KANANASKIS – The Stoney Nakoda Nation is requesting an appeal on the water licence that allows the removal of 50 million litres of water from Fortress Mountain in Kananaskis Country.
The province's Environmental Appeals Board is currently reviewing the application.
"It is important to be recognized in our own backyard," Bearspaw Chief Darcy Dixon said in an interview with the Outlook over the phone.
"Proposals should include the people it affects. It goes back to the days of water running from Fortress; [then] the government makes changes from one group of business and they forget it affects us."
Located next to Kananaskis Country, Stoney Nakoda Nation consists of three bands – Bearspaw, Chiniki and Wesley – with approximately 4,000 to 5,000 band members living on the reserve that spans 52 square kilometres bordering the Town of Cochrane, MD of Bighorn and Kananaskis Country limits.
Last fall, the provincial government approved an application made by Fortress Mountain Holding Ltd. requesting to remove water using nine or more trucks per day to haul a maximum of 50,000 cubic metres of water annually. In a public letter, Fortress confirmed it had filed an application to amend its provincial water licence so it could remove the water from Galatea Creek with the interest in the water "driven by its purity."
"The definitive use for the commercial water component has yet to be determined ... this end-user could range from a myriad of options that could include or be a combination of breweries, distilleries, bottles, health-focused companies, or even the general public that are seeking non-chlorinated pure water options," the public letter from Fortress read.
The Stoney Nakoda Nation filed an appeal to the water application three weeks past the appeal deadline, but in documents obtained by the Outlook, it was revealed the Nation has been trying to raise objections and concerns since 2018.“Since an initial meeting with our clients in May 2018, Fortress has been remarkably silent despite its continuing efforts to redevelop the area and open by December 2020. According to newspaper reports, Fortress has ‘shovels in the ground’ and yet there is no active or on-going consultation with the Stoney Nakoda, which should have begun as early as 2010 when the KPOW cat skiing went into operation,” a letter to Fortress Mountain Resort president and managing director dated March 1, 2019 read.
“In addition to our clients’ expectations to meet face-to-face, a thorough assessment of the Stoney Nakoda culture, history and Aboriginal rights respecting the area of the resort should be done now.”
The representing lawyer at the time, Douglas Rae, attached the 2003 Land Claim in which the Stoney Nakoda Nation is seeking declaration of Aboriginal title and rights to areas in southern Alberta, including Morley, Rabbit Lake, Big Horn and Eden Valley – a claim still before the courts.
The March letter stated there are unextinguished Aboriginal and treaty rights over the lands in question, and said the Stoney Nakoda are frustrated by the inadequate consultation efforts.
Then, Fortress Mountain Holdings Ltd. filed an application in July to amend its provincial water licence to allow nine or more trucks a day to haul a maximum of 50,000 cubic metres.
The Nation submitted a letter of objection and concern.
"Since time immemorial, the Stoney Nakoda existed along the Bow River and its tributaries have used and respected the river's riparian regions, wetlands and glacial aquifers. These waters remain a lifeline to the Stoney Nakoda," stated the objection letter dated Aug. 2, 2019 from the Nation.
"The Stoney Nakoda historic and ongoing traditional use and knowledge of these waters predates any modern licence holder. Also, the Stoney Nakoda hold Indigenous Water/Riparian Rights over the Bow River and its tributaries which is recognized by the federal government and the government of Alberta."
Concerns were also raised about the direct impact on the availability of water for the reserves.
"A growing population continually increases demand on the river system and creates challenges with maintaining water quality for the Stoney Nakoda and others along the affected river system,” Dean Cherkas, Stoney Nakoda director of consultation wrote in the letter of objection and concern.
The Nation said the long-term impact of the water removal application cannot be predicted and said the application would undermine the protection of the environment and human health, as well as the protection of a vital ecosystem and wildlife.
The letter outlined concerns of the already strained Kananaskis sub-basin as the Stoney Nakoda utilize the water source to exercise their treaty and aboriginal rights such as fishing.
“The Kananaskis Sub-Basin is already under strain from the significant daily changes in water levels resulting from the hydro-electric developments along the Kananaskis River and the 2013 flood," Cherkas wrote.
"These changes in water levels directly impact fish habitat that could be further affected by even lower levels if, as proposed in Fortress’s application, ‘approximately nine or more trucks per day annually’ are allowed to remove water from the river system. In addition, changes in the water level are already negatively impacting the availability of Stoney Nakoda's use of water from the Kananaskis River for its housing and business.”
