Indigenous Lawsuits Could Paralyze Canada’s Tar Sands

This article originally appeared on VICE Canada.

Whether it calls the program “responsible resource development” or strives to become an “energy superpower,” Canada is digging up vast swathes of the earth and selling them as quickly as possible at the expense of the environment and aboriginal rights.

In many of the treaty territories and unsurrendered First Nations across Canada, the constitutionally protected rights of indigenous people — including the right to hunt, fish, trap, and be consulted with and accommodated when new development is planned — are being increasingly overstepped by rapid industrial growth.

After a frenzy of environmental deregulation, undertaken by the fraudulently elected Harper Government at the request of oil lobbyists, indigenous rights remain as a last line of legal defense for the environment in Canada.

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“This is not an Indian problem anymore. If you breathe air and drink water, it’s about you,” said Crystal Lameman, a member of the Beaver Lake Cree. Her band is suing for an injunction in their traditional territories, which, if granted, could prohibit a third of planned oil sands development from moving forward without their consent. Theirs is one of the largest lawsuits of what the Canadian Press calls 2014’s “aboriginal legal onslaught” against the tar sands.

This wave of litigation responds to Canada’s new regulatory climate, in which many major energy projects no longer require environmental assessments, millions of waterways are now unprotected, and those looking to participate in public hearings on energy projects need to endure a prohibitive and time-consuming application process to (maybe) be heard. Most recently, oversight of Alberta’s oil industry was handed over to an industry-funded corporation, and habitat protection requirements for the humpback whale were loosened, likely to permit the construction of the Enbridge Northern Gateway.

To justify this stream-lined regulatory regime, Stephen Harper said in 2012 that: “We cannot allow valid concerns about environmental protection to be used as an excuse to trap worthwhile projects in reviews-without-end.” Instead, the government and industry now face lawsuits without end.

“As we’ve seen with bills C-38 and C-45, the problem with environmental assessment tools is that they can essentially be legislated out of existence,” said Robert Janes, a lawyer representing a number of First Nations. “They are created by the legislature or parliament and they can be abolished or limited by the legislature or parliament.” In contrast, Janes said, “what treaty and aboriginal rights have is constitutional protection. So the government can’t wish them away.”

Accordingly, Athabasca Chipewyan First Nation, with support from Neil Young, has filed four lawsuits that challenge specific Shell projects and allege that entire land use policies were developed without proper consultation. The Mikisew Cree and Frog Lake First Nation are suing the government over massive changes to the country’s environmental assessment and water protection laws. The Lubicon Cree, a non-treaty nation lacking a reserve and basic amenities like running water, allege that billions of dollars in minerals, oil, and gas have been removed from their territories without consent.

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They are suing the government to nullify thousands of current oil and gas extraction permits and pay $700 million in compensation, while also seeking an injunction against a fracking company called Penn West.

In B.C., Tsleil-Waututh Nationhas just launched a lawsuit against the government over the immense Kinder-Morgan export pipeline, while in Ontario the Chippewa of the Thames First Nation is suing the government over inadequate consultation regarding Enbridge Line 9.

Outside of the courts, indigenous activists are pledging to keep blockading unwanted fracking projects in New Brunswick, to physically obstruct construction of the Keystone XL pipeline, and to blockade major gas and tar sands pipelines through British Columbia. Each of these lawsuits and actions reinforces the others, threatening the fuel supply, extraction sites, and distribution network of the tar sands and amounting to many billions of dollars of risk.

Government officials know about this risk and how their economic policies trample indigenous rights. Leaked reports from the Ministry of Aboriginal Affairs, obtained by Martin Lukacs and the Guardian, warn government insiders that the assertion of indigenous rights and new legal precedents set by successful indigenous lawsuits pose “significant risks” to the federal government’s policy agenda and may result in “economic development projects [being] delayed.” One of the documents quoted in Lukacs’ report suggests that “there is a tension between the rights-based agenda of Aboriginal groups and the non-rights based policy approaches” of the federal government.

In pursuing “non-rights based policy,” the government is betting that it can violate its own constitution — so long as it can crush blockades, outspend First Nations in the courts, and authorize projects faster than First Nations can sue. It’s a calculated gamble launched from shaky legal ground, sustained by the ignorance of investors, enforced by the RCMP, aided by the poverty of First Nations, and bankrolled by the infinite wallet of the Canadian taxpayer. In 2013 alone, the government spent $106 million defending itself from aboriginal litigation, while the province of New Brunswick spent $9.5 million policing the Elsipogtog blockade.

