Two lawsuits claiming the Alberta government has allowed unfettered industrial development on traditional lands, resulting in First Nations being unable to exercise their treaty rights, are beginning to advance through the court system.

Alberta is expected to offer a rigorous defense in both cases, but if successful, the outcomes could significantly affect oil and gas operators.

Duncan’s First Nation (DFN), located near Peace River, filed a statement of claim last July alleging the Alberta government failed to uphold its treaty obligations and as a result DFN members can no longer reasonably access landscapes and natural resources in their traditional territory to support hunting, fishing, trapping, gathering and other cultural activities.

DFN said the provincial government refuses to address concerns about cumulative impacts of industrial development on traditional lands, mirroring the Blueberry River First Nations’ (BRFN) case in B.C.

“There are simply not enough appropriate and accessible lands, waters, ecosystems and natural resources left to support the meaningful exercise of DFN’s Treaty rights and way of life,” reads the statement of claim.

DFN joins Beaver Lake Cree Nation, which began a similar lawsuit in the oilsands region in 2008. The Beaver Lake Cree lawsuit had been stalled but last April it won an appeal in the Supreme Court of Canada after challenging an Alberta court decision that denied it advanced funding needed to prepare its case. It is now back before the Alberta Court of King’s Bench asking for funding once again.

The Beaver Lake Cree case is scheduled for January 2024.

Beaver Lake Cree Nation says its traditional territory is covered with over 35,000 oil and gas sites, 21,700 kilometres of seismic lines, 4,028 kilometres of pipeline and 948 kilometres of road. “While any one of these projects by themselves might be tolerable, when taken together they threaten to destroy our way of life and the land that has sustained us for thousands of years.”

The DFN lawsuit makes similar claims. DFN is requesting an interim injunction freezing industrial activity until the cumulative impacts of agriculture, energy, forestry and peat mining can be assessed and management plans developed. It wants a permanent injunction preventing development in remaining pristine landscapes.

DFN said it is not against development, it just wants it done responsibly. The First Nation has benefit agreements with resource companies and has partnerships with service companies.

While Alberta projects that require environmental impact studies also require cumulative effects assessments, DFN says those assessments have been inadequate, with development approvals granted on a project-by-project basis.

Will Alberta lawsuits follow the BRFN lead?

Speaking at the Indian Resource Council (IRA) Energy and Economic Reconciliation Conference, BRFN Chief Judy Desjarlais said she expects more First Nations will stand up for treaty rights following BRFN’s court victory and later agreement with the B.C. government.

“In Canada, First Nations are looking at us as the model,” she said. “We held the province to account and winning was a real eye-opener.”

The B.C. government is now negotiating with other Treaty 8 First Nations. DFN is also covered by Treaty 8 and has traditional land claims in B.C., but its lawsuit is focused on Alberta.

DFN claims in court documents its traditional territories cover a large swath of northwest Alberta from the Peace River oilsands to the south near Grande Prairie and to the west stretching along the B.C. border encompassing part of the Montney.

Ideally, DFN would prefer an outcome like what is happening across the border in B.C. without the long court battle and protracted negotiations.

But Alberta is not B.C. The stakes are higher in Alberta, where the government and economy depends much more on oil and gas and other resource revenues. Historically, Alberta has taken its own approach in balancing development, the environment and treaty rights, and has been willing to go to court to defend it.

The DFN case is expected to be no different. The case is in the discovery stage, where both parties exchange relevant documents and interview witnesses in preparation for trial.

Laying out the government argument

In its response to DFN’s statement of claim, the Alberta government said it has a right under Treaty 8 to authorize use of lands for settlement, mining, forestry and other purposes and has done so while respecting treaty rights. DFN “still have access to sufficient lands to meaningfully exercise their treaty rights.”

The government said cumulative impacts are addressed through consultations in the current project authorization system, and it only grants authorizations after a baseline of existing impacts is determined and evaluated. DFN has always had the opportunity to consult with the province on applications, it added.

Impact benefit agreements and service agreements signed by DFN with industry imply consent for development, the government said, and “provide compensation for any interference with or impairment or infringement of treaty rights.”

