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

The Beaver Lake Cree Judgment: The Most Important Tar Sands Case You’ve Never Heard Of by Carol Linnitt, May 24, 2013, desmogblog.ca
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 30th, 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 and Mikisew 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 populations and 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.

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. “This would be the most powerful ecological precedent ever set in a Canadian court,” says Woodward, “because it protects the entire biological system with a view to preserving its sustainable productivity.” Other legal protections like the Fisheries Act or the Species at Risk Act, he says, amount to a “piece by piece approach.” The Beaver Lake Cree litigation “is based on protection of the entire ecosystem,” he adds, and determining that crucial point when that system “can’t take it anymore.” “So the precedent that will be set by the Beaver Lake case is that it will be the first time a court is asked to draw the line defining too much industrial development in the face of constitutionally protected treaty rights.”

The Battle Ensues
Susan Smitten of Respecting Aboriginal Values and Environmental Needs (RAVEN), a non-profit group supporting the BCLN action since 2009, says just getting the case to trial has been tremendously difficult and expensive.
But the very importance of the case has brought help from all directions. “We have raised something like $850,000 for the BLCN to cover costs,” she said, “plus we found pro bono lawyers from the UK to assist with the first round on the motion to strike.” People donated, lawyers worked at half-rate, and volunteers gave their time, all to keep the possibility of reaching trial alive. “Canada and Alberta have done absolutely everything they can to delay and outspend” the BLCN, says Smitten. “This is particularly disappointing with respect to our federal government, which one would hope might support First Nations rights, and honour the promises made.” However, she says, the tactics of perpetual delay are common practice when it comes to First Nations’ disputes. The government hopes the problem will fade away “because the band can’t keep up with the costs,” she adds. Smitten estimates the costs could skyrocket up to $15 million once all is said and done. “With this win, I hope everyone sees the value in assisting this band – morally, financially, emotionally, physically. This is doable. It’s going to trial.” “I’m always so impressed and astounded that [the BLCN] stay with it,” Smitten said. “The energy it takes to keep this moving forward is incredible.” [Emphasis added]

[Refer also to:

Study by Ernst Environmental Services examines cumulative effects of oil and gas activity at Chinchaga by Deborah Jaremko, August 2005, Oilweek

Mr. Will Koop (Coordinator, British Columbia Tap Water Alliance) Testimony to 40th PARLIAMENT, 3rd SESSION, Standing Committee on Natural Resources February 3, 2011
Merci beaucoup. Bonjour. Thank you for the opportunity to appear before this committee.
My name is Will Koop. I’m a researcher and author of numerous reports and a book concerning the protection of public drinking water sources in British Columbia.
A year ago I created a website called “Stop Fracking British Columbia” when I began to investigate energy corporations in northeast B.C. mining enormous volumes of fresh water to hydraulically fracture or “frack” deep shale gas deposits. Although water is a fundamental component of fracking, it’s only one of numerous other environmental and social concerns. B.C. shale developments are far removed from where I live. An 18-hour vehicle journey from Vancouver just to get to the outer edge of the vast energy zones leads to the international energy companies. I visited the area twice, in May and September 2010. As a result, I produced three reports that touch on some of the dynamics of these issues. The titles are: “The World’s Biggest Experimental Frack Job!”, which is about Apache Canada; “24/7 Less Peace in the Peace”, which is about Talisman Energy; and “Encana’s Cabin Not So Homey”, which is about the issue of cumulative effects. In addition, I produced two YouTube videos called “My Very First Frack” and “The Komie Commotion”.

Quebeckers concerned about deep shale gas developments have translated my cumulative effects report and the videos into French on their website blogs. Our provincial regulator, the B.C. oil and gas commissioner, stated to this committee on December 14 that the environmental and social consequences from deep shale gas developments in northeast B.C. are “responsible” and in order. I am here to tell you that they are not. For instance, in my report “Encana’s Cabin Not So Homey”, I described how the rush to develop B.C.’s non-renewable deep shale gas is occurring without cumulative environmental effect studies: “Northeast British Columbia’s shale gas race will undoubtedly become and remain one of the most significant environmental and public planning issues facing First Nations, the Province, Regional Districts, regulators, communities, and residents alike”. Given the backdrop of ever more lax and non-existent legislation regulations, these developments can be understood as distinct social and political failures. 

