Beaver Lake Cree Nation Awarded Advanced Costs to Continue Treaty Infringement Case by Blair Feltmate, October 1st, 2019, JFK Law Corporation
On September 30, 2019, the Alberta Court of Queen’s Bench awarded advanced costs to Beaver Lake Cree Nation (Beaver Lake), represented by Karey Brooks and Aria Laskin. This decision enables the Nation to continue its Treaty infringement case against Canada and Alberta.
Located in Treaty Six territory northeast of Edmonton, Beaver Lake is a small community that has faced significant attacks on the way of life of its members due to widespread and increasing industrial development in the area. Fearing irreversible damage to culture and way of life, Beaver Lake launched a Treaty infringement case in 2008. The case deals with the cumulative effects of the “taking up” of land in Beaver Lake’s traditional territory and the damage done to the way of life of the Nation’s members. At its core, the case is about whether or not the Numbered Treaties, and in particular Treaty 6, provide constitutional protection for Indigenous culture and way of life.
After undertaking significant fundraising efforts and providing substantial funds to the litigation for over ten years, by 2018, Beaver Lake was unable to continue to fund the litigation effectively. As a result, it applied for advanced costs, to enable it to continue its case.
Advanced costs are an extraordinary remedy that are only provided when a case has merit, is unique and publicly important, and cannot be funded by the plaintiff.
Alberta and Canada opposed the application, arguing that the case was not unique or of sufficient public importance to merit such an extraordinary remedy, and that the Nation had enough funds available to continue to fund the case. Beaver Lake disagreed, arguing that the case is unique and raises critical issues of pubic importance that have yet to be fully considered by the courts. It also argued that it did not have sufficient funds available, and that even if it did (which was contested), the governments were effectively arguing that the Nation had to choose between providing basic necessities of life to its members and funding the case.
In accepting the Nation’s submissions, the Court stated that it was “unwilling to force Beaver Lake leadership to choose between pursuing this litigation and attempting to provide for the basic necessities of life that most citizens take for granted.” It also agreed that the litigation was unique and raised issues of public importance.
The Court ultimately ordered that each of the parties – Beaver Lake, Alberta and Canada – contribute $300,000 a year until the conclusion of the litigation.
Beaver Lake Cree Nation running out of money to conclude 10-year legal battle, Judge ruled 5 years ago Beaver Lake Cree Nation’s constitutional challenge deserves trial, but no date set yet by Roberta Bell, April 27, 2018, CBC News
A northern Alberta First Nation suing over development on traditional land wants the federal and provincial governments to pay its court [and legal] fees so it can afford to take the ongoing case to trial.
Beaver Lake Cree Nation, about 200 kilometres northeast of Edmonton, launched a constitutional challenge in 2008 alleging an infringement of treaty rights to hunt, trap, fish and gather on the land. Last week, the band filed an application for advanced costs with the Court of Queen’s Bench in Edmonton.
The First Nation, with fundraising help from Indigenous rights’ group Raven Trust, has paid more than $1.5 million in legal fees to date, according to the application for advanced costs.
Beaver Lake Cree Nation chief Germaine Anderson said “legal roadblocks” from the federal and provincial governments, which have both tried unsuccessfully to have the challenge dismissed, have exhausted the band’s financial resources.
“I don’t know if that’s their tactic, till we go broke and say, ‘Well, we can’t go through with this anymore,” Anderson said.
‘Deprived of their connection to the land’
Beaver Lake Cree Nation alleges in the statement of claim, an original version of which was filed in 2008, that the people have been “deprived of their connection to the land and waters of the traditional territory, undermining their economy, culture and very identity.”
Of the 38,000 square kilometres of traditional land surrounding the reserve, 35,000 square kilometres have been impacted by development, mainly from oil and gas wells, said Crystal Lameman, a member of Beaver Lake Cree Nation and the treaty co-ordinator.
She said the populations of animal species the band subsists on, such as moose, are in decline. Water levels have drastically receded. The band is having a more difficult time finding traditional medicines, such as rat root.
The Beaver Lake population includes 390 people who live on reserve and 664 who live off-reserve.
Lameman acknowledged the First Nation does receive some money as a result of the widespread development, but said it’s not much.
“For the amount of development that has happened in our traditional territory, if we were receiving what we should be receiving, we definitely wouldn’t be in the financial situation that we’re in right now,” she said.
“We wouldn’t have a housing waiting list of over 50 and my nation wouldn’t have to be turning away post-secondary students for education funding even though they have a treaty right to education.”
Appeal dismissed in 2013
Canada and Alberta filed an appeal, arguing against the case management judge “misunderstood the nature of the fiduciary relationship between Aboriginals and the Crown” in the decision to allow the case to proceed.
“The treaty is alleged to impose obligations on Alberta and Canada to manage certain lands (“the core lands”) … to ensure that the members … are able to exercise their right to hunt, fish and trap,” the appeal stated.
The Court of Appeal of Alberta dismissed the governments’ appeal in 2013.
“The parties will be well-served by returning to their case management judge for the imposition of a litigation plan to advance this litigation through trial,” the appeal court ruling said.
No date for a trial has been set.
Ready to go to trial
Beaver Lake Cree Nation’s lawyer, Karey Brooks, has done some of the work pro bono. She said the case, known as a cumulative impacts case, is the first case filed to make such allegations to be sent to trial.
She emphasized the significance of the appeal ruling that the claim was “judiciable and should proceed.”
Lameman said Beaver Lake Cree Nation wants the case to go to trail.
“We are ready to go to trial but we don’t have the money to get to trial,” Lameman said.
“In light of Kinder Morgan, in light of Enbridge, in light of all of these major cases, or challenges right now, in Canada, this case is critical to those very things. This, by Beaver Lake being successful in this cumulative impacts treaty rights case, we are able to set precedents of determining what development looks like in our territories.”