Dickson Wood is sitting on his back deck listening to a pair of nesting redwing blackbirds chatter in the nearby reeds. He’s pretty sure there are babies in the nest. “They get a little bit more aggressive when the eggs start to hatch,” he says with a chuckle.

It’s peaceful scenes like this one that are reminiscent of his younger days spent exploring the eastern slopes of the Rocky Mountains in and around Clearwater County, west of Red Deer, Alta.

Sixty years ago, when he first started coming to his family’s cottage, the region was what he described as “wilderness territory” — an area with boundless opportunities to hike, fish and camp.

“Over the years I’ve seen it evolve, frankly sadly,” he tells The Narwhal.

Forestry, oil and gas activity and coal exploration have turned much of the region from what Wood describes as a “pristine” forested area to one chopped up by seismic lines, cutblocks, well pads and boreholes.

Swaths of trees are removed in the area of the Ram River Coal Corporation’s Aries project in Clearwater County, with forestry cutblocks stretching to the horizon. Photo: Amber Bracken / The Narwhal / The Canadian Press

On a recent helicopter flight over Clearwater County, The Narwhal got a bird’s eye view of the area, which includes exploration for the Ram River Coal Corporation’s Aries Mine and Valory Resources’ Blackstone project.

Projects like these had many Albertans up in arms over the last year, after the United Conservative Party government announced in May 2020 it had rescinded the longstanding coal policy which prohibited most coal mining in areas like these (known in the policy as category 2 lands).

Alberta’s coal policy — in place since 1976 — allowed for exploration, but getting approval to build an actual coal mine was much more arduous. That changed when the coal policy was rescinded, sparking backlash: ranchers upset over deteriorated water quality, tourism operators concerned about destruction of remaining wilderness and concern over what Wood described as “disingenuous” communication of its plans.

The government dialled back its efforts to open up the eastern slopes to open-pit coal mining, and also eventually paused exploration.

“We admit we didn’t get this one right,” Energy Minister Sonya Savage said at a press conference in February announcing the government’s course-reversal.

How a public uprising caused a province built on fossil fuels to reverse course on coal mining

But residents and advocates are concerned that many Albertans may view the issue as settled, and for those The Narwhal spoke to, the eastern slopes are far from free of future threats from coal mining.

“Everyone’s let their guard down,” Travis Boschman, a wildlife photographer in Red Deer, told The Narwhal. “I’m happy that [exploration] is stopped for now but I don’t have a lot of faith that it’s going to stop forever.”

This leaves some advocating for not just a reprieve from industrial activity, but a conscious effort to protect the region from the cumulative impacts of numerous industries.

“There are certain areas where it’s a non-starter and the eastern slopes just has to be one of those,” Wood said.

Coal exploration quietly chugged along in recent years

Clearwater County was blanketed in coal leases following the government’s announcement that it would rescind the coal policy.

Coal leases soon covered nearly 10 per cent of the county’s area, according to data from the Canadian Parks and Wilderness Society. The area of coal leases more than quadrupled after the government’s announcement that the coal policy would be rescinded, according to the group. Then, facing pressure, the government paused the sale of new leases in category 2 lands in January.

That didn’t stop companies holding existing leases from pursuing exploration, though not all coal leases had active exploration activity.

Then, facing more backlash, the government announced another pause in April on all existing and new exploration on Category 2 lands. At the time, Energy Minister Sonya Savage directed the Alberta Energy Regulator to pause all approvals for coal exploration programs until December 2021. (Tonya Zelinsky, a spokesperson for the Alberta Energy Regulator, told The Narwhal by email that “beyond that date, regular processes would resume unless otherwise directed by the Government of Alberta.”)

But coal exploration in the area had quietly proceeded before the pause, with roots many decades in the past.

The Ram River Coal Corporation and Valory Resources have both been slowly working on potential coal projects in Clearwater County, where coal exploration has been taking place for years. Map: Alicia Carvalho / The Narwhal

The Blackstone project, near the Clearwater River, saw early exploration dating back to the 1970s, and was first mapped by the Geologic Survey of Canada in 1945, according to a 2020 investor presentation from the company.

By 2020, the company had drilled 110 boreholes, drilling a total distance of 17,600 metres. In its 2020 investor presentation, the company noted it had plans to further its exploration program by adding another 20,000 metres of drilling, as well as 100 kilometres of seismic lines.

Boreholes, also known as drill holes, are drilled to assess a coal resource, and though they often represent a small footprint on land — some are 15 centimetres in diameter — they can reach down hundreds of metres below the earth’s surface.

To drill a borehole, companies must transport a drilling rig, often mounted on a skid, through the forest to the proposed site, resulting in visible disturbances on the landscape in the form of removed trees and, oftentimes, new access roads.

To the north, the Aries Ram River coal project has also been drilling bore holes for decades. Between 1970 and 2013, 608 drill holes were completed, for a total drilling distance of more than 63,000 metres, according to a 2017 technical report completed for the company.

Representatives of Ram Coal and Valory Resources did not respond to The Narwhal’s request for an interview.

All this activity has chugged along relatively quietly, leading advocates to wonder what the landscape looked like as a result.

A bird’s eye view

Fields of dandelions bowed their heads in the wind as a helicopter alighted on a recent flight over the coal exploration area for Ram Coal and Valory Resources.

The flight was arranged by the Canadian Parks and Wilderness Society to take its own videographers as well as three journalists up for a birds-eye view of coal exploration activity.

Snowy peaks lined the horizon as the flight departed from Calgary in early June, and a landscape dominated by agriculture shifted quickly to forests as the helicopter headed north toward the Blackstone coal project.

The flight path included the Clearwater, North Saskatchewan and Ram Rivers. One of the concerns highlighted by the Canadian Parks and Wilderness Society is the proximity of some coal exploration to these rivers, which form an important part of Alberta’s network of drinking water tributaries.

