Native bands challenge omnibus budget bill in court

Two native bands are attempting to challenge parts of the federal government's omnibus budget bill in court.

The bands are the Mikisew Cree and the Frog Lake First Nation, both from Alberta.

The chiefs of both bands arrived in Ottawa Monday to present their application to the Federal Court on Tuesday.

They are asking for a judicial review of the environmental provisions in two budget bills — Bill C-38 and Bill C-45 — because of proposed changes to the Fisheries Act and the Navigable Waters Protection Act. 

The bands are basing their application on past Supreme Court of Canada decisions that have recognized that the government has a constitutional duty to consult with aboriginal groups about decisions that may adversely impact lands, waters and resources that are subject to aboriginal or treaty claims. And consult doesn't mean just polite listening: the court has said that the government has the duty to consult, and where appropriate, accommodate. 

Both the Mikisew Cree and the Frog Lake First Nation are financially successful bands from resource-rich territories. The Mikisew Cree won a Supreme Court case in 2005 about the duty to consult regarding a road through a part of Wood Buffalo Park in its territories close to the oilsands. 

'Open season to our territory'

Chief Steve Courtoreille of the Mikisew Cree said Monday, "We depend on ... our livelihood, our way of life … out in the land. They're [the government] supposed to protect our land, waters, air. Now it's giving industry open season to our territory." 

George Stanley, the former chief of Frog Lake First Nation, in Ottawa because the present chief is sick, said, "We've been at it for 130-plus years," meaning negotiations with government, but added that his people are now more knowledgeable and can better understand what he called the government's "language."

Both men say their bands were not consulted at all by the government. They, as well as the Idle No More movement, are particularly bothered by a new act that was buried in one of the omnibus budget bills, C-45. 

The new act would replace one of the country's oldest laws, the Navigable Waters Protection Act. It was established in 1882 and said that no one could block, alter or destroy any water deep enough to float a canoe without federal approval.

That act was amended in 2009 to leave the description of protected water largely up to the minister.

This new act focuses on providing federal protection only for Canada's busiest rivers, lakes and oceans. It's designed to do away with red tape created by the old act, which said that even docks and culverts needed federal approval, often taking years to get.

At a press conference Tuesday Robert Janes, lawyer for the two bands, outlined how changes to the act would impact his clients. 

"There are literally thousands of rivers and streams, small lakes — including Frog Lake —  that are no longer protected," he said.

"If we look at the area around Mikisew, it's essentially a vast inland delta. It's actually the second-largest inland delta in the world. And there are a vast number of navigable waters, many of which don't have formal English names, which are no longer protected.

"Many of these would be dug up, covered, or otherwise changed by oilsands development, other development. It's literally in the area of thousands of rivers and steams."

Pushing the law to the 'next level'

Although past Supreme Court decisions have ruled that the duty to consult with aboriginal peoples must deal with specific examples of adverse impact, Janes said the case would try to push the law to the "next level."

"This is something the courts have been moving to over the years," he said. "Once upon a time, the government's position was, tell us if we're disturbing a grave but now over time the court has said, you have to talk about environmental review processes, planning processes — you have to talk about strategic decisions."

Janes also talked about why environmental law changes were so vital to the two bands:

"There's oil sands development in this area. Mikisew is immediately north of the Fort McMurray-Fort MacKay area, and the river flows down through the oil sands to where Mikisew is located, and Frog Lake is an oil sands development area."

Both Janes and the two chiefs emphasized that they don't expect the federal court to rescind provisions in the act, but hoped the court would order the government to consult with the relevant aboriginal groups.

Janes added that he fully expects the issue to end up once again before the Supreme Court.

As for the meeting of First Nations representatives with Prime Minister Stephen Harper on Jan. 11, Stanley, now a regional chief with the Assembly of First Nations, said that it was just "another general meeting in my eyes." Courtoreille wasn't sure whether he was even invited.