Application Against Tendele Coal Mining (PTY) LTD and Others (Summary)

Posted on December 13, 2018

Application for Leave to appeal filed

Below is a summary of the court case scheduled for 24 August 2018.

A list of relevant court papers and documents are provided below with links to download or view.

The Parties Bringing the Application Are:

  1. Global Environmental Trust
  2. Mfolozi Community Environmental Justice Organisation
  3. Sabelo Dladla

The Application Is Brought Against:

  1. Tendele Coal Mining (Pty) Ltd – opposed
  2. Minister of Minerals and Energy – no response
  3. MEC: Department of Economic Development, Tourism and Environmental Affairs – no response
  4. Minister of Environmental Affairs – no response
  5. Mtubatuba Municipality – no response
  6. Hlabisa Municipality – watching brief
  7. Ingonyama Trust – opposed but didn’t file affidavits in time
  8. Ezemvelo KZN Wildlife – will abide by the decision of the court
  9. AMAFA aKwaZulu-u-Natali Heritage Council – no response

Amicus Curae Applicants Who Submitted Papers in Terms of Rule 16(A) on 20 July 2018 Are:

  1. Mpukunyoni Traditional Council and Mpukunyoni Traditional Authority
  2. The 30 Izinduna of the 30 Isigodi of the Mpukunyoni Area
  3. Mpukunyoni Community Mining Forum
  4. Association of Mine Workers and Constructions Union and National Union of Mine Workers

The Application:

  1. Tendele is acting illegally in conducting the mining, in that it has no Environmental Authorization issued in terms of Section 24 of the National Environmental Management Act 107 of 1998 (“NEMA“), or any equivalent thereof, such as Section 38 A of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), as amended.
  2. Tendele is conducting the mining without any land use authority or approval from any Municipality and has no written approval in terms of Section 35 of the KwaZulu-Natal Heritage Act 4 of 2008 to remove or alter traditional graves from their original position.
  3. Tendele also has no waste management licence issued by the Minister of Environmental Affairs (Fourth Respondent) in terms of Section 43 (1) or the Minister of Minerals and Energy (Second Respondent) in terms of Section 43 (1A) of the National Environmental Management: Waste Act 9 of 2008 (“the Waste Act”), despite requiring a licence as a result of its activities.
  4. Such non-compliance has resulted in Tendele carrying on its mining operations illegally, with the result that the residents in the area of Reserve 3 are suffering irreparable harm. This includes the Third Applicant.

1.6       A tranquil rural environment adjacent to a provincial game reserve has been destroyed and polluted by dust and noise. Homes have been removed or destroyed and the environment and the amenity of all who live there and the public at large has been destroyed and continues to be destroyed day by day. The wilderness has been turned into a vast industrial rock dump. Massive blasting takes place and the quality of life is being destroyed.

1.7       The family of Third Applicant has taken the matter up with Mineral Resources, the Centre for Environmental Rights, the Public Protector and the Mpukonyoni Traditional Administrative centre. Applicants have also appealed against the grant of the latest Mining Right. This appeal was rejected.

1.8       Applicants seek the interdict to ensure that Tendele is fully compliant with the law.

The Applicants Seek the Following Order:

1. THAT First Respondent be and is interdicted and restrained from carrying on any mining operations at the following sites: –

1.1  Area 1 on Reserve No. 3 (Somkele) No 15822 measuring 660.5321 hectares as described in the Mining Right dated 22nd June 2007;

and/or

1.2  Areas 2 and 3 on Reserve No. 3 (Somkele) No.15822 measuring 779.8719 hectares as described in the Mining Right dated 30thMarch 2011;

and/or

1.3  Areas of KwaQubuka and Luhlanga areas on Reserve No. 3 No. 15822 measuring 706.0166 hectares as described in the Amendment of a Mining Right dated 8th March 2013;

and/or

1.4  One part of the Remainder of Reserve No. 3 No. 15822 in extent 21233.0525 hectares described in the Mining Right dated 26thOctober 2016;

Until Further Order of this Honourable Court

2. THAT First Respondent pay the costs of this application together jointly and severally, with any other Respondent who opposes this application.

