Facebook: s.91 (24) of the Separation of powers isn't applicable to the oil sands
In a post on Facebook there was a brief discussion about how the Constitution, Charter of Rights and s.91 (24) of the Separation of powers applies to the Oilsands. The short answer is: it doesn't.
Section 25 in the Charter protects the rights, customs, traditions, and land claim agreements of the Aboriginal peoples, which includes Indian, Inuit, and Métis. This section, however, confers no new rights but does recognize Aboriginal Rights as distinct from the Charter provisions.
Further more, it says:
A right is a legal, moral, or social expectation that Canadians are entitled to from the government. For example, a person accused of committing an offence is entitled to a lawyer and a fair trial within a reasonable amount of time.
Rights and freedoms are not without limits. Sometimes they have to be limited in order to protect the rights and freedoms of others.
Provincial and federal governments often limit these protected rights as if there were none. It gives them an out. Under Legal Rights: Section 7-14 it says, "The police must have reasonable grounds for searching you or your home and any evidence that is unlawfully obtained may be excluded at trial." With public outcry ignored to stop "carding" it shows the Charter of Rights and Freedoms is subjected to those who are interpreting it.
s.91 (24) is worded in a way so agencies don't interpret it in any other way than exactly what it means. It's very clear:
Section 91(24) states that the federal government has exclusive authority over “Indians and Lands reserved for Indians”. This means that the federal government—and not the provinces—has the authority to pass laws that are “in pith and substance” about First Nations people and their lands. In 1939, the Supreme Court held that s. 91(24) also applies to Inuit people.
It's largely understood that Alberta is all treaty land. However, most of the lands were ceded by treaty to the federal government who set aside areas known as reserves for the Indigenous. A few small sections of resource-rich territory were excluded from the act, although they would be transferred later. First Nations reserves and lands reserved for indigenous persons were excluded under the Natural Resources Acts. National parks were also excluded - they remain under the jurisdiction of the federal government, and are generally off-limits to resource development.
The Natural Resources Acts were a series of Acts passed by the Parliament of Canada and the provinces of Alberta, British Columbia, Manitoba and Saskatchewan in 1930 to transfer control over crown lands and natural resources within these provinces from the federal government to the provincial governments. Specifically, the Constitution Act, 1930 lays it out in more specific terms:
In order that the Province may be in the same position as the original Provinces of Confederation are in virtue of section one hundred and nine of the Constitution Act, 1867, the interest of the Crown in all Crown lands, mines, minerals (precious and base) and royalties derived therefrom with the Province, and all sums due or payable for such lands, mines, minerals or royalties, shall, from and after the coming into force of this agreement and subject as therein otherwise provided, belong to the Province, subject to any trusts existing in respect thereof, and to any interest other than that of the Crown in the same, and the said lands, mines, minerals and royalties shall be administered by the Province for the purposes thereof, subject, until the Legislature of the Province otherwise provides, to the provisions of any Act of Parliament of Canada relating to such administration; any payment received by Canada in respect of any such lands, mines, minerals or royalties before the coming into force of this agreement shall continue to belong to Canada whether paid in advance or otherwise, it being the intention that, except as herein otherwise specially provided, Canada shall not be liable to account to the Province for any payment made in respect of any of the said lands, mines, minerals or royalties before the coming into force of this agreement, and that the Province shall not be liable to account to Canada for any such payment made thereafter.
Although this was years ago, The Government of Canada, Alberta and First Nations are working together to address several different types of land-related disputes through negotiations.
Constitutional Jurisdiction is shared in some aspects with the federal government, but development and Indigenous matters aren't. Alberta has complete control over oilsand development. Usually there aren't any Indigenous concerns unless territories allotted to them by the federal government are sourced for new mining opportunities.
In a paper from the University of Calgary by Nickie Vlavianos, The Legislative and Regulatory Framework for Oil Sands Development inAlberta: A Detailed Review and Analysis, Occasional Paper No. 21 (Calgary: Canadian Institute of Resources Law, 2007) offers more information (see page 67) how this is handled.
Unless the federal government decided to do an environmental assessment on the use of hydrogen to power the oil sands, their involvement is not applicable to the project.