Treaty 8 does not include a right to participate in the management of natural resources, it added.

Alberta is also disputing the size of the area claimed as traditional territory by DFN, the extent of environmental disturbance, and said it has no knowledge of the specific locations where DFN claim treaty rights are being infringed.

While admitting authorized developments have affected the environment in treaty territory, “such impacts are not as extensive as alleged in the claim.”

DFN completed a series of traditional land use studies to understand how development is affecting treaty rights. Community members reported major declines in wildlife populations, disturbance and degradation of waterways, and overall fragmentation of the land.

Moose populations are the priority, but declining caribou populations are seen as a signpost of the future with continued disturbances. DFN members believe caribou will be gone in their lifetime and without change, “the same pattern could be replicated with elk, moose, fish and other species of critical cultural value.”

Watershed protection is also critical. While oil and gas and forestry companies respect setbacks, community members question whether the setbacks and buffers are sufficient to protect high-value cultural areas.

Fragmentation by roads, cutlines and other linear disturbances are affecting both wildlife and community members’ ability to hunt. “DFN land users report seeing wolf tracks on seismic lines, pipelines and access roads with greater frequency in the last two decades. There is a sense that species like moose are not doing well in oil and gas fields where predators such as grizzly bears and wolves appear to be doing well at their expense.”

These issues come with an economic cost. With high unemployment or sporadic employment, DFN members rely on wild game to get families through “the lean times.” Many community members can’t afford store-bought protein or the fuel to hunt further away.

In its response, the province said, “Treaty rights do not include the right to hunt, trap, fish or otherwise harvest any specific species of plants or animals” and, “in any event, there remain sufficient plants and animals for the plaintiffs to meaningfully exercise their treaty rights.”

The province said under existing law DFN members can hunt and fish on Crown land anywhere within their territory and across Alberta.

“The treaty rights are not tied to, nor do they protect access to, specific geographies, locations or sites within the traditional territory, the treaty territory, or otherwise,” it added.

Actions already underway to limit impacts

Industry in Alberta is already moving in the direction of collaborating with First Nations to limit development impacts.

Baytex Energy Corp. is managing development of its Clearwater assets with the goals of the nearby Peavine Métis Settlement in mind.

“The Clearwater Peavine is an absolutely spectacular asset, as good as the world gives anywhere. There’s still a lot of potential but we’re bringing it to a plateau of 12,000–15,000 bbls/d,” Baytex president and chief executive officer Eric Greager said. “It’s not going to grow meaningfully beyond that range. It’s delivered the growth it can deliver. We are being respectful of impacts of surface development in the Peavine community. Over the arc of time, we are trying to be consistent and respectful of how we develop there to maintain our license to operate.”

Working in collaboration with industry, the Alberta government has brought in legislation and regulations to speed the clean-up of retired assets. Its Inventory Reduction Plan includes mandatory spending on asset retirement that is expected to ratchet up annually, while the area-based closure program brings operators together to close facilities in geographic locations while saving on costs.

What direction are the courts headed?

The BRFN decision provides one example of the direction courts are headed in addressing treaty rights cases. However, the ruling doesn’t apply in Alberta.

But in Alberta, the Fort McKay First Nation won its 2020 appeal of the Alberta Energy Regulator’s (AER) approval of a 10,000-bbl/d SAGD facility in the Moose Lake area in northeast Alberta. The case came about after the AER approved the facility in 2018, despite ongoing negotiations to create a regional land access plan calling for setbacks at Moose Lake to protect treaty rights.

In its decision, the Alberta Court of Appeal vacated the AER approval, finding it failed to consider the ongoing land access plan negotiations and an MOU signed by then-premier Jim Prentice in 2015 committing the province to complete the plan when deciding whether the project was in the public interest.

The Alberta government and Fort McKay First Nation have since completed the area plan, but the project has been withdrawn.

However, the court also noted in its decision that nearly 70 per cent of Fort McKay’s traditional territory is leased for oil and gas development. And in a concurring submission, one Justice commented the piecemeal approach to addressing concerns about cumulative effects through consultation on individual projects has been ineffective.