Sturgeon Lake Cree Nation Battles Massive "Artificial Intelligence" Data Center

Facing the hall of mirrors that is Canada's "Aboriginal Law"

Sheldon Sunshine, chief of the Sturgeon Lake Cree Nation

This post is triggered by Sturgeon Lake Cree Chief Sheldon Sunshine’s January 13, 2025, ‘open letter’¹ to Alberta Premier Danielle Smith expressing “grave concern” about a proposed “mega…Data Centre”:

As the Chief of Sturgeon Lake Cree Nation …, I write to you, Premier, with grave concern over the province’s apparent support for a proposed mega project, an Artificial Intelligence (AI) Data Centre, in our territory.

At the outset, we respectfully remind the Crown that the provincial government is bound by Treaty No. 8 and the Honour of the Crown in its dealings on our traditional territory.

We have … received zero information from the provincial government about this project …[and] zero consultation.

The project was proposed in December 2024 by O’Leary Ventures, who named it “Wonder Valley”, a $70-billion data center they call “The Largest AI Compute Data Center Park On Earth”.

Its location would put it on traditional territory of the Sturgeon Lake Cree Nation.

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The controversy is yet another case of industrialism targeting Original Peoples’ ancestral territories

A CBC article posted on Indigenous Watchdog, said:

The proposed data centre would be powered by a combination of off-grid natural gas and geothermal energy sources. The first phase of the development would cost $2billion and generate 1.4 gigawatts of power, with additional phases planned to increase capacity.

The CBC cited Chief Sunshine’s letter:

The Sturgeon Lake opposition is focused on the environmental risks posed by the construction of such a large-scale data facility in an ecologically sensitive area.

First Nations members have traplines in the area, rely on water from the Smoky River and use the area “to exercise our way of life, which has been systemically eroded by unmitigated cumulative effects from the provincial government’s authorizations of industrial development in our territory.”

“Eco-industrial”: “Wonder Valley” follows the “green” narrative

“Wonder Valley” would be built in the “Greenview Industrial Gateway” (GIG), which bills itself as “one of Canada’s leading net-zero, eco-industrial developments, setting the gold standard for low carbon emission for Natural Gas processing, Manufacturing, and Data Centres.”

A 2021 “Area Structure Plan” described the purpose of the GIG:

…to develop a world-class, heavy eco-industrial district …. The District …will focus on attracting specific heavy industrial uses such as those associated with methane gas, urea fertilizer, amine gas, and other gas processing facilities.

Strange as it seems, Greenview also describes itself as a “wilderness”:

Greenview offers an array of untamed rivers, brilliantly blue lakes, untouched prairie meadows, and endless peaks of the majestic Rocky Mountains.

The uncharted wilderness promises an abundance of outdoor activities for every thrill-seeker with a never-ending craving for adventure. Unwind under wide-open skies, tranquil lakes, rich forests, and immerse yourself with wildlife to truly connect with Alberta’s natural wonders.

Chief Sunshine’s ‘open letter’ discusses the history of the GIG:

The so-called Greenview Industrial Gateway (GIG) includes land that our ancestors agreed to share with the Crown in 1899 under Treaty No. 8. Our people have traplines in this area; we rely on the water from the Smoky River; and it is one of the few areas accessible to exercise our way of life, which has been systemically eroded by unmitigated cumulative effects resulting from the provincial government’s authorizations of industrial development in our territory. It is for these reasons that our Nation opposed the Greenview Municipality…acquiring this land in the first place.

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Canada’s “Aboriginal Law” Hall of Mirrors

Chief Sunshine’s letter to Premier Smith raised three points — Treaty 8; ‘honour of the crown’; and ‘international law’:

We respectfully remind the Crown that the provincial government is bound by Treaty No. 8 and the Honour of the Crown in its dealings on our traditional territory.

Treaty No. 8 imposes solemn obligations on the Crown, including under international law. We therefore and respectfully ask that the provincial government cease and desist from using our traditional territory…without our free, prior and informed consent.

Let’s examine each of these points.

1) Treaty 8 was signed 21 June 1899: The Canadian Encyclopedia recounts its damning history:

• Canada began planning for a treaty in 1891 “after exploration had revealed potential oil reserves and other minerals throughout the …area” and was finally prompted to begin negotiation after the 1896 Klondike gold discovery.

• In November 1897, retired Indian agent James Walker wrote to Clifford Sifton, superintendent general of Indian Affairs, “They will be more easily dealt with now than they would be when their country is overrun with prospectors and valuable mines be discovered. They would then place a higher value on their rights.”

