Alberta’s government is setting aside $10-million to help Indigenous groups use the courts to support oil pipelines and other resource projects.
Premier Jason Kenney, who announced the litigation fund on Wednesday, has argued that a small group of well-funded First Nations, which have successfully used the courts to derail projects such as the Trans Mountain pipeline expansion, has drowned out the voices of Indigenous groups that support such projects.
“For too long, pro-development First Nations have been ignored in the debate over resource development,” the United Conservative Premier told a news conference in Edmonton.
The province will accept proposals from First Nations or Métis communities, as well as corporations or non-profit groups with Indigenous involvement, to file new lawsuits or intervene in existing cases. Groups applying for the money must support projects that “improve Alberta’s interests.”
While recent pipeline proposals have faced wide-ranging opposition, legal challenges from First Nations have proven to be the most significant obstacle.
The Trans Mountain pipeline was delayed after the Federal Court of Appeal overturned Ottawa’s approval for the project last year in part over inadequate Indigenous consultation. The Trudeau government held fresh consultations and reapproved the project this past June, though it is already facing a new legal challenge.
Enbridge Inc.’s proposed Northern Gateway pipeline was also blocked in 2016 after a court found the government had failed to properly consult Indigenous communities; the federal Liberals killed the project later that year.
Mr. Kenney argued that the legal and political debate has focused too much on pipeline opponents rather than listening to Indigenous groups that support it. He frequently says that many First Nations communities have signed benefit agreements with Trans Mountain and there are several Indigenous-led proposals to purchase a stake in the pipeline.
“The duty to consult Indigenous people is not limited to those who oppose development,” he said.
The group behind the proposed Eagle Spirit pipeline immediately said it would apply for funding to challenge a recently passed federal law that bans tanker traffic off British Columbia’s northern coast. The Eagle Spirit pipeline would carry oil from Alberta to a port near Prince Rupert.
Calvin Helin, president and chair of Eagle Spirit Energy Holding Ltd., said the lawsuit will argue that the federal government didn’t properly consult with pro-pipeline Indigenous communities before passing Bill C-48. He expects the case will be filed within the next month.
“The First Nations communities that are represented by us had not been consulted [about Bill C-48],” Mr. Helin said in an interview. “These communities are trying to develop their own revenue through the Eagle Spirit project."
Chief Leah George-Wilson of B.C.'s Tsleil-Waututh Nation, the lead Indigenous plaintiff in the case against the Trans Mountain project, dismissed the litigation fund and said it would not affect her community’s legal arguments.
“It doesn’t matter who is on the other side,” she said. “I still have those aboriginal rights and title, and Canada still has that duty to consult and accommodate.”
University of Calgary law professor Nigel Bankes said that when it comes to projects such as the Trans Mountain pipeline, it’s difficult to imagine what arguments a pro-pipeline First Nation could make that haven’t already been raised.
He said First Nations that support those projects would likely seek to intervene in existing legal challenges rather than launching cases of their own.
“I think it’s more a question of trying to put some balance in the courtroom in terms of numbers, so it’s not 20 on one side and three on the other,” said Dr. Bankes, who holds the Canada Research Chair in natural resources law.
The Alberta government also plans to launch a Crown corporation this fall to offer loan guarantees and other help to Indigenous-led proposals to buy into the Trans Mountain pipeline or other resource projects.