The Nation also expressed its frustration at the lack of consultation by the provincial government for an application on its traditional land, also known as Hatha Tâga Baha.
“Not only was there a failure to consult on the part of Fortress, there has been no consultation from the Crown on the initial water license issued to the proponent, nor on any renewal, changes or proposals for changes to the licence," Cherkas wrote. "Issues such as water levels and flood mitigation efforts in the Bow River Basin fall directly under the Title Claim that encompasses the riparian rights of the Stoney Nakoda.”
In a pre-consultation assessment from the Alberta government, it was outline the Aboriginal Consultation Office (ACO) determined there was no consultation required as “there is minimal or no potential to adversely impact First Nation’s Treaty rights and traditional use since new or novel impacts to Treaty rights to hunt and trap are not anticipated as the point source for the water diversion exists and will not be charged."
The assessment further stated that downstream impacts were not anticipated; therefore, any new or novel impacts to fish and fish habitat were expected to be minimal.
A letter was sent back to Stoney Nakoda Nation officials from Alberta Environment and Parks in October last year stating that the government determined there was no consultation required prior to the application approval and that the water removal would have minimal potential to adversely impact Treaty rights or traditional uses.
“While your submission will not be considered a valid statement of concern, the environmental and water quantity issues you raised in your submission will be considered our review of this application,” AEP’s letter read.
The Fortress water licence amendment was approved in November.
“Fortress is pleased to confirm that, after extensive review, analysis, and public consultation (in cooperation with AEP), it has been provided with the water licence Change of Use that was applied for in August of 2018,” Fortress Mountain director of operations Chris Mueller previously wrote in an email to the Outlook.
“This approval puts Fortress in a positive position to not only continue with the redevelopment of this iconic Alberta-based alpine resort, but also create new jobs, help to diversify the economy, and continue reclamation and restorative efforts on the Fortress lands.”
The Nation appealed the approval stating Alberta Environment and Parks made errors in its decision-making, Alberta failed to carry out a meaningful consultation process and said any adverse impacts to the Nation’s rights have yet to be addressed by the province or Fortress.
“Due to the numerous procedural and substantive errors made by Alberta, the board must quash the decision … due to the serious nature of the adverse impacts to the [Stoney Nakoda Nation] section 35 rights that will result from the project, [Stoney Nakoda Nation] must pursue every available avenue to protect its rights,” Cherkas wrote in the appeal.
Fortress subsequently sent a letter to the Alberta Environment Appeals Board strongly opposing any consideration towards the request for appeal.
"The process and conduct of AEP we feel was very thorough, extensive and open," Mueller wrote in an emailed statement to the Outlook this week.
"While we do understand that some may not have received the outcome that they had hoped for, it is important to recognise that ample opportunity and consideration was provided for all to submit input. Fortress and AEP both committed significant time and effort in evaluating every single submission provided. This, to us, is a very important aspect of the process and one that we fully respect."
In the letter to the Alberta Environment Appeals board, Mueller shared an email from Fortress sent to Stoney Nakoda Nation in March last year suggesting a meeting if the Nation was interested, "If you would like to have a meeting to discuss where things are at in terms of the Fortress Mountain Resort redevelopment please let me know and we can arrange a time."
Fortress also attached a follow-up email to the letter of objection and concern sent last August.
"As the re-development of Fortress has progressed over the years we have had to look for innovative and sustainable solutions to the many challenges that have been faced," Mueller wrote to the Nation in the Aug. 8, 2019 email.
"With significant thought and reflection, we feel this initiative provides incredible potential not only for Fortress but for the entire Kananaskis region. We very much look forward to backing up our ‘words’ with future ‘actions’ once provided the opportunity ... I would like to remedy the frustrations you expressed and am always available should you wish to talk."
Mueller said Fortress has and will continue to look for ways "in which we can positively and cooperatively work with all of our neighbours, the Stoney Nakoda Nation very much included."
Environmental Appeals Board officials confirmed the board received the Nation’s appeal, noting it was outside the 30-day limit, but is still under review.
Officials said the first challenge for the Nation will be whether or not the appeal is accepted. If the appeal to overturn the water removal is accepted, the second challenge will be if the board determines the Nation is “directly affected.”
The Environmental Appeal Board said they are hopeful to have an outcome in the next couple of months.
Dixon said it is important to be at the table for these discussions.
“We need to be at the table to negotiate an appropriate process and we were not given the opportunity.”
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