Tarsands vs. treaty

A just transition case study

by Susan Smitten  published by www.briarpatchmagazine.com  Apr 29, 2019   4 min read

In 2008, Beaver Lake Cree Nation (BLCN) filed a legal action against the governments of Canada and Alberta over the constitutional standing of numerous projects, including tarsands development – one of the world’s largest and most carbon-intensive energy developments. The high-stakes action represents a precedent in the Canadian court system. The Beaver Lake Cree case will be the first time the court is asked to delineate what counts as too much industrial development in the face of constitutionally protected treaty rights.

The conflict is between the promise in Treaty 6, which was signed in 1876 between the imperial Crown and First Nations. The treaty guarantees and affirms BLCN’s inherent right to hunt, trap, fish, and gather in perpetuity throughout their traditional territory and beyond, and the government’s allowable use of lands.

It took five years of battling just to get the case to go to trial. Having welcomed a veritable cavalcade of tarsands projects over the last couple of decades, Alberta and Canada have fought this legal action every step of the way. The two governments applied for a motion to dismiss the case, calling it “frivolous, improper and an abuse of process.” But the courts disagreed – both the Court of Queen’s Bench and at the appeals level – and said no further “delaying tactics” should be permitted.

The key issue is now going forward to trial: because of Crown authorizations, swaths of Beaver Lake Cree’s traditional territory no longer support the Nation’s way of life. Habitats have been fragmented and lands and waters have been degraded in ways that impede the Beaver Lake Cree’s meaningful exercise of treaty rights.

“Beaver Lake’s case raises pressing issues of fundamental importance to the Treaty relationship and reconciliation, but not yet considered by the courts: to what extent does Treaty 6 protect a meaningful way of life, and to what extent is the Crown obligated to consider cumulative effects on the meaningful practice of that way of life when it authorizes development?” noted Karey Brooks, legal counsel for the Beaver Lake Cree, in a press release last November.

The Nation can no longer ignore the impact to their land and way of life. As I explain on raventrust.com, “Canada and Alberta have issued more than 19,000 individual authorizations (permits), which have translated into 300 individual industrial projects that take up more than 90 per cent of Beaver Lake Cree traditional territory. As a result, the once-pristine forest and hunting grounds are now covered with over 35,000 oil and gas sites, 21,700 kilometres of seismic lines, 4,028 kilometres of pipeline, and 948 kilometres of road – with devastating effects on wildlife populations like the woodland caribou and fish species.”

“Alberta and Canada argue that they are doing their diligence in their due process to consult with First Nations. What the Beaver Lake Cree Nation seeks is not an arbitrary process, but rather consent as affirmed in the UNDRIP Article 19,” explains Crystal Lameman, treaty coordinator for the Beaver Lake Cree.

“What the Beaver Lake Cree Nation seeks is not an arbitrary process, but rather consent as affirmed in the UNDRIP Article 19.”

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) mandates that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

“Yet Alberta is asking for an exemption of in-situ projects from federal regulation, and that downstream emissions from the burning of fossil fuels be excluded from the regulatory review process, on the grounds that they already are subject to an onerous environmental review process of in-situ oilsands development through the Alberta Climate Leadership Plan (ACLP),” says Lameman. “What Alberta fails to mention is that the ACLP does not provide for protection of Treaty rights, omits cumulative effects and does not consider emissions from the combustion of Alberta oil outside of the province’s borders, [like] downstream emissions.”

Photo courtesy of RAVEN Trust

On the supply side, the ACLP still allows emissions from the production of the tarsands to increase 47.5 per cent above 2014 levels. And Canada’s and Alberta’s carbon emissions calculations focus only on domestic carbon pollution. Neither the Alberta emissions cap nor the Pan-Canadian Framework on Clean Growth and Climate Change account for the emissions caused by burning exported Canadian fossil fuels – mainly Alberta oil.

“Emissions play a role in the cumulative effects of climate change and environmental impacts, therefore impacts to treaty rights. Thus, First Nations should be involved in decision-making, but we are not – and this is what we seek,” adds Lameman.

“Where 80 per cent of all future oilsands growth will be from in-situ development, Canada’s largest industrial project cannot be dismissed from any environmental assessment. The majority of in-situ oilsands development in Alberta is in Treaty 6 (west) territory and that of the territory of the Beaver Lake Cree,” Lameman continues.

