Beaver Lake Cree Nation is headed to the Supreme Court!
On November 4, Beaver Lake Cree Nation will appear before Canada’s highest court in a bid to reinstate a cost award which the Nation says is the only way to bring a decade-long treaty rights challenge finally to trial.
Support Beaver Lake Cree Nation’s urgent legal work to prepare for the hearing in Ottawa.
“What is the meaning of constitutionally guaranteed Treaty rights if we are required to bankrupt ourselves in order to access the courts to protect those rights? Without access to justice, there cannot be reconciliation.” Chief Germaine Anderson, Beaver Lake Cree Nation
Located in the midst of Canada’s oil sands, Beaver Lake Cree Nation is at the frontlines of climate injustice. Since 2008 Beaver Lake Cree Nation has been pursuing a legal action against Canada and Alberta over the cumulative effects of multiple oil sands projects authorized by the two governments. Impacts from these projects have despoiled the Beaver Lake Cree Nation’s boreal forest homeland, and threaten to obliterate the Beaver Lake Cree Nation’s way of life —by polluting and fragmenting the land and waters that have sustained Indigenous Peoples for millennia.
This is a groundbreaking legal challenge. The case stands to set a powerful precedent that would force regulators to evaluate projects not on a one-by-one, piecemeal basis, but according to the cumulative impacts of industry and development on treaty rights. A win would be a game-changer for Indigenous rights and environmental protection.
Beaver Lake Cree Nation spent years in court fending off motions, appeals and other “delay and outspend” tactics by Canada and Alberta. For all the resources Canada and Alberta threw at their war of attrition, the two governments clocked loss after loss in the courtroom. Why governments were so determined to crush Beaver Lake Cree’s case became crystal clear when the court stated in no uncertain terms that Beaver Lake Cree Nation’s case has merit and is of national importance.
Nevertheless, even with the support of thousands of people who have donated, organized, and fundraised to help fund the case, it has been a struggle to fund a massive lawsuit. This is a case that addresses the effects of 19,000 oil and gas permits in addition to military installations and other infrastructure: the courage and resilience of Beaver Lake Cree Nation to push back against the governments’ tactics has been challenging to sustain.
In 2018, the Nation petitioned the court to grant an advanced cost award to support the case which was determined to be in the national interest. And… they won! The judge ordered all three parties – Beaver Lake Cree Nation, Canada and Alberta – to each pay a third of the costs of bringing the case to trial: $300,000 per year, per party, until the case has been determined. That order is what Beaver Lake Cree Nation is aiming to have upheld in the Supreme Court.
Unfortunately – but predictably – Canada and Alberta appealed the advanced cost order. In 2020, the Alberta Court of Appeal revoked Beaver Lake Cree Nation’s award. The decision didn’t just take away Beaver Lake Cree’s best chance to access justice, it created a new, stringent standard for advanced costs – a standard that would be very hard if not impossible to meet for any other First Nation seeking advanced costs in the future.
This precedent cannot stand.
“The Court of Appeal decision faces us with an impossible choice. Do we choose to provide clean water to our members, or do we fulfill our obligation to take care of our lands and waters so that they provide food, medicine and spiritual sustenance for present and future generations of Beaver Lake Cree?” – Chief Germaine Anderson, Beaver Lake Cree Nation
The only way forward is to appeal to the highest court in the land. Beaver Lake Cree Nation has been granted leave to present its argument. This Supreme Court challenge is the last, best chance to ensure Beaver Lake Cree Nation has its day in court with its ground-breaking treaty rights case. This case is the fruit of 12 years of effort, countless hours and many sleepless nights put in by Beaver Lake Cree Chief and council, and thousands of hours of pro bono work by the Beaver Lake Cree legal team. The team at JFK Law is working around the clock to finalize the legal argument and prepare for the hearing.
A win in this case would set a precedent allowing access to justice for Indigenous Nations that want to bring strategic legal challenges but lack the funds to carry the cases alone. It would also set Beaver Lake Cree Nation back on the path to pursuing its historic “Defend the Treaties” case: a powerful strategy to curtail the expansion of oil sands at a time of climate emergency.
Stand with Beaver Lake Cree Nation today.
Why is Beaver Lake Cree Nation at the Supreme Court?
Beaver Lake Cree Nation will ask the Supreme Court to reinstate the case management judge’s advance cost award. The Nation will argue that the appeal judge who revoked the initial award made significant errors in assessing whether Beaver Lake Cree genuinely could not afford to pay for the litigation.
In the original cost award order, the case management judge, Justice Browne, found that Beaver Lake Cree Nation would be unable to both reasonably fund the litigation and provide for the basic necessities of life that most Canadians take for granted. She found it would be “manifestly unjust” to compel Beaver Lake Cree Nation to abandon its case, or to force it into destitution by pursuing it.
What arguments will Beaver Lake Cree Nation present to the Supreme Court of Canada?
In the Supreme Court hearing, Beaver Lake Cree Nation will argue that Justice Browne applied the correct legal standard and arrived at a correct determination of the facts. On the other hand, Justice Slatter, the appeal judge, erred in applying a novel, unreasonably narrow test for affordability. The judge considered only Beaver Lake Cree Nation’s resources “on paper” and ignored the Nation’s financial poverty.
If this decision were to stand, Beaver Lake Cree would be forced to choose between defending its treaty rights and destitution. And so would any other First Nation applying for advanced costs as a last-ditch measure to defend their constitutionally protected rights.
“Access to justice and reconciliation require that the unique circumstances of First Nations be considered when assessing whether they can “genuinely afford” the litigation.” – Karey Brooks, legal counsel for Beaver Lake Cree Nation.
Justice Slatter went as far as stating that the choice between defending constitutionally protected rights and addressing the basic needs of an impoverished community merely reflects “spending preferences” Justice Slatter’s decision fails to recognize the daunting challenges faced by impoverished First Nations governments, which contend not only with financial poverty but also with an intergenerational legacy of oppressive colonial policies and ongoing discrimination.
What’s at stake with this challenge?
Though critically important to the future of the Beaver Lake Cree’s treaty rights challenge, the Supreme Court appeal is about much more than just this one case. Indigenous People’s hard-fought constitutionally protected rights are only meaningful if they can access the courts.
Says RAVEN’s Susan Smitten, “After 12 years of supporting this Nation through every legal hurdle, this Supreme Court appeal is an important milestone. We got here with the vision of Beaver Lake Cree leadership and the support of thousands of donors who understand that this precedent setting case will have national impact on how industry and governments reconcile with the pre-existing rights of Indigenous peoples.”