By Lloyd Dolha
Almost four years after the Beaver Lake Cree Nation commenced their civil lawsuit against expansion of tar sands in northern Alberta, the First Nation has finally moved to a pretrial hearing on the matter. Madame Justice B.A. Browne rejected Alberta and Canada’s attempts to have the case dismissed. In a historic precedent-setting ruling, the Alberta Court of the Queen’s Bench has upheld the right of the Beaver Lake Cree to challenge widespread industrial activities of tar sands exploration and extraction based on cumulative effects these activities have had on their constitutionally protected treaty rights.
This is the fifth application the Beaver Lake Cree have made before the court since the litigation began. “When a First Nation brings an action for Treaty infringement, it must be able to do so in a way that allows a single court to assess the full and combined impact of Crown-authorized development on the continued meaningful exercise of Treaty rights,” wrote Justice Browne. “It is not necessary in this case to attribute or apportion responsibility as between individual developments or to review the specific processes that led to the approval of each development, as the focus is on the measurable cumulative impact of all the developments on the landscape.”
The Beaver Lake Cree’s contends that the governments have unconstitutionally infringed on the core commitment in Treaty 6 to “preserve the traditional Indian way of life” by ensuring the meaningful exercise of their right to hunt, fish, and trap as secured under the treaty. The Beaver Lake Cree are not challenging the legality or validity of any one approval or authorization, nor seek to quash any approvals already granted. Rather, their action is for treaty infringement based on the cumulative impact of over 19,000 approvals for tar sands developments that have taken place on their traditional territories around Lac La Biche over the last 15 years.
“The treaty is a sacred document for my people and we are very happy that the courts are prepared to back us up to ensure treaty rights are protected,” said Beaver Lake Cree Nation Chief Henry Gladue. In regards to the duty to consult, the court said “consultation does not mean “listening” and then “doing as one pleases.” The court also said that at this stage “it would be premature to rule out the possibility of a court’s continued supervision to ensure that the duty to consult is honoured and treaty rights.” The court also said that a logical potential outcome “would be that the parties would sit down and negotiate the application of the duty to consult and how ongoing Aboriginal and treaty rights will be protected and managed.”
“We’re grateful that the judge recommended the parties talk,” added Chief Gladue. “We have always been ready to talk, and we are pleased that the court may even go as far to supervise those talks.” This is the first time the Alberta Court Queen’s Bench has approved large-scale litigation seeking to curtail industry activity based on constitutionally protected treaty rights. The court also left open the possibility of injunctions on the Crown if they fail to halt harmful activity on treaty lands. The provincial and federal governments had sought to have their case dismissed as a frivolous abuse of process.
Members of the Beaver Lake Cree and their legal representatives were at the Court of the Queen’s Bench in Edmonton for a pretrial hearing. It’s now up to Justice Browne to decide if the case will proceed to trial. Representing the Beaver Lake Cree is none other than Vancouver-based lawyer Jack Woodward, a pre-eminent authority on Aboriginal law. Woodward said the governments have delayed the case for years because of its significance to Alberta’s oil and gas development. He said the case is the first time the boundaries could be set between First Nations treaty rights and the government’s ability to use land for natural resource development. “This case could set an enormous precedent,” said Woodward in an interview with the Lac La Bische Post. “There must be a limit on industrial development to protect animals and treaty rights.” If the Beaver Lake Cree are successful in their legal challenge, the decision will have sweeping implications for further tar sands development as almost 50% of expansion plans lie within the Beaver Lake Cree’s traditional territory.