Water is not a commodity. Water is a spirit, a living thing. Water sustains life and must be protected (tu bet’a ts’ena, p. 6, footnote).
From May 2022 to November 2023, there were three uncontrolled discharges of industrial wastewater at the Kearl Facility, operated by Imperial Oil, in Athabasca Chipewyan First Nation’s territory, resulting in over 5.3 million liters of toxic tailings and 670,000 liters of other contaminated water being released directly into the territory.
The uncontrolled discharges of tailings by Imperial Oil were and are devastating for so many reasons. A core component of the legal case is how the discharges have impacted an integral part of life as we know it – water.
Coincidentally, Chief and Council of Athabasca Chipewyan First Nation (ACFN) passed their own water policy titled “tu bet’a ts’ena – With Water We Live” in August 2023, when tailings from the Kearl facility were seeping into the Athabasca and Firebag rivers without their knowledge.
This symbolizes the history-making times we’re in. First Nations are asserting their sovereignty to protect their rights and territories like never before, formalizing their Nation’s legal orders in policy so they can enforce them against government and industry. Meanwhile, governments and industry continue to run roughshod over those legal orders and policies, disrespecting different cultural approaches for the sake of economic “prosperity.”
tu bet’a ts’ena is a policy that is changing the future of government relations and industry, which should be getting the respect it deserves. Let’s look into what exactly it looks like and protects.
Re-establishing Authority
Ultimately, the Water Policy is meant to protect the Athabasca River, Lake Athabasca, and the Peace-Athabasca Delta (PAD). Yet, with ACFN’s reassertion of sovereignty to protect and steward their lands in the face of development, the policy is so much more.
ACFN begins the Water Policy with a disclaimer that they are a Treaty 8 Nation. The Treaty, signed in 1899 between the Crown and Treaty 8 First Nations, including ACFN, was supposed to create space for non-Indigenous folks to settle and manage resources in exchange for respecting First Nations’ way of life, traditional economic livelihood, and healthy lands for hunting, fishing, and gathering. This includes respecting cultural and spiritual practices, traveling corridors, significant sites, and managing natural resources. Instead, the Crown ignored their promises of respecting ACFN’s way of life that protects their lands and waters, resulting in environmental devastation and the breaking of ACFN’s laws.
The Water Policy states that the Crown has not honoured their promises set out in Treaty 8. It goes on to say that the policy enables ACFN to protect and preserve the Athabasca River – the very river that tailings seeped into in 2022 and 2023, which is the basis of the RAVEN-supported legal challenge – so their lands, waters, and way of life will be maintained for future generations. ACFN will do so through Dené Laws.
In the policy, it states: “Dené Law flows from ACFN’s inherent collective and individual right to self-determination. Dené Law reflects ACFN’s ancestors’ teachings, traditions, and values, and it has existed on the K’ai Tailé nën [territory] for thousands of years. The land and water within the K’ai Tailé nën are a gift from the Creator. It must be respected, nurtured, cared for, and protected to ensure long-term sustainability and use for future generations. ACFN members take care of the land, and in return, the land takes care of them. The K’ai Tailé nën is central to us as a Nation and our livelihood” (tu bet’a ts’ena, p. 4).
ACFN is re-establishing their authority in this Water Policy not only through Dené Law, but also through Canadian law and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). ACFN’s jurisdiction and rights through Treaty 8 and through the Constitution Act, 1982 are woven into the Water Policy alongside free, prior, and informed consent (FPIC) as protected in articles 32(1) and 32(2) of UNDRIP. This means that FPIC is required for industry to move forward with projects on ACFN’s territory, especially as projects pertain to water usage.
Parameters and Procedure
The Water Policy directly pertains to the Athabasca River, Lake Athabasca, and the PAD. It mentions how the river and lake systems, which include wetlands and groundwater, are essential for ACFN’s way of life. Fish, animals, and plant medicines would be contaminated without clean water in the Athabasca River and Lake systems, preventing ACFN members from exercising their Treaty 8 rights and Dené Laws. Clean water is crucial for the spiritual and cultural health of ACFN’s members.
How the Water Policy protects the Athabasca water systems is through the expression of ACFN’s FPIC for resource development on their territory. It specifically wants to:
- Implement ecosystem parameters through water quality and quantity measures for ACFN members to practice their rights;
- Restore, preserve, and protect water quality and quantity in the river and lake systems;
- Enable ACFN to enforce their Dené Laws for water usage at all levels of government; and,
- Establish a set of procedures for interacting with the river and lake systems.
The procedure that ACFN has established for projects to protect water resources is enacted through their Consultation Policy. Anyone who is developing resource projects that could affect water quality or quantity in ACFN’s traditional territory must adhere to and go through the consultation procedure, and ACFN holds the authority that projects will be denied if they don’t adhere to what is set out in consultation. The specific procedure is seen below:
- Begin consultations with ACFN
- Identify impacts
- Develop water quality and quantity standards
- Establish mitigation actions and monitoring programs
- Engage community
- Approve or deny application
- Monitor long-term
Two additional steps that ACFN have for projects that affect water quality and quantity on their territory are an implementation/communications plan for ACFN’s Chief and Council to approve and to review the state of the watershed, which will be created by ACFN every five years.
However deep the consultation procedure may be with ACFN, the principles of protecting their Treaty 8 rights is always consistent and can include other incidental rights defined by ACFN. For example, ACFN asserts they need to be able to travel on river systems by boat. Traveling by boat is necessary for members to assert their Treaty 8 rights and protect their territory, making it an incidental right (Consultation Policy, p. 9). It therefore must be honoured and respected by government and industry when projects are proposed on their territory, much the same as their other Treaty 8 rights.
Conclusion
It’s still hard to believe that the tailings discharge into the Athabasca and Firebag River systems occurred without notification to ACFN at the same time that this Water Policy was released. It’s evidently a direct violation of the policy. To implement policy that is holistically protecting the lands, waters, and rights of ACFN is to get compliance from industry, which Kearl still hasn’t done. Toxic wastewater from the tailings may still be leaking into groundwater at the Kearl facility, a design flaw known to Imperial Oil and Alberta back in 2007 when the project was proposed. They didn’t listen to ACFN’s concerns about this back then, and who knows if they will now.
Regardless, we’re in a different era than even then. Although the past eras are trying to rear their unruly head back into Canadian politics with disregard for Indigenous rights, ACFN and hundreds of other First Nations are being recognized as formal governments that Canadian governments and industry need to respect. The law requires it. Dené Laws recognized in ACFN’s Water Policy requires it. A climate insecure world requires it.
Donate now to support ACFN’s legal challenge against the AER and Alberta for not notifying the First Nation of the tailings discharge, compromising the health and well-being of community members and the public at large.
