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Why the Beaver Lake case is a very, very big deal

Treaty rights being used to challenge ‘cumulative effects’ of resource development

Tim Querengesser is senior editor with Alberta Venture. Email Tim

Jun 6, 2013

by Tim Querengesser

If there’s a potential David aiming his slingshot at the Goliath that is the oil and gas industry in Alberta, Beaver Lake Cree First Nation is surely it. One can only wonder whether the First Nation’s court case, which a recent court decision has allowed to proceed, contains the rocks that could see the giant fall.

On April 30, just weeks after Alison Redford’s government passed its controversial Bill-22, which dictates how consultations between aboriginal governments and industry must proceed (and which led to widespread outrage from aboriginal groups), the Court of Appeal of Alberta issued a decision that cleared the way for Beaver Lake to test its treaty rights in court against thousands of development permits issued by the provincial and federal governments.

Ottawa and Edmonton have for years appealed the First Nation’s case, but the Appeal Court’s recent dismissal of their arguments, and what appears the inevitable commencement of a trial for the First Nation, will now test not only Bill-22’s legitimacy but also Alberta’s right to issue permits on treaty land. While industry is not part of the dispute in a legal sense, it surely is in every other way.

Beaver Lake, a community of some 800 or so members, located in northeastern Alberta, has been fighting since 2008 to see rights enshrined by Treaty 6 measured in a court to determine whether those rights – and what the community describes as the ‘cumulative effects’ of resource development on traditional lands – can allow them some control over industrial expansion in their region. “This case is about limiting the development of the tar sands,” said Drew Mildon, a lawyer representing Beaver Lake Cree Nation, in an interview with the Globe and Mail.

The larger-picture effect of the case becomes clear when examining its details. While industrial development projects are typically reviewed for their effects on aboriginal rights, or the environment, or otherwise, on a case by case basis, Beaver Lake’s court claim lumps them together, cumulatively. According to court filings, “some 300 projects or developments in which approximately 19,000 individual authorizations were granted” on what are described in the claim as “core lands” – or, for the layman, the lands that allow the Beaver Lake Cree to hunt, trap and fish, as guaranteed by Treaty 6. According to the court filings, “The core lands cover a large portion of north-east Alberta and fall outside the boundaries of any Aboriginal reserve. It includes within its territory the Cold Lake Weapons Range, an area occupied by Canada.”

If you’re not familiar, these core lands are also core pieces of what is collectively referred to as the oil sands.

As Mildon told the Globe and Mail: “The basic question of the case is: Are the cumulative impacts of the tar sands development in their territory risking the treaty rights or rendering them meaningless? Because you can’t do that. They’re constitutionally protected. Usually in big cases like this that really threaten development . . . the process is usually to try to burn the First Nation out at the early stages by outspending them, and that tends to happen through a bunch of pre-trial motions. [So] it’s big news to get to this stage.”

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