First Nation's Lawsuit Could Shut Down the Tar Sands

“If the Beaver Lake Cree win clearly in this case, it could mean an end to development on their territory”

By Tom Sandborn

From TheTyee.ca, July 28, 2008

Jack Woodward and the Beaver Lake Cree aim to change Canadian law — and their success likely would throw a huge wrench into Alberta’s tar-sands oil production.

The suit pits the Beaver Lake Cree band against the governments of Canada and Alberta, asking the court to rule invalid the government authorization for thousands of petroleum projects on the band’s core territory.

Woodward, a Victoria-based Aboriginal-law expert, filed the suit on behalf of his clients this May, and says its intent is to lay the groundwork for a new legal regime governing resource extraction on land reserved for or claimed by Canada’s First Nations.

A victory would allow the Beaver Lake Cree to demand much higher levels of accommodation and consultation from government and industry on oil and gas operations on their territory.

Woodward thinks a win could create a precedent that will allow other bands to enforce similar demands across the multi-billion-dollar oil-sands projects in Alberta’s north.

It could also, conceivably, shut down Canada’s only tactical bombing range at Cold Lake.

Landmark win in his pocket

Woodward has a track record to be taken seriously. In November of last year, as lawyer for the Tsilhqot’in First Nations, he helped win a landmark B.C. Supreme Court decision that said the provincial government had overstepped its authority in granting land-use rights to firms without Tislhqot’in approval.

Woodward believes the Tsilhqot’in case, also known as the ‘Xeni decision,’ underscores the point that Aboriginal rights to hunt, trap and fish create an obligation on government to proceed in ways that do not make those rights meaningless by reckless authorization of resource exploitation.

Cynthia Dickens of Justice Canada in Edmonton will act as lead counsel for the federal Crown in defending against the claims of the Beaver Lake Cree. Speaking from her offices in Edmonton, Dickens told The Tyee that neither she nor the representatives of the Alberta government had yet filed statements of defence in the matter.

Mike Hudema, tar-sands campaigner for Greenpeace in Alberta, thinks the case could have immense implications. “If the Beaver Lake Cree win clearly in this case, it could mean an end to development on their territory,” Hudema told The Tyee.

“The precedent could slow tar-sands development across Alberta. The consultation process with First Nations before development began has been absolutely terrible. I’d love to see them win, not only for their own interests, but also for the sake of everyone in Canada,” Hudema said.

‘We will fight as long as it takes’

“All of the animals are starting to deplete,” said Beaver Lake Chief Alphonse Lameman, in whose name the action was launched, on the day his people went to court. “Soon there will be nothing. We will fight as long as it takes to get justice. The governments of Canada and Alberta have made a lot of promises to our people, and we intend to see those promises kept.”

The ancestors of the Beaver Lake Cree people signed a treaty with the federal government in September of 1876, a deal that guaranteed them reserves and some other benefits, including the right to hunt and fish throughout the tract surrendered, “saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes….”

Since then, the governments of Canada and Alberta have authorized over 16,000 projects, mainly oil and gas exploration and extraction, on the core territories of the Beaver Lake Cree.

The governments have also arranged the leasing of land within the territory to the Cold Lake Air Weapons Range, Canada’s only tactical bombing range. The Cree band has gone to court to argue that development has occurred without proper consultation with them, without proper caution about protecting the habitats necessary to make their treaty rights to hunt, fish and trap meaningful, and without proper environmental and species inventories.

Win could spill into oil sands

The core traditional territory of the Beaver Lake Cree lies near Lac LaBiche on the margins of oil sand development, but if the band wins this case at the Supreme Court level, it could create precedents for other First Nations in Canada, including those whose claimed territories are where the tar-sands oil rush is underway in Northern Alberta.

The oil sands, viscous deposits of tar-like bitumen underlying areas of Alberta larger than Florida, are estimated to contain over 175 billion barrels of proven oil reserves, with at least one oil company spokesman estimating the total reserves at up to two trillion barrels, or eight times the size of all Saudi Arabia’s oil supplies.

Husky: ‘We take it seriously’

One of the installations on Beaver Lake Cree land targeted by the May legal action is Husky Energy’s Tucker Oil Sands Project north of Cold Lake. When the company announced the opening of the project, its press release estimated that the Tucker lease contained 1.27 billion barrels of discovered resource, and that the project would recover approximately 352 million barrels of oil over a 35-year project life.