• The 1898 Order In Council Setting Up Commission for Treaty 8 relied on a report from the Commissioner of the North West Mounted Police that said “these Indians…were inclined to be turbulent and were liable to give trouble to isolated parties of miners or traders who might be regarded by the Indians as interfering with what they considered their vested rights…”

• “The Department of Indian Affairs was additionally concerned that, if they waited too long, contact between the northern and southern Cree-speaking peoples and Métis would lead to the northern peoples’ understanding that what was promised orally was not necessarily embodied in the written text.”

• “Eventually, the signatories agreed to the treaty based on a number of oral promises, including…— most importantly — that nothing would be done to interfere with their way of life. The need to guarantee that the Indigenous people would be able to hunt, trap and fish as they had always done emerged at every location that the commissioners visited.”

• “It is agreed that none of them would have signed had they known that it would result in restrictions on their traditional way of life.”

• Although money and supplies were supposed to be delivered every summer, the government fell behind on payments, and owed money to some groups for several years. Many of the promises that the Indigenous people insisted were made, such as medical care, were also not honoured. Most problematically, however, a series of laws was passed that regulated hunting and trapping….

The official government text of the Treaty includes the following “heads we win, tails you lose” land clauses:

• The said Indians DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors for ever, all their rights, titles and privileges whatsoever, to the lands….

• Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

As a result of these clauses, typical for US and Canadian treaties throughout the continent, the Treaty provides little solid basis for asserting Native land rights.

In an effort to gain some traction from the Treaty, the Treaty 8 First Nations Administration Office substitutes the term “share” for the term “cede”, saying: “As passed on from our Elders, the term cede was not used when Treaty No. 8 was described to the signatories, the term share was used.”

I have no doubt that this view is correct. But the assertion simply adds a layer of controversy to the already difficult legal situation. It does not resolve the problem.

Moreover, even if “share” more accurately represents the Native perspective, the clauses asserting Crown powers to “regulate” Native food-gathering practices and “saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes” pretty much consume all the oxygen needed for a legal defense of Native Peoples and their territories.

2) “Honour of the Crown” is an empty rhetorical phrase akin to the “trust doctrine” in US anti-Indian law.

The notion of government “trust” or “honour” in relation to Original Peoples are common rhetorical devices in US and Canadian law. They are an effort to clothe the naked emperors, implying that government domination is really a form of “protection.”

In 1996, the Canada Supreme Court decision in R. v. Van der Peet framed the government’s “obligation of honour”:

The Crown has a fiduciary obligation to aboriginal peoples with the result that in dealings between the government and aboriginals the honour of the Crown is at stake.

The Centre for Constitutional Studies at the University of Alberta School of Law summarizes all this by saying:

The honour of the Crown characterizes the ‘special relationship’ that arises out of … colonial practice.

The relationship … is sometimes characterized as “fiduciary,” a type of legal relationship where one party (Aboriginal peoples) is effectively at the mercy of the other (the Crown). The imbalanced nature of this relationship gives rise to an obligation on the part of the Crown “to treat [A]boriginal peoples fairly and honourably, and to protect them from exploitation.”

The Van der Peet decision emphasized the imbalance inherent in the “special relationship”:

The fiduciary obligation owed by the government to aboriginal peoples …does not oust the federal power to legislate with respect to aboriginals, nor does it confer absolute rights….

The federal government can legislate to limit the exercise of aboriginal rights, but only to the extent that the limitation is justified and only in accordance with the high standard of honourable dealing….

Van der Peet was brash enough to say that “aboriginal rights” are a way to “reconcile” the fact that “prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies” with “the assertion of Crown sovereignty over Canadian territory”.

In other words, Canadian courts say that the concept of “aboriginal rights” is a way of incorporating the Original Peoples into Canadian claims of “sovereignty”!

I am not alone in criticizing the notion of “honour of the Crown”. The Centre for Constitutional Studies says:

[Legal Studies Professor] Thomas McMorrow criticizes the honour of the Crown in two ways: (1) for failing to reject the imposition of Crown sovereignty over Aboriginal peoples; and (2) for failing to explain or justify how the Crown has any right to extinguish Aboriginal rights.

Justice Slatter of the Alberta Court of Appeal has criticized the term “honour of the Crown” for being imprecise and so vague as to have no real legal meaning.

Professor Mariana Valverde echoes this criticism, arguing that the honour of the Crown is a “mystical legal tradition” that defies clear definition.

The Centre concludes:

In other words, if a party argues that the Crown failed to act honourably, the courts have no meaningful yardstick for measuring what “honourably” means.

Canadian Attorney Evaleen Hellinga explains the “test” used in Canada to determine whether a given invasion of Native lands is valid:

First, …[has there] been a prima facie infringement of an Aboriginal or treaty right? Next, …[is] the Crown is justified in this infringement? This second part of the test asks whether there is a valid legislative objective; whether the infringement has been minimized; whether fair compensation has been offered where applicable; and whether Aboriginal groups were consulted or “at least informed”.