3. THAT Applicants be granted further and/or alternative relief.”

As an alternative the above Honourable Court may elect to grant a structured interdict. The Judge has requested that we provide an alternative to him by 22 August 2018.

The interdict being sought by Applicants is semi-temporary in that it is sought “until further order of this Honourable Court.” If Tendele complies with its legal obligations and establishes that it has done so, the interdict may be lifted.

The Amicus Curae Application

  1. Applicant’s case is based on our rights under Section 24 of the Constitution 1996, coupled with the non-compliance with the law by First Respondent under the environmental legislation and notices, mining law, land use law, and the legislation which protects graves. These are largely legal issues.
  2. The Amici hardly address these issues. They are more concerned with their own self-interest and the benefits to them that the mining brings, whether it is legal or not.
  3. The Applicants wish to have these irrelevant facts struck out. Not only are they irrelevant to the issues Applicant brings before the Court but there is no time to deal with these issues at this stage of proceedings.
  4. In the event that any part of the mass of facts put forward are considered in the interests of justice to be relevant and important, we submit details:
    1. Second Applicant has presently 2503 members. There are new members who are being processed from lists received recently, and more joining every day. This is because of the increased interest by the affected communities as the Court Hearing approaches. These members have an average of 10 dependants each. The numbers of people opposed to the mining and the unlawful activities of First Respondent are therefore at least 25 000 people;
    2. The Actionaid Social Audit Report compiled by Sifiso Dladla;
    3. A Pscyho-social Impact Assessment by Michael R. Edelstein PhD, Professor of Environmental Psychology, Environmental and Studies Programs at Ramapo College of New Jersey.

List of Court Papers and Documents

Save our iMfolozi Wilderness: Application for Leave to Appeal Filed

Posted on December 13, 2018

Media Release:

Application for Leave to Appeal filed – Global Environmental Trust, MCEJO and S Dladla vs. Tendele Coal Mining (PTY) Ltd.

PIETERMARITZBURG, SOUTH AFRICA

On Tuesday, 11 December, 2018, an Application for Leave to Appeal was filed in the Pietermaritzburg High Court in the case between Tendele Coal Mining (PTY) Ltd and the Global Environmental Trust (GET), the Mfolozi Community Environmental Justice Organisation (MCEJO) and a resident of Somkhele, Sabelo Dladla.

Incomprehensive Judgment

This application is in response to the incomprehensible judgment handed down by the Pietermaritzburg High Court on 20 November, 2018, in which the case was dismissed with costs.

Relevant Documents:

Document: Application for leave to Appeal

Judgement by Justice Seegobin 20 November 2018

Documents for the case heard on 24 August 2018

Notice of Motion

Founding Affidavit

Annexures

Support this case.

Shock Judgement in Tendele Interdict Application

20 November 2018

The incomprehensible judgement handed down by the Pietermaritzburg High Court this morning, 20 November 2018, dismissed with costs the application by Sabelo Dladla, the Global Environmental Trust (GET) and Mfolozi Community Environmental Justice Organisation (MCEJO). This will not go unchallenged.

In essence, the applicants approached the High Court when their attorney found the mine had no environmental authorisations issued by Department of Environmental Affairs (or the Department of Mineral Resources) for the listed activities associated with mining operations. This is particularly concerning given the close proximity of the mining area to the Hluhluwe-iMfolozi Park, and the critical biodiversity of the area that includes hundreds of protected plant species, plus the water scarcity and the thousands of rural farmers living in the area, many of whom have lost their land and their livelihoods to the mine.  Consequently, many Somkhele residents have been left impoverished as a result of the mine operating in Somkhele. This challenges the argument of the court that the mine has brought many benefits, including infrastructure, to the community. The recently conducted Social Labour Plan audit, conducted by ActionAid, was included in the submission to the court, and strongly challenges the narrative that Tendele mine has brought the benefits it purports. Bewilderingly Judge Seegobin does not mention this in his judgement, nor the South African Human Rights report on human rights abuses in Somkhele community nor the psychosocial impact report by Prof. Edelstein.

One of the main arguments by Judge Seegobin is that if the Minister of Mineral Resources was not so satisfied he would not have granted the additional mining rights.  Similarly, the late “Minister of Environmental Affairs would also have had something to say if it was found Tendele was acting unlawfully”. Consequently there were clearly no grounds to challenge the mine’s operations.