Contacted in his Calgary office last week, Graham White, who speaks for Husky, declined to comment on the court action, but did confirm that Husky’s Tucker Oil Sands Project lies within the area disputed by the Cree.

Nadine Barber, who speaks for Devon Canada Corporation, a firm with many projects within the Beaver Lake Cree territory, says that her firm will not intervene in the court action.

“The filing is with the two governments,” she told The Tyee. “Devon will take no role during the trial. After the decision is rendered, we’ll discuss whether to intervene. We do, however, take Aboriginal matters very seriously. We try to deal with all such matters consistently and respectfully.”

Huge stakes on both sides

Exploitation of the tar sands is now seen in industry circles as economically viable in an era of steeply rising oil costs, while environmentalists worry about the pollution created in cooking the oil out of the tar sands, as well as global warming effects as more oil and gas go into the global pipeline.

Politicians foresee a fortune in tax revenues, but most of Canada’s leading environmental groups are calling for a moratorium on further development until or unless the tar sands projects can be made genuinely sustainable.

“Anything that slows down tar-sands development would absolutely be a good thing,” says David Suzuki Foundation climate-change campaigner Dale Marshall. “Greenhouse gas emissions from the tar sands are three times the volume per barrel extracted at conventional wells. These are huge strip-mining operations with terrible impacts on biodiversity.”

Greenpeace campaigner Hudema agrees. He said tar-sands development represents an environmental and human-rights crisis for Canada, threatening to destroy two river systems, dump double the emissions currently generated by Canada’s car and light trucks into the air by 2020 and cover more than 50 square kilometres of Alberta with toxic tailing ponds by 2015.

Hudema is also worried about the potential health impacts on those who live downstream from tar-sands development, pointing to increased rates of rare cancers in Fort Chipewyan.

Precedents cited by Cree counsel

“Given that we now have federal and provincial governments across Canada willing to back mining and tar-sands exploitation against Aboriginal rights, we can look for no statutory relief,” Beaver Lake Cree counsel Woodwar
d told The Tyee.

“Both levels of government have been passing legislation to make stopping these projects impossible. Only First Nations can stop or force modifications to them now,” Woodward said. “We all depend on First Nations to do the heavy lifting on environmental protection.”

Woodward said he believes that precedents created by a 2005 Supreme Court of Canada ruling in a case brought by the Mikisew Cree nation will support a win for his Beaver Lake clients. The court ruled, he says, that a First Nation can oppose industrial activity on its land if that activity makes the treaty rights to hunt, fish and trap meaningless by destroying the healthy habitats necessary for the rights to be exercised.

Stuart Rush, Q.C., a distinguished senior member of the Aboriginal law bench and one of the leading counsels in the precedent-setting Delgamuukw case, thinks that the Mikisew case is an appropriate precedent for Woodward to cite.

“Mikisew is a powerful authority,” he told The Tyee. “This is a strong precedent. Tsilhqot’in, on the other hand, is obiter dicta, not precedent. That said, this new case represents the cutting edge on Aboriginal law. No court in Canada is going to give a First Nation an absolute veto on resource extraction, but levels of consultation and accommodation could well be strengthened by a win at Beaver Lake.”

‘Impressive’ claim: enviro law expert

David Boyd, an environmental expert based in Victoria with affiliations with the University of British Columbia, Simon Fraser University, and the University of Victoria, says that the statement of claim prepared by Woodward for the Beaver Lake Cree is “impressive.”

“The Beaver Lake Cree are the latest David to challenge the tar-sands Goliath, and while the odds are stacked against them, you’ve got to admire their courage,” Boyd said in an e-mail to The Tyee. “Even if they eventually emerge victorious, no single lawsuit is likely to strike a decisive blow against the tar sands. Instead, Aboriginal people, environmentalists, judges and politicians (both in Canada and around the world) will have to join forces to slow down the reckless expansion of Alberta’s dirty oil juggernaut.”

“Governments and industry ignore our concerns,” Beaver Lake Chief Lameman said. “This is our home. This is where we live. We have a responsibility to our children, and to our children’s children, to see that the lands where the Cree live, and will always live, remain inhabitable.”

The case is now in a case-management process overseen by Justice K.D. Yamauchi, and a first meeting of all counsel and Justice Yamauchi will be held August 18 to determine timelines. Dickens of Justice Canada said she expects that both Canada and Alberta will file their statements of defence sometime in the fall. Dickens declined to comment on what might be at stake for the Crown in the matter.