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 a...
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