‘Backed into a corner’: Duncan’s First Nation sues Alberta for cumulative impacts of industry
October 5, 2022 By Drew Anderson and Matt Simmons, Local Journalism Initiative Reporter
A First Nation in northern Alberta is suing the Alberta government for infringement of treaty rights, leaning heavily on a B.C. Supreme Court decision last year, which found that province liable for violations based on the cumulative impacts of industry on the Blueberry River First Nations territory.
The outcome of the lawsuit could have a profound impact in a province heavily reliant on an oil and gas industry that has caused significant cumulative impacts, including in the Peace River district that is home to Duncan’s First Nation — the nation that has launched the suit.
In B.C., the court ordered the government to sit down with the Blueberry River First Nations to develop a plan to address its concerns and gave the nation the power to block new developments on its land. Both Blueberry River and Duncan’s First Nations are signatories to Treaty 8.
The Duncan’s First Nation suit alleges the government has violated the nation’s treaty right to practise its traditional ways of life by approving too many industrial activities on its traditional territories, effectively preventing use of the land.
The case closely echoes the wording used in the successful Blueberry River decision.
“Alberta has engaged in a pattern of conduct that, taken together, has significantly diminished [community members’] right to hunt, fish, trap and gather as part of their way of life,” the statement says.
The promises of Treaty 8 and death by a thousand cuts
Each of these are rights the nation was told would be protected when it signed onto Treaty 8 in the late 1800s. But since signing, the province has authorized and permitted widespread development, including agriculture, oil and gas, forestry, mining and, most recently, peat bog harvesting.
“Among other things, habitats have been fragmented, lands and waters have been degraded, substances have been introduced that cause legitimate fears of contamination and pollution and lands have been put to uses that are incompatible with the continued meaningful exercise of [Duncan First Nation’s] Treaty Rights.”
In other words, like its B.C. neighbours, Duncan’s First Nation says it’s experiencing what is known as a “death by a thousand cuts.”
Duncan’s First Nation Chief Virginia Gladue had previously urged Premier Jason Kenney, Indigenous Relations Minister Rick Wilson and area MLA Todd Loewen in a May 17 letter to engage in a meaningful discussion in order to stave off the lawsuit.
“It is not too much to say that the extensive and ever increasing development in [Duncan’s First Nation’s] territory — development that has been directly caused and permitted by Alberta — poses an existential threat to our culture, identity and way of life,” Gladue writes.
Her letter also details a long list of impacts identified in studies conducted by the nation, including roads, traffic, logging, pollutants, agriculture, private land and pollution.
The chief was unavailable for an interview for this story.
Jeff Langlois is the lawyer representing the nation and says Duncan’s has always played by the rules, showing up to make submissions on projects and going through the processes, none of which dealt with the decreasing amount of undisturbed land.
He says the nation doesn’t want to go to court, doesn’t want to pay lawyers, but that it feels “backed into a corner in a lot of ways.”
“Duncan’s has gone through those processes and tried to address this issue,” Langlois says.
“So, you’re gonna take up all this land in order to develop a new gas pipeline, but we’re already underwater, right? It’s not a case that you’re taking a cup out of a full bucket, you’re scraping the bottom of the bucket.”
Gladue says in her letter the nation wants the government to establish a robust framework that includes plans for guiding development, land and wildlife protection on the nation’s territory or the lawsuit will go forward.
She says such a framework would help overturn what she characterizes as “years of indifference and inaction” on behalf of the government.
“As intended by our ancestors and those that signed the Treaty on your behalf, we invite you to work in the spirit of cooperation, mutual respect and responsibility,” writes Gladue. “The choice is yours: whether to commit to this path or continue own the path of indifference, uncertainty and conflict.”
The current United Conservative Government has taken a pro-industry approach to First Nations in Alberta, creating a government-backed litigation fund to help Indigenous groups or affiliated organizations fight opposition to projects.
“For too long, pro-development First Nations have been ignored in the debate over resource development,” Premier Jason Kenney said while launching the fund in 2019.
The Blueberry River decision set significant precedent
The Blueberry decision was the first time the B.C. courts ruled on cumulative impacts.
Chris Tollefson, professor of law at the University of Victoria, told The Narwhal in a previous interview the case set a significant precedent because B.C. didn’t appeal the decision.
“It’s presumed to state the law accurately and … that decision now becomes the law, at least in British Columbia, binding on all parties and in particular upon the government.”
He added the legal decision is “especially persuasive in relation to Treaty 8” — the same treaty Duncan’s First Nation signed.
But it’s unclear how the B.C. ruling will play out in Alberta.
Kate Gunn, lawyer with First Peoples Law, a firm based in Vancouver, told The Narwhal the Blueberry River decision is not legally binding on Alberta’s court but agreed with Tollefson that it is “persuasive,” especially given both nations are signatories to Treaty 8.
“It would be hard for an Alberta court to say that only the nations who signed in B.C. are guaranteed their continued way of life,” she said.
She added that when the B.C. Supreme Court handed down its ruling in 2021, it interpreted and clarified a Supreme Court of Canada decision on the rights of the Mikisew Cree First Nation in northern Alberta, also a signatory to Treaty 8.
“The Mikisew case said governments may be liable for treaty infringement if there is so much land taken up by a province that the First Nation can’t exercise their Treaty Rights at all,” Gunn explained. “What Blueberry said is, ‘Yes, that’s correct — but the court didn’t say that there couldn’t be an infringement at a lower threshold.’ ”
She explained that while the B.C. ruling is not binding on other provinces or territories, the Supreme Court of Canada decision is. It’s still open to the Alberta court to decide whether it agrees with the interpretation and proceed on that basis or make contrary findings, which she said would likely be appealed.
Duncan’s isn’t the first Alberta nation to test the waters with litigation against the province on cumulative impacts. Beaver Lake Cree First Nation — a Treaty 6 nation located 100 kilometres northeast of Edmonton — has been battling in the courts since 2008. The basic premise of the argument is the same: government-approved development has diminished the ability of its members to exercise Treaty Rights.
Recently, the nation successfully petitioned the Supreme Court of Canada to overturn a provincial decision that denied them advance costs to see the case through to full trial. The estimated total cost of the litigation is $5 million.
Alberta lacks regional land use plans
Both B.C. and Alberta have policies in place to assess cumulative effects, but critics in Alberta have lamented the “sad state” of land use plans meant to address those effects.
Tara Russell, the program director for the Canadian Parks and Wilderness Society in northern Alberta, says there are tools that have been identified to deal with cumulative impacts in Alberta, but consecutive governments have failed to implement them — specifically regional land use plans.
“So we have this tool, we’re just not using it and there’s been quite a distinct lack of will or intent or ambition by government and industry to get them in place,” she says.
The Alberta Energy Regulator says it’s unable to comment on the Duncan’s First Nation claim as it’s before the courts and that “inquiries on cumulative effects are best directed at Alberta Environment and Parks.”
Responding on behalf of the government, a spokesperson for Alberta Justice said the government could not comment due to the lawsuit.
When the province backed down from its changes to Alberta’s coal policy last year in the face of public backlash, then-environment minister Jason Nixon said the government takes a comprehensive approach to environmental management to understand cumulative impacts, and pointed specifically to land-use plans.
A freedom of information request filed by The Narwhal last year requesting memos and briefing notes for Alberta Energy Regulator executives regarding the potential impact of the Blueberry decision for Alberta’s oil and gas industry was denied due to the records containing “legal advice and analyses that are subject to legal privilege.”
The regulator did point to sections of the Responsible Energy Development Act, Alberta Land Stewardship Act and associated regional plans, Water Act and the Environmental Protection and Enhancement Act that can take into account the cumulative impacts of development on the land.
“The regional plans are the primary policy mechanism by which Alberta considers cumulative effects,” the regulator said in an emailed response to questions.
To date, Alberta has only created two of seven such regional plans — in the Lower Athabasca region and the South Saskatchewan region — the Lower Athabasca plan is up for its mandated 10-year review this year.
Duncan’s First Nation territory sits at the convergence of three regions considered for plans, none of which have entered into initial stages of development.
The Land Stewardship Act was created in 2009.
Robert Hamilton, a law professor at the University of Calgary who has written on the significance of the Blueberry River decision, says the different regulatory regimes in B.C. and Alberta could have an impact on the outcome of the Duncan’s lawsuit.
“It was important to the court that the B.C. regulatory regime had failed in the way that it did,” he says.
But, he says, if the nation is able to demonstrate the impacts have prevented them from meaningfully exercising their rights, it’s not difficult to argue the regulatory regime is failing.
The traditional territory of Duncan’s First Nation sits on lesser-known oilsands deposits and on the Montney formation — a big oil and gas play — but there is also extensive logging in the area, with large forest management agreements in place as well as impacts from agriculture and mining.
That mirrors what’s happening on the B.C. side of the border and Hamilton says the facts presented in the Blueberry River about how much impact there was on the land were a key factor in leading to the final decision.
“That level of impact is almost unmatched. Almost. Where is it matched? Well, it’s matched in northern Alberta,” he says.
Duncan’s First Nations case could have profound impacts for oil and gas industry
The Blueberry River decision said the government had to sit down with the First Nation to ensure there was a collective plan to address projects going forward and to account for the cumulative impacts of development on the territory. Failing to do so could result in an indefinite pause on development.
If the same thing happened in Alberta, it could have a profound impact on the oil and gas industry, the province’s largest source of income. In fact, the industry is expected to bring in $28.4 billion in provincial revenues by the end of this fiscal year.
The Narwhal reached out to the Canadian Association of Petroleum Producers as well as Obsidian Energy, Tourmaline Oil and Baytex Energy, which all operate in the region. None responded to requests for comment on the potential impact of the case.
Langlois says all the nation wants is for the government to address the concerns raised by the community over the years and to develop a plan to address the cumulative impacts of industry.
“Post filing the claim, all we get is well, we’re just going to defer to the land use planning processes that have proved just manifestly unable to deal with this issue, like by design,” he says.
He says there are difficult discussions that need to happen to solve complex problems.
Hamilton, from the University of Calgary, anticipates there will be more cases filed from First Nations dealing with cumulative impacts.
“Treaty Rights throughout the country are under considerable pressure and duty to consult and accommodate has not really been able to satisfy Indigenous people’s desire to have a really meaningful voice in decision making that impacts their rights,” he says.
Drew Anderson and Matt Simmons are Local Journalism Initiative reporters with The Narwhal.
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