The Beaver Lake Cree Judgment: The Most Important Tar Sands Case You’ve Never Heard Of

Sure they’re bad for the environment, for human health, and for wildlife, but we rarely stop to wonder if the Alberta tar sands are in fact unconstitutional.

But the constitutional standing of the tar sands – one of the world’s largest and most carbon-intensive energy projects – is just what’s at stake in a treaty rights claim the Beaver Lake Cree Nation (BLCN) is bringing against the Governments of Alberta and Canada in a case that promises to be one of the most significant legal and constitutional challenges to the megaproject seen in Canada to date.

Signaling the high-stakes of the whole dispute, it has taken five years of beleaguered fighting just to have the case go to trial. Canada and Alberta – the defendants – fought tooth and nail during those five years to have the claim dismissed outright, saying the case put forward by the BCLN was “frivolous, improper and an abuse of process.”

The BCLN is challenging these governments on the grounds of the cumulative impacts of the tar sands and has indicated some 19,000 ‘individual authorizations’ and 300 individual industrial projects in their claim. The governments of Alberta and Canada tried to have the case dismissed under Rule 3.68, a measure meant to protect defendants from cases that are…well…“frivolous, improper, and an abuse of process.”

But this case isn’t one of those.

Canada claimed the claim was “unmanageable” and “overwhelming,” suggesting the 19,000 authorizations were likely to have fallen within the relevant regulatory framework at the time of their approval and needn't be bothered with. But, as one judge stated, a claim cannot be dismissed based merely on its scope. The courts agreed, telling Canada that no further “delaying tactics” should be permitted in this litigation lest the entire claim be “stonewalled at an early stage through excessive particularization.”

What is more, the court said Canada’s complaint “flies in the face of the Supreme Court of Canada” and its previous decisions, indicating Canada’s counsel was unsuccessful in its attempts to squeeze out of a tight legal position. Canada even sought to have its portion of the claim whittled down to “limit its exposure” in the case, a position the court said Canada’s “counsel candidly admitted to advancing…for strategic reasons.”

On April 30^th, 2013, the courts told Canada and Alberta they’d had enough of the bickering. “The parties will be well-served by returning to their case management judge for the implication plan to advance this litigation through trial,” they wrote.

In other words: get your act together, you’re going to court.

The Rights

The Alberta Court of Appeal’s decision to uphold the claim against the crown, grants the BLCN the opportunity to argue the cumulative negative impacts of tar sands expansion may constitute a legal breach of the band’s historic Treaty 6 with the Canadian government, signed back in 1876.

And the significance of this judgment cannot be overstated. The BLCN’s claim now stands as the first opportunity for legal consideration of the cumulative impacts of the tar sands on First Nation’s traditional territory and the implications of those impacts on the ability to uphold Treaty Rights.

And First Nation’s Rights – enshrined as Aboriginal Rights in section 35 of the Constitution Act, 1982 – are arguably some of the most important emerging rights on the Canadian legal landscape and certainly the most powerful environmental rights in the country.

This, in part, has to do with the fact that what section 35 rights actually legally entail, is still being developed through case law. Dozens of important cases - like the precedent-setting R v. Gladstone andMikisew v. Canada- have been decided by courts over the last 30 years, since the patriation of the Constitution, finding Canada in serious violation of the Constitution when it comes to treaty rights.

Despite the emerging nature of these rights, one thing is clear – First Nations have the inalienable right to hunt, trap and fish in their preferred manner, throughout their traditional territories and the province.

And there’s the rub. If you’ve got a megaproject that is destroying what you might otherwise be hunting, trapping or fishing, you've got a serious constitutional gaffe on your hands. The Constitution is the highest law in the land, and cannot simply be ignored.

The Cumulative Impacts

This puts Canada and Alberta in a tough spot. Over the last decade, as they’ve been welcoming a veritable cascade of new projects in the tar sands area, scientists and conservation groups have been raising the alarm as the consequent research began to show devastating effects on caribou populationsand fish species especially hard done by the escalating development.

The BCLN’s traditional territories blanket an area about the size of Switzerland. Thirty per cent of tar sands production, or about 560,000 barrels of oil, are produced on BLCN every day. The oil industry has plans to grow this number to 1.6 million barrels a day.

The once-pristine forest and hunting grounds are 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.

Perhaps it has taken Canada and Alberta by surprise that the cumulative impacts might be considered at a constitutional level. After all, neither the province nor the federal government have been particularly proactive in studying the cumulative effects of development in the area.

True, scientists have been fretting about loss of caribou herds and habitat for decades, even citing theSpecies At Risk Act as a potential legal cause to slow the pace and scale of tar sands development. But Canada ignored those pleas for caution as long at it could – until another legal action forced them to release the recent Federal Caribou Recovery Act last fall.

And it was only a few months ago that Environment Canada scientists announced tar sands pollution was present in bodies of water up to 100 kilometres from the centre of development. The accumulating toxins, they discovered, disrupt fish embryos at the developmental stage. The federal government worked overtime to downplay the significance of the research last fall, even preventing lead researchers from discussing their findings with the media.

Overall, the federal government has been just as culpable as provincial leaders in keeping these growing environmental effects under-reported, or under wraps. The BLCN’s upcoming litigation may be the change in tide that brings the cumulative impact discussion to centre-stage.

The Cause for Hope

5 years ago Crystal Lameman’s uncle Chief Al Lameman filed the original claim on behalf of the Nation.

“In 2008 I don't think my uncle knew the attention this litigation would gain,” Crystal said. “His intent and purpose was to protect what little we have left but it has created this movement, this mobilization of a people and it's a great feeling seeing people mobilize beyond the confines of race, color, and creed. This recent win means our judicial system is clearly standing strong in the law of Canada and it gives me hope.”

