Trick or Treaty? An Update on the Beaver Lake Cree Nation Campaign

Déjà vu…

That’s what we’re feeling, watching one Cree community tangle with the Canadian legal system… 

When Beaver Lake Cree Nation declared victory in the Supreme Court of Canada (SCC) last March, we didn’t think we’d be telling you this. But: despite a win in the highest court in the land… Beaver Lake Cree Nation (BLCN) is back in court and having to prove, yet again, that they are indeed unable to afford to pay the full cost of its Defend the Treaties trial.

Here’s the scoop: After getting a judgment in lower court allowing for the Nation to receive Advance Costs (a special legal order that in this case has the government pay a portion of the trial costs) and then having that overturned in Alberta’s appeal court, last spring, Beaver Lake Cree Nation received a unanimous Supreme Court decision turning it back around in their favour.  The SCC ruled that BLCN could qualify for advance costs should it not be able to pay its legal fees. The Court said a First Nation could qualify for advance costs despite having funds of its own, if it cannot afford to pay its legal fees nonetheless. The SCC went on to say: “It is open to a court to decide that a First Nation government is impecunious when its prioritization of pressing needs, properly understood, has left it unable to fund public interest litigation.”  

BUT the ruling still meant the Nation had to return to the lower court to show that after paying for BLCN’s ‘pressing needs’ there are no funds left for this multi-million dollar trial.  

It’s just not fair that a small, impoverished Nation should be expected to hold its own against the deep pocketed (and taxpayer-funded) governments of Alberta and Canada. The Supreme Court agreed: a 9-0 decision made it clear that it is not up to the government or the Court to determine a Nation’s spending priorities. BLCN was given the go-ahead to go back to the lower court and show that, based on its spending priorities, it fits the test for ‘impecuniosity’ or not having resources needed to pay for the trial. 

The only question that remained — we thought —  was determining exactly how much money should be allocated so Beaver Lake Cree Nation can meaningfully participate in their long-awaited Defend the Treaties trial. 

Then… surprise!?!

Instead of settling the amount of the Nation’s hard won ‘advance costs’ in a quick hearing, a fresh dog and pony show is being cranked up to drag out the time in court. This time the Nation is being challenged to show that not only is it too poor to pay for multi-million dollar litigation, but also that fundraising efforts like the work RAVEN does will not be enough to carry the full weight of the trial in the future. This means the Nation is incurring yet more costs, and wasting yet more time, haggling with government over money. 

We’re starting to see a spoooooky pattern here. 

To a casual outsider it could appear that the Nation is being nickel and dimed in a process that further draws out what has been an already ten-year long struggle. Could it be —  just maybe — that those opposing the Nation are afraid of what will happen if Beaver Lake Cree wins their treaty challenge? Government lawyers know this case is going to change the game in the tar sands, and they are dragging their feet because — as we’ve been saying for a decade — Beaver Lake Cree Nation’s argument is rock solid.  

After all, a win for Beaver Lake Cree Nation would force every single project to be evaluated according to how it contributes to the overall impact on Indigenous treaty rights. It would mean that — you know, like it says in the treaty — rights to hunt, fish, gather foods and practice culture on the land must come BEFORE industry priorities.

None of the court’s current ‘trick or treaty’ dancing changes the facts: 

  1. Beaver Lake Cree Nation set a powerful precedent in the Supreme Court. Now, other Indigenous Nations that apply for Advance Costs won’t have to choose between going to court to protect their rights and providing clean water and basic necessities to their communities.

    2. The Supreme Court decision also affirmed that the larger treaty challenge that Advance Costs will help fund is of national importance.

    3. Though they are being made to jump through hoops by a system accustomed to using deny, delay and outspend tactics to exhaust Indigenous plaintiffs: BEAVER LAKE CREE NATION WILL NEVER GIVE UP. 

Indigenous or settler: we are all Treaty people. Let’s not allow trickery to get in the way of the solemn promises we each uphold: that Nations, and ecosystems, will continue to flourish as long as the sun shines, the grass grows, and the water flows.

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(“Trick or Treaty?” Art by Warren Leonhardt. Raven comics by Jamie-Leigh Gonzales)

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