This past winter marked a victorious ruling for the Beaver Lake Cree (BLCN). In a rare decision, the Alberta Court of Queen’s Bench granted advance costs to Beaver Lake Cree Nation (BLCN) to allow it to proceed with its “Tar Sands Trial” treaty action against Canada and Alberta. It’s a huge breakthrough for a case that’s been called ‘a gamechanger’ for Indigenous rights in Canada. The decision is part of an ongoing and enduring effort for justice by this northern Alberta Indigenous Nation: BLCN are before the courts with a landmark case that claims that their treaty rights are being violated by from the cumulative impacts of the tar sands.
Now, after a decade of fundraising and pulling funds from critical community development initiatives, Beaver Lake Cree will have the majority of the resources they need to mount a vigorous, well-researched case.
This is a triumph for community, grassroots organizing, and a story of the ways in which long lasting relations can build trust, and power, in a movement to protect our common future. Read an interview with Susan Smitten, RAVEN’s executive director, on the importance of the relationship between Beaver Lake Cree Nation and RAVEN.
What was the catalyst moment for RAVEN officially taking on the role to support Indigenous Nations’ access to the courts for justice?
RAVEN had its genesis as an organization around the Tar Sands Trial, and has been “all-in” with Beaver Lake Cree since the very first day we opened our doors on April 1, 2009. The Nation filed its statement of claim in the spring of 2008. Not long after, the Cooperative Bank in Manchester, England contacted BLCN leadership with big news. The bank’s social responsibility team had determined tar sands to be the biggest global contributor to climate change; they were offering funds from their members to contribute toward the costs of the Tar Sands Trial. The BLCN’s legal team reckoned that if there was one organization willing to help support BLCN’s action, there were probably others. This is how RAVEN — Respecting Aboriginal Values and Environmental Needs — became an active charity.
Creating change through the legal system takes time; can you explain how this has played out?
This gets to the heart of RAVEN’s legal theory of change. It is important to understand that the courts work systematically; the process of recognizing rights through the justice system takes time. In addition, many Nations often experience a Crown strategy to delay, deny and ultimately outspend Indigenous claimants — a tactic designed, effectively, to make the “problem” go away.
The trajectory of Beaver Lake Cree’s legal action has been, by turns, fascinating and frustrating. Initially, Canada and Alberta, instead of filing a statement of defence, filed a motion to strike. Their strategy was essentially to tell the courts that the legal action was “frivolous”, and “an abuse of court process”. Canada even suggested that ‘no judge could ever make a decision on something so complicated.’ It cost BLCN hundreds of thousands of dollars to defend the validity of their case in court. Canada and Alberta lost: they appealed, and lost again. The appeal also cost hundreds of thousands of dollars, even with lawyers working half rate and pro bono.
But in the end, thanks in large part to a whole community of supporters around the world, the ‘delay and outspend’ tactics of government failed to deter the Beaver Lake Cree. Now, their precedent-setting legal challenge will go to trial: this historic case stands to forever change the ‘business as usual’ approach to handing out permits for devastating industrial developments on Indigenous lands.
At RAVEN, we are in it for the long run. To make sure the Nation can fend off all costly motions and tactics so that it is able to fully participate in the process through to the end. The importance of that staying power — and of bringing a precedent-setting case all the way to the Supreme Court — cannot be overstated: when you get a judgement from the highest court in Canada, you have achieved something tangible and measurable, that stands as a touchstone for other Nations and, crucially, affects permanent change.
The Tar Sands Trial has come a long way from being labelled “An abuse of the court’s process”: advance cost awards are only given to cases that are ruled to be “of national importance.” BLCN was awarded advance costs in October 2019. Thus vindicated, all eyes will be on the BLCN as they dig deep and articulate their case that their rights to hunt, fish and practice their culture is being made effectively meaningless due to the cumulative negative impacts of industrial activity on their territory.
