Canada First Nations fight 'broken' system for green lighting oil projects

by @audromatic3000 July 1, 2015 5:00AM ET

A new process meant to involve First Nations does just the opposite, the aboriginal people say

Indian Country
Marvin L'Hommecourt stands in front of his trapping cabin. Under pressure from oil companies, he has been forced to move the location of the cabin several times.
Brian Harder for Al Jazeera America
This creek on L'Hommecourt's property once ran much higher. Water levels have been reduced since oil companies began using the area for their operations.
Brian Harder for Al Jazeera America

Editor's note: This is the second in a four-part series on Canada's oil boom. The first article explored the low-paid temporary worker economy that fuels the service sector in Alberta oil towns. 

WOOD BUFFALO, Alberta — Marvin L’Hommecourt gazes over the valley at the headwaters of the Muskeg River. Five years ago, the narrow creek threading along the valley floor reached the top of the bank, 10 feet above. Now, the creek is just a trickle. In recent years, oil companies have been draining it because they need the water for mining operations nearby. Eventually, all the land in sight could be turned into an open-pit mine.

L’Hommecourt, a member of the Athabasca Chipewyan First Nations Band, is standing in front of a trapping cabin on grounds he has leased for 20 years and his family has been using for far longer. This land is at the center of the Alberta oil sands, the third-largest oil deposit in the world. In this region, Athabasca, the tarry, semisolid form of oil mixed with sand and silt is mined and then refined into crude oil. That crude has reaped trillions in revenue for oil companies, but also radically transformed the landscape and created environmental hazards, including air pollution and ponds of toxic byproduct. Although the recent drop in oil prices has led many companies to put new projects on hold, the slowdown isn’t apparent in the area around L’Hommecourt’s cabin, where mining projects have been underway for more than a decade.

In his day job, L’Hommecourt works as a heavy-machine operator at the Imperial Oil site next door. But it’s his ability to trap that is under threat. His trapline, or hunting route, intersects with the leases of five oil companies. When he first began visiting this spot, only a narrow trail led from a dirt road to his cabin. Today, there’s a giant parking lot for buses transporting workers to the Imperial Oil mine. In the winter, which is prime trapping season, the buses idle to keep the engines from freezing. That sends up clouds of exhaust that L’Hommecourt says have given him headaches and nausea. And thanks to all the development, he says, the lynx and marten he traps have dwindled in number.

His predicament echoes the frustrations of First Nations members across the region. Most of the oil-sands extraction is taking place in the indigenous people’s traditional territories — land in which they have constitutionally guaranteed rights to access for hunting, gathering and performing ceremonies. In recent years, Alberta First Nations have repeatedly sued oil companies, as well as the provincial and federal governments, over new projects and policies that, the aboriginal people argue, violate their traditional rights to these grounds. The suits have created costly delays for oil companies. In response, the Alberta government recently overhauled its system for reviewing oil projects, a move designed to formalize aboriginal participation and streamline the entire process. However, First Nations oppose the new consultation process, arguing that it leaves too much power in the hands of the government.

“[It’s] a lackadaisical, broken consultation structure that doesn’t work in partnership with the First Nations to address any issues,” said Eriel Deranger, spokeswoman for the Athabasca Chipewyan First Nations. Earlier this year, the band sued the Alberta government for failing to consult it over the proposed Grand Rapids pipeline, which will weave through its traditional territory. “They didn’t come out to the communities,” said Deranger of government officials. “They didn’t engage with the First Nations to determine the impacts of this project, which puts to the question how they are supposed to determine how communities are impacted.”

The Alberta government has acknowledged problems with the new consultation process. A year after it went into effect, then-Alberta premier Jim Prentice said, “We can’t have consultation legislation that none of the people who are being consulted support.” Environmentalists are hopeful that the victory of Alberta’s left-leaning New Democratic Party in May’s provincial election could bring changes, as Rachel Notley, the party leader, has pledged to review the province’s environmental rules and review processes. In a statement, provincial government spokeswoman Michelle Davio wrote, “The Government of Alberta is committed to a new relationship with the Aboriginal People and to consulting in a manner that promotes and supports their relationship.”

L'Hommecourt must pass through this parking lot to reach his trapping cabin.
Brian Harder for Al Jazeera America

The regulatory overhaul began in 2013, when the provincial government created the Alberta Energy Regulator, or AER, to oversee the region’s energy development. Established alongside it was the Aboriginal Consultation Office, or ACO, which was tasked with evaluating whether proposed energy developments would hinder the ability of First Nations to practice their traditional rights. According to the new rules, if the ACO decides that aboriginal people would be affected, it could require energy companies to consult with First Nations before submitting a preliminary application to the government. Once the company submits an application, First Nations can still apply to participate in a public hearing on the proposed project, but at this stage, they have a higher burden of proof and a more limited ability to influence the outcome.

In June 2014, the AER held its first hearing, over the Grand Rapids pipeline. The $3 billion project would allow companies to transport up to 900,000 barrels per day from the oil sands region to Edmonton, the provincial capital. L’Hommecourt’s band, the Athabasca Chipewyan, argued that the pipeline’s proposed path crossed land used by community members, as well as 56 major waterways, including the Athabasca River, which flows into several indigenous communities. They felt, too, that the pipeline would encourage companies to expand oil-sands development in the region, threatening their way of life. However, the ACO had instructed TransCanada and Brion, the companies behind the proposal, that they didn’t need to consult the Athabasca Chipewyan before submitting an application to construct the pipeline. 