After spending five years in the court system defending their right to even bring this case forward, the Beaver Lake Cree have recently asked the court to order Canada and Alberta to pay a portion of Beaver Lake Cree’s trial costs in advance. This is the same mechanism that made it possible for the Tsilhqot’in to sustain nearly two decades of litigation and to win their historic title case. A hearing on the Advance Costs Order was held in February in Edmonton. Now the Beaver Lake Cree are awaiting the judge’s ruling.

We’re inviting Canadians to donate to the case at www.tarsandstrial.com. Helping to fund the case would allow the Beaver Lake Cree to use their scarce resources to benefit the community. It would be an injustice if lack of funds created an impenetrable barrier to the judicial recognition of Beaver Lake’s rights.

Susan Smitten is the executive director of RAVEN (Respecting Aboriginal Values & Environmental Needs), a Victoria-based non-profit charitable organization that provides financial resources to assist Aboriginal Nations within Canada in enforcing their rights and title to protect their traditional territories and the environment.

Protect the Canadian Pacific Coast, Pass Bill C-48

Re-published by West Coast Environmental Law here, with online letter-writing tool to Canadian Senators, on 14 May 2019

For decades, First Nations, communities and residents have worked to defend the north Pacific coast from the unacceptable risk of oil spills and oil tanker traffic. And right now, Canadian Senators are considering a bill that would entrench a strong north coast oil tanker ban in law.

Bill C-48, the Oil Tanker Moratorium Act, was passed in the House of Commons and is now before the Senate, where it’s been held up for almost a year.

The oil industry is trying to kill this important legislation – and now time is running out!

Will you take a moment to write to Senators and urge them to pass Bill C-48? 

West Coast has been working for decades to secure a legal tanker ban. This bill reflects the concerns of thousands of residents in northwestern BC and beyond who worked together for many years to stop the Enbridge Northern Gateway project and prevent oil spills in the Great Bear Rainforest.

It’s a crucial step in safeguarding the sensitive ecosystems and wild salmon in the region, and the communities, Indigenous cultures and livelihoods that rely on them.

The Senate needs to hear from Canadians like you, who agree that oil tankers have no place on the north Pacific coast. It’s important for them to hear your personal stories and perspectives about why the region’s unique ecosystems, communities, and healthy local economies deserve legislated protection from the threat of oil tankers. 

Please send an email to a list of key Senators at the addresses below, expressing your strong support for Bill C-48 and telling them why.


If you’d like to know what West Coast said to the Senate, take a look at our recent written submission supporting the bill.

Bill C-48 goes a long way toward protecting the north Pacific coast from the threat of crude oil spills from large tankers, taking future proposals for major oil tanker projects like Enbridge Northern Gateway off the table for good.

Please join us in calling on Senators to pass this bill without further delay!


Gavin Smith, Staff Lawyer
West Coast Environmental Law Association
West Coast Environmental Law
200 – 2006 West 10th Avenue
Vancouver, BC
V6J 2B3 phone: 604.684.7378
fax: 604.684.1312
toll-free in BC: 1.800.330.WCEL

This is Why the Beaver Lake Cree First Nation Is Asking for a Hearing

Posted on January 22, 2019

overview of mining activity for hearing

The Beaver Lake Cree First Nation fights a monumental legal battle to end tar sands projects on their territory. It destroys their land and their way of life. On 19 February the case has an important hearing. This is what happened before. 

Treaty 6

In 1876 the Canadian Crown promised the First Nations that in exchange for sharing their lands and keeping the peace, they could keep their way of life, culture, and the right to hunt, fish, trap in perpetuity. This is called Treaty 6.

19.000 fossil fuel mining projects

Since, the government of Canada and Alberta gave permission for 19 000 fossil fuel mining projects on the territory of the Beaver Lake Cree First Nation. This goes against Treaty 6.

Tarsands mining

Most of these 19.000 projects are tar sands mining projects. Tar sands mining is one of the most polluting forms of mineral developments, causing worldwide climate change.

Legal action

In 2008 Beaver Lake Cree First Nation filed a legal action against the governments of Canada and Alberta over the constitutional standing of numerous tar sands projects.

