SUBMISSIONS OF THE ATHABASCA CHIPEWYAN FIRST NATION ...

SUBMISSIONS OF THE ATHABASCA CHIPEWYAN FIRST NATION 

(“ACFN”) TO THE STANDING COMMITTEE ON ENVIRONMENT AND 

SUSTAINABLE DEVELOPMENT 

A. BACKGROUND 

Athabasca Chipewyan First Nation: People of the Land of the Willow 

We are an Athabascan-speaking people who call ourselves K'ai Taile Dene, meaning 

"people of the land of the willow", a reference to the delta of the Peace and Athabasca 

Rivers. We have used and occupied our Traditional Lands in the Athabasca region for 

thousands of years, hunting, trapping, fishing and gathering to sustain ourselves from 

the lands, to carry out our livelihood and to practice and to pass down our culture. A 

map showing the ACFN Traditional Lands, including our Reserves, is attached hereto. 

Ancestors of the present-day ACFN, then known as the Athabasca Chipewyan Band, 

signed Treaty 8 at Fort Chipewyan in 1899. Members of ACFN continue to hold the 

rights guaranteed by Treaty 8, including hunting, trapping, gathering and fishing 

rights. ACFN members actively exercise our Treaty rights on our Traditional Lands 

and carry out our traditional activities, as our ancestors have for generations. 

Maintaining our identity as K'ai Taile by living from our Traditional Lands, and 

supporting our people and our culture through the exercise of the traditional activities, 

remains central to our way of life. Our hunters, trappers, gatherers and fishers are 

keeping alive our community’s connection to our Traditional Lands, and they are 

passing it along to the next generation. 

As a “band” under the Indian Act, we have eight Reserves set aside for our use and 

enjoyment under the Indian Act: Chipewyan 201, Chipewyan 201A, Chipewyan 

201B, Chipewyan 201C, Chipewyan 201D, Chipewyan 201E, Chipewyan 201F, and 

Chipewyan 201G. Our reserve lands are located on the south shore of Lake 

Athabasca, on the Athabasca Delta, and on the Athabasca River. 

We have a total registered population of 879 people. Approximately one third of our 

membership lives in Fort Chipewyan, a large percentage live in Fort McMurray, and 

some in Fort McKay and Fort Smith, NWT. The remainder are scattered throughout 

Alberta, Canada and the world. 

ACFN has always had stable leadership. After Treaty 8 was signed, ACFN selected its 

representatives for lifetime appointment. Since 1983, ACFN has followed the custom 

electoral system under the Indian Act. In addition to the Chief, our Council 

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PO Box 366 

Fort Chipewyan, AB T0P 1B0 

Phone: (780) 697-3730 

Fax: (780) 697-3500

Page 2 April 28, 2009 

consists of four councillors. A council of ACFN Elders, representing the main family 

groups within ACFN, provides the elected leadership with the support of traditional 

customary governance. 

B. THE IMPACTS OF INDUSTRIAL DEVELOPMENT ON OUR 

SECTION 35 RIGHTS 

Our Traditional Lands encompass a large part of north-eastern Alberta. Large parts of 

our Traditional Lands have already been taken up for development such as oil sands, 

conventional oil and gas, forestry, pipelines, mining and other activities. That 

development has occurred without the Crown conducting meaningful consultation 

with us. In many cases, there has been no consultation at all. While we have 

consistently raised our concerns with the Crown, including in respect of the erosion of 

our ability to meaningfully exercise our section 35 rights, those concerns have largely 

fallen on deaf ears. 

It is important for you to understand the nature and severity of the impacts of industrial 

activity on our rights and on our communities. We have traditionally relied on the 

land and water to sustain ourselves and to carry out our livelihood. That is what was 

promised to us in Treaty 8: that we would be able to continue to live and exist as we 

had before we entered into Treaty. Industrial development has caused adverse impacts 

to our rights, to our health, and to the environment and ecosystem on which we rely. 

To name some examples, that development has taken away lands on which we rely, it 

has caused the fragmentation of wildlife; it has adversely affected the quality and 

quantity of wildlife and fish; it has blocked our access to our Traditional Lands; it has 

depleted water bodies; and it has large destroyed the delta of the Peace and Athabasca 

Rivers. As more of our lands our taken up for development, there are fewer and fewer 

places where we can take our children and grand-children to teach them our culture 

and way of life. Without a sufficient land base to exercise our rights and pass down 

our culture, we slowly lose our ability to be ACFN people. While this may be hard for 

non-Aboriginal people to understand, for us these issues are critical to our survival. 

We are fortunate that there are still some places within our Traditional Lands, 

such as the Richardson Backcountry, where we can still meaningfully exercise our 

section 35 rights. However, even in that area, much of our land has been leased to 

industry. The grant of such tenures was done without any consultation with us at 

all. If those leases are developed, we will have nothing left. 

It is imperative that the federal government take action now to ensure that ACFN 

has the ability now and in the future to exercise our section 35 rights – after all, it 

was with the Dominion Government that our ancestors entered into Treaty 8. 