Lisa King
Brian Harder for Al Jazeera America

Lisa King is director of the Athabasca Chipewyan’s Industry Relations Corporation, which liaises with oil companies. She says the ACO did not explain its reasoning. (The ACO declined to comment on the case.) But King suspects the organization was relying on an outdated map, from 2000, that excluded the hunting and trapping sites of all but First Nations members who live in the largest community, Fort Chipewyan. King also argues, however, that the details of the map are beside the point: Roughly half the pipeline falls within the band’s traditional territory. In fact, she says, requiring First Nations to identify specific sites where they trap and hunt allows oil companies to simply modify the path of a pipeline ever so slightly. That, she says, enables the government to pay lip service to First Nations while essentially rubber-stamping projects.

The band was notified of TransCanada’s application in November 2013, after it had been submitted. The Athabasca Chipewyan were given a month to apply to participate in the review process. That left them with little time to gather evidence of the pipeline’s “direct and adverse” impact on their communities, the standard of proof set by the AER. The band felt that a technical review of the project and a land-use study were both necessary, but would take months to complete and cost tens of thousands of dollars. Given the 30-day deadline, the Athabasca Chipewyan settled for condensed versions of both. (TransCanada eventually agreed to finance the studies.) At the same time, the band was scrambling to respond to applications for two other TransCanada projects. But the final straw didn’t come until the hearing for the Grand Rapids pipeline in June 2014, when TransCanada unexpectedly filed the final draft of an environmental assessment detailing the company’s plans for mitigating environmental damage and responding to emergencies. The band had been asking for the draft for months. Although it was hundreds of pages long, the AER panel only gave the Athabasca Chipewyan one day to review it. The band decided to boycott the hearing rather than participate in a process it saw as unjust.

“They have a lot more staff than we do and money and resources,” said King. “The whole thing was just stacked against [us]. We thought it was unfair. We made a statement and then we pulled out.” 

L'Hommecourt shows the location of his cabin in relation to the mining companies holdings.
Brian Harder for Al Jazeera America

Others, too, take issue with the review process. Bill McElhanney, a lawyer representing the Bigstone Cree Nation, says the band chose not to participate in the Grand Rapids hearing because its members were afraid they would not be reimbursed for all the expenses they would have incurred, including legal fees and the hiring of experts. Another client he represented, a potato-seed farmer, ended up spending $23,000 out of pocket on legal expenses for the hearing on a pipeline that was to intersect his land. The AER typically requires the companies to reimburse parties for expenses they incur, but McElhanney says there has been greater uncertainty since 2013 over whether companies will cover the full amount. (Ryan Bartlett, spokesman for the AER, said the organization “will require the applicant to pay those expenses that are directly and necessarily related to an intervention.”)

For Nigel Bankes, chair of natural-resources law at the University of Calgary, cost is only one inequity built into the review process. The system places an especially heavy burden on First Nations that wish to participate, he said.

“It’s a really discriminatory way of approaching the connection to property,” said Bankes. When a person’s property is trespassed on, “we assume an adverse and direct effect. But we don’t assume it in the context of First Nations using their traditional territory. We’re way more demanding in terms of evidence of a conflict, even just to give standing. Remember, this is just a question of do we have to listen to you?”

The AER approved the Grand Rapids pipeline in October 2014. Three months later, the Athabasca Chipewyan filed a lawsuit against the ACO, alleging that its consultation process is unaccountable and unfair and denies First Nations their constitutional right to be consulted over actions that could affect their traditional livelihoods. The case could go to trial next spring.

L'Hommecourt expects that he may have to move again.
Brian Harder for Al Jazeera America
Traps hang inside L'Hommecourt's cabin.
Brian Harder for Al Jazeera America

Despite the exhaust fumes and inconveniences, L’Hommecourt still drives the seven hours to his trapline from his home in Cold Lake several times a month. (He works 10 days on, 10 days off at Imperial Oil.) Occasionally, his three children visit the shack with him. But they are adults now with children of their own, and they all work in a casino in Calgary, almost 10 hours away. L’Hommecourt could be the last generation of his immediate family to spend more than mere vacations out on the land. “Before, you trapped to make money,” said L’Hommecourt. “Now you need money to trap.”

He believes he will eventually be forced to leave his trapline altogether. Six years ago, he had just completed the walls of a log cabin he was building about 100 feet away from his current shack when Imperial Oil asked him to relocate. The new cabin blocked access to a bridge that trucks needed to reach the nearby mine, the company said. L’Hommecourt refused, but trucks carrying gravel began arriving at daybreak, and eventually, the noise and disturbance made him acquiesce. He took the 8,500-Canadian-dollar compensation the company offered, allowed its workers to dismantle his cabin, and built the shack instead.

Anticipating the day he will have to leave, L’Hommecourt has started building a log cabin on the land where he was born in Poplar Point, the Chipewyan reserve a couple of hours farther north. Accessible in summertime only by boating up the Athabasca River, Poplar Point remains largely undeveloped, with only around 10 residents at any time of the year. There, he will be able to trap in relative peace.

“I’m kind of cheering [oil prices] to go up so I can have job security,” he said. “But on the other hand, I’m looking at the oil prices and it’s going down. I’m thinking, ‘It’s going to be less guys out there trying to get in there and dig it up, less exploration and everything.’ They’ll leave me alone in terms of my trapline.”