The judgement also argues that because the mine initially commenced operations before the implementation of the one mining system, there was no need for the mine to have obtained environmental authorisation and that an EMP is sufficient.

The judgement is extremely punitive in awarding costs when it clear that a mining affected community supported by an NGO brought this application in an effort to ensure that Tendele Mine is compliant, in the public interest.  In the Biowatch case, the Constitutional court ruled that lower courts should embrace the ruling made 8 years ago against punitive cost orders being awarded when challenges were brought against Monsanto a corporation that had unequal power and financial resources.

Kirsten Youens, the attorney for this case, states: “Far from being demoralised, GET and MCEJO see this as an important opportunity to take the matter to higher judicial authorities starting with the Supreme Court and even to the Constitutional Court, if necessary, to ensure justice is done and that law applies to all. They take courage from other mining affected communities, like the Lesetlheng community, who lost their case until eventually receiving a Constitutional Court ruling in their favour, setting important precedents for social and environmental justice for lower courts to follow.  The Tendele case is set to do the same.”

While our lawyers are busy preparing leave to appeal against this judgement, Tendele mine faces another challenge from the community. Last week, Sabelo Dladla and MCEJO filed a Review Application in the North Gauteng High Court to review and set aside the Director-General’s decision to grant Tendele a further 222km2 right to mine. The Application is also to review and set aside the Minister’s decision to dismiss the internal appeal that was brought against the Director General’s decision to grant the mining right.

Implications of the landmark 25 Oct. Constitutional Court decision

Implications of the landmark Constitutional Court decision for mining affected communities

26 October 2018

SYNOPSIS: 

Yesterday’s Constitutional Court of South Africa (ConCourt) judgment represents a hugely significant decision for communities and land owners. It means that mining companies who have obtained a mining right cannot simply go onto the land and start mining, as they could to date even without the agreement of the land rights holder.

The Court held that before mining starts there must be an agreement between the community and the mine on compensation. If that is not agreed, then compensation must be determined by the court or by arbitration before mining can commence.

The Court also held that the award of a mining right does not override the community’s rights as owners or lawful occupiers.

EFFECTS OF DECISION:

In a situation like that at Somkhele and Fuleni this decision has huge significance.

The mining companies always offer minimal compensation, an RDP house and a few thousand rand cash to compensate each family, and then to start mining.

When offers are refused by the community, the bulldozers advance destroying lands and resources. So, even as the “negotiations” continue, life becomes increasingly intolerable until resistance appeared futile and community members capitulate and agree to be resettled on the mine’s terms.

This is a pattern that has repeated itself many times in the past.

This should not happen anymore.

 

If the mine doesn’t offer a fair deal, which, in this context, means simply that the community member’s lives should be better not worse after mining, then mining won’t happen until such time as a court or an arbitrator has considered the compensation on offer and ruled on it.

In front of a court we would be arguing for compensation not only for our land and our homes and the lost livelihoods, but also to be compensated for the loss of community, the harm done to our culture and our traditions and our way of life.

Compensation would not necessarily be limited to cash. On the contrary we would expect programs to restore livelihoods and to re-equip us to live in a changed world. Women who would otherwise be engaged in subsistence farming would need to be trained and re-skilled for other livelihoods. Children would need to be properly schooled and equipped to live a modern life.

IMPACT OF DECISION:

The impact for a community like that of Fuleni and Somkhele would be significant. Mining for coal may be economical if you can get away with an RDP house and R100 000 per family, but it may not be economical if you are obliged to provide alternative land (hectares of indigenous bush and grazing land costs a lot of money) and to compensate for lost livelihoods and the social and economic networks that have sustained the community for generations.

Let’s face it, this kind of mining expansive open cast could never be undertaken in Europe or even in Australia, the cost of compensation is simply too high.

Mining is viable in much of Africa because you can get away with a 4×4 for the Chief, a backhander to the local politicians and a bunch of lousy RDP houses. The reality is that many of those whose land and livelihoods are taken from them by mining are left worse off and not better off than they were before.

