Lac La Biche/Edmonton – Beaver Lake Cree Nation is asking the Alberta Court of Appeal to uphold an Advance Costs Order granted in 2019 in order to sustain Beaver Lake’s Treaty infringement challenge over the impacts of multiple industrial projects in their territory.
In yet another twist in a legal saga stretching back over a decade, Beaver Lake Cree will be back in court on June 4 to defend the Advance Costs order from an expedited appeal by Canada and Alberta. The First Nation will be arguing that Advance Costs are the only way their complex treaty challenge, which Justice Browne found “unique” and “in the interests of justice”, can be brought to trial.
“This is another attempt by Canada and Alberta to delay hearing the case on its merits, and a judge setting a precedent about their duty to assess how multiple industrial projects on our territory affect our Treaty rights before issuing permits,” said Chief Germaine Anderson of Beaver Lake Cree. “That the Crowns choose to appeal a funding order in the middle of the pandemic is beyond disappointing. Nevertheless, Beaver Lake will persevere.”
Beaver Lake Cree’s comprehensive constitutional challenge, filed in 2008, addresses the cumulative effects of the “taking up” of land in Beaver Lake traditional territory and the damage done to the way of life of members of the Beaver Lake Cree Nation by industrial development, including oil and gas expansion from fracking and in-situ oil sands extraction. At its core, the case is about whether or not the Numbered Treaties, and in particular Treaty 6, provide constitutional protection for Indigenous culture and way of life. In 2011, Canada and Alberta attempted to have the case dismissed, but lost on that motion and the subsequent appeal.
In April 2018, Beaver Lake filed an interim costs application, which asked the Court to order that Canada and Alberta contribute to the cost of bringing the case forward. In her September 2019 decision, Justice Browne found the case had merit, was publicly important, and in the interests of justice for it to proceed. She ordered that each party share in the costs of the litigation and pay $300,000 each annually until the matter is resolved. In doing so, she recognized that the twin goals of reconciliation and access to justice can only be facilitated through such an order, which would start to address the gross power imbalance between the parties.
“Justice Browne’s carefully crafted order ensures this publicly important case will be heard efficiently without forcing an impoverished Nation into destitution,” said Karey Brooks of JFK, legal counsel for Beaver Lake Cree.
“Canada and Alberta show a greater appetite for disputing the relative degree of Beaver Lake’s poverty than in pursuing the measure of reconciliation that this proceeding, when determined on its merits, can achieve,” Brooks said.