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C. ROLE OF THE FEDERAL GOVERNMENT 

It is no secret that there are large resource deposits contained within our 

Traditional Lands, particularly deposits of bitumen. As noted above, development 

of the oil sands alone, as well as together with other development, has adversely 

affected and infringed our section 35 rights. We have made this clear to the 

federal government for years. We are deeply concerned that the federal 

government appears to be taking a backseat in respect of taking steps to ensure 

that such development is done in such a way as to minimize potential impacts on 

our rights, our health and on the environment. 

While we recognize that the federal government has overlapping jurisdiction with 

Alberta in respect of regulating development, in our view that is no reason for the 

federal government to essentially cede its role to Alberta. We note, in particular, 

that the federal government has both an historic and continuing legal obligation to 

take steps to ensure that our rights are protected. 

We see the diminishing federal role play our in various ways. There is an 

inconsistent federal role in environmental assessments – on some major projects 

the federal government establishes joint review panels, while on others the federal 

government plays no role at all. We also see the federal government taking a very 

narrow view of its constitutional obligations to consult. 

D. WHAT CAN THE FEDERAL GOVERNMENT DO TO ENSURE 

PROTECTION OF OUR SECTION 35 RIGHTS? 

(a) Opportunities and Legal Obligations 

The Crown, federal and provincial, has a legal and constitutional obligation to 

consult with First Nations and to seek to accommodate our section 35 rights. In 

our view, such obligations present both a challenge and an opportunity for us to 

work together. Our objective is to ensure that there is a proper balance between 

the maintenance of the conditions necessary for the exercise of our rights and 

sustainable development. However, it is our strong view that development cannot 

continue at its current pace without destroying what is left of our rights and 

without ever more negative consequences to the environment. 

Legal cases decided over the last several years, particularly the decision of the 

Supreme Court of Canada in the Mikisew Cree case, make it clear that our 

concerns about process (such as in respect of the carrying out of consultation, the 

carrying out of regulatory review processes) must be accommodated. That 

obligation is quite apart from any legal obligation to seriously consider and 

accommodate our concerns about the potential impacts of development on our 

section 35 rights. The Mikisew Cree case makes it clear that if the process by 

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which the Crown makes decisions does not accord with the honour of the Crown, 

then permits, licenses and approvals can be struck down quite apart from the 

potential impacts on our rights. 

We are concerned that the federal government often ignores its “process-related” 

obligations. We are often told that the Crown does not have to consult until 

applications for development are filed. The Dene Tha’ case makes it clear that 

the filing of an application, particularly on large projects, is not the trigger for 

consultation. Consultation is required when the federal government is designing 

processes for regulatory and environmental reviews of projects. That work often 

begins long before an application is filed. 

The case law makes it clear that offering us no more in the way of input than 

processes that afforded to the public will not meet the Crown’s onerous 

obligations. Moreover, telling us that we can participate in public hearings is also 

not sufficient for the Crown to meet its duties, particularly since those tribunals 

are quasi-judicial and do not, themselves, consult. 

(b) Steps that can be taken to address some of our concerns 

We wish to focus on some ways in which the federal government could do a 

better job of meeting its process-related obligations, which would help to protect 

our section 35 rights. Our focus will be on the federal environmental assessment 

process. We note that failure to consult with us on the issues set out below can 

lead to litigation, disputes, and project delays. On the other hand, working 

cooperatively with us can lead to the opposite result. 

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i. Consultation on CEEA Triggers 

In environmental assessments, the role or lack of role of the federal government is 

largely determined based on decisions about whether there are federal “triggers” 

for a particular project. Those decisions are made without consultation with First 

Nations. This is troubling to us because First Nations have important knowledge 

and information about potential social, cultural, economic and environmental 

impacts of projects on our section 35 rights which fall under federal legislation: 

navigable waters, fisheries, potential impacts on reserve interests. 

As in much of federal decision making, it is difficult for us to understand how the 

federal government can determine the existence or lack of existence of CEEA 

triggers without consulting with us. How, for example, can the federal 

government determine, on its own, whether fisheries habitat could be destroyed 

pursuant to section 35 of the Fisheries Act, one of the common CEEA triggers, if 

they do not speak to us? This is particularly hard to understand when we have


fished since time immemorial and can observe and describe the impacts of 

development on our ability to fish. 

Recommendation: 

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The federal government needs to consult with us prior to determining 

whether a federal environmental assessment is required, because 

many projects have adverse impacts on our rights which may not be 

understood by decision makers who do not seek our views 

ii. Consultation on Project Scope 

We are concerned that many projects are scoped too narrowly. This 

creates the potential for EAs to miss the direct, indirect and cumulative 

impacts of those projects on our section 35 rights. The case law in relation 

to aboriginal consultation makes it clear that it is not only the “sitespecific” 

impacts of projects that is required in consultations; rather, it is 

the direct, indirect and cumulative impacts on our rights, including 

injurious affection related thereto. There seems to be a disconnect 

between the legal requirements for consultation on the one hand, and the 

scoping of projects on the other. 

