Lubicons denied standing at pipeline hearing

Friends of the Lubicon
PO Box 444 Stn D,
Etobicoke ON M9A 4X4
Tel: (416) 763-7500
Email: fol (at) tao (dot) ca

April 25, 2008

This afternoon the Alberta Utilities Commission released its Prehearing Meeting decisions on status and process. A copy for your information is available at

The hearing on construction of the TransCanada pipeline across Lubicon land is now scheduled for July 28 through August 8, 2008 with the process of making submissions, replies, submitting evidence, rebutting evidence and so on to start on May 8th. This schedule for the hearing of the application puts in perspective TransCanada's proposal to the Lubicons "not initiate any further steps before April 22nd, 2008, to advance its NCC application through the AUC process". Nothing is scheduled to start until May 8th anyway.

As expected the AUC has effectively denied the Lubicons status before the hearing although they've been a little more subtle then their sister provincial regulatory body the Energy Resources Conservation Board (ERCB) a few years ago when it refused to consider the issue of jurisdiction because, it said, "jurisdiction to decide jurisdiction is beyond our jurisdiction".

The AUC Prehearing Meeting decision says "The Lubicon Lake Indian Nation has not demonstrated that it has a right to standing in this proceeding...(because)...the Lubicon Lake Indian Nation has not provided detailed information in support of its assertion of aboriginal rights and the area on which they exercise the asserted aboriginal rights". "Even if the Commission were to accept the Lubicon Lake assertion of aboriginal rights", the decision says, "it has not been provided any information about the specific aboriginal rights claimed in the vicinity of the propose gas utility pipeline, where the rights are exercised in relation to the proposed gas utility pipeline and the manner in which those rights may be directly and adversely affected by the decision of the Commission on the Application". It says "The Commission would be prepared to accept additional information from the Lubicon Lake Indian Nation, as previously requested to be filed on or before May 5, 2008, if the Nation wishes to participate in the proceeding."

That's the kind of information the Lubicons submitted to the ERCB that produced, among other things, the earlier ERCB ruling that "jurisdiction is beyond our jurisdiction".

It's also the point the Lubicons have been making. The existence, nature and extent of Lubicon land rights is not for the AUC to decide. Only the Government of Canada is constitutionally empowered to negotiate a settlement of unceded Lubicon land rights. Until unceded Lubicon land rights are settled, provincial jurisdiction doesn't apply and the AUC does not have legitimate authority to decide anything in unceded Lubicon Territory.

The problem, of course, is that the AUC proposes to proceed as though the issue of jurisdiction is settled and they have legitimate jurisdiction to adjudicate issues and authorize resource company activities in unceded Lubicon Territory without Lubicon consent.

All of this stuff about providing the Commission with information so the Commission can decide whether Lubicon land rights exist, and what they include, and whether they will be directly and adversely affected by the TransCanada pipeline is just a charade -- a way to assert provincial jurisdiction over unceded Lubicon Territory, facilitate resource exploitation in unceded Lubicon Territory and create the illusion of legitimate provincial government regulation of resource exploitation activity in unceded Lubicon Territory.

The question is what can be done about it.


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