Realities of Consultation and Accommodation in Alberta’s Oil Sands Region

Delaney is one of CLA’s interns placed in Fort McMurray, Alberta with the Mikisew Cree First Nation. She studies civil and common law at McGill University.

Delaney is one of CLA’s interns placed in Fort McMurray, Alberta with the Mikisew Cree First Nation. She studies civil and common law at McGill University.
 

Sharing stories at Culture Camp, the evening before Mikisew Treaty Days (Photo courtesy of Delaney Greig)
 

As I head into the final two weeks of my time with the Mikisew Cree First Nation (MCFN), I find myself in a reflective mood, looking back on all I have learned and experienced this summer with the MCFN Government Industry Relations (GIR) office. The small GIR office is tasked with dealing with the multitude of companies involved in exploiting the bitumen rich tar sands that sit under MCFN’s traditional (and still well used) territory.  The GIR also intervenes with the Federal and Provincial government on environmental impact assessments and works to decipher and influence the constantly changing provincial regulatory regime.

In theory, each time a project, such as an extraction site, exploratory drill site, pipeline etc., is to be developed in the region the proponent would submit an application to the relevant Government body. The Government would then consult with MCFN and other affected First Nations on the project. Based on this consultation, it would direct the proponent to alter their project so as to mitigate its impact on First Nations and their land, or reject the project as a whole, if impacts were too great. In this way the Government would fulfill its constitutional duty to consult and accommodate First Nations. While there remain some grey areas as to what adequate consultation and accommodation looks like, the basic duty is reflected in the constitution and has been fleshed out in court cases over the last 30 years.

Here in Alberta however, the process is completely different. For one, no oil sands project has ever failed to receive provincial approval, so the idea that accommodation might mean saying no to development, doesn’t seem to be in consideration. Second, Alberta has essentially devolved its consultation and accommodation responsibilities to the project proponents themselves. Rather than meeting with an impacted First Nation directly to consult on their concerns and determine mitigation possibilities, the Government of Alberta leaves this up to the company developing the project. Alberta defines its role as ‘overseeing’ the consultation process. Companies send consultation records to Alberta outlining the communication they have had with a First Nation and Alberta approves these. It is up to the company to determine what it sees as adequate accommodation.
 

Aerial view of part of two oilsands projects with the Athabasca river running between (Photo courtesy of Delaney Greig)
 

When I first learned of this, I was shocked that the government could abdicate its constitutional duty in such a way. “Why hasn’t anyone challenged this?” I thought. As I gained more experience in the process and spoke with colleagues who have been working in the field for years, I came to see that on a practical level there is some value to MCFN in dealing directly with the companies.

Alberta is notoriously bad at communication with those whose views of development do not match its own. For the dozens of letters that GIR writes to Alberta each year few, if any, receive a response. While it is easy enough to reach a low-level official via email or phone, getting in touch with anyone in a position of influence is virtually impossible. From time to time the Province holds engagement sessions with First Nations representatives on regulatory changes or environmental monitoring, but the input received at these meetings is almost never reflected in policy. In many ways communication with the Province is a process of throwing ones words (and time) down a black hole.
 

Aerial view of the Athabasca delta downstream from the oilsands (Photo courtesy of Delaney Greig)
 

By contrast, communication with a project proponent company can involve actual dialogue and a process of negotiation and engagement. This is not to say that proponents do a good job of accommodating the rights of First Nations. To a large extent their consultation efforts are aimed at box-checking in the environmental assessment process, but at least one can expect to hear back from a proponent on submissions and letters and can follow-up in person on requested information or action items. Proponents will come to meet members of the First Nation to hear their concerns, and from time to time, make efforts to address these.

From what I’ve observed MCFN’s decision to engage in the status quo process seems to be a practical calculation – why raise a stink about Alberta’s non-consultation when it may not get you anywhere, and at least in the current process the First Nation have the chance to negotiate with a proponent to address some impacts and benefits? Ultimately, Aboriginal and treaty rights are still being disregarded daily in the oil sands region, with neither proponent companies nor provincial government being held to account. However, when one is fighting a David and Goliath battle to save ones home on a short clock and with limited resources, these larger battles of fundamental justice, sadly give way to more immediate, practical avenues for self-protection.