Top court decision could ripple from B.C. into Alberta, lawyers say

A Supreme Court decision giving a British Columbia First Nation title to land it uses for hunting and fishing could affect many Alberta court cases between First Nations and governments over oilsands development, lawyers say.

EDMONTON — A Supreme Court decision giving a British Columbia First Nation title to land it uses for hunting and fishing could affect many Alberta court cases between First Nations and governments over oilsands development, lawyers say.

“I can think of a few law firms that are probably redrafting their briefs right now,” said Larry Innes, a member of a Toronto law firm that represents the Athabasca Chipewyan, a band downstream from the Fort McMurray region.

Roger Townshend, a member of the same firm, said while the Tsilhqot’in decision didn’t break any new legal ground, it did show the court wants governments to interpret aboriginal rights broadly on traditional lands.

“Really what was happening was Canada and B.C. were interpreting those doctrines in an extremely narrow and rigid way and the court said, no that’s not the way to do it. You’ve got to look at things more holistically.”

An Alberta Justice spokeswoman said the government is examining the ruling and considering its impact for the province.

But Victoria-based lawyer Robert Janes, who represents a number of Alberta bands, said the court has raised the bar for governments seeking to approve major developments that could infringe on aboriginal land-use rights.

“The court seems to be sending quite a strong message that infringement should not be allowed to drift to being a general public-interest type of analysis,” he said.

“It’s expected to be more rigorous than how it’s been approached in the past. Likewise, the duty to consult is not intended to be a polite chit-chat and do what you’re planning to do anyway.”

The Alberta and federal governments are facing a number of court actions that attack many of the recent changes made to regulating energy development. Many involve issues around aboriginal consultation, consent and the impact of development on treaty rights.

The Beaver Lake Cree, for example, are in court arguing that so much piecemeal development has been approved on their lands that their treaty rights are increasingly meaningless — an issue close to the heart of Thursday’s decision, said Innes.

“When (governments) consider the public interest they must do so in a way that balances the rights of all Canadians with the rights of aboriginal Canadians,” he interprets. “You can’t simply do it on the basis of what’s good for the economy.

“You cannot, as a Crown, go in and say ’It’s good for the guys in Calgary, too bad about Fort Chipewyan.’ You actually have to turn your mind to what would be the best outcome for both.”

Although British Columbia has few treaties, Janes agreed the Tsilhqot’in ruling will be a factor in the Alberta cases.

“We will certainly be using this case in our arguments,” he said.

“When you get to stage where you’re looking at these large-scale developments in northern Alberta which potentially infringe rights, where you’re really looking at life-changing events, then the court’s saying you’re going to be held to a very high standard. There has to be a compelling public purpose.”

Innes said he expects to cite the judgment at regulatory hearings into TransCanada’s Grand Rapids pipeline project from Fort McMurray to Edmonton, now under way.

“The validity in which the way consultation issues are addressed by the Alberta Energy Regulator or rather summarily dispensed with by the Alberta Consultation Office is what we’re putting forward,” he said. “There is no way in way in hell that the process that has been set up could possibly meet those duties.”

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