When Fort McKay First Nation stopped Prosper Petroleum from starting a 10,000 barrel per day tar sands project adjacent to sacred Moose Lake, they added another stone to the cairn of legal victories that should prove foundational to the case Beaver Lake Cree – known as The Tar Sands Trial.
Why this matters
The victorious outcome for Fort McKay Nation serves as a powerful reminder to all colonial governments that the Crown’s Treaty promises are to be taken seriously, which often are sidelined in favour of large-scale resource projects. To honour this promise requires consideration of cumulative effects of these projects upon First Nations’ Treaty rights. The consideration of these impacts and honour of Treaty promises are also in public interest.
Fort McKay Nation are not the only ones facing the cumulative impacts of oilsands development and Alberta’s ongoing failure to live up to Treaty obligations.
Beaver Lake Cree Nation are in a decade’s long battle to stop the destructive, cumulative environmental impacts of resource development in their Tar Sands Trial. The Nation is suing the federal and provincial governments for failing to uphold Indigenous rights to fish, hunt, trap, and gather plants and medicines, as guaranteed by Treaty No. 6 and Canada’s Constitution. By authorizing unlimited tar sands expansion, these governments have allowed the homeland of the Beaver Lake Cree to become unrecognizable. With more than 19,000 fossil fuel permits issued to date and lush boreal forest being clear cut at an alarming rate, the impacts from all of these projects threaten to destroy the Beaver Lake Cree’s way of life —by polluting and fragmenting the land and waters that have sustained them for millennia.
In June 1899 the Fort McKay First Nation became a signatory of Treaty 8, a legal agreement with the Crown, which promised all Nation’s their traditional ways of life would be preserved “as long the sun shines, the river flows and the grass grows.” And in less than two generations, these Treaty 8 territories have become a full scale industrial sacrifice zone chock full of tar sands pits, tailings ponds, old growth clear cuts, fracked oil, toxic leaching, dams, and seismic lines. Tim Thielman, a Indigenous rights lawyer told The Narwhal, “That cumulative effect was never contemplated by the parties that entered the treaty. At the time, they had in mind some small-scale mining and logging, and guys working with pickaxes — not entire ecosystems being radically transformed and irreversibly submerged.”
Fort McKay First Nation’s lawsuit, filed against Alberta, argues that because of significant industry development over the last two decades (over 70 percent of their territory has been leased for tar sands purposes) the Nation’s ability to practice treaty rights, which includes to hunt, fish, trap and gather medicinal plants, needs an intact environment around Moose Lake. Read the entire case background on First People’s Law blog.
At the heart of the judgement included not only that the regulator failed to consider the public interest but also did not take into consideration cumulative effects of industrial disturbances. This is precisely the argument Beaver Lake Cree have put forth in their challenge to Canada and Alberta, making this judgement a landmark for all Nations who seek to have their treaty rights upheld based on a consideration of impacts of not just one project or one mine – but all of them, together.
Justice Greckol wrote in the judgement: “the honour of the Crown has as its ultimate purpose the reconciliation of Aboriginal interests with Crown sovereignty” and seeks to prevent Aboriginal Rights from turning into an “empty shell.” This latest legal victory could have positive implications for other First Nations pursuing legal justice in the fight to address the ongoing loss of their treaty rights on their lands, especially in light of the cumulative environmental impacts which are not usually considered.
It is time for provincial and federal governments to uphold the integrity of Treaty promises and reconcile the cumulative environmental impacts for countless First Nations facing the threat to their territories and way of life from rampant, unchecked industrial development. The Fort McKay ruling is a step in the right direction.
*note about the case – While the Nation was in the midst of negotiations to address cumulative environmental impacts with the province in 2018, the Alberta Energy Regulator still proceeded to approve Prosper Petroleum’s application which spurred the Nation’s legal action.