Oil Sands: Legal Expert Says Alberta's Tenure System Is Vulnerable to Constitutional Challenge “We can’t defend our constitutional rights because we can’t keep up with the threats against them.” - Chief Allan Adam, Athabasca Chipewyan First Nation.
FORT MCMURRAY, ALBERTA - Alberta's tenure system for granting oil sands leases is vulnerable to a constitutional challenge by First Nations, says Professor Nigel Bankes, Law Professor and Chair of Natural Resources Law at the University of Calgary.
Professor Bankes is responding to a recent court ruling (Jan. 28, 2011) that saw the doors of the Alberta courts closed to the Athabasca Chipewyan First Nation (ACFN). ACFN was arguing that oil sands leases granted to Shell in the Poplar Point area along the Athabasca River were made without proper consultation. The leases are an area of important hunting, medicinal and cultural value to the First Nation.
The Court ruled that ACFN's legal challenge to government decisions to grant resource rights in the form of long term oil sands leases was out of time. Under Alberta court rules, parties have only six months to challenge a government decision. In this case, there was no formal notice to ACFN that the areas were up for lease.
"Imagine someone trying to expropriate your home hundreds of times a year," says Chief Allan Adam. "Every time that happens they don't come to your house to notify you, they just publish a note on a website and a clock starts ticking.”
The Court ruled that formal notice was not required, as the information was posted to a government website. As ACFN offices are equipped with computers connected to the internet, the Court ruled that ACFN should have been aware of the leases being put up for public auction at the time they were posted.
Between April 2008 and July 2010, 117,753 hectares of leases within ACFN traditional lands were put up for anonymous auction by the province (bidders can use names or numbers that hide their identity).
“Having a computer and an internet connection is not a substitute for formal consultation,” says Chief Allan Adam. “Our people are simply unable to keep pace with the number of threats against our lands, and now we find ourselves barred from the Alberta courts because of it.”
“I think that the Court of Appeal has ignored the constitutional foundation of the duty to consult,” says Professor Bankes. “Is it too much to require that the Crown provide actual notice to First Nations when oil sands leases are put up for auction within their lands?”
Professor Bankes' full assessment of the decision can be found on the University of Calgary's Faculty of Law blog here: http://ablawg.ca/2011/02/07/the-world-wide-web-and-the-honour-of- the-crown/
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For more information: Chief Allan Adam, Athabasca Chipewyan First Nation, 780-713-1220 Robert Janes, Legal Counsel, 250-888-5269