And Crystal has much cause for hope, according to Jack Woodward, renowned Native Law expert and lawyer on the case.

“The Beaver Lake case will define the point where industrial development must be curtailed to preserve treaty rights,” he said.

“At issue is the cumulative impact of industry, not each individual project. The court will be asked to say if the level of industrial activity in the hunting grounds has now crossed the line to make it impossible to reasonably exercise the harvesting rights. If the Beaver Lake are successful there will be constitutional controls on development to allow the land to recover and to prevent any further encroachments that might disturb wildlife populations.”

A precedent-setting ruling of that sort would have significance for any other First Nation making similar claims regarding the overall impacts of industrial development. This could have serious ramifications for other First Nation groups living near the tar sands or newly-industrialized zones like British Columbia’s northeast. More

 

The Beaver Lake Cree nation's once-pristine forest and hunting grounds are 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.

 

Israeli Forces Destroy Hundreds of Olive Trees and Two Wells in Surif

24 FEBRUARY 2012 In the early hours on February 23, 2012, a combined group of Israeli settlers and soldiers came to Surif, a Palestinian village near the Separation Barrier in the southern West Bank, and cut down 700 trees and destroyed two water wells.

Surif, a large community of 17,000 Palestinian residents, routinely faces large scale acts of destruction and harassment from Israeli settlers and soldiers.

In this attack, Israeli Forces entered the area between the hours of 2am and 6am and cut down 400 olive trees and 300 apricot trees belonging to Ishaq Abdel Fatah Al Qadi.

Ishaq and his family are counting on the support of solidarity activists all over the world in order to buy and plant new trees in his field so that they can support themselves off of the land as they have done for decades. More

The West Bank's Bobby Sands

 Khader Adnan's two-month hunger strike has made him a hero among Palestinians outraged by Israel's policy of arbitrary detention.

 

It was only after talking with lucidity and animation for an hour about her husband's 61-day hunger strike that Randa Jihad Adnan's eyes, visible though the opening of her nekab, filled with tears. Until then, this articulate 31-year-old graduate in sharia law from Al Najar University in Nablus, the pregnant mother of two young daughters aged four and one and half, had described with almost disconcerting poise the two months following the arrest of her husband, Khader Adnan, on 17 December.

He was seized at 3.30am by some of the scores of Israeli military and security personnel who surrounded the family home in a West Bank village south of Jenin, and is now being held in the Israeli Rebecca Ziv hospital in Safed. Yesterday she was allowed to visit him with the children and her father-in-law.

There they found him, weak and extremely thin, his beard unkempt and his fingernails long. He was shackled by two legs and one arm to his bed, and was connected to a heart monitor. Though mentally alert, he could speak only with difficulty. "I was shocked," she said yesterday. "I couldn't speak for about three minutes, and it was the same for my daughters."

Mrs Adnan is convinced that the Israeli authorities only allowed the visit because they wanted the family to put pressure on her husband to end his hunger strike. He had started this on 18 December in protest at his arrest, his treatment and the subsequent detention order served on him.

"My father-in-law said to him: 'We want you to stay alive. You cannot defeat this state on your own.' He told him he wanted him to end the strike. I told him I wished he would drink a cup of milk. But he said: 'I did not expect this from you. I know you are with me all the time. Please stop it." Mrs Adnan said yesterday: "I know my husband. He will not change his mind. I expect him to die." More

 

"Containment" of a nuclearised Iran or Containment of a nuclear Israel?

Will AIPAC and Bibi get their war? 

 

Does Netanyahu really want a war on Iran, or does he want to prove that no one could stop him if he did?

Washington, DC - These are strange times for those of us who follow the debate about a possible war with Iran. It is clear that the Israeli government and its neoconservative camp followers here in the United States are increasing pressure on President Obama to either attack Iran or let Israel do it (in which case we would be forced to join in). But the idea of another war in the Middle East is so outlandish that it seems inconceivable it could actually occur.

Still, the conventional wisdom holds that it can, because this is an election year and the assumption is that no-one will say no to Israeli Prime Minister Binyamin Netanyahu.

War enthusiasm will rise to a fever pitch by March, when AIPAC holds its annual policy conference. Netanyahu will, if the past is any indication, bring the crowd of 10,000 to its feet by depicting Iran as the new Nazi Germany and by coming very close to stating that only war can stop these new Nazis. Other speakers will say the same. The few who mention the idea of diplomacy will be met with stony silence.

From the convention centre, 10,000 delegates will be dispatched to Capitol Hill with two or three "asks" for members of Congress. One will, no doubt, be that "containment" of a nuclearised Iran be ruled off the table (leaving war as the only remaining option should Iran get the bomb). Another will likely be that the US stop all dealings with the Palestinian Authority should Hamas and Fatah permanently reconcile. A third could apply either to Iran or Palestine and will inevitably demand fealty to whatever Netanyahu's policy of the moment happens to be. I've sat in on those meetings where the AIPAC "asks" are developed, and it was always clear that the substance didn't matter all that much.

The goal of the "asks" is ensuring that Congress follow the script. Invariably at least one of these AIPAC goals will be put into legislative language and quickly pass both chambers of Congress. In fact, usually the "ask" is already in legislative form, so that the AIPAC citizen lobbyists can simply demand that their legislators sign on as co-sponsors (if they haven't already done so). Once the AIPAC bill has the requisite number of co-sponsors, the House and Senate leadership brings it to the floor where it passes with few dissenters.

All hell breaks loose if a member of Congress should object. More

 Perhaps it is not Iran that should  "Contained", rather a nuclear armed Israel who is not a signatory to the Nuclear Non-Proliferation Treaty that should be "Contained". Editor