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ACFN’S Request for Review of LARP

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ACFN’S Request for Review of LARP WOODWARD & CO. LAWYERS LLP REPLY TO: JENNY BIEM Victoria Office email: [email protected] ASSISTANT: ERIN HACKENBERG [email protected] Monday, August 19, 2013 File: 4733 Office of the Minister E-mail: [email protected] Environment and Sustainable Resource Development 204 Legislature Building 10800 - 97 Avenue Edmonton, AB T5K 2B6 Land Use Secretariat Fax: 780-644-1034 9th floor, Centre West Building Email: [email protected] 10035-108 Street Edmonton AB T5J 3E1 Attention: Honourable Diana McQueen, Stewardship Minister Dear Ms. McQueen: Re: Request for Review of the Lower Athabasca Regional Plan (“LARP”) pursuant to section 19.2(1) of the Alberta Land Stewardship Act, the Alberta Land Stewardship Regulation, and Form LUS-01 Please find below ACFN’s Request for Review of LARP. Electronic copies are being emailed and couriered to each of yourself and the Land Use Secretariat from Woodward and Company’s offices in Victoria. Originally signed copies of Form LUS-01 will arrive by separate courier from the ACFN IRC office in Fort McMurray. All materials will be delivered to yourself and the Land Use Secretariat by noon, Tuesday August 20, 2013. Overview As you know, Athabasca Chipewyan First Nation (“ACFN”) holds Treaty 8 and Aboriginal Rights, and exercises those rights within the Lower Athabasca Regional Planning Area. ACFN is also the beneficial owner of lands within the Lower Athabasca Regional Planning Area, including without limitation Chipewyan Indian Reserves No. 201 and 201A-201G inclusive. VICTORIA OFFICE: WHITEHORSE OFFICE: 844 COURTNEY STREET, 2ND FLOOR 3059 3RD AVENUE, 2ND FLOOR VICTORIA, BC V8W 1C4 WHITEHORSE, YT Y1A 1E2 TEL: 250-383-2356; FAX: 250-380-6560 TEL: 867-633-5940; FAX: 867-633-5945 WEBSITE: www.woodwardandcompany.com WEBSITE: www.woodwardandcompany.com Page 2 ACFN actively participated in the LARP process all the way from the RAC stage through to reviewing and providing comment on the draft LARP in June 2012. ACFN, along with MCFN, proposed a Traditional Lands and Resource Use Management Plan to assist the government of Alberta in meeting its constitutional obligations to ACFN within the LARP. Unfortunately, ACFN’s good faith participation and dedication did not bear fruit. LARP as it is today does not address, nor provide protections for, ACFN’s Treaty and Aboriginal Rights, traditional lands use, use and enjoyment of reserve lands, and culture. On July 9, 2013 the Joint Review Panel for the Jackpine Mine Expansion issued its report, wherein it explicitly agreed with ACFN’s evidence that LARP does not address Treaty and Aboriginal rights, or traditional land use. The Joint Review Panel recommended that the government of Alberta develop a framework to address Treaty and Aboriginal Rights and traditional uses, with the Aboriginal peoples whose rights are being affected by significant adverse cumulative impacts within the planning region. Overview of ACFN’s Rights, Property and Interests in the Planning Region ACFN constitutes an “Aboriginal people” within the meaning of section 35 of the Constitution Act, 1982 (U.K.), 1982, c. 11. ACFN is also a “band” under the Indian Act, with eight reserves set aside for the use and benefit of its members: Chipewyan No. 201 and 201A-201G inclusive. ACFN’s traditional lands radiate north, east, west and south from the Peace-Athabasca Delta (the “Delta”), including but not limited to the Lower Athabasca River and lands to the south of Lake Athabasca, extending to the lands around Fort McMurray and Fort MacKay (the “Traditional Lands”). ACFN is the successor to an Aboriginal group that entered Treaty No. 8 (the “Treaty”) with the Crown at Fort Chipewyan in 1899. ACFN and its members continue to hold and exercise the rights guaranteed by the Treaty, as modified by the Natural Resources Transfer Agreement, 1930 (enacted by the Constitution Act, 1930 (U.K.) 20-21 George V, c. 26), including rights to hunt, trap, fish, and gather on all unoccupied Crown lands in the province and other lands to which they have rights of access (the “Treaty Rights”). The Treaty Rights include the right to harvest specific species in specific locations, as well as incidental rights essential to the meaningful exercise of the Treaty Rights such as: • routes of access and transportation; • sufficient water quality and quantity; • sufficient quality and quantity of resources in preferred harvesting areas; • cultural and spiritual relationships with the land; • abundant berry crops in preferred harvesting areas; • traditional medicines in preferred harvesting areas; • the experience of remoteness and solitude on the land; • construction of shelters on the land to facilitate hunting, trapping, gathering and/or fishing; • use of timber to live on the land while hunting, trapping, gathering and/or fishing (e.g. to build shelters and fires); • the right to instruct younger generations on the land; Page 3 • access to safe lands within