May 13, 2008
Faced with the decision of either granting the Lubicons status at the hearing on TransCanada's application to build a major gas pipeline across unceded Lubicon land without Lubicon consent and dealing with the possible political implications of the Lubicons appearing -- or denying the Lubicons status at the hearing on TransCanada's proposed pipeline and facing the possible political implications of denying the Lubicons status at the hearing -- the Alberta Utilities Commission (AUC) has decided to try and avoid political accountability for denying the Lubicons status at the hearing by taking the position that the Lubicons have effectively denied themselves status at the hearing by refusing to answer the AUC's supposedly reasonable questions. It's a crafty variant of the old "blame the victim" strategy.
On May 8, 2008 the Lubicons were advised that the AUC "confirms its decision that the Lubicon Lake Indian Nation has not provided the information necessary to demonstrate that it has a right to standing in this proceeding". Specifically, the AUC decision available here says:
"It (the Lubicons) did not provide any information about the specific aboriginal rights they exercise in the vicinity of the proposed gas utility pipeline, where the rights are exercised, or about the manner in which their rights may be directly and adversely affected, as requested by the Commission."
The information the AUC wanted the Lubicons to provide is how far in meters from the route of the proposed pipeline does a Lubicon live, and what legally recognized aboriginal surface rights might that person have on off-reserve provincial Crown land that might be directly and adversely affected by pipeline construction. Providing that information is of course a trap for the Lubicons since answering such questions would be tacit Lubicon consent that unceded Lubicon land is properly under provincial jurisdiction and that the AUC has legitimate authority to decide whether and which such legally recognized aboriginal surface rights on off-reserve provincial Crown land might be adversely affected by construction of the pipeline.
The legally recognized aboriginal surface rights the AUC is talking about are basically the rights of Indians who signed treaty "to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered...subject to such regulations as may from time to time be made by the Government of the county, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". Off-reserve land and resource rights are expressly denied by the province. The rights involved are just basically the right to wander around on land not required for something else surviving as best you can "like the deer in the field".
Moreover we are not talking about whether a traditional hunting and trapping way of life might be directly and adversely affected or, for that matter, irreversibly damaged or even destroyed. What the AUC is talking about is specific, quantifiable things like financially compensable damage to a trapping cabin or to traps. The model is privately titled land under provincial jurisdiction. The province has the legal right to grant TransCanada surface rights across privately titled farmer's land under provincial jurisdiction but TransCanada is required to financially compensate the farmer for related damages and/or to "remediate" the damages. If TransCanada and the farmer cannot agree on appropriate "remediation" and/or the amount of the damages, the AUC can order specific "remediation" and/or financial compensation typically tied to some calculation of fair market value. A farmer cannot, however, refuse access across his land granted to a resource company by the province.
Indian reserve land is not an issue in this situation because Indian reserve land is clearly under federal jurisdiction. The AUC clearly does not have jurisdiction over Indian reserve land. And TransCanada would clearly require the consent of the involved indigenous society to cross Indian reserve land. The Lubicons of course don't have reserve land because reserve land in northern Alberta is a so-called "benefit" of signing treaty with Canada thereby supposedly ceding aboriginal "rights, titles and privileges" to extensive traditional land and resources in exchange for small Indian reserves and some other so-called benefits. The Lubicons have not signed treaty surrendering Lubicon land and resource rights.
What's thus properly under the purview of the AUC at the hearing of the TransCanada pipeline application are the rights of Indians who have signed treaty "to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered...(on off-reserve land under provincial jurisdiction) ...subject to such regulations as may from time to time be made by the Government of the county, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes".
What's not properly under the purview of the AUC is Indian reserve land, which is under federal jurisdiction, and aboriginal land that has not been ceded to Canada by treaty.
Something else the AUC is not talking about is determining the existence, nature and extent of unceded Lubicon land rights -- which technically is a matter of exclusive federal jurisdiction under the Canadian Constitution -- or determining whether the AUC has jurisdiction in unceded Lubicon Territory. The AUC is simply assuming that it has proper jurisdiction and legitimate authority and, if the Lubicons were to try to argue unceded Lubicon land rights before the AUC, the AUC will simply refuse to consider the question of whether it has jurisdiction over unceded Lubicon Territory and take the position, as did its sister regulatory agency the Energy Resources Conservation Board (ERCB) a few years ago, that the AUC "does not have the jurisdiction to determine its own jurisdiction".
What's left for the upcoming hearing is a collegial discussion between resource companies and their provincial regulatory agency cronies about how construction of the proposed pipeline across unceded Lubicon land is very important for companies that want to expand their tar sands operations, and about how some other companies don't want to pay a higher tariff to transport their gas through the TransCanada pipeline system in order to pay for the proposed billion dollar pipeline. Environmental concerns and whether the AUC has legitimate jurisdiction to authorize construction of a huge new pipeline across unceded Lubicon land won't likely get much of an airing in this context.
With no Lubicon land negotiations since the end of 2003 when federal negotiators took the position that they did not have a mandate to negotiate outstanding settlement issues, and with no sincere effort on the part of the federal government to meet its constitutional responsibility to settle the outstanding issue of unceded Lubicon land rights, all of this is leading to the issue of enforcement of jurisdiction and who is prepared to do what to whom on the ground.
That's not a good way to solve this kind of problem. That's a good way to make this kind of problem much worse.
fol-request at masses.tao.ca