Ruling keeps Beaver Lake Cree claim in the courts

The Alberta Court of Appeal has ruled that the federal government shares responsibility with the province when it comes to approving economic development on Beaver Lake Cree Nation traditional territory.

In a unanimous decision delivered April 30, the panel of three judges dismissed appeals by Canada and Alberta and said that BLCN had the right to voice their concerns in a court room setting.

“It’s pretty standard that Canada wanted to get out of these things and shed their responsibilities,” said Drew Mildon, of Woodward and Company and counsel for the BCLN. “Alberta was claiming that what Beaver Lake should have done was go before the (Energy Resources Conservation Board) for every single one of the authorizations.”

Instead, BLCN was successful in arguing that it is the cumulative effect of the 19,000 individual authorizations for development of approximately 300 projects throughout the territory that it is contesting, not each authorization.

“The only way to deal with them effectively is to go through the process and the court agreed,” said Mildon.

Former Chief Al Lameman initiated the court action on behalf of Beaver Lake Cree Nation in 2008.

In rendering its decision, the panel referred to Beaver Lake Cree’s claim a number of times as a “novel claim in an evolving area.”

Aboriginal law is always “cutting edge,” said Mildon. “No one has done this big broad treaty claim before. This is a big broad claim to protect the ecological state of the territory in order to ensure that the treaty rights can be practised forever.”

While the Court of Appeal concluded that “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,” both the federal and provincial governments could take steps to further delay litigation, including seeking leave to appeal this latest decision to the Supreme Court of Canada.

“But I think that both at the trial level and at the Court of Appeal level there’s a pretty strong signal from the courts that they want this to move forward,” said Mildon.

However, he notes that BLCN believes it is the strategy of both levels of government to outspend the First Nation.

“This is a very expensive process… It really comes down to the First Nation being able to keep its head above water long enough to find a way to fund the thing,” said Mildon.

BLCN’s court battle has attracted international attention, including funding from the Co-Operative Bank of the United Kingdom. However the majority of the costs are still being carried by BLCN.
While BLCN waits for the case to move forward, there is concern over pending development. Mildon says the court could call a temporary halt to such development.

BLCN could also pursue injunctions to stop development as part of the trial. However, such a step would be a costly venture.
If the case moves forward and if BLCN is successful in its argument, the impacts of this case would be far-reaching, says Mildon.

“It does ultimately result in something that every treaty nation across the country can depend on,” he said. “The courts are moving to the recognition there has to be steps taken to protect treaty rights in a meaningful way. The idea is to get to the point where a First Nation has a meaningful say in what happens to the land.”