Although we have hunted, fished, gathered and trapped since time 

immemorial within our Traditional Lands, we are not asked about whether 

the scoping of projects for EA purposes would be sufficient to consider 

patterns of wildlife movement, habitat, traditional travel routes and 

impacts of projects on our access to our traditional hunting and trapping 

grounds, among other things. The need for proper scoping is particularly 

important since EAs are one of the major ways in which the federal 

government makes decisions about issuing permits, licenses and 

approvals. 


The federal government should consult with First Nations when 

determining the scope of a project for EA purposes. 

iii. Consultation on required level of CEEA assessment 

Once it is determined that there are one or more federal triggers under 

CEEA, the federal government must determine the proper kind of 

assessment for a particular project: the options range from screening 

through to a full joint review panel assessment. The level of assessment,


in turn, directly affects the decisions to be made concerning the issuance 

of permits, licenses and approvals. 

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We are particularly concerned that there does not appear to be any 

consistency in how the federal government determines the level of 

assessment for particular projects. In our view, joint review panels should 

be established for all oil sands projects within our Traditional Lands as 

well as for other large-scale projects such as mines. Anything short of a 

JRP limits our ability to have input into the assessment and downplays the 

significance of potential impacts on our rights. 


The federal government should consult with First Nations on the level 

of assessment for all projects under CEEA and all large-scale projects 

(oil sands, mines) should automatically have a joint review panel level 

of EA. 

iv. Terms of Reference for EAs 

We are forced to constantly challenge what we consider to be narrow 

terms of reference for companies to follow in carrying out their 

environmental assessment work. Narrow assessments allow companies 

and decision makers to downplay or ignore our rights by concluding that 

there will be no impact or insignificant impacts of their activities. 

We are also concerned that such terms of reference are not designed to 

elicit the kind of information necessary to determine potential impacts on 

our section 35 rights. Moreover, they are not designed to force companies 

and government to take into account the impact of other projects within 

our Traditional Lands and the cumulative impacts of the taking up of lands 

on what remains for us to exercise our section 35 rights. 

We note that on the Joslyn North Oil Sands Project, the Mikisew Cree 

First Nation sent a list of questions to then-Minister Baird about the 

federal role in that EA and its relationship to properly assessing potential 

impacts on section 35 rights. Attached to that letter was another letter to 

the Proponent which included a specific list of information requirements 

which the Mikisew Cree First Nation stated were necessary to do a proper 

and throughout EA, focusing on section 35 rights. We fully adopt the 

position in the letter and appendix. A copy of these letters are attached. 

In our view, if EA processes do not require information on potential 

impacts on section 35 rights, how is it possible to understand how First


Nations will be affected be such projects? The information contained in 

the attached letters contains a number of information requirements which 

are unique to First Nations. Inclusion of such requirements in terms of 

reference would ensure that the Crown, industry and First Nations have 

sufficient and credible information to assess impacts on our section 35 

rights. A failure to include such information leaves EAs, and resulting 

decisions, open to challenge. 

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We have a few additional concerns about EAs. First, we are often told 

that the purpose of EAs is to focus on the potential impacts of a project on 

“activities.” Our concern is not with “activities” but with potential 

impacts on our section 35 rights. “Activities” sounds very much like 

something engaged in for recreational purposes. Our rights are given 

constitutional protection – calling them “activities” is demeaning. 

Moreover, allowing an EA to focus on “activities” and not constitutional 

rights allows companies to downplay or ignore project-related impacts. 

A second concern is that CEEA, as written, does not require inclusion and 

consideration of our traditional use information and our traditional 

knowledge. It makes inclusion of this important information discretionary 

and not mandatory. This also leads us to question the veracity of CEEA. 

Failure to require consideration of this information makes us question the 

legitimacy of EAs and the sincerity of the federal government in taking 

steps to ensure that our rights are protected. 


CEEA needs to be amended to state, explicitly, that: 

(a) First Nations must be consulted on terms of reference for EAs 

(b) That the focus of such assessments cannot be on “activities” 

but on impacts to our section 35 rights 

(c) Our traditional use and traditional knowledge information 

must form part of any assessment – this must be a mandatory 

requirement 

E. CONCLUSION 

Our ability to exercise our section rights in a meaningful fashion is ever more 

threatened. The threat comes from seeing more and more development on our 

lands. But the threat also comes from what we see as the indifference on the part 

of the Crown, including the federal government, to take practical steps to ensure 

the protection of our section 35 rights. A proper and meaningful role for the


federal government can start with ensuring that some of our process-related 

concerns are taken into account in EAs. 

While we cannot undo development, we seek a fair and balanced process for the 

protection of our section 35 rights. Such fairness and balance is sorely lacking in 

EAs because the focus is never on determining what information and conditions 

are necessary for the protection of our section 35 rights. 

The recommendations that we have made would go a small part of the way 

toward ensuring such fairness and balance. There is no legal impediment to doing 

this. What is required is a change in the behaviour of the federal government to 

make us “insiders” in federal environmental assessments. 

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SUBMISSIONS OF THE ATHABASCA CHIPEWYAN FIRST NATION ...

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