co -op Radio.
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