Porcupine caribou walk along the shore of the Porcupine River near Old Crow. Vuntut Gwitchin First Nation are cautiously optimistic about the future of the Arctic National Wildlife Refuge after the U.S. midterm elections. (Sheila Kyikavichik/Yukon News file)

Proposed drilling plans at ANWR vulnerable to litigation: Gwich’in lawyer

That the Democrats control the House of Representatives may not be enough to protect the refuge

Even with the Democrats controlling the House of Representatives after the U.S. midterm elections, citizens of Vuntut Gwitchin First Nation are cautiously optimistic about what the future holds for the Arctic National Wildlife Refuge (ANWR), knowing full well their fight to preserve and protect the threatened ecosystem is far from over.

Kris Statnyk, a Vancouver-based lawyer and citizen of Vuntut Gwitchin, helped break down what the changeover could mean for the fragile environment, noting, however, that legal action against the proposed project could prove to be the most effective method in stalling oil and gas developments from moving into ANWR or thwarting them altogether.

Where drilling is slated to take place in the refuge, located in Alaska, is also where the Porcupine caribou herd, a sacred animal to the Gwich’in people, rear their young.

Now that the Democrats have more sway, legislative agendas could be controlled more than before, Statnyk told the News.

The Democrats gained 33 seats in the House Nov. 6. In total, they now have 228.

This could mean more bills opposing plans to open up the refuge to drilling, Statnyk said, akin to one introduced in May in the House by Democrat Jared Huffman.

Included in amendments to the American Tax Act in December 2017 was an oil and gas leasing program for the refuge’s coastal plains. One lease must be pushed through in four years.

Under the act, no fewer than two lease sales, each to include no fewer than 400,000 acres with the highest potential of hydrocarbons, must occur by 2024.

Huffman’s bill calls for the section in the tax act that deals with ANWR’s coastal plain to be repealed.

The bill, which has 75 co-sponsors, calls the refuge a “national treasure,” one in which oil and gas activities aren’t compatible.

Repealing the section “would best protect the unspoiled ecosystem of the Coastal Plain, the human rights of the Gwich’in, and the integrity of the National Wildlife Refuge System,” it says.

The caveat to all of this is that the Republicans form a majority in the Senate, a reality Statnyk called “problematic,” because amendments will continue to be difficult to undo.

The Republicans hold court in the Senate, with 51 seats.

As a result, Statnyk said a lot will boil down to keeping tabs on regulatory processes.

Just because the president has signed off on plans to eventually get oil and gas from ANWR doesn’t mean immunity from legal scrutiny, he said.

“There’s a lot of things that this current administration is doing to push this process through that are vulnerable to legal challenge(s),” Statnyk said. “Everything from what level or type of assessment they think is necessary to how they conduct that assessment and their decisions around it.”

This month, for example, Defenders of Wildlife sued the Trump administration for not releasing information relevant to drilling plans in the refuge. The organization had filed Freedom of Information Act requests to three departments (U.S. Department of the Interior, the U.S. Fish and Wildlife Service, and the U.S. Bureau of Land Management), which elicited no records, according to its lawsuit.

Statnyk called what’s happening an international human rights issue for the Gwich’in people.

“We have all these things on our side, but our rights are at stake because of a foreign government,” he said. “It’s not everyday an Indigenous people in Canada are being put at stake by the U.S. government,” adding that the Canadian and Yukon governments have obligations to safeguard Indigenous rights.

According to a spokesperson from the Alaska branch of the Bureau of Land Management, there have been no new updates to leasing plans since a scoping report was published in July.

Scoping basically means a public feedback period.

“We are currently developing a Draft Environment Impact State,” said Lesli J. Ellis-Wouters. “Once that is complete, it will be available for public review and comment for 45 days. That will be announced through a Federal Register notice and our website.”

The coastal plain, according to the departmental website, is about 1.6 million acres; ANWR is about 19.3 million acres.

In 1987, the American and Canadian governments signed an international agreement around conserving the caribou.

Dana Tizya-Tramm, a councillor at Vuntut Gwitchin First Nation in Old Crow, said his people will continue to stick together, holding fast to their will to oppose oil and gas development.

“I think what you will see is the Democrats trying to create transparency in their government by issuing a lot of investigations as well as some of the financial goings on of this presidency,” he said. “… For ourselves this does not leave us with a very strong handle, as the Senate is still Republican. You need the House and the Senate to be passing bills.

Tizya-Tramm characterizes the section pertaining to ANWR as a rider attached to a budgetary bill, in that this change was “slipped in” to circumvent normal democratic processes.

“It’s very important that we stick together, with all of our partners, and continue to push back at every opportunity that is afforded to us in preservation of the first, and the largest, wildlife refuge in the Americas that is also now the first that has been legally mandated to produce oil and gas,” Tizya-Tramm said, adding that the Bureau of Land Management did not reach out to him during the public feedback period.

A spokesperson with Environment Yukon said Environment and Climate Change Canada is assessing the affects of the midterm elections on the file.

The territorial and federal departments, along with other parties to the Porcupine Caribou Management Agreement, will meet “to discuss next steps after their analysis is complete in early December,” Environment Yukon spokesperson Roxanne Stasyszyn said in a written statement.

“As well, the Government of Yukon continues to support all of our partners working for the protection of the herd in utilizing any appropriate opportunities available to spread the word on the concerns we have with development in the calving grounds in ANWR.”

The Porcupine caribou herd is the largest land animal migration remaining on earth, Tizya-Tramm said, adding that it’s the last healthy herd left, too, which is why preserving their habitat is crucial to their survival.

“They’re also the animals in which the Gwich’in and other First Nations have also depended on for our survival,” he said. “They quite literally nursed us through an ice age.”

The coastal plain enables the herd to see predators from afar; and the wind provides relief from swarms of bugs, which, Tizya-Tramm said, can be lethal to calves.

The caribou require a higher fat concentration than other herds, meaning that it’s crucial they have access to the flora specific to the coastal plain – cotton grasses, for example, he said.

“Any kind of presence in this area will, A, create access for predators, B, will do irreparable damage to permafrost and, C, will definitely do damage to the flora in there as well,” Tizya-Tramm said.

“We consider this like doing heart surgery. The small nick can change the outcomes for the larger organism.”

Tizya-Tramm said issues broached by his First Nation aren’t being addressed, calling plans to drill ANWR a “two-dimensional process” undermining legitimate concerns pertaining to Indigenous rights and “the well-being of our founding pillars, which is the ecosystem.”

“However the leaders of the day choose to express their views through political systems is irrelevant to the true facts of what it means to be a Gwich’in on our land, enjoying our rights and fulfilling the hopes and dreams of our elders. My optimism comes from the strength of my people, and no midterm election will signal to me a direction that the elders have already outlined for us,” he said.

With files from Ashley Joannou

Contact Julien Gignac at julien.gignac@yukon-news.com