3 October 2019: First published by RAVEN Trust here; reprinted with permission
This week, the Alberta Court of Queen’s Bench granted advance costs to Beaver Lake Cree Nation to allow it to proceed with its “Tar Sands Trial” treaty case against Canada and Alberta.
It’s a huge breakthrough for a case that’s been called ‘a gamechanger’ for Indigenous rights in Canada. Now, after years of fundraising and pulling funds from critical community development initiatives to fund the case, Beaver Lake Cree will have the majority of the resources they need to mount a vigorous, well-researched case.
Why? Because the Court ruled that a case that aims to determine just what treaties are worth in the face of rapid industrialization is of “national importance”.
We knew that: and you knew that too. That’s why you donated, fundraised, organized events and spread the word to raise nearly $300K in 2018 for the Beaver Lake Cree to pursue this bold strategy to bring their historic case to trial.
With this advance cost award, Beaver Lake Cree Nation will have the financial resources to pursue a case which could transform “business as usual” in the oil sands, slowing expansion and forcing every project to be evaluated according to impacts on treaty rights of Indigenous Peoples.
The Tar Sands Trial would force regulators to consider cumulative effects of industrial development, including fracking and in-situ oil sands extraction. At its core, the case is about upholding the treaties – which enshrine powerful Indigenous rights – ahead of approving projects, such as tar sands extraction, that could render those rights meaningless.
Today, we are one giant leap closer to setting a legal precedent that will uphold the treaties that this country is founded upon.
The RAVEN community stood strong behind Beaver Lake Cree: you should be incredibly proud of the role you played in lifting up the voices of a frontline Indigenous community. Thank you for taking a stand, and drawing a line.
To run a national campaign in support of Beaver Lake Cree RAVEN has teamed up with some amazing partners! The Leap, Cadboro Bay United Church, ENvironnement JEUnesse, Justice Climatique Montréal et Climate Justice Edmonton: we couldn’t have done it without you! A big thank-you also to Greenpeace Ontario and the Climate Action Network.
RAVEN Trust Team
Call to Action:
We crowdfund for this case in Europe! As you can tell, environmental human rights litigation is making progress. Any financial help is always appreciated — especially when you donate on a monthly basis. This makes it easier for lawyers to plan ahead. Litigation, even with all the legal help from people who donate their time, remains expensive. Thank you.
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.
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.”
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.
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.
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.
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.
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.
On 19 February 2019 the case has an important hearing. You can support the case by sharing the message or donating today.
International Support for Tarsands Case Makes a Real Difference
Your active support for the Beaver Lake Cree First Nation helps their monumental lawsuit against the governments of Canada and Alberta. The Beaver Lake Cree aim to stop the permitting of tar sands mining on their territory. Their original Treaty 6 rights endow them with the ‘right to hunt, fish, and forage in perpetuity’ on their territories. The mining permits now limit these activities.
Treaties represent living agreements between First Nations and the Canadian Crown. All Canadians, Indigenous and non-Indigenous, are therefore Treaty people. Treaty rights of the Aboriginal peoples of Canada are affirmed and recognized as central to Canada’s very existence as a nation by the Constitution Act, 1982.
Yet despite these lofty commitments, Canada continues to turn treaty lands, like Beaver Lake Cree’s territory, into sacrifice zones. Beaver Lake Cree lands, waters and resources have become inaccessible and unusable for the exercise of the nation’s rights under Treaty 6.
The Supreme Court of Canada has said that although the Crown has a right to authorize land use, there may come a time when too much Crown-authorized land use renders Treaty rights meaningless. The Beaver Lake Cree First Nation has committed through its lawsuit to halt the destruction before it reaches that point. This is what the Tar Sands Trial is all about.
Mobilize international support
Ron Lameman, Director of Justice & Legal Affairs of the Beaver Lake Cree First Nation, argues that international effort and support for this case make a huge difference.
“We’re very pleased to see efforts in Europe to support the Beaver Lake Cree case against the tar sands. The Crowd Versus is doing important work to mobilize international support for this case and other Indigenous causes worldwide” – Ron Lameman, Beaver Lake Cree Nation.
Since the start of the case, Canada and Alberta have tried to delay the trial. So Cole and the Beaver Lake Cree First Nation have asked the court to award them a portion of trial costs in advance (the Amended Amended Statement of Claim). They base their claim on the precedent-setting nature of the tar sands case. The hearing on this motion will be heard in February, 2019. If this motion succeeds, the Beaver Lake Cree can obtain a court order that the federal and provincial governments pay for the costs of the litigation in advance. This will dramatically accelerate trial preparation. Eliminating delays protects the undeveloped lands .
In preparation of the hearing and trial, the Beaver Lake Cree are currently gathering videos as evidence from band members about traditional land use in tar sands-impacted lands. These include hunting, fishing, and foraging based on the Beaver Lake Cree traditional seasonal rounds. They have authorized expert reports on the cumulative effects of land and water pollution and habitat fragmentation caused by the tar sands mining to use as evidence.
The Crowd Versus will update you on the outcome of the hearing in February 2019.
Tweet this: Help a strong and courageous First Nation to #StopTarsandsMining in court: a gamechanger for #ClimateAction, #cdnpoli, #indigenousrights and for all of us. @RAVENTrust @TheCrowdVersus
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This link http://bit.ly/BeaverLakeCreeFirstNation may be used to save room; it leads directly to the landing page for the Beaver Lake Cree First Nation crowdfunding case at www.thecrowdversus.org.
And when you want to do even more, you can check this news post to get Activation Case support materials to start a fundraiser. We will amplify whatever you post.