The case could proceed

After 5 years of beleaguered battling the case could go to trial. Alberta and Canada fought every step of the way to have the claim dismissed, but the court disagreed and has allowed the case to proceed.

19 February

On 19 February 2019 the case has an important hearing. You can support the case by sharing the message or donating today.

More information: RAVEN Trust

19 February 2019 Important Hearing in Beaver Lake Cree First Nation Case

Posted on January 17, 2019

Beaver Lake Cree First Nation is taking on the tarsands – Canada’s fastest growing source of climate pollution. Tar sands extraction is poisoning the water, eliminates whole forests, and decimates traditional food sources for the Beaver Lake Cree people. Politicians won’t challenge the power of the tar sands industry, but together we can. Support their case or help them share the message. 

Precedent Setting Case

The Beaver Lake Cree Nation is the first ever case to challenge and be granted a trial on the cumulative impacts of industrial development and they have a hearing on February 19, 2019. Their goal is:

Not one project, not one mine: all of them at once must go. 

This hearing will determine whether they will be granted the financial means to go to trial, and your support is vital. If they win, we all win.


The Beaver Lake Cree homeland has been scarred and polluted by an incredible number of tar sands projects. Oil and gas wells and infrastructure have displaced the moose and elk. Drainage from the winning of tar sands has polluted the water. Caribou may be driven to extinction in this region within 10 years.

What is the accusation?

Beaver Lake Cree Nation is accusing the governments of Canada and Alberta for breaking their treaty promises. They have allowed over 19 000 permits for mineral developments (mostly tar sands) on their territory. These fossil fuel projects threaten the way of life of the Beaver Lake Cree, by polluting and fragmenting the land and water that have sustained them for centuries.

February 19th

On February 19th the hearing will be held. Will they get justice to be able to carry on?

Join the movement

It’s time to join forces to protect the environment, climate, and Indigenous People’s right to Free, Prior, and Informed Consent.

The power of the crowd

The individual cannot change history, but together as individuals we can.

You can contribute to this case by donating money and share the message.

What’s at stake for Indigenous peoples is at stake for all of us. Justice, balance, protecting local communities from further harm, and a livable climate.

more information: RAVEN Trust

RAVEN Trust Shares Some of Their Major Accomplishments

Posted on December 13, 2018

Tar Sands mining RAVEN Trust

Last week, Alberta Premier Rachel Notley announced a cut in tar sands production. 

A drop in prices for dirty bitumen has been blamed on lack of pipeline capacity, which has been blamed on RAVEN Trust. Besides this, RAVEN Trust has enjoyed other major accomplishments: an overview. 

RAVEN Trust’s Accomplishments

By backing Indigenous Nations in court, RAVEN Trust stopped Enbridge. Together with and thanks to the Tsleil Waututh, Squamish, Coldwater and Secwepemc Nations. All these collaborated to stop the (formerly Kinder Morgan) TransMountain pipeline expansion.

Good news!

Over a Million Canadian Dollars

By harnessing the power of cutting edge, digital organizing, tools, RAVEN Trust invited dedicated people to help. These people supported by donating, fundraising online, and organizing events. These people helped to raise over a million dollars (and counting) to fund game-changing court cases. These cases have forced the government and industry to take Indigenous rights seriously.

A Winning Streak in the Canadian Courts

At this moment in history, Indigenous First Nations are on an unprecedented winning streak in the country’s courts. These wins are setting powerful precedents that will reshape our common future.

The impact of RAVEN Trust’s work writes the landscape.

Held Off Open Pit Mining

RAVEN Trust prevented two major pipelines from transforming the Pacific coast into a fossil fuel export superhighway. They have held off open pit mining in the Tsilhqot’in. They have sent LNG giant Petronas packing. And they pushed back against industrial development of the Yukon’s pristine Peel Watershed.

RAVEN Trust Circle of Allies

RAVEN Trust started the ‘Circle of Allies’. The time is now. Together we pull harder, because the gains made are counterbalanced by a ruthless fossil fuel industry. This fossil fuel industry grows more desperate as its climate impact becomes irrefutably clear.

While the world teeters on the brink of climate catastrophe, the cost of inaction is just too great.

We can wallow in despair or we can use our collective power to turn the tide.

