SUBMISSIONS OF THE ATHABASCA CHIPEWYAN FIRST NATION ...

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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. 3393259.1
Page 3 April 28, 2009 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 3393259.1
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SUBMISSIONS OF THE ATHABASCA CHIPEWYAN FIRST NATION ...

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