Hard-fought Constitutional protection could lose its meaning

On the west coast of North America, smoke from massive wildfires has choked out the sun. Amidst floods on the Gulf Coast and record breaking temperatures in the Arctic, the pressures of a changing climate are being felt across Turtle Island. 

Today, a courageous Indigenous Nation is facing down that climate calamity with determined action. The Beaver Lake Cree are heading back to court, fighting to hold on to their advance cost award so they can pursue the groundbreaking case known as the Tar Sands Trial.  The groundbreaking case aims to set a precedent that would force all projects to be evaluated according to their cumulative impacts on Treaty rights. 

In September 2019, the RAVEN community empowered Beaver Lake Cree Nation with the resources to pursue — and win — a partial advance costs award for a case that was ruled to be of national importance. 

Outrageously, Alberta and Canada appealed, and in June the award decision was overturned by the Alberta Court of Appeal. 

This precedent cannot stand. The decision to revoke funding for Beaver Lake Cree essentially closes the door for other Nations to receive advance costs awards to pursue justice. It is a massive setback to reconciliation: that’s why the Beaver Lake Cree are filing an appeal to the Supreme Court of Canada. 

Up from the roots: honouring hard-won constitutional rights

The Constitution Express was a movement organized by Indigenous leaders in the early 1980’s to protest the lack of recognition of Aboriginal rights in the repatriation of the Canadian constitution by the first Prime Minister Trudeau. Following an international odyssey of awareness-raising and advocacy, the Trudeau government agreed to recognize Aboriginal rights within the Constitution. Arthur Manuel called the Constitution Express “the most effective direct action in Canadian history.”

Section 35 of Canada’s Constitution — which recognizes and affirms the existing Aboriginal and Treaty Rights of First Nations — created hope for Indigenous communities that the courts would vindicate their rights when disputes arose over their meaning and protection.

However, this hard-fought constitutional protection is only meaningful if First Nations can afford to access the courts. The process for litigating Constitutional claims is expensive. It’s not fair that Nations such as Beaver Lake Cree should be expected to draw from scarce community resources to stand up to deep-pocketed governments and corporations – all to uphold rights that are guaranteed in Treaties and in the Constitution. As the Truth and Reconciliation Commission (TRC) stated, Indigenous peoples “often see Canada’s legal system as being an arm of a Canadian governing structure that has been diametrically opposed to their interests.”  Without access to justice, there cannot be reconciliation, as Indigenous people remain unable to protect their constitutional rights. 

The bottom line

According to Beaver Lake Cree’s Government Relations Adviser and Treaty Coordinator Crystal Lameman, “The Alberta Court of Appeal has so severely narrowed the criteria for financial need  that it will be impossible for most First Nations to obtain an advance cost order.”

In the ruling, the Court found that if Nations were recipients of federal funding — including the type of critical funding that is afforded any municipality in the country for roads, infrastructure, and health care — they would be disqualified from receiving advance costs.  The costly demands placed on First Nations to vindicate their constitutional rights in court clash with a painful reality – First Nations are amongst the poorest people in Canada. Amidst that poverty, their governments are responsible for ensuring their communities endure and thrive over many generations. Yet: a community cannot survive if its members are destitute or lands spoiled.

Essentially, if this decision is not challenged, Nations that struggle to meet their communities’ basic needs – such as providing for water, housing, and a healthy ecosystem – will have no option to receive advance costs awards to pursue their legal rights.  It is profoundly unjust to force First Nations to resolve long-standing disputes about treaty and constitutional rights on their own dime, when doing so would rob their communities of basic services and the fundamentals of life that should be accorded to every Canadian.  The decision Beaver Lake Cree Nation is appealing undermines the rule of law, the process of reconciliation, and the peaceful social fabric in Canada.

What’s at stake – our common future

Beaver Lake has faced these competing demands since 2008, when the Nations launched the Tar Sands Trial.

Despite its undisputed poverty, Beaver Lake Cree Nation has pushed forward with the case for 10 years, investing $3 million — half of which has been raised in partnership with RAVEN. The Tar Sands trial is an integral part of Beaver Lake Cree’s visionary plan for its community — one that would benefit everyone. 

Says Crystal Lameman:

“My territory has been criss-crossed and despoiled by the infrastructure of every major oil company in the world – ignoring the treaties we entered into that are supposed to protect our right to hunt, fish, trap and gather for all time.

I have watched oil leak from in-situ projects into lakes near where our ancestors are buried. I have watched community members choose between working for the oil industry or living in poverty. I no longer want to see our lives destroyed and our hope dry up. I want to look forward to a different future, one filled with promise and optimism. The time for a just transition beyond fossil fuels is now.”

People power has kept the Tar Sands Trial alive through nearly a decade of government delay tactics. It’s energizing to reflect on RAVEN’s past successes. Now, we must once again muster our forces to deliver the resources Beaver Lake Cree require — and deserve — to take on the Tar Sands behemoth. 

If this tenacious First Nation can take their precedential treaty rights case to trial, their victory would forever change the way business is done in Canada’s oil patch, and throughout the country. 

We’ve known for a long time that in this climate crisis, expanding the Tar Sands spells climate disaster. What we also know is that there are hundreds of thousands of people who are willing to disrupt, speak out, and take action. Thank you for contributing what you can, and for standing with Beaver Lake Cree Nation. 

The Nation needs $40k to pursue this appeal. Donate here.  

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