Beaver Lake Cree Amended Amended Statement of Claim
COURT FILE NUMBER:
JUDICIAL CENTRE: PLAINTIFFS:
ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT:
COURT OF QUEEN’S BENCH OF ALBERTA EDMONTON
Germaine Anderson on her own behalf and on behalf of all other Beaver Lake Cree Nation beneficiaries of Treaty No. 6 and Beaver Lake Cree Nation
Her Majesty the Queen in Right of the Province of Alberta and the Attorney General of Canada
AMENDED, AMENDED, FURTHER, AMENDED STATEMENT OF CLAIM
JFK Law Corporation
MacPherson Leslie & Tyerman LLP Suite 2200, 10235 101st Street Edmonton, AB T5J 3G1
Tel: 780-969-3500 Fax: 780-969-3549
NOTICE TO DEFENDANT(S)
You are being sued. You are a Defendant.
Go to the end of this document to see what you can do and when you must do it. Note: State below only facts and not evidence (Rule 13.6)
1. Beaver Lake Cree Nation has thrived for countless generations in the woodlands and lakes in its traditional territory, living off those lands and waters, through the seasonal harvesting of fish and animals, and the gathering of plants, berries and medicines. Beaver Lake’s way of life, including their language, culture and spirituality, has been shaped by their dependence on these lands and waters. Beaver Lake’s identity as a
people is inseparable from their relationship with the lands and waters of their traditional territory; it makes them who they are.
In 1876, the Crown and the ancestors of Beaver Lake entered into Treaty 6, through which the Crown sought Beaver Lake’s agreement to cede and surrender the lands and resources in its traditional territory to the Crown. In exchange, the Crown solemnly promised that Beaver Lake could maintain their way of life and would be provided additional gifts by the Crown.
Since the signing of Treaty 6, the Crown has authorized non-aboriginal land uses including agriculture, oil and gas, forestry, settlement and other activities without due regard for Beaver Lake’s way of life or for the conditions necessary for the continued meaningful exercise of Beaver Lake’s Treaty 6 rights.
As a result of the Crown authorizations, large areas of Beaver Lake’s traditional territory have been converted into landscapes that no longer support Beaver Lake’s way of life. Among other things, habitats have been fragmented, lands and waters have been degraded and substances have been introduced that cause legitimate fears of contamination and pollution of traditional resources.
In such a transformed landscape Beaver Lake’s meaningful exercise of its way of life has been significantly impeded. Simply not enough quality land, waters and traditional resources remain. Beaver Lake has been deprived of their connection to the land and waters of the traditional territory, undermining their economy, culture and very identity. The promises made to Beaver Lake in Treaty 6 have been broken.
At its core, this case is concerned with whether or not the promises made to the Beaver Lake can be routinely broken by the Crown to the point where Treaty rights are essentially rendered meaningless in critical parts of Beaver Lake’s traditional territory.
7. Beaver Lake seeks relief against the Crown to address the Crown’s unjustifiable infringements of Treaty 6, and its failure to act honourably and as a fiduciary of the Beaver Lake Cree Nation.
Statement of Facts Relied on:
The Beaver Lake Cree Nation is a band within the meaning of the Indian Act, R.S.C. 1985, c. I-5, as amended, is an aboriginal people within the meaning of section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the “Constitution Act, 1982”), and is the successor to an aboriginal group adherent to Treaty No. 6 (the “Treaty”).
Germaine Anderson is the elected Chief and a member of the Beaver Lake Cree Nation and is a member of the Beaver Lake Cree Nation. She resides on the Beaver Lake Cree Nation Indian Reserve No. 131 and is a beneficiary of the Treaty.
Germaine Anderson brings this claim on her own behalf and as a representative on behalf of all other Beaver Lake Cree Nation beneficiaries of the Treaty and the Beaver Lake Cree Nation (collectively, the Beaver Lake Cree Nation and its members will be referred to as “Beaver Lake”).
The Defendant, the Attorney General of Canada is the representative of Her Majesty the Queen in right of Canada and is named in these proceedings pursuant to section 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended (“Canada”). Canada is subject to all of the obligations, duties, and liabilities which the Crown has or owes to Beaver Lake.
The Defendant, Her Majesty the Queen in Right of the Province of Alberta, is that aspect of the Monarch in which the lands material to the issues in this proceeding are vested, subject to the interests of the Plaintiffs (“Alberta”). Alberta is subject to all of the obligations, duties, and liabilities which the Crown has or owes to Beaver Lake. For the
purposes of this Claim, Alberta and Canada may be referred to collectively as the “Crown.”)
The Way of Life of the Beaver Lake Cree Nation
The ancestors of Beaver Lake used and occupied lands and waters within what is now Alberta and Saskatchewan, including the area outlined in red on the map attached as Schedule 1 and which is referred to in this claim as the “Core Traditional Territory.” For the purposes of this Claim, any reference to the Core Traditional Territory does not include lands outside of Alberta and Beaver Lake seeks no relief in relation to lands and waters in Saskatchewan.
