Fighting Spirit

Given the threat they pose to regional water and air quality and their especially heavy carbon footprint, the tar sands mines have attracted the ire of a broad range of environmental groups. ForestEthics has worked to get retailers such as Whole Foods to boycott oil derived from tar sands. Greenpeace activists, using their signature stunts, have on several occasions briefly shut down mines with occupations. Environmental Defence-Canada has churned out a raft of studies and the Natural Resources Defense Council has lobbied officials at the highest levels.

Yet when the British Co-operative Bank was looking for a tar sands initiative to throw its financial support behind, it was a legal challenge against the governments of Canada and Alberta by the Beaver Lake Cree – a First Nations band of just 900 people – that caught its eye. Colin Baines, a spokesperson for the bank – which bills itself as Britain’s ethical financial choice – believes the Beaver Lake Cree’s lawsuit is “one of the last and best hopes” of stopping tar sands expansion. “This is a solid case with every chance of success,” Baines says.

The band’s case against the tar sands depends on a treaty that its ancestors signed in 1876 ceding large areas of land to the Crown in exchange for moving to a reserve. In return, members of the Alberta tribe were guaranteed the right to earn their livelihood by continued hunting and fishing on the land they surrendered. Now, the tribe says that the tar sands developments are ruining their hunting and fishing grounds and therefore violating their treaty rights as guaranteed under the Canadian constitution.

Traditional ways are still part of the lives of the Beaver Lake Cree. Families go out in the summer to gather wild raspberries, strawberries, and medicinal plants. In the fall they hunt moose, elk, and caribou. “A lot of our people here are very poor,” says Ron Lameman, advisor to the band chief. “They use the abilities to hunt, fish, trap, and gather as a way to supplement their income.”

Lately, the tribe’s hunters have had trouble finding the wildlife that used to be plentiful. “So much has changed in the last couple of decades and our people are very concerned that the places where they go to hunt and gather are disappearing,” Lameman says. A study commissioned by the band found that woodland caribou in the area had declined by 70 percent over the past 14 years, in part due to the habitat fragmentation caused by development.

The Cree’s civil lawsuit, filed in May 2008, lists the more than 15,000 approved or proposed oil developments on their traditional lands as a violation of their treaty rights. They say the “scale and scope” of the industrialization is ruining the “harvestable surplus” that was guaranteed them more than 100 years ago. The band says it plans to take its lawsuit against the government all the way to the Supreme Court of Canada.

The Co-op bank, through its corporate social responsibility program, has donated over $400,000 to the tribe to help meet legal costs. While the bank is also supporting other initiatives against the tar sands, Baines says that the Beaver Lake Cree’s legal campaign is particularly strategic. One third of tar sands projects already underway are on aboriginal groups’ traditional territories, and the number of developments is set to triple.

“If the case is upheld, it would put a stop to a great deal of the expansions that are going to take place,” Baines says. “For these constitutional rights to have any meaning you can’t destroy the forest and the trees and poison the water.”

In Canada’s current political climate – where expansion of the oil and gas sector is a top priority of the right-of-center government – the band’s legal challenge may be the only way to stop the tar sands juggernaut. “[As environmentalists] we have very few tools at our disposal,” says Jack Woodward, the Victoria lawyer handling the case. “Protests and putting up billboards – these are not going to stop it. The national and the provincial governments are enthusiastic proponents of expanding the tar sands so you’re not going to get any political change. What we need is a fully effective legal mechanism.”

The Beaver Lake Cree’s case faces fierce opposition from the oil companies and is expected to take years to make its way through the court system. If the band succeeds, it will have been instrumental in putting a stop to one of the worst environmental catastrophes on the planet. And it will mark a major victory for the sovereignty of aboriginal people in Canada. “Although those rights seem old-fashioned and quaint,” Woodward says, “they do have constitutional protection, which means they must be protected. And they are a higher priority under Canadian law than extracting oil and gas.”

—Jocelyn Edwards

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