RAVEN Trust invites people to join their Circle of Allies, with the following message:

Please commit to help Indigenous Nations see groundbreaking legal challenges through, all the way from inception to eventual success: find out more about our Circle of Allies.

The Crowd Versus is honored and proud to work with this powerful organization.

Stand with Indigenous Peoples

Stand with Indigenous Peoples: donate, organize an event, or set up an online fundraiser

Indigenous Nations are on a winning streak in the Canadian country’s courts.  We’ve stopped pipelines, pushed back against open pit mining and built an unprecedented alliance that is igniting all across the country.

Now it’s time to tackle climate destruction at the source:  Canada’s dirty tar sands.

At the heart of the largest industrial project on Earth, a tiny Nation who’ve lost 90% of their territory to oil and gas development are saying, “Enough.”  From tar sands ground zero, the Beaver Lake Cree are waging a monumental tar sands lawsuit against Canada and Alberta to force them to honour treaty rights and push back against tar sands development on their territory.

The lawsuit is the first ever to challenge the cumulative impacts of industrial development. Not one project, not one mine: all of them at once.

Indigenous legal challenges are behind the biggest progressive wins in this country. Cases supported by RAVEN halted the Kinder Morgan TransMountain pipeline. Our Pull Together campaign killed the Enbridge pipeline. From these victories has sprung a movement of people like you, who are strategic, focussed, and 100% committed to level the playing field so that Indigenous Nations can stand toe-to-toe with industry and government in the courts.

It’s a defining moment: will we allow the ideologues who are seizing power to distort our democracy to serve Big Oil’s agenda? Or will we rise together to realize the vision of a fair country, where the caretaker values of Indigenous Peoples become integral to solving the climate crisis?

The Tar Sands Trial aims to force limits on an industry that has been allowed to violate the treaties at every turn, and wreak havoc on the health of ecosystems and local communities. We need leaders like you to build this unprecedented alliance that is growing across the country because — when we join forces — we’re unstoppable.

Stand with Indigenous Peoples: donate, organize an event, or set up an online fundraiser. We’ve got just under 10 weeks before the Beaver Lake Cree go to court, and we need $100,000. Are you in?

In solidarity,

Ayendri, Brendan, Ana, Andrea and the rest of the RAVEN team

P.S. People who stepped up to organize events and host online fundraisers were the magic that helped us to stop Enbridge and Kinder Morgan. Now, we’re unleashing the power of the crowd to stop tar sands at the source. Take it to the next level by hosting an event or setting up an online fundraiser.

P.P.S. Double your impact: pass this message on to someone who needs to know about RAVEN’s Tar Sands Trial.  http://us9.forward-to-friend.com/forward?u=ec1dc8977d6122fcc867a4a12&id=ac6cceb10e&e=ae2320fd2a

Thank you!

Beaver Lake Cree Nation’s legal action to stop oilsands is a move to real reconciliation

Beaver Lake Cree Nation’s legal action to stop oilsands is a move to real reconciliation

 June 5th 2018

Crystal Lameman, Treaty Coordinator and Communications Manager, Beaver Lake Cree Nation in Lac La Biche, AB. July 2017. Photo by Ian Jackson/Epic Photography


If you held the winning card in a life or death game — would you play it if you knew it also came with a price that would leave you, your family and all your relations destitute for possibly generations to come? And knowing that the price of not playing it would leave you, your family and all your relations without food, water or a safe place to live for even longer? Rock, meet hard place.

That’s the dilemma we see many Indigenous nations face regularly when deciding to take the step of facing down Crown governments in court based on their Constitutionally-guaranteed rights (section 35 of the Constitution Act, 1982) in order to protect their land, rights and way of life. It’s one thing to have the Constitution card in your pocket; it’s another thing to be able to play it in a Canadian court when up against the deep resources of the federal or a provincial government or both. Particularly when Crown governments have tended to use strategies of delay and outspend as a way to manage this challenge to their support for extractive industries like oil or mining.

The Beaver Lake Cree case will be the first time a court is asked to draw the line defining too much industrial development in the face of constitutionally-protected treaty rights.