Crystal Lameman and Neil Young, photo via Jamie Henn

Anatomy of a Tar Sands Trial: The Beaver Lake Cree Nation
A look at the Beaver Lake Cree’s litigation, one of the many active aboriginal tar sands lawsuits, reveals the enormity of the government’s policy bluff.

With a population of about 900, this First Nation is moving forward with a lawsuit that draws a third of planned tar sands extraction into question. Like BLCN’s traditional territories, an area approximately the size of Switzerland, this legal action is gargantuan — or “so large as to be unmanageable” to use the words of Canada’s lawyers.

The defendants, Canada and Alberta, are accused of authorizing over 20,000 permits that collectively threaten the Beaver Lake Cree’s treaty rights. BLCN charges that the governments have failed to adequately monitor the cumulative effects of development, failed to consult with them in good faith, and failed to take measures to protect the abundance, diversity, and habitat of wildlife.

“When industry and development is destroying our right to hunt, trap, and fish, that’s in direct violation of Canadian law. So we have grounds to challenge,” said Crystal Lameman, a member of the band who fundraises for their litigation.

At the center of the trial is Treaty 6, an 1876 agreement between the Crown and the Beaver Lake Cree. It outlines the territories relinquished by the Cree, but ensures that “the said Indians shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered,” except in “such tracts as may from time to time be required or taken up for settlement, mining, and other purposes.”

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“That language allows for development. It anticipates development, it anticipates that there will be settlement. But, at the same time, it can be read in the context of a promise that in the treaty negotiations, a way of life would be protected,” the BLCN’s lawyer Robert Janes said. Accordingly, “there is some limit to the ‘taking-up’ process that means it is not just an open-ended process of extinguishing the rights by slices. What the courts have said is that at some point you cross a line where there’s a danger that there will be no meaningful right to hunt, and at that point there’s a limit to the Crown’s conduct.”

“A right to hunt or a right to fish or a right to carry out a cultural activity is absolutely meaningless without a proper habitat in which there are animals, fish, and land. So what the courts have recognized is that what comes with those rights is some kind of protection for habitat,” Janes clarified.

“My hope is that this litigation will set precedent on the protection of our ecosystem, our water systems, our air, our land — everything. The ecosystem, in its entirety,” said Crystal Lameman. “We have to leave something for our children. It doesn’t matter what color they are — all of our children, the world’s children. And right now, the way this industry is moving about, we’re leaving nothing for our kids but oil they’re going to drink and money they’re going to eat.”

Lameman also hopes that BLCN’s lawsuit will rebalance the relationship between her nation and the Crown, resulting in “true and honest consultation — not before the pen is going to the paper, but consultation from the get-go — defined by us, the citizen members.”

When I asked what kinds of efforts industry has made to consult with the Beaver Lake Cree, Lameman clarified that “consultation for me is not a company coming into my community for half an hour, setting up a fancy table, raffling off an iPad, and saying ‘OK, consultation, check.’ That’s their idea of consultation. That’s really what happens.”

The BLCN’s traditional territories already host about 35,000 oil and natural gas wells, a Canadian Forces base, and thousands of kilometers of pipelines, access roads, and seismic lines. These territories are 38,927km and cover large parts of the two largest oil sands deposits. While the Beaver Lake Cree say the ecosystem is rapidly declining, the government has plans to triple bitumen extraction in these territories to 1.64 million barrels per day.

“I want it to be stated clearly that I’m not against development. I’m not against this industry,” Crystal Lameman said. “What we are asking for is to show us there’s such a thing as sustainable development, show us that our treaty rights are not being infringed upon, and show us that you are abiding by your obligation to consult.” Lameman believes that if the Crown was confident that they could win this case, “we would be in court already.”

“A lot of the old people, they talk about how the fish don’t taste good anymore—they taste different,” Lameman said. “Hunters have been seeing deer with green meat,” and “there’s been evidence of moose with puss bubbles under their skin.” She noted that ducks are increasingly scarce, “we don’t have very many frogs anymore,” blueberries are “becoming harder and harder to find” and “in about two, three weeks, the Saskatoons are dry. It wasn’t like that when I was a kid.”

