Consultation in oil and gas: Dene Tha' First Nation v. Alberta energy and utilities board.

• Author: Fenwick, Fred R.
• Position: Aboriginal law

The Devil is in the Details (or the PowerPoint Presentation)

In a previous column (LawNow 29:5), we discussed the precedent setting case of Haida Nation v. British Columbia where the Supreme Court of Canada set out in no uncertain terms the requirement that both federal and provincial governments consult with First Nations in obvious cases where developments interfere with treaty or Aboriginal rights. In February 2005, the Alberta Court of Appeal ruled on a case where the Dene Tha' First Nation was trying to slow down some oil well and pipeline applications by Penn West Petroleum. The development of the case is an interesting example of how this consultation will develop in the real world of everyday cases (as opposed to precedent setting cases that go all the way to the Supreme Court).

First the background. The Haida case dealt with a First Nation in British Columbia which had continuously occupied its traditional lands and had never adhered to any kind of treaty (for some unknown historical reason, most of British Columbia is not covered by treaties). The Supreme Court took some pains to describe the Haida case as the clearest of cases for consultation and note that other cases may not be so clear or require the level of consultation that was being urged in Haida. It should be remembered that the Supreme Court actually hears very few of the cases that are appealed to it. The fact that the Haida case was so clear is undoubtedly one of the reasons why the Supreme Court decided to consider that case.

The Dene Tha' case unfortunately arose in the more complicated, nuanced world that most of us live in. The Dene Tha' are the most northern of the Alberta Treaty 8 First Nations. They are an Athapaskan-speaking group who used to be called the Slavey Indians, but slave was a derisive term given by their traditional enemies the Cree and is no longer used except in the place names still commonly used in the area (Slave Lake, Lesser Slave Lake, etc.). The six subgroups that make up the Dene Tha' all adhered to Treaty 8 and have had reserves and band councils set up under the Indian Act for generations. The largest population centre is High Level, Alberta, but for the most part the people live in small groups in the countryside. Development in the area has been difficult historically, but lately there has been a lot of oil and gas activity (Zama and Rainbow Lake for example) and the people have taken an active role in the drilling and other industries...