Acho Dene Koe reviewing legal options after Supreme Court defeat
Fort Liard’s Acho Dene Koe First Nation is deciding how to proceed after losing an NWT Supreme Court case related to benefits plans for former gas exploration in the area.
The Acho Dene Koe First Nation, or ADK, took the territorial government to court over benefits plans agreed with Paramount Resources, an oil and gas company, more than 20 years ago.
ADK wanted the NWT government to hold Paramount to account over what are known as community investment plans related to the exploration work.
The GNWT, however, said the community investment plans are separate from the broader benefits plans and cannot be enforced by the territorial government.
Last week, Justice Karan Shaner agreed. The judge said she could not overturn the decision of Menzie McEachern, director of petroleum and mineral resources for the GNWT, not to enforce the community investment plans.
Shaner said the legislation gave McEachern and the GNWT no authority to enforce them.
Agreements like these are a standard feature of negotiations between resource companies and Indigenous groups in order for exploration to take place on traditional lands.
The Acho Dene Koe say Paramount has breached its obligations under local benefits plans for years. The company has denied any wrongdoing.
Shaner stated the dispute amounts to a contractual disagreement in which the territorial government has no power to intervene.
The exact content of the plans in question is not clear. The First Nation did not address questions about the plans.
Confidentiality of plans
The First Nation’s council will now decide on its next steps, said Boyd Clark, acting band manager, “based on the recommendations of our legal, economic development corporation, and lands office input.”
Doug Rae, legal counsel for the Acho Dene Koe, said Shaner’s ruling invites the First Nation to pursue the issue as a matter of contract law if it wants to see the community investment plans enforced.
Rae said last week’s judgement also has the effect of preventing the First Nation from reviewing benefits plans agreed between the GNWT and Paramount.
There is no public review process for benefits agreements between the GNWT and resource companies. The Department of Industry, Tourism and Investment (ITI) says approval of those benefits plans rests with its minister.
“Part of what ADK had asked for from the court was that these benefits plans be released and the privilege be waived and that they become accessible to the ADK,” said Rae. “And we lost that part as well. Justice Shaner said no, they’re confidential, you don’t get them.”
The GNWT has been working to update legislation that governs issues like benefits agreements affecting oil and gas exploration.
The new-look act is designed to increase transparency around oil and gas operations, making more information available to the public.
Those changes were approved by the Legislative Assembly in August 2019. However, the act has yet to be updated on the Department of Justice’s listings. Last August, the GNWT said there was “still some work to do” before the new legislation came into force.
This week, ITI told Cabin Radio benefit plans like the ones in question are neither negotiated nor are they contracts. The minister approves them with the “expectation that operators will prioritize northern training, hiring, and procurement in conducting their oil and gas activities.”
Those commitments, however, are not legally binding for the operator.
“They are best-effort documents with no legal compliance or enforcement mechanism,” said the department.
“It is customary for there to be dialogue between the GNWT and a resource company during the development of a benefits plan, to ensure [it] adheres to the legislative requirements and benefits plan guidelines.”