which to practice rights; • the right to feel safe and secure in the conduct of such practices and activities; • lands and resources accessible within constraints of time and cost; • socio-cultural institutions for sharing and reciprocity; and • spiritual sites and associated practices. ACFN and its members have maintained their distinctive identity and culture as an Aboriginal people by maintaining their cultural, social and spiritual connection to the Traditional Lands throughout generations. This connection is maintained, in part, by exercising the Treaty Rights that define and sustain ACFN as a distinctive people. The Traditional Lands continue to provide food and other resources to ACFN. Under the Treaty, among other entitlements, ACFN secured protection for the continuity, in perpetuity, of traditional patterns of activity and occupation within its Traditional Lands. As a constitutional imperative, the Treaty protects the core entitlement of ACFN members to the meaningful exercise of their Treaty Rights on their Traditional Lands.1 The province of Alberta cannot constitutionally infringe this core Treaty Right by depriving ACFN of the meaningful opportunity to exercise its Treaty Rights on its Traditional Lands. Although the Crown secured the right to “take up” lands from time to time under the Treaty, this right is itself subject to the Crown’s duty to consult and accommodate ACFN’s interests before reducing the area over which ACFN members may continue to pursue their hunting, trapping and fishing rights.2 This duty to consult and accommodate extends to ACFN’s concerns about the cumulative impacts of development on its Traditional Lands and the meaningful exercise of its Treaty Rights.3 ACFN members reside primarily in Fort Chipewyan, Fort MacKay, and Fort McMurray. ACFN members continue to actively exercise their Treaty Rights on their Traditional Lands and continue to rely on the Traditional Lands for: travel to and from ACFN reserve lands; social, cultural and spiritual purposes; economic development; traditional use and occupation; and the health and vibrancy of their communities and their distinctive way of life. The Athabasca River is the lifeblood of ACFN Traditional Lands. The ability to use the River is central to sustaining ACFN’s identity, culture and well-being. The health of the Athabasca River is inextricably linked to the ability of ACFN members to exercise their Treaty Rights within a significant portion of their Traditional Lands. The Athabasca River provides a vital transportation corridor, access to Reserve lands, access to traditional hunting, trapping, fishing and gathering areas, and supports the traditional resources required for the meaningful exercise of ACFN’s Treaty Rights and the continuity of ACFN’s distinctive culture. 1 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, paras. 47-48. 2 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, para. 56. 3 See, e.g., West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359, paras. 54- 55. Page 4 ACFN’s Traditional Lands, including the Athabasca River north of Fort McMurray, have undergone rapid and momentous change in recent decades. This change has significantly reduced ACFN members’ ability to exercise their Treaty Rights on their Traditional Lands proximate to the places where the vast majority of ACFN members reside. While several factors have contributed to this change, a significant contributing factor has been oil sands exploration and development. Form LUS-01 Part 1: Details of Request for Review A. Clearly identify the specific provision of the Regional Plan that you believe is directly and adversely affecting you, or will directly and adversely affect you. Please note that ACFN requests a review of and amendment to the LARP in its entirety, as the plan as a whole fails to address or protect ACFN’s Treaty Rights, traditional land uses, peaceful use and occupation of its reserve lands, and its culture. We have listed the most critical specific provisions below. Regulatory Details Plan Part 1 General 1. Section 1(e) – exclusion of a Regulatory Details Plan Part for Traditional Land Use and Treaty Rights, including limits, triggers and thresholds. 2. Sections 4 -7; to the extent that the Plan is intended to guide, inform, or bind the Crown, decision makers, local government bodies and all other persons in the absence of measures that are protective of ACFN’s Treaty and Aboriginal rights, traditional land uses, and culture. 3. Section 10(2) to the extent that it requires decision making bodies to make changes or implement new initiatives to comply with LARP in the absence of measures that are protective of ACFN’s Treaty and Aboriginal rights, traditional land uses and culture. Regulatory Details Plan Part 2 Conservation Areas 4. Section 13-17. Conservation Areas have not been selected nor designed, nor their objectives set, in a manner consistent with AFCN’s treaty rights and traditional land uses, or with ACFN’s ability to access and peacefully use and occupy its reserve lands.
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