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Federal and Provincial Governments Lose Appeal Against First Nation Oil Sands Lawsuit

[node:summary]Beaver Lake Cree First Nation has won the right to continue its court case against the Canadian and provincial governments.

A First Nation from Alberta is hailing a court victory in its fight against expanded oil sands development near traditional territories and hunting grounds with the dismissal of a government appeal attempting to block their case.

Beaver Lake Cree Nation first went to court against the provincial and Canadian governments in 2008 alleging breach of treaty rights. The Canadian and Alberta governments joined forces to get the lawsuit dismissed, but lost a year ago when the Court of the Queen’s Bench upheld the lawsuit despite the provincial and federal governments’ attempts to throw it out, on grounds that it was frivolous. In her decision last year, Justice Beverley Browne said the case raises issues and questions about aboriginal consultation overall that need to be addressed. (Related: Beaver Lake Cree Nation Allowed to Continue Lawsuit Against Province and Feds)

The two governments appealed. The April 30, 2013, Court of Appeal of Alberta decision puts the case one step closer to proceeding to trial.

“The appeals are therefore dismissed in their entirety,” read this most recent judgment. “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.”

Beaver Lake Cree Nation attorney Drew Mildon said that should this case be successful it could be precedent-setting when it comes to oil sands development, with repercussions throughout the country. “This is the thing that can keep tar sands development from moving forward,” he said.

The tiny Beaver Lake community, with a population of less than 1,000, sits near Lac La Biche in Northern Alberta and is surrounded by oil extraction activity. Its traditional hunting and fishing lands are intertwined with more than 13,483 miles of seismic lines, about 2,500 miles worth of pipelines and nearly 600 miles of roads. On top of that, oil companies are seeking to expand the oil sands development further into Beaver Lake territory.

Mildon said the effects of oil production through steam-assisted gravity drainage, which is most common in the area, is subtly damaging.

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“You end up with oil in the water table, with animals being poisoned, with forests being so fractured that it no longer supports any of the fur bearers or other animals that First Nations depend on for food.”

The ultimate goal of the court case said Mildon, is to provide the First Nation with the co-management rights that are already a part of the Treaty. Thus giving them the ability to make decisions about the land base that they depend on for the future.

Justice Canada declined to comment on the case beyond stating, “The parties are working cooperatively to determine timelines and processes for next steps in the litigation.”

Mildon said Alberta and/or Canada will most likely apply to the Supreme Court of Canada for a leave to appeal and predicted that the government will attempt to “outspend a little First Nation like this as much as possible.”

Should this case continue to move forward, the trial would eventually be heard in the Alberta Court of the Queen’s Bench. Beaver Lake has relied almost entirely on donations for this proceeding. The band continues to hold fundraising events and has attracted significant sponsors, including the Co-Operative Bank out of the United Kingdom.

As far as current and pending oil sands development on the band’s traditional territory, Mildon said the First Nation might have to resort to seeking an injunction to stop development until the case is decided.

“In the meantime I would think that companies should be warning their investors that they may be throwing their money into a big giant hole in the ground after oil that may very well be staying right where it is,” said Mildon.