Together with BLCN, RAVEN is playing a long game. It’s tricky to keep people’s attention in a world of limited bandwidth and just 140 characters through which to digest complicated stories that evolve over many years. Our job is to make sure people understand how their own actions, taken today, can become part of securing a future we all want, long-term. Part of RAVEN’s work is to keep people connected to the issue by telling the amazing stories of community leaders and visionaries who are leading this struggle for justice.
Why do you think people who do not live near the tar sands should still care about standing behind Beaver Lake Cree’s Tar Sands trial?
To quote BLCN’s Crystal Lameman, “If you breathe air and drink water, this issue is about you. It doesn’t matter where you live, climate change knows no boundaries.” It is not a case of borders: the expansion of the tar sands has an impact on us all.
You have visited Beaver Lake Cree Nation and the tar sands several times. Can you describe what that experience was like?
The tar sands is a massive area, 2.5 times the size of Nova Scotia. Everyone knows the images of the toxic tailings ponds, but the hundreds of kilometers of pipelines and seismic lines through forests resulting from in situ tar sands mining has fragmented the territory and devastated ecosystem integrity and animal habitats. I didn’t understand the impact of in situ mining on the woodland caribou, for example. The habitat change through logging and the creation of oil and gas well sites, together with linear above-ground pipelines, provides access corridors for wolves to travel into previously inaccessible caribou habitat. The predators travel along the cut lines, and prey on the caribou, hunting them to the verge of extinction.
I remember Ron Lameman, a RAVEN board member, telling us with sadness how he used to canoe with his grandparents carrying just an aluminum cup to dip in the water and drink as needed. Those days are long gone: now the waters are toxic, poisoned from leaking bitumen. It’s shocking to see the size of the oil company’s well sites. Even though some companies are now pulling out, the well pads, pipelines, roads, seismic lines, and in situ plants remain, taking up formerly pristine wilderness, old growth boreal forest, and peatlands. This is where members of BLCN used to go to pick medicine or to hunt. But not any longer. That’s the promise that was made in the Treaty they signed with Canada – treaties guaranteed Indigenous Peoples the right to hunt, fish, gather medicines in perpetuity. It’s not much of a promise if you have to drive 100 kilometres to find a moose, or if the fish are inedible because they’re poisoned. And that’s what the Tar Sands Trial is all about really – if you have a mega-project destroying what BLCN treaty signatories depend on for their very identity and existence, you’ve got a serious constitutional problem on your hands. The Constitution is the highest law in Canada and simply cannot be ignored.
Mostly, I am always inspired by the Beaver Lake Cree community. Taking on this legal challenge is a brave, gutsy, and inspiring move. Chief Germaine Anderson, BLCN council and the band’s members aren’t just pushing back on Alberta and Canada (as if that’s not massive enough!) but are also taking on some of the world’s largest oil companies — including Exxon Mobil, Shell and BP.
What do you think the Beaver Lake Cree Case can accomplish?
This case will transform ‘business as usual’ — it will seriously curtail the governments’ tendency to hand out permits to oil industries and giving them a carte blanche in the tar sands. If the Nation can prove that its Constitutionally-enshrined treaty rights have been infringed by the tar sands industries, then the projects will have to stop: because they would be deemed unconstitutional. The legal precedent set by the Tar Sands Trial could be the first time a court draws the line and defines just how much is too much industrial development in the face of constitutionally protected treaty rights. In addition to the preservation of Indigenous rights and land, the result could also help in dealing with the climate emergency. It could curtail the expansion of fossil fuel extractive industry, and hopefully create enough of an impediment to Big Oil that industrial decision-making will shift away from fossil fuels and toward more sustainable options that provide for the health of animals, communities and ecosystems.
The Tar Sands Trial is a classic David and Goliath struggle, but having come this far, against incredible odds, I feel overwhelmingly positive about the direction of this legal action. With the Advance Cost award, which put two-thirds of the cost burden on Canada and Alberta, BLCN will still need to raise roughly $300K per year and RAVEN will be with them every step of the way.