Prior to 1876 the ancestors of Beaver Lake had a well established way of life and economy in the Core Traditional Territory. In the pursuit of this way of life, Beaver Lake supported themselves in a variety of ways, including through fishing, hunting and plant gathering, as well as through participation in trade, with other aboriginal groups and with Europeans, of a variety of material goods, including furs, wood and the products of hunting, fishing and trapping.
Beaver Lake’s way of life depended on the availability of and access to preferred lands, waters and natural resources of sufficient quality and quantity to maintain Beaver Lake’s traditional seasonal harvesting cycles.
Beaver Lake’s way of life also depended on the ability to pass knowledge about the traditional seasonal harvesting cycle, traditional hunting, trapping, fishing and gathering practices and spiritual as well ceremonial beliefs and practices to successive generations of Beaver Lake. The knowledge of Beaver Lake’s way of life was passed to successive generations orally, through cultural and spiritual practices, and through participation in traditional hunting, trapping, fishing and gathering practices which depended on the availability of and access to preferred lands, waters and natural resources.
The Treaty Rights
The Treaty was made between Her Majesty the Queen of Great Britain and Ireland (the “Crown”) and various groups of Plains and Wood Cree Indians on August 23, 1876 at Fort Carleton and on September 9, 1876 at Fort Pitt. Ancestors of Beaver Lake were parties to the negotiation of the Treaty on or about September 9, 1876 at Fort Pitt. The Treaty is a treaty within the meaning of s. 35 of the Constitution Act, 1982.
Through oral promises of the parties and the written terms of the Treaty, the Treaty established a set of reciprocal rights and obligations owed by the Crown and the Cree signatories, including the ancestors of Beaver Lake.
Through the Treaty, the Crown sought and obtained the agreement of the aboriginal signatories to cede and surrender the tract of land inhabited by the aboriginal signatories, including lands in what is now the province of Alberta.
The ancestors of the Beaver Lake provided their agreement to cede and surrender the land in exchange for solemn promises of the Crown, including:
a) the promise to provide provisions and benefits to the ancestors of Beaver Lake, including the creation of reserves, the provision of agricultural implements and supplies, and the granting of other payments and gifts;
b) the promise that the descendants of Beaver Lake would retain their old way of life with the Queen’s gift in addition and would be as free to hunt, trap and fish throughout their traditional territory as they had been before entering the Treaty; and
c) the promise that descendants of Beaver Lake would be entitled to access lands and waters and exercise treaty rights to hunt, trap and fish throughout the tract surrendered “saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes…”.
As part of their usual practices carried out before and at the time of signing the Treaty the ancestors of Beaver Lake hunted, trapped and fished a wide range of animal, bird and fish species for subsistence, and for cultural, social and spiritual needs. Certain species were of greater significance to fulfill these needs, but all species were important to Beaver Lake’s way of life.
Collectively, the rights described in paragraphs 20-21 will be referred to as the “Treaty Rights”.
The Treaty also provided rights to carry out activities incidental to the exercise of the hunting, fishing and trapping rights including, without limitation:
a) rights to unrestricted access to preferred lands and waters of a sufficient quality and quantity necessary to exercise rights;
b) rights to sufficient and culturally appropriate land and resources to support the exercise of Rights;
c) rights to participate in the management of natural resources within the Core Traditional Territory;
d) rights to gather various natural resources, including plants and berries, within the Core Traditional Territory;
e) rights to establish the infrastructure necessary to exercise rights, including by building trails, cabins, camps, traps; and
f) rights to maintain and access sites where Beaver Lake’s culture and way of life can be taught to subsequent generations.
The Treaty confirmed the Treaty rights as of the date of the Treaty for lands specified in the Treaty. The Natural Resource Transfer Agreements, 1930 Constitution Act, 1930 (U.K.) 20-21 George V, c. 26 (the “NRTA”) provided to Beaver Lake the right of
subsistence and support and extended the geographic scope of the Treaty to the whole of Alberta.
The Treaty also created a fiduciary relationship between the Defendants and the Plaintiffs. At all material times, the Defendants were under a fiduciary duty to the Plaintiffs to secure the continued meaningful exercise of the Treaty Rights.
Taken as a whole, the purpose of the Treaty Rights and promises was to create a binding obligation on the Crown to manage the lands and resources of the Core Traditional Territory in a way that would allow the signatories of the Treaty to maintain their way of life.
