Alberta and Canada Deny Cree Nation's Financial Poverty in Most Recent Appeal of Court's Advance Costs Award
- Crystal Lameman -
Crystal Lameman is Treaty Coordinator
for the Beaver Lake Cree Nation.
My home community, the Beaver Lake Cree Nation,
Treaty No. 6 (Alberta),
filed a legal action in 2008 based on the Crown's
failure to account
for cumulative impacts of industrial development,
including numerous
oilsands projects - one of the world's largest and
most
carbon-intensive energy developments. The first of
its kind at the
time, the high-stakes Treaty rights action
represents a precedent to
the Canadian court. The Beaver Lake Cree Treaty
case will be the first
time the court is asked to draw the line, and to
define when there is
too much industrial development in the context of
Treaty 6.
Treaty implementation requires the Crown to
consider the cumulative effects of industrial
development that are
threatening Treaty rights to a way of life,
including the right to
hunt, fish, trap and harvest, and such a duty
triggers the honour of
the Crown.
If the Crown destroys the meaningful exercise of
Treaty rights by failing to consider what lands
and resources are
necessary to maintain Beaver Lake's way of life,
and whether those
thresholds are being exceeded through multiple
land use authorizations,
then our rights have been infringed.
 The Crown has
consistently denied that the Treaty promises my
community the
continuance of its way of life, and it denies that
under the Treaty it
must consider the combined effects of multiple
industrial activities on
the way of life of the Beaver Lake Cree over time.
Instead the Crown takes the position that it can
authorize the taking up of land -- to which it has
no bill of sale --
subject only to the duty to consult, which it
disputes requires
consideration of the cumulative effects on Beaver
Lake's Treaty rights,
and in place of combined considerations, they
consult on a
project-by-project basis.
Recently, the Alberta Court of Appeal in Fort McKay First
Nation v
Prosper Petroleum Ltd. confirmed such a
duty exists,
contrary to the position of the Crown. However,
the Courts have yet to
weigh in specifically on the extent of the Crown's
obligations to
consider the cumulative effects of industrial
development on Treaty
rights.
Beaver Lake's case will advance the law in this
regard, including with respect to: whether Treaty
6 protects a way of
life; what is required of the Crown to ensure
protection; and when the
taking up of land reaches the threshold of
infringement and; the
appropriate remedy for that infringement.
Beaver Lake would prefer to negotiate these
issues. As stated by Beaver Lake Cree Nation Chief
Germaine Anderson,
"The Nation has never been opposed to
negotiations, we have made that
clear, and still we have not been invited to and
met at the negotiation
table."
However, the Crown has, to date, refused to
consider an agenda that would allow for the
meaningful negotiation of
these complex issues, with appropriate funding
that would ensure Beaver
Lake's meaningful participation. Canada also
claims negotiations can
occur within a special claims process, which is
also acknowledging it
would only address infringement from the creation
of a bombing range in
the middle of our territory.
Yet, even in that process we have made multiple
attempts to advance to the first step only to be
rejected on the basis
we were out of time for this fiscal year. We have
yet to receive
information about whether or when our claim will
be accepted. As a
result, judicial determination, coupled with the
continuance of our
land-based practices, is needed as the Crown
disputes it has the
claimed Treaty obligations, and continues to
authorize land use without
regard to the cumulative impact on Treaty rights.
The issues raised in the case are difficult,
complex, broad and have resulted in multiple
pre-trial steps, including
multiple motions to strike the pleadings. For ten
years, Beaver Lake
pushed this complex claim ahead to the extent it
could, at a cost of $3
million. Half of the funds were from generous
donors who understood the
importance of these matters being heard by the
courts. Knowing that
this case rested on environmental justice, health
and protection, they
supported Beaver Lake's efforts to enforce its
Treaty rights.
But like many Treaty Nations, Beaver Lake is a
financially impoverished community. It has only
recently begun to
accumulate some limited financial reserves, which
it desperately needs
to manage and address the deep financial poverty
that has plagued the
Nation. However, any financial reserves are not
stable or certain to
continue, and are required for emergencies, like
the recent pandemic
and failing infrastructure like the water
treatment plant and natural
gas lines, both of which provide heat and water to
our homes, school,
daycare and headstart/playschool.
Therefore in 2018, after 10 years of investing in
the case -- defending pleadings, responding to
particulars, collecting
evidence from over 100 members, and retaining
multiple experts -- we
came to the agonizing decision that we could no
longer proceed with the
litigation as it required at least $5 million more
to get to trial,
which the Nation does not have. We realized it
would not be prudent for
the Nation to build half a bridge.
In April 2018, Beaver Lake filed an interim costs
application, which asked the Court to order that
Canada and Alberta pay
for the cost of bringing the rest of the case
forward. In doing so it
adhered to the burden of proof and painfully
exposed its financial
poverty and community challenges in a thorough
record of over 5,400
pages of financial statements, general ledger
accounts, bank
statements, impact benefit agreements, partnership
agreements, trust
documents, Indigenous Services Canada audits and
more. Justice Browne,
who had presided over the case for 7 years, heard
the matter for two and a half days in February
2019, while the Nation's elders,
land-users and leadership looked on, after
fundraising to make the trip
outside of the community to be present during the
hearing.
In a decision rendered in September 2019, Justice
Browne found the case had merit, was publicly
important, and in the
interests of justice for it to proceed. She found
Beaver Lake was
impecunious, having little or no money, such that
"the litigation would
be unable to proceed if the order were not made."
She found that the
interests of justice would be best served through
a partial interim
costs order. She ordered that each party -- Beaver
Lake, Canada, and
Alberta -- 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 could only be
facilitated through such an order, which would
start to address the
gross power imbalance between the parties.
Now, despite acknowledging the case has merit and
is publicly important, Canada and Alberta have
appealed the costs
decision and continue to deny Beaver Lake's
financial poverty. Canada
and Alberta could have chosen to accept Justice
Browne's decision, and
moved ahead with having the matter heard on its
merits in June 2024 --
the date set for the 120-day trial -- but in an
effort to avoid the
court setting a precedent on these important
matters it instead chooses
to argue about the extent of Beaver Lake's
financial poverty. The
appeal, set for June 4, will determine whether or
not the Nation will
continue on their path to access justice, or
whether it will be denied
due to our financial poverty.
Canada and Alberta have attempted through their
development of our lands to deprive my Nation of a
meaningful way of
life, a life that is rich and abundant. Now in
this application they
say we should spend every penny we have,
regardless of whether we need
that money to provide basic assistance and/or to
meet the very basic
needs of the community.
Our worldview as Indigenous peoples is grounded
in
the relationship that we have with the water, the
air that we breathe,
to the minerals in the ground, and all flora and
fauna -- walking,
crawling, flying, swimming. It is through the
privilege we have to be
in this deep meaningful relationship that we
commit to our collective
efforts and resiliency in enforcing our rights. We
do so, so that we
are able to continue with our rich and abundant
life, "as long as the
sun shines, grass grows, and rivers flow."
This article was published in
Volume 50 Number 21 - June 13, 2020
Article Link:
Alberta and Canada Deny Cree Nation's Financial Poverty in Most Recent Appeal of Court's Advance Costs Award - Crystal Lameman
Website: www.cpcml.ca
Email: editor@cpcml.ca
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