EDMONTON — An aboriginal band has threatened the very basis of Alberta's oilsands industry by filing a court challenge to the province's system of granting land tenure.
A notice filed Wednesday in Edmonton Court of Queen's Bench by the Athabasca Chipewyan First Nation claims that a series of oilsands permits the provincial government sold to Shell Canada and other companies are invalid.
Selling off rights to explore the land without consulting area aboriginals breached the Crown's duty to consult, say legal documents prepared by the First Nation.
"(Alberta) breached the duty to consult the (Athabasca Chipewyan First Nation) by failing to consult the ACFN, adequately or at all, prior to granting the challenged tenures," the document reads.
The First Nation is asking the court to either quash the permits or order the companies to stop further development until consultation has occurred.
"It's a big question," said Monique Ross, a researcher at the University of Calgary's Institute of Resource Law. "(The government) would have to revisit the way they deal with the industry."
The Alberta government has long argued that, because no actual development occurs when an exploration permit is sold, no consultation is necessary. Alberta Energy regulations specifically state that consultation does not take place before such rights are granted.
But the notice argues that when permits are sold, companies are obliged to begin work on them within a certain time or risk losing them.
"One of the goals of Alberta's oilsands tenure system is to ensure that oilsands tenures are in the hands of those who are committed to developing them," the notice says.
"Because oilsands tenures confer upon the company the exclusive rights to win, work, recover and remove the oilsands deposits, government decision-makers are effectively compelled to authorize the tenure holder to exercise those rights.
"The challenged tenures represent critical strategic planning decisions taken in contemplation of and to facilitate activities which adversely affect the treaty rights of the Athabasca Chipewyan First Nation. Accordingly, (Alberta) was charged with a duty to consult with the ACFN prior to issuing the challenged tenures."
The tenures were sold in 2007 and 2006 to Shell Canada, Standard Land Company, Saskatoon Assets Inc. and Canadian Coastal Resources. All are within 20 kilometres of the band's reserve.
Ross points out that the Supreme Court has compelled British Columbia to consult with area aboriginal groups in advance of allocating forestry tenure.
"The principle is that governments have to make themselves aware of the existence of rights and how those rights may be impacted by the allocation of mineral rights," she said.
"It's not enough to consult at the stage when forestry activities are occurring. You have to consult at the stage of reallocations.
"It's at that stage when key decisions are being taken in anticipation of actual decisions on the ground."
The First Nation points out that the land in question is extensively hunted, trapped and fished by the members of the band.
"Parts of our traditional lands have been completely changed by industry," writes Chief Allan Adam in an affidavit.
"These lands were once hunting and trapping grounds, but now they are covered by oil and gas wells and blanketed by seismic lines roads and pipelines."
Adam said the band is particularly concerned about an area near the reserve called the Richardson backcountry, which is important for both hunting and spiritual practices. He wrote the provincial government has repeatedly granted oilsands exploration permits in the area despite the band's concerns.
"It is deeply troubling to our First Nation that Alberta has granted these tenures within our traditional lands and set the stage for exploration and potentially massive oilsands production without any consultation with our First Nation before the grants of tenure."
A preliminary date for the first hearing on the motion has been set for Jan. 13 in Edmonton.
