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.

Beaver Lake Cree February 2019 Hearing: Awaiting Court Decision

11 April 2019; originally published March 8, 2019 by Ana Simeon, RAVEN Trust

It was an emotional moment. The morning of February 19th, Beaver Lake Cree elders and community  members crowded into a packed courtroom, having risen before dawn to make the 3-hour journey from Lac La Biche to the Court of Queen’s Bench in Edmonton. The sense of expectancy was palpable: after waiting for so many years, thwarted by Canada and Alberta at every step, would they finally receive justice?

Throughout the hearing, the court heard affidavit evidence from 10 band members. In submission after submission, Beaver Lake Cree people expressed many painful losses. Elders, knowledge keepers and community members described how, due to unchecked industry, they are no longer able to meaningfully exercise the way of life and culture that was promised to them under Treaty 6. They spoke of the broken promises reflected in the 19,000+ Crown authorizations for tar sands and other industrial development in their territory.

Loss of caribou, pollution of water, fragmentation of culture: over three long days, Beaver Lake Cree witnesses spoke of the tragic consequences of neglected treaty rights in northern Alberta.

It was inspiring to see the resilience of this community that travelled for hours to have their presence felt. Youth sat front and centre, attentively listening and watching the colonial system in action. Elders struggled to hear but seemed to find humour in the evidence; specifically at claims from the province that Beaver Lake does not live in poverty.

Part of what was being debated at the hearing is whether the issues raised by the Beaver Lake Cree are of national importance. Of course, we think that they are: this is a case that goes to the heart of what Canada’s responsibility to uphold the treaties really means. In particular, the case — known as The Tar Sands Trial —  addresses questions about whether Treaty 6 (and all the Numbered Treaties) assures Indigenous Peoples of a way of life, and whether there should be  limits to how much land and resources the Crown can take up, as allowed in the agreement, before the Treaty is infringed.

Meanwhile, the Canadian government denies that the rights asserted by the Beaver Lake Cree even exist. The Crown denies that treaty infringement has taken place. For these hearings, a whole suite of Department of Justice lawyers has been tasked to challenge an under-resourced First Nation’s attempts to secure the funding it needs to go to trial.

“Canada’s position in Court stands in stark contrast to the high-level promises of the Trudeau government to promote reconciliation and to listen to Indigenous people,” says MKarey Brooks, legal counsel for Beaver Lake Cree. “Without this case, and the advanced funding order, these critically important issues will not get resolved.”

It is important to remember that reconciliation has a specific meaning in law: it is about forcing Crown sovereignty to take account with and be reconciled with the pre-existing rights of Indigenous Peoples, reflecting the prior use and occupation of land and resources. The  issues being brought forward by the Beaver Lake Cree are deeply significant for First Nations across the country – and for all Canadians who care about acting honourably and setting right our relationships with Indigenous Peoples.

That’s why we recognize that this small Nation should not have to foot the bill for this fight on their own.

At RAVEN, we are used to quick and nimble fundraising campaigns in support of rapid-response Indigenous legal challenges to pipeline and mining projects. The Beaver Lake Cree case has been different – it’s been legally complex, fiercely denied by Canada and Alberta, lengthy and drawn out.  It’s hard to believe, but the Nation has been championing their treaty rights for more than a decade!

We’re amazed and humbled by that commitment and staying power.  We applaud Beaver Lake Cree leadership for standing up again and again to demand justice. They do so strengthened in the knowledge that so many donors like yourself are at their backs. The wave of support from all across the country this fall and winter has been incredible – we’ve raised $246,000 and counting, more than 90% of it from people organizing, fundraising, and donating to see justice done. Please accept our most heartfelt gratitude.

We couldn’t have done this without movement allies, such as Equiterre, the Leap, and Climate Justice Edmonton, along with online fundraisers who have reached out to family and friends for support  for the Beaver Lake Cree.

As we all wait for the court decision, know that you are doing your part to defend the spirit of the Treaties, and to forge a new way forward for this country that upholds the rights of  the Indigenous Peoples who have stewarded the land, air and water since time immemorial. It is our honour to be standing with you.

