By John Watson
Local Journalism Initiative Reporter
Strathmore Times
Siksika Nation is challenging the Province of Alberta in court over their decision to end a moratorium on coal development in the Rocky Mountains.
In May 2020, Siksika Nation filed a legal challenge against the province’s decision to rescind the 1976 Coal Policy, which had protected approximately 14,000 square kilometers of land in the Rocky Mountains from coal development.
The lawsuit ended in May 2021 when the Coal Policy was reinstated. The province’s Coal Policy Committee was to engage with the public and consult with First Nations about coal development in the Rockies.
“We are filing a judicial review on the decision to lift the coal moratorium on the eastern slopes specifically. Siksika, before they lifted that moratorium, was able to work with the advisory committee on that project and the recommendation from that board was to not lift the moratorium,” said Samuel Crowfoot, member of Siksika Chief and Council. “Despite that recommendation, despite the consultations that we had and our ability to go in there and make that position known, they decided to lift the moratorium on the coal regardless.”
Crowfoot explained Siksika Nation feels they have no other option but to litigate in order to protect the mountains from coal mining developments.
He referenced the effects coal mining has had on Elk Valley. A region once boasting significant elk and bighorn sheep populations, now is regarded as effectively dead in terms of biological sustainability.
“We are trying to protect that, we are trying to protect the rivers, we are trying to protect the water that we are all dependent on,” said Crowfoot. “Honestly, it is more than that. When the cathedral of Notre Dame burned down, everybody was heartbroken over that. They were upset about it because it was such a loss to culture, there was such a loss to people’s religion because that is a huge religious building for Catholics. These mountains are our cathedral of Notre Dame. We practice, we pray, we worship them, we go up there to live our way of life.”
He noted if another religion’s church was found to have valuable resources beneath it, it would not be demolished in order to reach them and questioned why that should not be the case in this instance.
Chief Ouray Crowfoot added the Rockies continue to be important traditional territory for Siksika and are among some of the last remaining areas where Treaty hunting and fishing is able to take place.
“We have tried to engage the Government of Alberta in good faith over the past several years on this issue. They made commitments to consult with First Nations in regional land use plans and other forums, but they just do not listen,” he said. “Litigation was our only option at this point. Once coal mines are approved, the damage will be done, and it will be too late.”
The originating application for judicial review describes the order by the province to be unlawful, being in breach of the duty to act honourably and consult Siksika Nation, particularly in light of the cumulative effects of development throughout the Eastern Slopes.
Additionally, it is beyond the presiding Minister’s statutory authority which cannot be interpreted to breach the Crown’s duty to consult, it was issued in breach of the Minister’s duty of procedural fairness, and the province has failed to demonstrate a justified, transparent, and intelligible rationale for making the order.
“Siksika is not a litigious First Nation. They do not run off to the courtroom as a first response to anything really, and for about six years, they have quietly, behind the scenes, been attempting to engage the province through the Ministry of Environment, the Ministry of Energy, discussions with the premier when they have had meetings with her to really get their concerns about local development in the Rockies and the Foothills understood,” said Clayton Leonard, legal counsel for Siksika Nation. “They have been clear from the beginning, they have never been anti-mining; they would just want to ensure that the process that leads to decisions about where mining can occur and the environmental screening that these things have to go through, it takes into account the two realities.”
These are that the Eastern Slopes are one of the last places the Blackfoot have to exercise their rights to pursue a traditional way of life as there is nowhere else in Southern Alberta, and that the Rockies are the source of everybody’s water.
Leonard added typical results of litigation cases such as these result in the courts directing the Crown or the province to go back and do a better job of consulting with the litigating First Nation and create more conversation as opposed to firmly halting progress on developments indefinitely.
He estimated the litigation and process of court proceedings may take approximately two years to completely resolve. Alberta will be given several months, even potentially a year to produce documents in its possession relevant to the decision to lift the moratorium, which is filed with the court.
“Siksika has filed another legal action, which is called a Treaty Infringement Action. It is a much bigger lawsuit, so they did a three year study with a team of experts to (take a) very sophisticated look at cumulative effects, (on) the Blackfoot Treaty region, which is from the Red Deer River down to the American Border to look at what areas can still meaningfully support Treaty rights use in traditional land use,” said Leonard. “The conclusion of that study found that only about four per cent of the entire treaty region remains available for the meaningful exercise of treaty rights. That is a big issue and Alberta has been served with that action. They are aware of what it means and that should have factored into decisions like ‘do we take untouched areas or areas with less development and open them to something as devastating as open pit coal mining?’”
This reported four per cent takes into account intact habitats for species that are key for hunting use restrictions, the unavailability of private and developed land, and all forms of resource development. It has been a steady decline of available land since the signing of the Treaty in 1877.
Leonard added Siksika Nation is ultimately looking for an opportunity to resolve the situation outside of the courtroom, and want to have conversations about land management, and how to address their concerns about continuing to protect land use and water supplies.
“Alberta seems almost fearful of partnerships with First Nations or working with them. Quite often, there are not even attempts to do that,” said Leonard. “That is something that has to change.”