George Stanley says the Frog Lake First Nation is participating in a challenge of bills C-38 and C-45 in order to protect treaty rights.
Photograph by: Shaughn Butts , Edmonton Journal
EDMONTON - Two Alberta First Nations are launching a court challenge Tuesday to fight what they say is Ottawa’s attempt to weaken the protection of fish habitat and their right to be consulted over development.
The Mikisew Cree and Frog Lake First Nations plan to submit their challenge to Federal Court, arguing the federal government needed to consult with First Nations before passing changes in the omnibus bills C-38 and C-45.
Those bills included changes to the Fisheries Act, the Navigable Waters Protection Act and the Canadian Environmental Assessment Act, legislation that in the past has triggered environmental reviews and First Nations’ involvement when industry sought to impact estuaries, wetlands, streams and other fish habitat.
“The focus here is on the environmental parts of the legislation,” said Robert Janes, legal counsel for the First Nations. “They’ve greatly reduced those protections.”
The legislation was critical for rural First Nations trying to protect a traditional way of life and convince industry to consult when they planned work in traditional territories, he said. “All of a sudden, in two bills, everything they are used to dealing with is essentially gutted.”
Fort Chipewyan-based Mikisew Cree Chief Steve Courtoreille said it was natural for his community to take a lead on this because of their 2005 Supreme Court win. In that case, they successfully argued Parks Canada should have consulted before trying to build a winter road through Wood Buffalo National Park, part of their traditional territory. It was a case that set a precedent across the country.
“We took the lead in 2005 when we won our case at the Supreme Court,” said Courtoreille, reached in Ottawa Monday. “Believing that the government would do the right thing, hoping they would do the right thing, then finding out when they ran the bill through the house that they have no intentions (of consultation) — we put out notice that we are going to take a legal challenge to be sure they do the right thing by consulting with us.”
“What’s the point of having treaties if the government can’t follow their own laws and protect First Nations?” he asked. “I know it’s not going to be a slam dunk deal. It’s going to take some time, but we’re in there for the long haul.”
George Stanley, a former chief speaking on behalf of the Frog Lake First Nation, said his community joined the legal challenge because elders in the community consider it their duty to protect the treaties. “When issues arise with our rights, we need to rise to protect them,” he said.
Also, he said, “we know when two nations come together they are more powerful and have more voice.”
Frog Lake is northeast of Edmonton, near the Alberta-Saskatchewan border. The community owns its own oil company, Frog Lake Energy, which is now worth an estimated $150 million to $200 million and produces oil both on and off the reserve. The Mikisew Cree own a variety of companies in Fort McMurray, Edmonton and Toronto.
Janes said the changes to the three acts mean industry will no longer need to get a federal permit when their work impacts fish habitat, only when it can be proven that their work will actually kill fish.
The changes also allow the minister to exempt certain areas and activities from protection without having to go through Parliament. Changes to the Canadian Environmental Assessment Act give the minister the power to decide if he or she thinks the provincial assessment of a certain activity was enough.
First Nations see that as downloading responsibility to the provinces, which is problematic, said Janes.
“When you look at it from the aboriginal peoples’ perspective, (the provinces) have a huge commitment to resource development because they are depending upon those royalties and the revenues that come from resource development to support their provincial treasuries in a way that the federal government doesn’t. They have a conflict of interest.
“That creates a very different dynamic when it comes to the treaties and the perspective of aboriginal peoples,” he said. “The federal government is a very important partner. They are the ones that made the treaties. They are the ones that were responsible for implementing the treaties, and under the Constitution, they are the government that’s supposed to be responsible for protecting aboriginal people.”
After the First Nations file their legal challenge against the federal government Tuesday, the two parties have 60 days to file affidavits and exchange evidence. Janes said he expects a court date to be set for this summer. “I do expect the government to fight this full on,” he said.
Aboriginal Affairs Minister John Duncan’s press secretary declined to comment Monday, saying it would be inappropriate before the documents have been filed.