Most significantly, caribou herds in the Beaver Lake Cree territories are disappearing fast. “This is an animal that we used to subsist on — thousands and thousands of caribou. As of 2011, we had between 175 and 275 caribou,” said Lameman.

A report by the Cooperative Bank of Manchester, who provided BLCN with funds to launch their case, concluded that “oil and gas exploration and development” and associated roads, pipelines, and seismic lines have resulted in “physical loss of habitat, avoidance of areas by caribou, and increased caribou mortality.”

Avoided caribou habitat now covers “51 percent of the Cold Lake herd range” and “66 percent of the East Side Athabasca herd range,” with roads acting as “semi-permeable barriers” to caribou and above-ground pipelines “completely impassible.” Saving local caribou herds, the report argues, means issuing “a moratorium on all new industrial developments.”

Instead of a moratorium, Canada and Alberta have developed widely-criticized plans to save the region’s caribou. A federal caribou recovery strategy mandated that 65 percent of threatened caribou habitat must be left undisturbed, though this threshold has already been exceeded and the government keeps handing out industrial permits. Meanwhile, Alberta is considering building gigantic, outdoor caribou pens, and has been poisoning thousands wolves with strychnine and gunning them down from helicopters to stop them from preying on caribou.

A series of reports by Carol Linnitt of DeSmog Blog explores these policies in detail, driving Linnitt to conclude that “according to this strategy, caribou and wolf alike fall prey to another kind of predator: multinational corporations.”

The BLCN’s traditional territories have also been impacted by several oil spills that nobody knows how to stop, with heavy oil and tainted water are oozing up from fissures deep in the earth. This includes the infamous Cold Lake spill which is ongoing after eleven months with no end in sight. “In the south-west portion of the lake we have ancestors buried,” Lameman said, noting that this burial site is a part of her nation’s litigation.

Friends of Lameman’s who were employed to clean-up this spill told her they saw deer and moose drinking from the polluted lake, and dead ducks and frogs littering the scene.

“We’ll be pulling together evidence to show just how the land has been disturbed, what land is no longer available for harvesting, how certain kinds of physical disturbances affect wildlife patterns, how certain kinds of physical activities limit hunting,” said lawyer Robert Janes, noting that the case will argue that the indigenous “right to hunt carries with it a substantial cultural component.”

“A lot of these things are personal accounts,” Lameman said. “These systems we have placed upon us, they don’t recognize oral history. But that’s our history. We don’t write our history down in books, so that makes it less valuable to this system.”

Caribou herds in Beaver Lake Cree territories are disappearing fast. Photo via Flickr

With this in mind, the BLCN’s legal team is unearthing evidence that will verify, through a court-approved European optic, the oral history of development as told by the Beaver Lake Cree. This amounts to a herculean research project that their lawyer estimates could involve upwards of 250,000 documents — a collection of satellite images and old aerial photographs, ecological and anthropological studies, testimonies from elders, and “getting the government to choke up the information out of individual sources.”

Robert Janes explained that “every farm has a land title deed and has a history, every project has authorizations, every road has a history. And those documents exist inside the government, it’s just that the government never actually tries to establish how those come together.”

“The really hard part is actually establishing the baseline picture of what the environment was like before the disturbances, and that is a very challenging process,” Janes said. “But there is data out there and we do know that at some point in time the land was in fact undeveloped.”

Beaver oil sands lease, via Raven Trust

Time, money, and the burden of history
While the law moves at a snail’s pace, industrial development is ceaseless and rapid. While the government’s coffers are unlimited, indigenous communities face endemic poverty. While First Nations’ rights are now the strongest environmental protections in Canada, the weight of history obstructs aboriginals from easily having these rights recognized in the courts.

Up until 1951, aboriginals in Canada were not permitted to hire lawyers. As a result, while other areas of law have had more time to develop, many basic concepts in aboriginal litigation are not yet clearly defined. First Nations across the country charge that the government or industry have failed to consult with and accommodate them, but the law has only begun to define consultation in the last decade and “the courts have barely started to scratch the surface” of what accommodation means, Robert Janes said.

As a result, Janes said, “it is not uncommon for the Crown to raise very difficult legal issues at very early stages of the process.” Complex preliminary issues “can consume the First Nations’ ability to litigate and can introduce so much delay that often there’s nothing left to fight over.”