Notice that each of these “tests” for justifying Canadian invasion of Original People’s lands is in the hands of Canadian courts! The invader decides on the legitimacy of the invasion!

Underlying this bizarre definition of ‘honour’ is the Canadian claim of ownership of Native lands.

The foundational 1990 Canadian decision, R. v. Sparrow, openly claimed a right of government domination over Native Peoples, even in the face of a supposed “respect” for them:

It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown; see Johnson v. M'Intosh (1823), 8 Wheaton 543 (U.S.S.C.)….

The citation to the 1823 US Supreme Court case of Johnson v. McIntosh ties US and Canadian law together at the root—the doctrine of ‘Christian discovery’.

Johnson was the first of a trilogy of early 19^th century US Supreme Court decisions authored by Chief Justice John Marshall. It declared that the Original Peoples did not own their lands after they had been “discovered” by Christian colonists, who thereby acquired “title”.

Justice Joseph Story, a member of the Marshall court, starkly summarized the claim of a right of domination in his summary of the Johnson decision:

“The title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, . . . [they] were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations”
(Commentaries on the Constitution of the United States, 1833)

Story concluded with the extraordinary statement that:

“The territory [of the Indians]. . . was, in respect to Christians, deemed, as if it were inhabited only by brute animals.”

In 1831, the second case in the Marshall trilogy, Cherokee Nation v. State of Georgia, built on the Johnson decision and established the “trust” doctrine, the US version of “honour of the Crown”.

The Supreme Court said the Cherokee were not an independent nation but were rather the “ward” of the US “guardian” and “completely under the sovereignty and dominion of the United States”:

They occupy a territory to which we assert a title independent of their will….

Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their Great Father.

The phrase—”we assert a title independent of their will”—is a reference to the doctrine of ‘Christian discovery’.

The third case in the US trilogy was Worcester v. State of Georgia (1832), which completed the foundation of the US claim of a right of domination, called the “ultimate right of domain” over all Indigenous peoples and lands.

In short, both US and Canadian law claim a right of domination over Indigenous Peoples based on the property law doctrine of ‘Christian discovery’.

The Sturgeon Lake Cree are up against an Orwellian hall of mirrors built from a claim of land title coupled with the promise of “honour”—defined by the government.

3) “Free, Prior, and Informed Consent”: The Trickery of International Law

When Chief Sunshine referred to “international law” and “free, prior, and informed consent”, he was pointing to the 2007 United Nations Declaration on the Rights of Indigenous Peoples.

Canada—and New Zealand, the United States and Australia—were the only three UN members to vote against the Declaration when it was overwhelmingly adopted by the UN General Assembly.

In 2021, Canada apparently changed its stance with Bill C-15, a statute requiring the government to “take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.”

On the surface this sounds like an answer to the Sturgeon Lake demand, because the UN Declaration says:

Article 26.2 - Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

Article 32.1 & 2: Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources

In practice, Canada has followed the same course as the United States, interpreting these UN Declaration Articles out of existence.

The clear UN requirement of “free, prior, and informed consent” has been transformed into “consultation”

US President Barack Obama said it most directly in the “signing statement” accompanying his reversal of the US “no” vote in 2010. The statement addressed “the significance of the Declaration’s provisions on free, prior and informed consent”:

The United States understands [“free, prior and informed consent”] to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.

Obama’s redefinition of “consent” changed the common meaning of the word that the OED traces back to the 13th century: to “consent” is “to agree”. It was an act worthy of Alice in Wonderland: “If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrariwise, what it is, it wouldn’t be. And what it wouldn’t be it would. You see?”²

Canada’s disembowelment of “consent” is embedded in its Supreme Court decisions. The landmark case of Haida Nation v. British Columbia (2004) put it this way:

Aboriginal “consent”… is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.

Matthew Wildcat, an assistant professor and director of Indigenous governance and partnership at the University of Alberta, said it’s hard to know what’s taking place behind the scenes.

He said he would like to see the Alberta government follow an international standard called “free, prior and informed consent.”

But Prof. Wildcat was shy of hitting the target. He said:

The big word here is ‘prior,’ right? If one wanted, they can make a big technical argument that nothing has started here and Indigenous people will be brought on board but I think that is betraying the spirit of what Indigenous people have been asking for, which is an open and transparent relationship.

The big word is “consent”.

Consent—in its true meaning of “agreement”—is the only real basis for an open and transparent relationship between Original Peoples and colonial governments.

1. The letter at the link is mis-dated as 2024.

2. Alice in Wonderland (film), adaptation of Lewis Carrol’s The Adventures of Alice in Wonderland and Through the Looking Glass (Walt Disney Animation Studios and Walt Disney Productions,1951). See “Disney Movie Script,” Alice-in-Wonderland.net (blog).