Crown Authorization of Non-Aboriginal Land Uses
Since the signing of the Treaty, the Defendants, or either of them, have authorized extensive non-aboriginal uses of land in the Core Traditional Territory including, without limitation, activities, developments and projects, that have caused changes to the lands, waters and natural resources in the Core Traditional Territory and in lands adjacent to the Core Traditional Territory. The Crown has also authorized the selling, leasing, disposition, regulation and/or designation of lands, waters and natural resources. Examples of non-aboriginal uses of land include oil and gas related activities, forestry activities, agricultural activities and mining activities (the “Crown Authorizations”).
The Crown Authorizations specifically include Alberta’s lease to and agreement with Canada in relation to the lands comprising the Cold Lake Air Weapons Range located in Alberta and Canada’s operation of the Cold Lake Air Weapons Range in the Core Traditional Territory.
Effects of Crown Authorizations on Beaver Lake’s Way of Life and Exercise of Treaty Rights
29. The Crown Authorizations have, individually and collectively, resulted in the following effects in the Core Traditional Territory:
a) Causing areas of the Core Traditional Territory to be taken up by authorizing non- aboriginal uses that are visibly incompatible with Beaver Lake’s use of lands, waters and resources. The effects of taking up include, without limitation:
(i) removing areas where Beaver Lake can exercise the Treaty Rights;
(ii) removing substantial and important tracts of lands available for the exercise of Treaty Rights, including but not limited to the lands comprising the Cold Lake Air Weapons Range, from the Core Traditional Territory;
(iii) limiting access to preferred hunting, trapping and/or fishing areas; and
(iv) limiting access to traditional cultural and/or spiritual locations.
b) Causing physical effects to areas of the Core Traditional Territory that have not been taken up, including, without limitation:
(i) making lands and waters, including preferred lands and waters, inaccessible for hunting, fishing, trapping and gathering;
(ii) reducing, fragmenting and/or degrading habitat for wildlife, fish and plants, including species preferred by Beaver Lake;
(iii) diminishing the abundance and/or diversity of wildlife, fish and plants, including species preferred by Beaver Lake;
(iv) disrupting wildlife migration patterns and/or diverting wildlife and fish from preferred hunting and fishing areas;
(v) increasing access to the lands for non-Beaver Lake hunters and natural predators;
(vi) diminishing water quality;
(vii) diminishing the availability of land in its natural condition;
(viii) destroying traditional access routes, including trails; and
(ix) increasing noise and light pollution.
c) Causing non-physical effects to areas of the Core Traditional Territory that have not been taken up, including, without limitation:
(i) reducing areas where Beaver Lake carry out harvesting in a culturally appropriate way;
(ii) reducing areas where Beaver Lake can enjoy solitude;
(iii) increasing the potential for conflict with other land users;
(iv) decreasing areas where it is safe to hunt;
(v) increasing fears of contamination and pollution of water, lands and natural resources for the exercise of the Treaty Rights;
(vi) imposing regulations that restrict or impede the exercise of the Treaty Rights; and
(vii) compromising the cultural and/or spiritual integrity of the Core Traditional Territory.
(the effects described in paragraphs paragraph 29(a)-(c) shall be referred to as the “Adverse Effects”)
30. The Adverse Effects, taken together, have caused cumulative effects in the Core Traditional Territory (the “Cumulative Effects”) which have caused a significant transformation in the land, waters and natural resources in a way that significantly impedes the meaningful continuation of Beaver Lake’s way of life and the exercise of Treaty Rights as contemplated by the Treaty.
Infringement and Breach of Fiduciary Duties
31. The Cumulative Effects have denied Beaver Lake access to and use of lands, waters and natural resources of sufficient quantity and quality to support the meaningful exercise of the Treaty Rights.
Beaver Lake’s way of life, traditional economy and cultural identity have been, and continue to be, significantly impeded by the Cumulative Effects, such that Beaver Lake has been left with no meaningful right to exercise some or all of the Treaty Rights within the Core Traditional Territory.
Through the Cumulative Effects, the Crown has caused adverse impacts to the Core Traditional Territory that are inconsistent with the Crown obligations under the Treaty and which are beyond the adverse impacts contemplated in the Treaty.