The decision does not go so far as to affirm the right of community’s to say no. The court says that this is a question to be answered on another day, but it is a huge step forward.

It’s not a guaranteed outcome but certainly for the first time communities that are well advised and supported will be well placed to ensure that they actually benefit from mining on their land and are not impoverished thereby.

[Paraphrased from Richard Spoor’s summary on 25 October 2018]

Other links on this topic:

The full judgement of the Constitutional Court of South Africa

Ruling ‘fundamentally changes power dynamics’ as communities win big in ConCourt

Landmark ConCourt judgment says mining rights do not trump lawful land occupier rights

South Africa’s top court ruling curtails power of chiefs to cut mining deals

Interview with Attorney Richard Spoor

Summary of Proceedings: Tendele/Somkhele Coal Mining Case

Media Release – Summary of Proceedings: Tendele/Somkhele Coal Mining Case

MCEJO outside the Pietermaritzburg Supreme Court – photo by Rob Symons

The application brought by The Global Environment Trust (GET) and members of Mfolozi Community Environmental Justice Organization (MCEJO) against Tendele Coal Mining (PTY) LTD, on 24 August 2018 in the Pietermaritzburg Supreme Court has been heard. Judgement to be handed down in 3 months.

PIETERMARITZBURG, SOUTH AFRICA: Our day In court: Our senior counsel, Advocate Dickson, supported by Advocate Mazibuko and instructing attorney, Kirsten Youens, put our case across very well. During our argument, Judge Seegobin expressed concern at granting an order to close the mine while it applies for the necessary licences because of impact this could have on the economic situation of the country. Our argument is that if Tendele has no environmental authorisations, no waste management licenses, no cultural heritage permits and no planning permission, it is operating illegally. An order for the mine to continue operating in spite of this would be to clothe illegal acts in the legitimacy of a court order.

Later in the proceedings Judge Seegobin stated that mining in South Africa has come under the spotlight for various reasons. One of these was the huge impact that it has on poor people and on the environment. He mentioned the South African Human Rights Commission Report that was recently released and formed part of our court papers. He further stated that as much as Tendele may argue that they are operating legally, we can’t “lose sight of these issues”.

Tendele was represented by their attorneys and advocates from Johannesburg. Mine management and several Indunas were present in court. Their advocate stated that it is not really new that mines have a massive impact on communities. “There are always inevitable conflicts and there have been since the 1950s.”Their argument is that, with the exception of the cultural heritage laws (which they concede were needed but not complied with), the legislation does not apply to them and no authorisations are needed.

Our 3000 MCEJO members were represented by 200 people who travelled from Zululand at 3am to be there. SAPS and Msunduzi municipality officials were happy with the way MCEJO organised themselves.

We trust that Judge Seegobin will be strong in his statement against mining in contravention of the law and finds in favour of thousands of people who want justice and confirmation that #LawApplies2All.

Judgement to be handed down in about 3 months.

Photos

All photos in the following albums are available for download. For photographic enquiries please contact Rob Symons –  South Africa 082 495 6249

Tendele Mine/Somkhele  https://flic.kr/s/aHsmhio5Kh

Tendele/Somkhele Court Case  https://flic.kr/s/aHsmrq93qg

Here are some useful links:

The Truth about Tendele – Mine throws Lie Line: https://wp.me/p768Un-HN

Summary of the Court case with links to court papers: https://wp.me/p768Un-HV

For background on Save our iMfolozi Wilderness Campaign: https://saveourwilderness.org

Website for The Global Environmental Trust  http://globalenvironmentaltrust.org

Contacts (also in South Africa):

Kirsten Youens, Legal advisor for GET and MCEJO – 0612266868

Sabelo Dladla, MCEJO, Second Applicant –  0834647671

Sheila Berry, Spokesperson for the Global Environmental Trust – 082 295 7328

Media Release 20 August 2018 on Tendele/Somkhele Coal Mining Case

Media Release – on 20 August 2018

Tendele/Somkhele Coal Mining Case

Notice: The Somkhele and Fuleni communities neighbouring the Hluluwe iMfolozi Park unite on 24th August 2018 at the Pietermaritzburg High Court in their resistance against the ongoing illegal mining by Tendele Coal Mining (PTY) LTD and its proposed expansion.

