Alberta and Canada Deny Beaver Lake Cree Nation’s Financial Poverty in their Most Recent Appeal of the Court’s Advance Cost Award
post by Crystal Lameman, Beaver Lake Cree Nation, Treaty No. 6
My home community, the Beaver Lake Cree Nation, Treaty No. 6 (Alberta), filed a legal action in 2008 based on the Crown’s failure to account for cumulative impacts of industrial development, including numerous oilsands projects — one of the world’s largest and most carbon-intensive energy developments. The first of its kind at the time, the high-stakes Treaty rights action represents a precedent to the Canadian court. The Beaver Lake Cree Treaty case will be the first time the court is asked to draw the line, and to define when there is too much industrial development in the context of Treaty 6.
Treaty implementation requires the Crown to consider the cumulative effects of industrial development that are threatening Treaty rights to a way of life, including the right to hunt, fish, trap and harvest, and such a duty triggers the honour of the Crown.
If the Crown destroys the meaningful exercise of Treaty rights by failing to consider what lands and resources are necessary to maintain Beaver Lake’s way of life, and whether those thresholds are being exceeded through multiple land use authorizations, then our rights have been infringed.
The Crown has consistently denied that the Treaty promises my community the continuance of its way of life, and it denies that under the Treaty it must consider the combined effects of multiple industrial activities on the way of life of the Beaver Lake Cree over time.
Instead the Crown takes the position that it can authorize the taking up of land – to which it has no bill of sale – subject only to the duty to consult, which it disputes requires consideration of the cumulative effects on Beaver Lake’s Treaty rights, and in place of combined considerations, they consult on a project-by-project basis.
Recently, the Alberta Court of Appeal in Fort McKay First Nation v Prosper Petroleum Ltd. confirmed such a duty exists, contrary to the position of the Crown. However, the Courts have yet to weigh in specifically on the extent of the Crown’s obligations to consider the cumulative effects of industrial development on Treaty rights.
Beaver Lake’s case will advance the law in this regard, including with respect to: whether Treaty 6 protects a way of life; what is required of the Crown to ensure protection; and when the taking up of land reaches the threshold of infringement and; the appropriate remedy for that infringement.
Beaver Lake would prefer to negotiate these issues. As stated by Beaver Lake Cree Nation Chief Germaine Anderson, “The Nation has never been opposed to negotiations, we have made that clear, and still we have not been invited to and met at the negotiation table.”
However, the Crown has, to date, refused to an agenda that would allow for the meaningful negotiation of these complex issues, with appropriate funding that would ensure Beaver Lake’s meaningful participation. Canada also claims negotiations can occur within a special claims process, which is also acknowledging it would only address infringement from a creation of a bombing range in the middle of our territory.
Yet, even in that process we have made multiple attempts to advance to the first step only to be rejected on the basis we were out of time for this fiscal year. We have yet to receive information about whether or when our claim will be accepted. As a result, judicial determination, coupled with the continuance of our land-based practices, is needed as the Crown disputes it has the claimed Treaty obligations, and continues to authorize land use without regard to the cumulative impact on Treaty rights.
The issues raised in the case are difficult, complex, broad and have resulted in multiple pre-trial steps, including multiple motions to strike the pleadings. For ten years, Beaver Lake pushed this complex claim ahead to the extent it could, at a cost of $3 million. Half of the funds were from generous donors who understood the importance of these matters being heard by the courts. Knowing that this case rested on environmental justice, health and protection, they supported Beaver Lake’s efforts to enforce its Treaty rights.
But like many Treaty Nations, Beaver Lake is a financially impoverished community. It has only recently begun to accumulate some limited financial reserves, which it desperately needs to manage and address the deep financial poverty that has plagued the Nation. However, any financial reserves are not stable or certain to continue, and are required for emergencies, like the recent pandemic and failing infrastructure like the water treatment plant and natural gas lines, both of which provide heat and water to our homes, school, daycare and headstart/playschool.
Therefore in 2018, after 10 years of investing in the case – defending pleadings, responding to particulars, collecting evidence from over 100 members, and retaining multiple experts – we came to the agonizing decision that we could no longer proceed with the litigation as it required at least $5 million more to get to trial, which the Nation does not have. We realized it would not be prudent for the Nation to build half a bridge.
In April 2018, Beaver Lake filed an interim costs application, which asked the Court to order that Canada and Alberta pay for the cost of bringing the rest of the case forward. In doing so it adhered to the burden of proof and painfully exposed its financial poverty and community challenges in a thorough record of over 5,400 pages of financial statements, general ledger accounts, bank statements, impact benefit agreements, partnership agreements, trust documents, Indigenous Services Canada audits and more. Justice Browne, who had presided over the case for 7 years, heard the matter for 2 ½ days in February 2019, while the Nation’s elders, land-users and leadership looked on, after fundraising to make the trip outside of the community to be present during the hearing.
In a decision rendered in September 2019, Justice Browne found the case had merit, was publicly important, and in the interests of justice for it to proceed. She found Beaver Lake was impecunious, having little or no money, such that “the litigation would be unable to proceed if the order were not made”. She found that the interests of justice would be best served through a partial interim costs order. She ordered that each party – Beaver Lake, Canada, and Alberta – share in the costs of the litigation and pay $300,000 each annually until the matter is resolved. In doing so, she recognized that the twin goals of reconciliation and access to justice could only be facilitated through such an order, which would start to address the gross power imbalance between the parties.
Now, despite acknowledging the case has merit and is publicly important, Canada and Alberta have appealed the cost decision and continue to deny Beaver Lake’s financial poverty. Canada and Alberta could have chosen to accept Justice Browne’s decision, and moved ahead with having the matter heard on its merits in June 2024 – the date set for the 120-day trial – but in an effort to avoid the court setting a precedent on these important matters it instead chooses to argue about the extent of Beaver Lake’s financial poverty. The appeal, set for June 4, will determine whether or not the Nation will continue on their path to access justice, or whether it will be denied due to our financial poverty.
Canada and Alberta have attempted through their development of our lands to deprive my Nation of a meaningful way of life, a life that is rich and abundant. Now in this application they say we should spend every penny we have, regardless of whether we need that money to provide basic assistance and/or to meet the very basic needs of the community.
Our worldview as Indigenous peoples is grounded in the relationship that we have with the water, the air that we breathe, to the minerals in the ground, and all flora and fauna – walking, crawling, flying, swimming. It is through the privilege we have to be in this deep meaningful relationship that we commit to our collective efforts and resiliency in enforcing our rights. We do so, so that we are able to continue with our rich and abundant life, “as long as the sun shines, grass grows, and rivers flow”.