On December 16, 2013, the Alberta Court of Queen’s Bench granted a six-month injunction in favour of Penn West Petroleum Ltd., authorizing the RCMP to remove a road blockade erected by individuals associated with Bernard Ominayak, the former Chief of the Lubicon Lake Nation.
Penn West holds valid well licences, mineral surface leases and a licence of occupation for an access road for oil development located on lands around the Sawn and Haig Lake areas of northern Alberta. The roadblock was erected on November 26, 2013, and blocked access to the drilling site.
Consultation and Blockade
Through most of Penn West’s licensing and permitting process, Chief Ominayak was the acknowledged leader of the Lubicon Lake Nation. An election was held within the Lubicon Lake Nation, and a different governing group, called the “Lubicon Lake Band” (Lubicon Band), led by Chief Billy Joe Laboucan was elected. The Lubicon Band was formally recognized by both the provincial and federal governments in February 2013. The blockade was not supported by the Lubicon Band.
Chief Ominayak maintains that he continues to be Chief of the Lubicon Lake Nation (Lubicon Lake); however, this group has never been formally recognized by the provincial or federal governments.
Penn West engaged in discussions with Lubicon Lake until February 2013, when the Lubicon Band was formally recognized. Following the election of Chief Laboucan, Penn West sought and received the approval of the Lubicon Band for the work to be conducted. Penn West also engaged in discussions with Lubicon Lake members regarding its work plans over the course of the year until the blockade began.
On November 26, 2013, Chief Ominayak and Lubicon Lake members began blocking an access road to the drilling site owned by Penn West. Both the drilling site and access road are located on Crown land. In addition to the blockade, Lubicon Lake filed a separate lawsuit in Peace River against Penn West on December 2, 2013. The statement of claim alleges that because the Canadian government did not enter into a treaty with Lubicon Lake prior to developing oil and gas on traditional territory, the leases and licences that have been issued are null and void.
Public Lands Act Order
In response to the blockade, Penn West applied for an order under the Public Lands Act, authorizing the RCMP to remove the barricade. This Act prohibits anyone from preventing a disposition holder or commercial user from access to a road when there is a legal right to this access. An injunction contemplated under section 54.03 of the Act may prohibit any person from continuing a blockade and/or authorize a police officer to remove and seize any barrier, structure or vehicle obstructing access.
Two types of orders are available under section 54.03 the Public Lands Act:
a short-term order, which cannot exceed 7 days and may be made ex parte, without notice to the other party; or
a long-term order, which can be granted for up to one year, with notice of two days to the other party.
Penn West ultimately provided notice of two days to Lubicon Lake, making it possible to apply for a long-term order.
In an oral decision, the Court concluded that Penn West had followed all of the necessary government regulations and requirements in obtaining approval for its well licences and access to obtain its surface lease. In taking those steps, regulatory bodies granted the approvals after being satisfied with the consultation that Penn West had undertaken. Furthermore, the Court noted that Lubicon Lake had not appealed or made any application for judicial review with respect to the licences and permits in question.
In addressing the issue of Lubicon leadership, the Court found that the licences and permits were obtained prior to recognition of the Lubicon Band and, as a result, Penn West engaged in consultation with Lubicon Lake. Following the federal recognition of the Lubicon Band, Penn West continued to involve Lubicon Lake in the consultation process. The Court held that because Penn West proceeded legally at every step of the process and neither Lubicon group had objected during the regulatory process, the blockade was not an appropriate or legal response by Lubicon Lake members.
The Court relied on the recent Supreme Court of Canada case of Behn v. Moulton Contracting Ltd. (Behn).1 In Behn the Supreme Court of Canada refused to recognize a road blockade as a means of raising a breach of the duty to consult. It held that allowing the barricade to exist as a means of defending a breach of the duty to consult constituted an abuse of process when a First Nation fails to challenge the approval in question through the appropriate legal means.
Relying on Behn, the Alberta Court found the Lubicon Lake blockade to be unlawful under section 54.03 of the Public Lands Act. The Court granted a six-month injunction in favour of Penn West.
On January 3, 2014, Lubicon Lake filed a notice of appeal with the Court of Appeal of Alberta to challenge the injunction order.
Significance for Resource Developers
The Behn and Lubicon Lake decisions demonstrate that blockades by members of First Nations are increasingly an impediment to resource development. Resource developers should follow these cases closely for guidance regarding consultation with Aboriginal groups that have split contested leadership as well as for the appropriate response to blockades. Courts expect First Nations to register objections within the established regulatory processes.
1 2013 SCC 26.