PIETERMARITZBURG, SOUTH AFRICA: In an application to be heard in the high court in Pietermaritzburg, evidence will be tabled before Judge Seegobin of how, since 2017, the mine has been violating the National Environmental Management Act by breaching environmental and other laws. The mining company operates illegally next to arguably the most sensitive area in South Africa, with the largest population of rhinos in the world.

Tendele’s human rights abuses and negative impacts on the lives and livelihoods of the greater Mpukunyoni area, where Somkhele is situated, will be tabled in various reports, including the South African Human Rights Commission’s recently released report on hearings with mining affected communities that include Somkhele.  Meanwhile, Tendele plans to expand its operation and has identified 124 households to be moved from their rightful land. Many more families will lose their livelihoods and have their lives and health destroyed by living in close proximity to the mine.

“Furthermore, environmental degradation, and the failure to conserve biodiversity, prejudice the realisation of numerous other human rights, particularly the right to equality, but also the rights of access to sufficient food and water, health, housing, land and ultimately, the right to live with dignity.”  [Extract from SAHRC report, p.41]

The application is brought forward by The Global Environment Trust (GET) and members of Mfolozi Community Environmental Justice Organization (MCEJO) who believe #LawApplies2All.  The applicants seek that the court interdicts and restrains Tendele Mining company from carrying on any mining operation in the area until it has complied with the law.

Kirsten Youens, attorney for the applicants sums it up by saying: “We are relying on our judicial system to ensure that justice is done. The law must be complied with by all, not a select few. This is an opportunity for a clear statement to be made that it is unacceptable for mining companies to comply with the law after they have already commenced mining and only when ordered to do so. The environment and thousands of people’s lives are at stake.”

ENDS

For the latest on this case see the following links:

The Truth about Tendele – Mine throws Lie Line: https://wp.me/p768Un-HN

Summary of the Court case with links to court papers: https://wp.me/p768Un-HV

For background on Save our iMfolozi Wilderness Campaign: https://saveourwilderness.org

Photo album on Tendele mine: https://adobe.ly/2MrWrmz

Case Details:

Applicants: 1.Molozi Community Environmental Justice Organization (MCEJO)

                    2. Global Environmental Trust (GET)

                    3. Sabelo Dladla

Main Respondent (See Court Application for 8 others, none of which will address the court):

  1. Tendele Coal Mining (Pty) Ltd

 

Place: Pietermaritzburg High Court (Pietermaritzburg CBD)

Date: 9h30 sharp on 24 August 2018

Contacts:

Kirsten Youens, Legal advisor for GET and MCEJO – 0612266868

Sabelo Dladla, MCEJO, Second Applicant –  0834647671

Sheila Berry, Spokesperson for the Global Environmental Trust – 082 295 7328

Below is a summary of the court case scheduled for 24 August 2018.

A list of relevant court papers and documents are provided below with links to download or view.

The parties bringing the application are:

  1. Global Environmental Trust
  2. Mfolozi Community Environmental Justice Organisation
  3. Sabelo Dladla

The application is brought against:

  1. Tendele Coal Mining (Pty) Ltd – opposed
  2. Minister of Minerals and Energy – no response
  3. MEC: Department of Economic Development, Tourism and Environmental Affairs – no response
  4. Minister of Environmental Affairs – no response
  5. Mtubatuba Municipality – no response
  6. Hlabisa Municipality – watching brief
  7. Ingonyama Trust – opposed but didn’t file affidavits in time
  8. Ezemvelo KZN Wildlife – will abide by the decision of the court
  9. AMAFA aKwaZulu-u-Natali Heritage Council – no response

Amicus Curae Applicants who submitted papers in terms of Rule 16(A) on 20 July 2018 are:

  1. Mpukunyoni Traditional Council and Mpukunyoni Traditional Authority
  2. The 30 Izinduna of the 30 Isigodi of the Mpukunyoni Area
  3. Mpukunyoni Community Mining Forum
  4. Association of Mine Workers and Constructions Union and National Union of Mine Workers

Our application:

