Shell's Tar Sands Expansion Could Be Illegal

The residents of Fort Chipewyan, an indigenous community near the Arctic Circle, that lives directly downstream from Canada’s tar sands in Alberta, are officially challenging tar sands expansion there on constitutional grounds – saying it violates their rights under Canada’s First Nations treaties.

For the first time, a Canadian First Nation will officially challenge tar sands development on the grounds of aboriginal rights.

If this test case is successful, it would embolden indigenous groups across Canada to fight abuses by industry and government. It would set a precedent for stricter enforcement of treaty rights and change the way industrial development is regulated, Chelsea Flook of the Sierra Club told Yes! Magazine.

On October 1, the Athabasca Chipewyan First Nation filed a constitutional challenge to Shell Canada’s expansion of its Jackpine tar sands mine, which would would increase  production capacity by 100,000 barrels per day by destroying more than 50 square miles and mining in the Muskeg River. 

They are challenging the project on the basis of:

Its irreversible impacts on culturally protected lands and hunting, fishing and trapping rights. It will endanger one of Canada’s most important watersheds, polluting the water and air, and destroying animal habitats.

The nation also alleges that the expansion violates its rights under Treaty 8, an agreement signed back in 1899 between Queen Victoria and First Nations peoples.

The community is already reeling from abnormally frequent cases of rare cancer, and deformed fish in the rivers are now commonplace from poison air and water.

Hearings at the Alberta Joint Review Panel begin October 23rd in Fort McMurray, Alberta.

Treaty 8 covers an area twice the size of California in northern Alberta and neighboring provinces, guaranteeing  indigenous peoples’ access to health care and education, as well as their right to pursue traditional ways of living, including trapping, hunting, and harvesting.

Under the treaty, Canada’s federal government has an obligation to consult any First Nation that might be affected by a development plan – which it allegedly failed to do in this matter.

“The feds have a responsibility along with the province to fully engage the First Nations in consultation – which they refuse to do so – when it comes to major development," Allan Adam, chief of Athabasca Chipewyan First Nation, told The Globe and Mail. "This time we’re going to take it all the way, and we’re going see first hand what the government was thinking when they went ahead and developed this plan without first nations’ involvement.”

The Alberta government, under pressure to address  environmental concerns related to tar sands production,  created an agency in mid-October to monitor the impacts. Funded by government and industry money, its initial focus will be on the region where this challenge is taking place.

The agency is described as independent, although it officially reports to Canada’s Environment Minister Diana McQueen – she will be able to review information before it is released to the general public.

The plan is viewed with skepticism by environmental groups.

"This is yet another plan to develop a plan," Mike Hudema, climate and energy campaigner for Greenpeace, told Reuters. "There is still no funding commitment and no clear governance model to ensure independence. The province should stop approving new projects based on flawed data and incomplete information until this gets sorted out."

The constitutional challenge is part of a growing movement within Canada to stop the advance of tar sands development – a practice emits triple the carbon emissions of conventional oil, while decimating its Boreal Forest. 

The Northern Gateway tar sands pipeline that would run west through Canada to the Pacific coast for export is being called "dead." Yes, the federal government and pipeline companies will continue to push for it, but the government of British Columbia opposes it – saying the risks outweigh the rewards –  as do the indigenous people that live along the route. 

Enbridge, which would build the pipeline, confirmed three ruptures in June (27,000 barrels of oil) on existing pipelines, adding to the 800 spills since 1999. They were responsible for the most devastating and expensive on-shore oil spill in US history – over 800,000 gallons of oil spilled into a tributary of Michigan’s Kalamazoo River. Nearly two years later, cleanup continues. The rupture has been blamed on corporate neglect and weak federal regulations.

And in the US, protests continue to heat up in Texas, where eminent domain was used to seize private land for the southern route of TransCanada’s Keystone XL Pipeline.

The US is moving closer to opening our own tar sands in the Utah wilderness.

The Athabasca Chipewyan First Nation has launched the website, Stop Shell Now: