The largest industrial project on Earth is located in the Canadian tar sands, one of the biggest drivers of climate change on the planet. It is Indigenous Nations who live surrounded by the tar sands that are most affected. Yet, their powerful constitutional rights mean they also have the best chance to put a stop to the pollution — if they can afford to defend their land in court.
Tar sands expansion is destroying the homeland of the Beaver Lake Cree in northern Alberta. Lush boreal forest is being gobbled up at an alarming rate. More than 19,000 fossil fuel permits have been issued to date. Impacts from all of these projects threaten to destroy the Beaver Lake Cree’s way of life —by polluting and fragmenting the land and waters that have sustained them for millennia.
The Beaver Lake Cree are engaged in a colossal legal battle with the governments of Canada and Alberta, which have been throwing up one delaying tactic after another in order to exhaust the small Nation’s resources before the case gets to trial. But with a bold move, the Beaver Lake Cree could dramatically accelerate the litigation.
Going for advanced costs
The Beaver Lake Cree have asked the court to award them a portion of trial costs in advance, based on the precedent-setting nature of the tar sands 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. If this motion is successful, Beaver Lake Cree could obtain a court order that Canada and Alberta pay for the cost of the litigation in advance. The cost of bringing this type of case runs to several million dollars.
For Beaver Lake to successfully argue this motion in court they need $350,000. Courts don’t issue these orders lightly. The Beaver Lake Cree have a high bar to meet to prove their case merits such a rare order. The good news is, the evidence Beaver Lake needs to win this motion is highly relevant for the main case as well, and can be made part of the (much bigger) load of evidence brought at trial.
In order to rapidly collect the evidence and prepare the legal arguments, the Beaver Lake Cree need $350,000. Will you help them take this monumental stand – an unprecedented push-back on this scale – to save us all from the tar sands’ path to massive climate change and irreparable damage to the planet?
The Beaver Lake Cree belong to the Wood Cree group of the Cree people, who are one of the most numerous tribes in Canada. The Beaver Lake Cree territory is north of Edmonton, and encompasses an area of boreal forest the size of Switzerland. Dotted with hundreds of freshwater lakes and rivers, this land is home to caribou, moose and elk.
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 No. 6 and Canada’s Constitution.
Beaver Lake’s case is unique. Rather than focusing on infringements to its rights as a result of one project or government regulation, Beaver Lake Cree says that the governments have breached its Treaty rights by authorizing too much industrial development in Beaver Lake lands. It contends that the cumulative impact of industrial development has fractured the ecosystem, rendering its lands, waters and resources inaccessible and unusable for the exercise of its Treaty rights.
The Supreme Court of Canada has said that although the Crown has a right to authorize land use, there may come a time when Treaty rights are rendered meaningless because of too much Crown-authorized land use. For Beaver Lake Cree, that time is near.
Beaver Lake Cree’s cumulative effects case will be the first time the court will have to consider whether the Crown has crossed the line when authorizing industrial development without meaningful regard to Treaty rights. In this way, the case serves as a vital precedent for Treaty Nations, and indeed all Canadians, to allow for protection of land, air and water for future generations. The health of our entire ecosystem is at stake.
Alberta and Canada have far exceeded the land’s capacity for development by taking up more than 88 per cent of the Beaver Lake Cree’s traditional territory for oil and gas wells. They have recklessly authorized oil sands projects, military facilities and other development without any real regard for the rights of Beaver Lake Cree and other Treaty Nations. As a result, the Beaver Lake Cree territory is 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. While any one of these projects by themselves might be tolerable, when taken together they threaten to destroy Beaver Lake Cree’s way of life and the land that has sustained them for thousands of years.
Expert biologists have warned that caribou may be driven to extinction in this region within 10 years. Tar sands extraction has polluted most of the water bodies in the region. The sheer size of the area occupied by oil and gas wells and other infrastructure has displaced moose and elk, and most traditional hunting and gathering grounds are no longer available.
Faced with the delaying tactics of the federal and provincial governments, the Beaver Lake Cree have asked the court to award them a portion of trial costs in advance, based on the precedent-setting nature of the tar sands case. This is the same mechanism, called an advanced costs order, that allowed the Tsilhqot’in Nation to take their title case all the way to the Supreme Court. If this motion is successful, Beaver Lake Cree could obtain a court order that Canada and Alberta pay for the cost of the litigation in advance. This will dramatically accelerate trial preparation and force Canada and Alberta to stop delaying the trial. Eliminating these delays helps protect the undeveloped lands that remain and avoid the creation of commitments to industry and others.
The Beaver Lake Cree are currently gathering evidence from band members about traditional land use in tar sands-impacted lands. This includes hunting, fishing, trapping and gathering based on the Beaver Lake Cree traditional seasonal round. Expert reports on cumulative effects of land and water pollution and habitat fragmentation caused by the tar sands are also being prepared for trial. The courts have not yet articulated what evidence is required for Beaver Lake to prove its case, and therefore Beaver Lake will be required to marshal all sources of relevant evidence that may assist the court in deciding the unique issues raised by the litigation.
In November 2017, the Beaver Lake Cree asked the court to award them a portion of trial costs in advance, based on the precedent-setting nature of the tar sands case. This is the same mechanism, called an advanced costs order, that allowed the Tsilhqot’in to take their title case all the way to the Supreme Court. If this motion is successful, Beaver Lake Cree will be able to use the funds to accelerate trial preparation and bring the case to trial more speedily.
For Beaver Lake to successfully argue this motion in court they need $350,000. Courts don’t issue these orders lightly. Beaver Lake have to a high bar to meet to prove their case merits such a rare order. The good news is, the evidence Beaver Lake needs to win this motion is highly relevant for the main case as well, and can be made part of the (much bigger) load of evidence brought at trial.
This is a precedent-setting, historic case. To prove cumulative impacts on treaty rights, the range of potential evidence is vast. Evidence will need to be collected from the community to describe the treaty promises and their unique way of life, including with respect to the importance of traditional activities such as hunting, fishing, trapping, and gathering. Ethnographic evidence will be required to describe the original Crees in Beaver Lake area; the promises made to the signatories of Treaty 6; and the conduct of government after the Treaty was signed. Community and expert witnesses will be required to describe the impacts of industrial development on the land, water and resources, including ecologists, wildlife experts, traditional land use experts, disturbance analysts, and hydrologists. Evidence from the community will be required to address how industrial development has impacted their way of life and culture.
A case of this magnitude requires a team of dedicated legal experts working full-time towards getting the case to trial. An order for advanced costs will provide Beaver Lake with the financial support it needs to advance the case.
A case this important, with the potential to be a game-changer for the tar sands, needs a jump start. At present, Beaver Lake is allocating scarce community resources to the litigation, taking away from the many community needs that require financial support. At the current pace, it will take many years before the case is heard by a judge. Further, the governments have an interest in delaying the litigation in the hopes that it will simply be discontinued because of the cost. An advanced cost order will allow Beaver Lake to accelerate the litigation, and ensure the Court is provided with a complete and comprehensive record upon which to determine these important issues.
Pressing this case ahead is a monumental task for a small First Nation in Northern Alberta. The Beaver Lake Cree are using their own resources to push this case along as best they can but support of allies like you is needed to quicken the pace towards justice. Please donate, and share this important case with your network.
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