As the executive director of RAVEN (Respecting Aboriginal Values & Environmental Needs), a charitable non-profit organization that raises legal defence funds to assist Indigenous peoples to defend their constitutionally protected rights, I have witnessed first-hand the struggle that they often have in accessing justice through our courts. It’s not an easy decision for Nations to go to court. There is a significant imbalance of power in the resources between the parties, and familiarity with the system itself. But sometimes the Nation’s hand is forced, by destruction of their land, water, medicines, and animals for state-sanctioned industrial expansion that tramples their Aboriginal and treaty rights into dust.

Case in point — Beaver Lake Cree Nation in Alberta filed a legal action in 2008 against the governments of Canada and Alberta over the constitutional standing of numerous oilsands projects — one of the world’s largest and most carbon-intensive energy developments. The high-stakes action represents a precedent to the Canadian court. The Beaver Lake Cree case will be the first time a court is asked to draw the line defining too much industrial development in the face of constitutionally-protected treaty rights.

Kids from the Beaver Lake Cree Nation enjoying Culture Days in Lac La Biche, AB, July 2017. Photo by Ian Jackson/Epic Photography

The conflict is between the promise in Treaty 6 signed back in 1876 that guarantees Beaver Lake Cree Nation the right to hunt, trap, fish and gather medicines in perpetuity throughout their traditional territory, and the government’s allowable ‘taking up of lands’ — also in the treaty. Here’s the thing: if a mega project or several are destroying all the elements underpinning the treaty, it shows you’ve got a serious constitutional problem on your hands.

And to indicate the seriousness of stakes, it took five years of beleaguered battling just to get the case to go to trial. Alberta and Canada are in a tough spot, having welcomed a veritable cavalcade of oilsands projects over the last couple of decades. So, Alberta and Canada as defendants fought every step of the way to have the claim dismissed as “frivolous, improper and an abuse of process.” But the courts disagreed — and said no further “delaying tactics” should be permitted lest the entire claim be “stonewalled at an early stage through excessive particularization.” Read: buried in paper and expensive motions.

To me this is an access to justice issue. We have characterized our work at RAVEN as reconciliation in action — although the term has now been somewhat co-opted. But in law, reconciliation has a specific meaning; it’s not a trite phrase borne of current circumstances in our history. It is a promise made to the Aboriginal peoples of Canada and enshrined in the Constitution Act, 1982.

Reconciliation is about forcing Crown sovereignty to take account of and be reconciled with rights reflecting the prior use and occupation of land and resources by the Indigenous nations of Canada. From an Indigenous peoples’ perspective, their community has a legal basis for its own protection and development. And supposedly this is a priority of our Prime Minister, unless his use of the word reconciliation is the cocktail party version, light and frothy political banter with no actual substance.

Beaver Lake Cree elder in Lac La Biche, AB, July 2017. Photo by Ian Jackson/Epic Photography


RAVEN wants to be part of the transition from the colonial period to the reconciliation era, because the colonial period was characterized by Crown sovereignty being exercised without regard or respect for land and resources rights. The ‘reconciliation era’ we want to see via a legal theory of change is rooted in s.35 of the Constitution Act, 1982 and the model of forcing Crown governments to retreat through court-enforced orders.

If you’d like to learn more or get involved, you can check out the Tar Sands Trial video here.

We have backed Beaver Lake Cree Nation’s legal action for nine years — and are working to raise the funds they need now to bring forward and substantiate their s.35 interests through the courts and rein in the unlawful use of Crown sovereignty. To play that winning card should not be a dilemma, but a way to beat Canada and the provinces at their own game.

Susan Smitten is the Executive Director of RAVEN

Link to article here

Ecuadorian Constitutional Court Rejects Chevron’s Protection Action

Ecuadorian Constitutional Court Rejects Chevron’s Protection Action

From: https://www.cetim.ch

UDAPT in action


This is an important victory for the UDAPT. Ecuador’s Constitutional Court rejects the protection action requested by Chevron.

Following Chevron’s application to Ecuadorian courts to have the 2013 sentence that condemned this entity set aside, the Constitutional Court reaffirmed Chevron’s responsibility for environmental crimes in Ecuador’s Amazon.

An important victory for the Union of the communities affected by the oil operations of Texaco (now Chevron) (UDAPT), a long-standing partner of CETIM, which continues its fight for access to justice and against the impunity of transnational corporations.

