Supreme Court Refuses to Hear Athabasca Chipewyan First Nation’s Constitutional Challenge

In the latest development in a case that began more than a year ago, the Supreme Court of Canada has decided it won’t hear the Athabasca Chipewyan First Nation’s appeal of the Joint Review Panel’s refusal to hear the ACFN’s constitutional challenge of the Jackpine Mine expansion project in their territory. 

Athabasca Chipewyan Chief Allan Adam expected little more from the Harper administration.
 “It just goes to show that this government is a racist and fascist government and will continue to be so as long as it’s in power.”

In a story that mirrors the nation’s Treaty 8 relationship with the Government of Canada, Shell Oil Canada entered into a series of agreements with the ACFN prior to beginning the expansion project—including providing resources for community members to be involved in discussions, the mapping of traditional territories and commitments to trace the project’s impact on sacred sites—after years of broken commitments, the ACFN decided to take action.

In October 2012, the Athabasca Chipewyan nation filed a constitutional challenge to rule on whether the Crown had adequately fulfilled its duty to consult with First Nations on development that would affect traditional territories. When the JRP ruled that it had no jurisdiction to make the judgment, the ACFN applied to stay the proceedings; this was also denied. 

The claim that the JRP lacked the jurisdiction to intervene on the case came in spite of a Supreme Court decision from three years ago, Rio Tinto Alcan Inc. v. Carrier Sekani Tribal, that stated that any tribunal that has been granted the power to determine questions of law and public interest is thereby given the power to assess constitutional questions before the tribunal, including assessing whether the Crown has fulfilled its duty to consult with First Nations.

The ACFN turned to the Alberta Court of Appeals and then, in January, the Supreme Court of Canada. The Supreme Court stated that the matter is not of national import and therefore not within its jurisdiction. The decision means the federal court is placing responsibility for Indigenous rights in the hands of the province.

Adam believes this decision means the end of the line when it comes to using the court system to defend land rights.

“There’s no other legal action that can be taken. What's the use in taking legal action in terms of how we move forward?” he said. “First Nations people will never get justice and we continue to take that into consideration.”

The outcome of this process is indicative of a double standard when it comes to Canadians’ constitutional rights. Adam said this series of decisions from multiple levels of the legal system shows how the government and the Crown view of First Nations rights.
 “We have to look at that fact in more ways than one. First Nations in Canada, Indigenous people in Commonwealth countries that are involved with treaties with Great Britain, will never get justice because it’s a racist democracy.”

Having all but exhausted the legal avenues available, some within the nation see direct action as the only feasible next step. Defenders of the Land, a network of Indigenous activists established in 2008, has joined forces with Idle No More founders to build an initiative called Sovereignty Summer, a plan of non-violent direct action to challenge “illegitimate corporate power.”

Adam said he doesn’t support any action that could lead to violence, but anticipates seeing more direct action as the temperature rises.

“Summer is approaching quickly. Don’t be surprised to see more people out in the streets across the country, and don’t be surprised if major development areas get shut down.”

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