I included a quote from a 1986 Ministry of Environment report that aptly summarizes what the B.C. government has failed to undertake: “strategic planning precedes the sale of petroleum rights”. This ensures that all parties involved are aware of the concerns and constraints associated with development in an area before development is proposed. In 1991 the Ministry of Environment released a report urging the government to implement cumulative effect studies in the energy zone, which it failed to undertake. The concerns by ministry staff about the absence of cumulative effects studies continued with the creation of the BC Oil and Gas Commission of 1997. In 2003, the commission finally published a lengthy two-volume report on how to possibly implement cumulative effects studies in northeast B.C. However, the matter was ignored. Since 2003 the government has leased thousands upon thousands of hectares of public lands to energy companies without conditions to conduct cumulative effect studies and without consulting the public. On November 23, when Canada’s representative, Richard Dunn, was asked by this committee to comment on the state of cumulative effects studies in British Columbia, Mr. Dunn stated, “It would not make sense to do a cumulative effects assessment”.

Mr. Dunn’s response is not only an affirmation that cumulative effect studies have been ignored, but also a disturbing statement about the energy corporation’s attitude and philosophy, including Mr. Dunn’s comments about Canada being on “the forefront of environmental and economic stewardship”. Encana has significant leased areas and corporate partnerships throughout northeast B.C. and elsewhere. There is only one long-term cumulative environmental effect study in western Canada. It was conducted by Ernst Environmental Services on Pioneer Natural Resources Canada Inc.’s oil and gas operations in the Chinchaga area of B.C. and Alberta. Unfortunately, that ten-year study was terminated after the company was acquired in November 2007 by TAQA North, a Saudi Arabia company owned by the Abu Dhabi National Energy Company, with deep shale gas leases in northeast B.C. In 2005 Jessica Ernst of Ernst Environmental Services had her well water in Rosebud, Alberta, contaminated with methane, ethane, and other hydrocarbons after Encana fractured there for coal bed methane gas.

As Monsieur Parfitt testified before this committee on December 2, the cumulative effects issue is further complicated by the fact that the B.C. Oil and Gas Commission has provided little accurate or comprehensive data on public resource issues by energy companies, such as the water withdrawals list he referred to. (1635)

This long list released by the B.C. Oil and Gas Commission regarding companies operating in the Horn River basin failed to provide accurate information, incorrectly suggesting that little water was needed for the fracking operations from 2009 to 2010. I wrote in my last report that Encana had apparently conducted the world’s largest fracking operation on multi-well pad 63-K , in the Horn River basin, next to Two Island Lake, doubling the resource figure that Apache Canada had given earlier, when it announced the world’s largest fracking operation a few kilometres away. I estimated that Encana used about 1.8 million cubic metres of fresh water, which is equal to 700 Olympic swimming pools, about 78,000 tonnes of specially mined frack sand, which would be about 800 rail cars, and about 35,000 cubic metres of toxins. And I said that this operation might be a template or an indication of many more operations in the future. The B.C. government does not mandate energy companies to publish this and related data, but it ought to. Encana’s public relations officer in its Calgary headquarters later said to me in a telephone conversation that Encana was concerned about the information in my report. I responded that I was only too happy to change the information if Encana would provide me with its own final figures from pad 63-K. I then e-mailed a number of questions to Encana, which I have attached to this report and can release to you later. But I have not received a response. As I read from this committee’s transcripts, Encana promised to provide this committee with the water and frack sand data on pad 63-K but has yet to do so.

The absence of long-term, integrated, strategic cumulative effects planning, the lack of accurate resource-use data by the Oil and Gas Commission, and little governmental oversight or monitoring of the energy developments in northeast B.C. are not the only concerns. Many landowners who are directly affected by the energy developments have told me of their concern that they seem to have few rights and stakeholder privileges. They state, for instance, that high-pressure toxic gas facilities should not be established so close to residences. Air quality standards are deficient. There are few or no air-monitoring systems. Water tables used for residents and agriculture are changing. B.C.’s mining legislation gives priority to developers to access and develop private property. Dave Core, of the Canadian Association of Energy and Pipeline Landowner Associations, provided this committee with some of the concerns on November 25. The concerns I have raised to this committee about legislative and regulatory deficiencies and monitoring oversight in British Columbia are not isolated. In our submission to the National Energy Board in June 2006 regarding Kinder Morgan’s Anchor Loop project, I reported that the Alberta government failed to act on the recommendations of a special committee appointed by Alberta’s executive cabinet in 1972. That committee recommended that the tar sands might be developed over a 750-year period, not over a 50-year period.

The Alberta government suppressed the report until it was leaked three years later to Mel Hurtig, who then released the study. The special governmental committee, headed by the Alberta Ministry of the Environment, understood the magnitude of the environmental consequences of energy companies proposing to mine the tar sands at that time. In that same report, the committee made strong statements of concern about multinational energy corporations and strong statements about Canada’s energy security as it related both to protecting the environment and to providing long-term energy supplies found in Canada for the long-term use of Canadians. Thank you. [Emphasis added]

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