“Aboriginal litigation raises some of the most important and complex and difficult and therefore expensive issues to resolve. But at the same time the people who raise these issues are in fact some of the most impoverished people in Canada, in many cases because of the very issues they’re trying to raise,” Janes summarized.

Yet, under the growing weight of aboriginal litigation, procedural roadblocks for indigenous plaintiffs are beginning to unravel. As an example, the BLCN’s lawsuit overcame a major legal obstruction faced by indigenous communities impacted by large industries. Theirs is the first case to look at the impacts of development as a whole on their treaty rights, rather than the impact of one particular project.

“When we filed the litigation in May of 2008, we claimed over 17,000 treaty right infringements and violations. [Canada] wanted us to go to court 17,000 times,” Crystal Lameman said, laughing. Instead, the courts ruled that the Beaver Lake Cree “are entitled to access to justice uncircumscribed by limits imposed by the scope of Canada’s alleged misconduct,” and struck down Canada’s appeals.

“This has very significant implications for other First Nations,” said Robert Janes. In many First Nations “it’s not that just one project looked at in isolation is bad, it’s that their lands have been affected by hundreds, in many cases thousands of impacts. It’s the totality of those impacts, which are supposed to be regulated by the government, which has really changed their life and has interfered with their aboriginal rights, their aboriginal title.”

This precedent was hard won. It took almost four years for the Beaver Lake Cree to be granted a trial and now, almost six years since the case was first filed, BLCN is still a few years away from a court date. As the case has grown to include thousands of new permits, Janes explained, it reflects the reality that “the world doesn’t stop while the case goes on.”

While in court, Janes said, “the practical reality is that Beaver Lake has to continue to fight on other fronts as a part of trying to avoid excessive development.” He offered the example of “an oil sands project that is in progress right now, where Beaver Lake is trying to participate in the regulatory process to have the regulator limit or delay or ultimately not approve the project.” Development might be slowed, too, by the investor uncertainty created by a lack of customers for, and endless litigation against, Canada’s tar sands infrastructure.

Robert Janes noted that another of his clients, Grassy Narrows, has successfully deterred development while fighting their legal battle “for 12, 13 years.” They have done this by being “very involved in the regulatory process, they have had blockades, they have also had a very effective grassroots boycott campaign that a number of organizations have helped them with. When you look around at successful cases, aboriginal people have to fight these cases on a number of fronts—political, legal, regulatory, and it’s a bit of a hearts and minds campaign as well.”

Winning hearts and minds, the BLCN lawsuit has drawn support from lawyers and donors from around the world, as well as charitable organizations, and the Cooperative Bank of Manchester. They’ve also crowd-sourced donations online, gathering more funds than they asked for.

Susan Smitten, the executive director of a charitable organization called RAVEN Trust that fundraises for BLCN, said several lawyers and law-firms have worked on the case at half of their normal rate or “put in hundreds of thousands of dollars pro-bono.” A prominent UK lawyer, Michael Mansfield, wanted to represent the Beaver Lake Cree for free, but was not permitted to do so by the Alberta courts—instead he sent lawyers from his firm to work behind the scenes. “Lots of people have put in time in lieu of money,” Smitten summarized.

Smitten noted that in addition to RAVEN’s fundraising, “people in Beaver Lake Cree community are digging as deep as they can. Their resources are so limited, and they have other issues as well, but they all believe in this strongly.” Overall, she said, “the band is putting in hundreds of thousands of dollars themselves… at a recent open band meeting they raised about $4,000 just from the people in the room.”

And still, Smitten told me, as legal challenges like the BLCN’s are increasingly seen as one of the most tangible ways to challenge unchecked tar sands growth, more and more donors seem to be reaching out to help.

“People are starting to really awaken, in the sense of a global awareness, to how indigenous led strategies based on their treaty rights are really forming one of the key ways that tar sands expansion can be at least limited,” said Susan Smitten. “In everything I read these days, everyone is tuning into the fact that this rate of expansion is unviable. It’s untenable because within less than a decade they want to double the current production.”

“All the voices seem to be saying ‘don’t we need to freeze this for a minute? Do we even need this and if we do isn’t there a better way? And shouldn’t we be consulting with First Nations and making sure their rights aren’t completely trampled in the process?’” Smitten said. “As more and more people tune into that and become aware, there are more and more voices saying ‘how can we help?’ and there’s more and more people reaching out to us.”