Beaver Lake Cree Nation is headed to the Supreme Court!
Beaver Lake Cree Nation is headed to the Supreme Court!
Yesterday, the Supreme Court of Canada granted leave to appeal the decision of the Alberta Court of Appeal overturning Beaver Lake Cree Nation’s advanced cost award.
Since 2008, the Beaver Lake Cree have been pursuing the Tar Sands Trial. This novel and complex Treaty infringement case makes the argument that the cumulative effects of industrial activity – notably, from oil and gas development of the tar sands – in Beaver Lake Cree traditional territory has damaged Beaver Lake Cree Nation’s way of life and represents a failure by Canada to honour its Treaty promises.
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 gamechanger for Indigenous rights and environmental protection.
After ten years of litigation, the Beaver Lake Cree had exhausted their resources and turned to the Crown for an advanced cost award. Canadian courts very rarely award such funding to litigants; it is done only when a case can be proven to “transcend the specific interests of the individual litigation and has broad implications for the public at large.
Additionally, the court requires that advance costs should only be granted where the need for them can be clearly established. As Beaver Lake Cree Nation Chief Germaine Anderson put it, “We dedicated our scarce resources to the case because we felt we had no choice. My Nation would rather not have to litigate; we would rather negotiate and work with the Crown directly to arrive at a mutual understanding of how to properly implement the Treaty promises, and protect our culture and way of life. However, those discussions have not occurred despite my Nations attempts to call our Treaty partners to the negotiation table”.
in 2019, the Alberta Court of Queen’s Bench ruled in favour of the Nation and granted the Beaver Lake Cree an advanced cost order that would allow the Nation to carry its case on to trial. However, in 2020, during the pandemic, Alberta and Canada appealed the decision, effectively hindering the Nation’s ability to access justice for what the courts have defined as a publicly important, meritorious case that deserves to be heard.
“The issues raised in the case are difficult, complex, and broad,” says Crystal Lameman, Government Relations Advisor/Treaty Coordinator with Beaver Lake Cree Nation. “For over ten years, the Beaver Lake Cree Nation has endeavoured, at a cost of $3 million. Half of the funds were from generous donors who understand the importance of these matters being heard by the courts. Knowing that this case rests on environmental justice, health and protection, they continue to support Beaver Lake’s efforts to enforce its Treaty rights, which ultimately protects the environment now and for the generations to come. Today, we lift up the Beaver Lake Cree Nation as a whole, and we give gratitude to the collective efforts of all who have stood with us through this journey. We would not be where we are without the continued support of our relatives and allies.”
Through it all, the RAVEN community has been there. Through the 5 years of struggle where Alberta and Canada unsuccessfully tried to get Beaver Lake Cree’s claim thrown out. Through the push to gather evidence and present a case for advanced costs – which, when awarded, would only cover two thirds of the Nation’s expenses. And, now, through the appeal process that will see the Supreme Court scrutinize the threshold for accessing advance costs – an issue that affects Indigenous Nations across the country..
Though critically important to the future of the Tar Sands Trial, 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. In considering whether a First Nation can afford to litigate a meritorious and publicly important constitutional rights case, the Supreme Court will consider whether a First Nation government should have to exhaust all of its available funds just to make it to court. Beaver Lake Cree will argue that affordability requires consideration of the reasonable choices a First Nation government is required to make to ensure its community endures, and its members are not left destitute.
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.”
Beaver Lake Cree Nation welcomes the opportunity to advance its arguments with the top Court. They will need RAVEN’s help to fund the appeal so they can set a precedent that could bring our mission of providing access to justice for Indigenous Nations closer to reality.
“In the midst of a pandemic, First Nations are at a disproportionate risk of contracting Covid in our communities due to the lack of housing, multi-level issues with water, high rates of poverty among many other issues. I want to make sure that the community of RAVEN understands how critically important their continued support is in this case.”Crystal Lameman, Government Relations Advisor/Treaty Coordinator
To be part of getting Beaver Lake Cree to the Supreme Court, please make a donation here.
References:  British Columbia and Okanagan Indian Band, supra, at para 27