The Alberta government is attempting to block another possible route for First Nations to have their concerns about the oilsands heard within the context oftreaty and Aboriginal rights.

The provincial government recently told a panel responsible for reviewing the Lower Athabasca Regional Plan (LARP) that it is not allowed to consider concerns about treaty rights raised by six northern Alberta First Nations, who are calling for a complete overhaul of the land use plan for the oilsands region.

"Alberta submits that the majority of the concerns raised by the applicant are not related to the content of LARP and are therefore outside of the panel's jurisdiction and must not be considered," states a submission by the Crown to the panel.

The Athabasca Chipewyan, Mikisew Cree, Onion Lake, Chipewyan Prairie Dene, Cold Lake and Fort McKay First Nations have all requested reviews of LARP, which they say has direct and adverse impacts on their ability to exercise their traditional land use rights.

"LARP is being applied by decision makers and relied upon by oilsands companies to preclude the protection of Aboriginal and treaty rights and traditional land uses of Aboriginal peoples in general," reads the request for review from the Athabasca Chipewyan First Nation.

The province says questions of constitutional law, concerns that relate to an inadequacy of consultation and alleged harms relating to pre-existing and/orfuture industrial activities cannot be considered by the panel. It argues that only harm to "income, property, health or quiet enjoyment of property" caused directly by LARP can be considered.

But lawyers for the Mikisew Cree First Nation say the Aboriginal perspective needs to be considered when it comes to determining what impacts are felt "directly and adversely."

"Our right to use our traditional lands for our rightsbased activities is analogous to our right to quiet enjoyment of property. Our right to earn our livelihood and to obtain sustenance from our harvesting activities is analogous to our right to earn an income," their counsel wrote, adding that the plan erroneously equates traditional land use with recreational activities.

Defending the plan in its submission, lawyers for Alberta said LARP would not adversely impact the First Nations in any way, adding claims that the plan is biased towards industry are unfounded.

"LARP does not prioritize development for the Lower Athabasca Region. Rather, it strives to strike a balance between social, environmental and economic outcomes, taking into account the current state of the region," reads the submission.

The final version of LARP was approved in August 2012 and is intended to balance environmental protection with industrial development in the oilsands regionover the next 50 years.

First Nations had problems with the way the plan was developed and opposed it as soon as it was released, signalling they would use the review panel route to get it changed.

Traditional land use plan needed: panel The First Nations are not alone in their critique of LARP. In its final report, the joint review panel for Shell's Jackpine Mine expansion bemoaned the lack of a forum for concerns around Aboriginal rights to be heard in the province in relation to oilsands development, and recommended the province include consideration of traditional land use (TLU) within LARP.

"The absence of a management framework and associated thresholds for TLU makes it very difficult for Aboriginal groups, industry, and panels such as this oneto evaluate the impact of individual projects on TLU. The Panel believes that to inform land use planning and allow better assessment of both project and cumulative effects on Aboriginal TLU, rights, and culture, a TLU management framework should be developed for the Lower Athabasca Region," the panel wrote.

"The Panel recommends that Alberta develop and implement a TLU management framework for the Lower Athabasca region as a component of the LARP."

This is not the first time First Nations in the oilsands region have been told their concerns around treaty and Aboriginal rights could not be considered. A constitutional challenge to the Jackpine Mine expansion was tossed out of the provincial tribunal after the panel decided it was not equipped to deal with questions of Section 35 rights. The LARP review panel, appointed in June, has until June 22, 2015 to review the First Nations' requests and issue recommendations to the government.

Credit: Northern Journal