Friday, December 12, 2008

Busy Days on Oil Sand Development Issues.

It has been quite the time on a wide range of oil sands issues and events over the past couple of weeks.

We have the economic elements seeing capital projects being delayed, deferred and some may even die or leave the province due to high costs, low oil prices and the evaporation of capital markets.

We have the ENGO sourced news based on a science-based report on the oil sands development adverse effects on migratory birds. Then we say a study released on seepage and leakage from toxic tailing ponds. This was all being done at a time when there is a big experts conference in Edmonton on what to do with the tailing ponds where industry floated the idea that they water may have to be treated and released into the Athabasca and Mackenzie River basins.

We also have the Alberta Land Use Framework and the Alberta Energy Strategy policy releases happening too. At the same time we have the Poznan Poland meetings on climate change that is drawing uncomplimentary international attention to oil sands development.

On the social side, yesterday I helped professionally with the communication of the Judicial Review initiative of the Athabasca Chipewyan First Nation. They are seeking a Court declaration that the Province of Alberta has to engage in meaningful consultation on the impact of oil sands projects before any leases are granted to development companies.

This is a very interesting case that challenges the current provincial policy that puts the duty to consult on industry after an oil sands lease is granted. It is not the job, nor the duty, of industry to consult with First Nations people on Treaty Rights and Traditional Use issues. It is the province’s responsibility and it is not one that can be effectively delegated to a third party.

There is nothing legally stopping Alberta from consulting in a meaningful way with First Nations on their Constitutional rights before an oil sands or any other natural resource lease is granted that impacts those rights. B.C. does it. It is just Alberta policy that creates uncertainty, additional expense and even delay in projects because of a lack of clarity and process and an ineffective policy position.

This Judicial Review application is not about money. It is about Alberta meeting its duty to consult legal obligation in advance of leasing crown lands that will have an impact Treaty Rights and Traditional uses.

With the current slowdown in the oil sands development, there is a chance to take a breath and do oil sands development right not just rapidly. Doing it right involves a comprehensive and integrated policy approach that deals effectively with the economic, environmental, societal and legal aspects of responsible oil sands development.

The advent of new provincial energy and land use policies provides a platform for a better dialogue with Albertans, including aboriginal Albertans, in the appropriate development of this crucial non-renewable resource. This ACFN legal action will likely cause the province to first say they will not discuss matters before the courts. That would be an unhelpful response towards finding a mutually beneficial resolution that would aid the province, industry and aboriginal people in finding an effective and fair resolution.

Time will tell if an enlightened policy will come forth from effective goodwill negotiations involving the province, First Nations and industry the need to consult before leases are issues. Or will there be no alternative but to have a court imposed “solution.”