  1. Tendele is acting illegally in conducting the mining in that it has no Environmental Authorization issued in terms of Section 24 of the National Environmental Management Act 107 of 1998 (“NEMA“) or any equivalent thereof such as Section 38 A of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) as amended.
  2. Tendele is conducting the mining without any land use authority or approval from any Municipality and has no written approval in terms of Section 35 of the KwaZulu-Natal Heritage Act 4 of 2008 to remove or alter traditional graves from their original position.
  3. Tendele also has no waste management licence issued by the Minister of Environmental Affairs (Fourth Respondent) in terms of Section 43 (1) or the Minister of Minerals and Energy (Second Respondent) in terms of Section 43 (1A) of the National Environmental Management : Waste Act 9 of 2008 (“the Waste Act”) despite requiring a licence as a result of its activities.
  4. Such non-compliance has resulted in Tendele carrying on its mining operations illegally with the result that the residents in the area of Reserve 3 are suffering irreparable harm. This includes the Third Applicant.

1.6       A tranquil rural environment adjacent to a provincial game reserve has been destroyed and polluted by dust and noise. Homes have been removed or destroyed and the environment and the amenity of all who live there and the public at large has been destroyed and continues to be destroyed day by day. The wilderness has been turned into a vast industrial rock dump. Massive blasting takes place and the quality of life is being destroyed.

1.7       The family of Third Applicant has taken the matter up with Mineral Resources, the Centre for Environmental Rights, the Public Protector and the Mpukonyoni Traditional Administrative centre. Applicants have also appealed against the grant of the latest Mining Right. This appeal was rejected.

1.8       Applicants seek the interdict to ensure that Tendele is fully compliant with the law.

The Applicants seek the following order :-

1. THAT First Respondent be and is interdicted and restrained from carrying on any mining operations at the following sites: –

1.1  Area 1 on Reserve No. 3 (Somkele) No 15822 measuring 660.5321 hectares as described in the Mining Right dated 22nd June 2007;

and/or

1.2  Areas 2 and 3 on Reserve No. 3 (Somkele) No.15822 measuring 779.8719 hectares as described in the Mining Right dated 30th March 2011;

and/or

1.3  Areas of KwaQubuka and Luhlanga areas on Reserve No. 3 No. 15822 measuring 706.0166 hectares as described in the Amendment of a Mining Right dated 8th March 2013;

and/or

1.4  One part of the Remainder of Reserve No. 3 No. 15822 in extent 21233.0525 hectares described in the Mining Right dated 26th October 2016;

Until further order of this Honourable Court.

2. THAT First Respondent pay the costs of this application together jointly and severally, with any other Respondent who opposes this application.

3. THAT Applicants be granted further and/or alternative relief.”

As an alternative the above Honourable Court may elect to grant a structured interdict. The Judge has requested that we provide an alternative to him by 22 August 2018.

The interdict being sought by Applicants is semi-temporary in that it is sought “until further order of this Honourable Court.” If Tendele complies with its legal obligations and establishes that it has done so, the interdict may be lifted.

The Amicus Application

  1. Applicant’s case is based on our rights under Section 24 of the Constitution 1996, coupled with the non-compliance with the law by First Respondent under the environmental legislation and notices, mining law, land use law and the legislation which protects graves. These are largely legal issues.
  2. The Amici hardly address these issues. They are more concerned with their own self-interest and the benefits to them that the mining brings, whether it is legal or not.
  3. The Applicants wish to have these irrelevant facts Struck out. Not only are they irrelevant to the issues Applicant brings before the Court but there is no time to deal with these issues at this stage of proceedings.
  4. In the event that any part of the mass of facts put forward are considered in the interests of justice to be relevant and important, we submit details:
    1. Second Applicant has presently 2503 members. There are new members who are being processed from lists received recently, and more joining every day. This is because of the increased interest by the affected communities as the Court Hearing approaches. These members have an average of 10 dependants each. The numbers of people opposed to the mining and the unlawful activities of First Respondent are therefore at least 25 000 people;
    2. The Actionaid Social Audit Report compiled by Sifiso Dladla;
    3. A Pscyho-social Impact Assessment by Michael R. Edelstein PhD, Professor of Environmental Psychology, Environmental and Studies Programs at Ramapo College of New Jersey.

List of Court Papers and Documents

 

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