With gratitude, Laurie, Ana and the whole RAVEN team

Link to Facebook Live Events here.

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

The Crowd vs. Tarsands Mining in Canada

49% funded
We've raised €1,221.18 of the €2,500.00 we are trying to raise for this case!

The Crowd vs. Tarsands Mining in Canada

Beaver Lake Cree Nation is challenging the governments of Canada and Alberta for breaking their treaty promises by allowing 19,000 permits for mineral developments (mostly tar sands mining) on their territory. For more information, check here.

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The Crowd claims

Stop tarsands mining, protect the world’s most important carbon sinks, and hold Canada accountable for breaking their constitutional promise to the Beaver Lake Cree First Nation.

Case Video

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Case News

Die Schrei der Natur

By Spiros Derveniotis

The Crowd vs. Tarsands Mining in Canada

Beaver Lake Cree Nation is challenging the governments of Canada and Alberta for breaking their treaty promises by allowing 19,000 permits for mineral developments (mostly tar sands mining) on their territory. For more information, check here.

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Sa-na-da

By Wissam Asaad

The Crowd vs. Tarsands Mining in Canada

Beaver Lake Cree Nation is challenging the governments of Canada and Alberta for breaking their treaty promises by allowing 19,000 permits for mineral developments (mostly tar sands mining) on their territory. For more information, check here.

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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.

Situation

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

These Lawyers Stand Up for Your Rights

Posted on December 9, 2018

Lawyers work to protect human and environmental rights all over the world. On December 10 we would like to honor their work and thank four of them. 

On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights. Since that date, we celebrate Human Rights Day every year.

This year marks the milestone 70th anniversary of this declaration.

Rights for Every Human Being

The document proclaims the rights to which every human being is entitled. No matter the race, color, religion, sex, language, political or other opinion, national or social origin, property, birth or other status.

The recognition of equal rights for all is a precondition for sustainable societies. Equality, justice and freedom prevent violence and sustain peace. Unfortunately, these rights are constantly challenged.

Standing up for our rights, or supporting others in their battles, remains essential; whoever and wherever you are.

On this special 10 December day, we present to you four extraordinary lawyers who stand up for the rights of others. They do this with long hours in cases that can change the historical legal doctrines of corporate interests and governmental policies.

1. Karey Brooks

In Canada, JFK Lawyer Karey Brooks battles in court to stop tarsands mining, to protect the world’s most important carbon sinks, and to hold the Alberta province and Canada accountable for breaking their constitutional promise to the Beaver Lake Cree First Nation.

#TarSandsTrial #cdnpoli

2. Kirsten Youens

Kirsten Youens

In South Africa, Kirsten Youens fights in court to stop the coal mining activities of the South African government that puts Zululand and its people in danger and also threatens the world’s greatest concentration of rhinos in the wilderness area of the Hluhluwe-iMfolozi Game Reserve.

#SaveOurWilderness #StopTendele #LawApplies2All

3. Pablo Fajardo Mendoza

Pablo Fajardo

In Ecuador, Pablo Fajardo Mendoza supports the Amazon people in a landmark case to legally force Chevron to create health programs for the 6 indigenous nations and repair their lands, after one of the worst environmental disasters of all times. Pablo received the 2015 Goldman prize in recognition of his long and arduous work and we are honored to help his team.

#StopChevronImpunity #StopCorporateImpunity #ChevronCleanUp

4. René Sánchez Galindo

Rene Sanchez Galindo

In Mexico, Lawyer René Sánchez Galindo fights to stop Monsanto and other multinationals from growing genetically modified or GM corn that will force all farmers to grow GM corn, will harm biodiversity, and ultimately puts Mexican cultural heritage and way of life at risk.

#MxvsGMO #MXSinOGM #KeepMaizeAuthentic

#environmentalrightsarehumanrights

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.”

roberta.bell@cbc.ca

@roberta__bell