We relay UDAPT’s press release here.

Link to CETIM.ch article here.

Beaver Lake Cree Nation running out of money to conclude 10-year legal battle

Judge ruled 5 years ago Beaver Lake Cree Nation’s constitutional challenge deserves trial, but no date set yet

A Beaver Lake Cree Nation member stands by a gate on a road on traditional territory. Beaver Lake Cree First Nation, which filed a constitutional challenge regarding development on its traditional territory 10 years ago, says it is financially struggling to keep the case going. (Supplied by Raven Trust)

A northern Alberta First Nation, suing over development on traditional lands, wants the federal and provincial governments to pay its court fees so it can afford to take the ongoing case to trial.

Beaver Lake Cree Nation, about 200 kilometres northeast of Edmonton, launched a constitutional challenge in 2008 alleging an infringement of treaty rights to hunt, trap, fish and gather on the land. Last week, the band filed an application for advanced costs with the Court of Queen’s Bench in Edmonton.

The First Nation, with fundraising help from Indigenous rights’ group Raven Trust, has paid more than $1.5 million in legal fees to date, according to the application for advanced costs.

Beaver Lake Cree Nation chief Germaine Anderson said “legal roadblocks” from the federal and provincial governments, which have both tried unsuccessfully to have the challenge dismissed, have exhausted the band’s financial resources.

“I don’t know if that’s their tactic, till we go broke and say, ‘Well, we can’t go through with this anymore,” Anderson said.

‘Deprived of their connection to the land’

Beaver Lake Cree Nation alleges in the statement of claim, an original version of which was filed in 2008, that the people have been “deprived of their connection to the land and waters of the traditional territory, undermining their economy, culture and very identity.”

​Of the 38,000 square kilometres of traditional land surrounding the reserve, 35,000 square kilometres have been impacted by development, mainly from oil and gas wells, said Crystal Lameman, a member of Beaver Lake Cree Nation and the treaty co-ordinator.

She said the populations of animal species the band subsists on, such as moose, are in decline. Water levels have drastically receded. The band is having a more difficult time finding traditional medicines, such as rat root.

The Beaver Lake population includes 390 people who live on reserve and 664 who live off-reserve.

Lameman acknowledged the First Nation does receive some money as a result of the widespread development, but said it’s not much.

“For the amount of development that has happened in our traditional territory, if we were receiving what we should be receiving, we definitely wouldn’t be in the financial situation that we’re in right now,” she said.

“We wouldn’t have a housing waiting list of over 50 and my nation wouldn’t have to be turning away post-secondary students for education funding even though they have a treaty right to education.”

Appeal dismissed in 2013

Canada and Alberta filed an appeal, arguing against the case management judge “misunderstood the nature of the fiduciary relationship between Aboriginals and the Crown” in the decision to allow the case to proceed.

“The treaty is alleged to impose obligations on Alberta and Canada to manage certain lands (“the core lands”) … to ensure that the members … are able to exercise their right to hunt, fish and trap,” the appeal stated.

The Court of Appeal of Alberta dismissed the governments’ appeal in 2013.

“The parties will be well-served by returning to their case management judge for the imposition of a litigation plan to advance this litigation through trial,” the appeal court ruling said.

No date for a trial has been set.

Ready to go to trial

Beaver Lake Cree Nation’s lawyer, Karey Brooks, has done some of the work pro bono. She said the case, known as a cumulative impacts case, is the first case filed to make such allegations to be sent to trial.

Beaver Lake Cree Nation Chief Germaine Anderson, left, JFK lawyer Karey Brooks, centre, and Beaver Lake Cree Nation Coun. Charlene Cardinal at the Edmonton courthouse last week, filing an application for advanced costs. (Supplied by Raven Trust)

She emphasized the significance of the appeal ruling that the claim was “judiciable and should proceed.”

Lameman said Beaver Lake Cree Nation wants the case to go to trail.

“We are ready to go to trial but we don’t have the money to get to trial,” Lameman said.

“In light of Kinder Morgan, in light of Enbridge, in light of all of these major cases, or challenges right now, in Canada, this case is critical to those very things. This, by Beaver Lake being successful in this cumulative impacts treaty rights case, we are able to set precedents of determining what development looks like in our territories.”