By causing the Cumulative effects the Crown has breached the fiduciary duties owed to Beaver Lake and/or has unjustifiably infringed the Treaty by:
a) failing to fully inform themselves of the conditions necessary to sustain the
meaningful exercise of the Treaty Rights in perpetuity;
b) failing to adequately inform Beaver Lake about the potential for the Crown Authorizations to cause the Adverse Effects and Cumulative Effects;
c) failing to provide Beaver Lake with an adequate opportunity to respond to and comment on how the Adverse Effects and Cumulative Effects could adversely affect their ability to meaningfully exercise the Treaty Rights;
d) failing to meaningfully address Beaver Lake’s concerns with respect to how the Adverse Effects and Cumulative Effects adversely affect or could adversely affect the ability to meaningfully exercise their Treaty Rights;
e) failing to provide Beaver Lake with sufficient resources to adequately respond to and comment on the potential impact that the Adverse Effects and the Cumulative Effects could have on Beaver Lake’s ability to meaningfully exercise the Treaty Rights and maintain their way of life;
f) failing to establish reasonable thresholds to measure the potential for additional Crown Authorizations to cause Adverse Effects and Cumulative Effects on Beaver Lake’s meaningful exercise of the Treaty Rights and maintain Beaver Lake’s way of life (e.g.: thresholds for impacts on wildlife, fish and plants, as well as habitat);
g) failing to ensure that the Adverse Effects and the Cumulative Effects do not or will not exceed those thresholds;
h) failing to monitor the Adverse Effects and the Cumulative Effects, and to otherwise ensure they do not and will not interfere with the continuing meaningful exercise of the Treaty Rights;
i) imposing unreasonable limitations on the Treaty Rights;
j) imposing undue hardships on the Plaintiffs by denying them their preferred means of exercising the Treaty Rights;
k) failing to fulfill the Crown’s obligations under the Treaty with reasonable diligence and prudence;
l) wrongfully receiving revenues from third parties while infringing the Treaty Rights;
m) failing to ensure that the minimal impairment of the Treaty Rights necessary to achieve the Crown’s objectives; and
n) failing to prioritise Beaver Lake’s rights and interests in issuing the Crown Authorizations.
35. The infringement of the Treaty by the Crown cannot be justified and has significantly impaired the ability of Beaver Lake to maintain its way of life and to meaningfully exercise the Treaty Rights.
a) a declaration that the Plaintiffs have a constitutional right within the meaning of s. 35 of the Constitution Act, 1982, pursuant to the Treaty and the NRTA, to hunt, trap and fish certain species for subsistence, and for cultural, social and spiritual needs;
b) a declaration that the Cumulative Effects of the Crown Authorizations unjustifiably infringe the Treaty Rights;
c) a declaration that the Defendants, or either of them, have breached fiduciary duties owed to Beaver Lake, and/or have failed to uphold the honour of the Crown by granting the Crown Authorizations that have created the Cumulative Effects;
d) a declaration that the Defendants, or either of them, have a duty to consult with and, if indicated, accommodate Beaver Lake with respect to the Cumulative Effects of the Crown Authorizations on the Treaty Rights (“Cumulative Effects Consultation”), under the supervision of the Court;
e) a declaration that the Defendants, or either of them, have failed to adequately consult with, and if indicated, accommodate Beaver Lake with respect to the Cumulative Effects on the Treaty Rights;
f) a declaration that the Defendants, or either of them, have a duty to address any or all of the following issues in a Cumulative Effects Consultation with Beaver Lake, with the goal of restoring and/or securing the meaningful exercise of the Treaty Rights in perpetuity:
(i) the appropriate fulfillment of the Treaty Obligations;
(ii) the appropriate process for addressing the Infringements;
(iii) the appropriate way to address some or all of the failures listed at paragraph 33 of this Claim;
(iv) restoration of the Core Traditional Territory;
(v) appropriate funding for Beaver Lake to participate in Cumulative Effects Consultation and related processes; and
(vi) any other issues identified by the Court.
g) an interim, interlocutory and/or permanent injunction against the Defendants, or either of them, restraining them from acting unconstitutionally in respect of the Crown Authorizations, and/or restraining them from acting unconstitutionally by granting
further Crown Authorizations the Core Traditional Territory, until the Defendants, or either of them, have completed the Cumulative Effects Consultation;
h) damages and/or equitable compensation from the Defendants for any failure of the Defendants, or either of them, to respect the Treaty Rights and to uphold the honour of the Crown;
i) damages and/or equitable compensation from the Defendants, or either of them, for any unjustifiable infringement of the Treaty Rights;
j) an accounting and/or damages and/or equitable compensation from the Defendants in respect of any breach of fiduciary duty by the Defendants, or either of them;
k) pre- and post- judgment compound interest in respect of any damages or compensation;
l) costs; and
m) such further and other or partial relief as this Honourable Court may deem just.
The Plaintiffs propose that the trial of this action will take more than 25 days and that it be held at the Law Courts, in the City of Edmonton, in the Province of Alberta.
NOTICE TO THE DEFENDANT(S)
You only have a short time to do something to defend yourself again this claim:
20 days if you are served in Alberta
1 month if you are served outside Alberta but in Canada 2 months if you are served outside Canada
You can respond by filing a statement of defence or a demand for notice in the office of the clerk of the Court of Queen’s Bench at Edmonton, Alberta, AND serving your statement of defence or a demand for notice on the plaintiffs’ address for service
If you do not file and serve a statement of defence or a demand for notice within your time period, you risk losing the law suit automatically. If you do not file, or do not serve, or are late in doing either of these things, a court may give a judgment to the plaintiffs against you.