Aboriginal rights an issue in carbon tax court battle between Ottawa and Sask., says First Nation

A First Nation in northern Alberta says Saskatchewan's opposition to Ottawa's carbon pricing law and failure to come up with an effective alternative violates its Aboriginal and treaty rights.

Saskatchewan and Ottawa face off this week before five justices from the Saskatchewan Court of Appeal in a constitutional battle over whether the federal government can impose carbon pricing on Saskatchewan.

Under the Trudeau Liberal government's Greenhouse Gas Pollution Pricing Act, Ottawa will begin imposing carbon pricing by April on provinces that do not have their own pricing schemes. Ottawa has said Saskatchewan's climate change plan doesn't meet the test.

While the case is dominated by the constitutional clash between Ottawa and Saskatchewan, the Athabasca Chipewyan First Nation (ACFN), a fly-in community about 200 km north of Fort McMurray, Alta., is one of several interveners in the case.

A lawyer representing the ACFN said the justices can't ignore the impact of the dispute on Section 35 Aboriginal rights in the Constitution.

"For the ACFN, climate change is not an ordinary concern, but an existential emergency that has not been paralleled in thousands of years," said the First Nation's court filing.

The people of ACFN are known as the K'ai Taile Dene, which means the "people of the land of the willow." ACFN's reserve lands are located around the south shore of Lake Athabasca and along the Athabasca River.

While ACFN's community is primarily based in Alberta, it is a signatory to Treaty 8 which includes territory in Saskatchewan. ACFN's position is also supported by the Fond du Lac Dene Nation in Saskatchewan.

First Nations not consulted

"A mistake has been made to this point in treating federal-provincial disputes over jurisdiction as fights between the Father and Son," said Amir Attaran, a law professor and lawyer with the University of Ottawa's Ecojustice Environmental Law Clinic.

"Actually, the Holy Ghost enters into this, too, and that is the First Nations."

Attaran said Saskatchewan violated ACFN's section 35 rights because the province introduced its climate plan without consulting any First Nations.

Attaran said the aim of Ottawa's climate pricing plan is to combat climate change, which is already altering ACFN's Treaty 8 territory. Saskatchewan's failure to adopt an effective climate change plan affects ACFN's rights because climate change threatens their culture, he said.

The ACFN traditionally hunted two types of caribou that are under threat as a result of climate change, said Attaran.

Woodland caribou are currently federally classified as "threatened" and can no longer be hunted. Barren-ground caribou are now approaching the danger zone and only a single population can be hunted, according to the court filing.

"[Climate change] will profoundly affect their rights to hunt, to fish, and to trap," said Attaran.

"It arguably affects the cultural survival of the ACFN who for 7,000 years at least have been on the land hunting caribou."

Treaty 8 predates Saskatchewan

ACFN Chief Allan Adam said his people's homeland is already changing as lakes and rivers freeze later every year or don't freeze at all, reducing the life-spans of ice roads and increasing the cost of bringing supplies into his community.

"We have a right to stand up and protect what is left here in the world," he said.

When things happen on the land, we are the first ones to notice.- Allan Adam

"We as First Nations, we see the big problem, we are at the forefront. When things happen on the land, we are the first ones to notice."

Adam said Treaty 8, signed in 1899, predates Alberta and Saskatchewan's joining Confederation in 1905.

"Nothing in Treaty 8 mentioned anything about creating the provinces of Alberta and Saskatchewan," he said.

"As far as I am concerned, those are disputed issues that need to be addressed."

There are 16 interveners in the case: seven on Wednesday in favour of Saskatchewan and nine on Thursday in favour of the federal government.

Three provinces — Ontario, New Brunswick and British Columbia — will each get 30 minutes to address the court. The 13 other interveners will receive 15 minutes each, which includes an address and questions from the judges.