The Tar Sands Trial campaign is a partnership between the Beaver Lake Cree Nation and RAVEN — Respecting Aboriginal Values and Environmental Needs.
RAVEN is a small but mighty registered charity with a mission to raise legal defence funds to help Indigenous Peoples in Canada defend their treaty rights and the integrity of their traditional lands and cultures.
Native leaders, advocates and their legal teams almost always face overwhelming odds when going against the established interests of large corporations and the governments that support them. Governments and wealthy corporations are able to hire large teams of lawyers and experts to bolster their arguments. Their resources appear almost limitless in comparison to First Nations groups and their dedicated legal teams, who often work pro-bono simply because of their belief in the cause. RAVEN aims to level the playing field.
Who are the Beaver Lake Cree?
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.
What is the tar sands trial about?
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. By authorizing unlimited tar sands expansion, these governments have allowed the homeland of the Beaver Lake Cree to be despoiled beyond recognition. 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.
What is Treaty 6?
In 1876, the Crown and the ancestors of Beaver Lake Cree entered into Treaty 6, whereby the Crown made a solemn promise that Beaver Lake Cree would be able to maintain their way of life. Since the signing of Treaty 6, the Crown has authorized non-aboriginal land uses including agriculture, oil and gas, settlement and other activities without due regard or respect for Beaver Lake Cree’s way of life.
What's the urgency?
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.
How is this case different?
The Beaver Lake Cree case is the first ever to challenge the cumulative impacts of industrial development in the tar sands. Rather than focusing on infringements to its rights as a result of one project or government regulation, Beaver Lake Cree Nation 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.
Will this case set a precedent?
How much money is needed to bring this case to trial?
RAVEN’s goal was initially to raise $800,000. While this represents only a portion of the total cost of the legal challenge, Beaver Lake Cree Nation has 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.
Through this motion was successful, the government has appealed the advance cost award. Now, Beaver Lake Cree needs to raise another $120k to fight the appeal, arguing that they need advance cost funds to accelerate trial preparation and bring the case to trial more speedily.
How much has already been raised, and what was it used for?
Between 2009 and 2020 RAVEN raised more than a million dollars. The money was used to battle the delaying tactics of the federal and provincial governments – including a motion to have the case thrown out – and to collect video testimony from band members about traditional land use in tar sands-impacted lands.
If they win their current appeal, Beaver Lake Cree will be able to access advance cost award to accelerate trial preparation and bring the case to trial more speedily. They will still be required to cover a third of the costs of the legal challenge and will be fundraising on an ongoing basis.
What kind of evidence will the Beaver Lake Cree need to prove their case?
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. Stepping in to provide access to justice through donating, fundraising online and organizing events will provide Beaver Lake with the financial support it needs to advance the case.
How has the case progressed so far?
Beaver Lake Cree Nation first launched a constitutional challenge for infringement of Treaty rights in 2008. Canada and Alberta responded by attempting to have the case dismissed, unsuccessfully. Upon appeal, the Court ruled that no further “delaying tactics” should be permitted in this litigation, and that Canada’s complaint in particular “flies in the face of the Supreme Court of Canada” and its previous decisions.
In April 2018, Beaver Lake Cree Nation filed a motion for an Advance Costs Order. In 2019, the court awarded them a portion of trial costs in advance, based on the precedent-setting nature of the tar sands case. This is the same mechanism that allowed the Tsilhqot’in to take their title case all the way to the Supreme Court. Now, Beaver Lake Cree are fighting an appeal to that award, arguing that they require funds to accelerate trial preparation and bring the case to trial more speedily.
What is happening with the case right now?
Faced with the delaying tactics of the federal and provincial governments, the Beaver Lake Cree are in court to uphold a ruling, from 2019, that ordered Canada and Alberta pay for the cost of the litigation in advance. If successful, 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.
How has tar sands development affected Beaver Lake Cree lands?
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.
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. Stepping in to provide access to justice through donating, fundraising online and organizing events 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.