TarSands Trial Legal Backgrounder
Treaty 6: In 1876, the Crown and the ancestors of Beaver Lake Cree entered into Treaty 6, whereby the Crown made a solemn promise that Beaver Lake Cree would be able to maintain their way of life. Since the signing of Treaty 6, the Crown has authorized non-aboriginal land uses including agriculture, oil and gas, settlement and other activities without due regard or respect for Beaver Lake Cree’s way of life.
The issue: As a result of Crown authorizations, large areas of Beaver Lake Cree’s traditional territory have been converted into landscapes that no longer support Beaver Lake Cree’s way of life. Habitats have been fragmented, and lands and waters have been degraded, in ways that impede Beaver Lake Cree’s meaningful exercise of treaty rights.
The case: Beaver Lake Cree 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 and Canada’s Constitution. Beaver Lake Cree Nation is challenging Canada and Alberta on the grounds of cumulative impacts of multiple development permits on Beaver Lake traditional territory; namely, whether the promises made to Beaver Lake Cree can be routinely broken by the Crown to the point where Treaty rights are essentially rendered meaningless in critical parts of Beaver Lake Cree’s traditional territory.
Impacts on Beaver Lake Cree territory by the numbers: Canada and Alberta have issued up to 19,000 ‘individual authorizations’ (permits) which translates into 300 individual industrial projects that take up more than 90 per cent of Beaver Lake Cree traditional territory. As a result, the once-pristine forest and hunting grounds are now covered with 35,000 oil and gas sites, 21,700 kilometres of seismic lines, 4,028 kilometres of pipeline and 948 kilometres of road – with devastating effects on caribou populations and fish species.
Case trajectory to date: The Beaver Lake Cree first launched a constitutional challenge for infringement of Treaty rights in 2008. Canada and Alberta responded by attempting to have the case dismissed, unsuccessfully. Upon appeal, the Court ruled that no further “delaying tactics” should be permitted in this litigation, and that Canada’s complaint in particular “flies in the face of the Supreme Court of Canada” and its previous decisions.
Advance Costs Order: The Beaver Lake Cree are asking the Court to award them a portion of trial costs in advance, based on the precedent-setting nature of the case. This is the same mechanism, called an advanced costs order, that enabled the Tsilhqot’in to take their title case all the way to the Supreme Court. It is based on recognition by the court that public interest and access to justice sometimes demand from the usual practice of awarding costs to the winning party at the end of the case. If this motion is successful, Beaver Lake Cree could obtain a court order that Canada and Alberta pay a portion of the cost of the litigation in advance.