Hovering above the Blackstone project area, the view from the helicopter changes. Hillsides appear shaved, the forest removed in chunks. Roads twist back and forth along the sides of cleared valleys.

There are countless trees pushed up in piles, dotting the slopes like hay stacks in a farmer’s field.

But looking down at the pockmarked landscape, it’s clear that it’s not just coal exploration that has been taking place in the area.

Outlines of drill pads, pipelines, compressor stations, seismic lines and cutblocks are all visible from the air throughout the flight.

“It’s hard to tell where one industry ends and another begins,” Mark, the pilot, remarks as the helicopter makes its trip back to the airport.

Cumulative impacts highlight the need for land use planning: advocates

The long list of industries active on the eastern slopes has long been a concern for residents and conservation advocates.

“The environment doesn’t operate on the basis of single projects; it’s the cumulative impacts that are a concern,” Wood said.

Recognition of the cumulative impacts of industrial activity in a region has slowly been gaining traction in Alberta, and the province has gradually been introducing what it calls regional plans. (The Alberta government did not respond to The Narwhal’s request for an interview about regional planning.)

The province is divided into seven regions, two of which — the South Saskatchewan and the Lower Athabasca — have seen the implementation of completed regional plans, which are legally binding documents that replace older versions from the 1980s, according to Christopher Smith, parks coordinator with the Canadian Parks and Wilderness Society.

Updated regional plans, he said, attempt “to manage land more on a holistic level and on a landscape level, in order to address cumulative effects.”

Forestry cutblocks and pipe yards are visible from a flight above Clearwater County. Advocates say the myriad industrial, agricultural and recreational uses of the region highlight the need for landscape level planning that takes into account cumulative impacts. Photos: Amber Bracken / The Narwhal / The Canadian Press

The South Saskatchewan regional plan, for example, “uses a cumulative effects management approach to balance economic development opportunities and social and environmental considerations.”

Without a master document like a regional plan, Smith said, “there’s just too many layers for any one particular ministry to be able to fully address within their portfolio.”

But regional planning has stalled in recent years.

“Land-use planning at the landscape level has been a tough sell in Alberta for decades,” Ian Urquhart, the executive director of the Alberta Wilderness Association, told The Narwhal. “Serious cumulative effects management always has been a dream — or an illusion — when it comes to managing lands and natural resources in Alberta.”

Consultation for a North Saskatchewan regional plan, which includes the Aries and Blackstone project areas, began in 2014 but a plan has not yet been completed. “Snails progress at faster paces than regional development in Alberta,” Urquhart said. “This government doesn’t, in my opinion, want anything to do with serious consideration of cumulative effects.”

Without a regional plan, critics fear cumulative impacts won’t properly be addressed.

“No one ministry can deal with the cumulative effects if there’s impacts being felt from other activities outside of their jurisdiction.”

Chris Smith, the Canadian Parks and Wilderness Society

“The government can’t keep dragging their feet on this regional planning, because in the meantime, we’re creating patchwork policies that are trying to plug the gaps,” Smith said.

“That’s what the regional planning was meant to address — these reactive piecemeal plans to address issues as they cropped up.” Instead, he said, these issues could be addressed by the frameworks created by a regional plan: data could be gathered, baselines established and big-picture impacts better accounted for.

“What it was really meant to do was to bring all these siloed ministries together to deal with these problems holistically,” he said. “No one ministry can deal with the cumulative effects if there’s impacts being felt from other activities outside of their jurisdiction.”

In neighbouring B.C. the Blueberry River First Nations just won a precedent-setting decision that marks the first cumulative impacts Aboriginal Rights case in Canada. In her ruling, B.C. Supreme Court Justice Emily Burke wrote “the province’s mechanisms for assessing and taking into account cumulative effects are lacking and have contributed to the breach of its obligations under Treaty 8.”

Blueberry River First Nations win precedent-setting Treaty Rights case

Minister putting ‘cart before the horse’: advocate

Speaking at a news conference in April, Savage made it clear that the province’s efforts to update the coal policy were going to happen before any broader, landscape-level planning.

“These consultations are about coal policy, it’s not about the broader land-use planning initiatives,” she said. “It’s about coal. … Let’s get the coal policy and vision done first.”

That leaves advocates concerned about whether the whole picture of industrial activity has been fully considered.

“The Minister is putting the cart before the horse here,” Urquhart told The Narwhal. “You want land-use planning: you want to have an idea of where you think coal fits in on the land, if it fits in at all.”

“You don’t go ahead and look at developing a coal policy before you’ve made those basic land use decisions.”

Urquhart and others are concerned the UCP government has prioritized industrial development, including coal, over other priorities.

“This government has operated in a way that just wants to open the door for industrial use of the land,” he said. “Any serious consideration of cumulative effects just doesn’t just work in that sort of world.”

‘Needs to be a balance’

It’s not just the cumulative effects of industry on the landscape of Clearwater County’s mountain slopes that are a concern. Advocates also worry about the individual impacts of any potential coal mines.

The Canadian Parks and Wilderness Society is concerned the Blackstone and Aries projects, should either move forward, would impact habitat for bull trout and grizzly bears, both threatened species in Alberta and federally designated species at risk. The society says the Aries project, at its closest point, would be within one kilometre of the Ram River.

Advocates are concerned about the impacts of any potential coal activity on water quality. Streams and rivers in the area form an important part of the network of tributaries for drinking water for the prairies.

The Valory Resources Blackstone project site area is seen from above. Trees have been removed not far from the river that runs through it.

Some coal leases in the area are adjacent to rivers and streams that are excellent habitat for bull trout, a species at risk.

It’s a concern echoed by others concerned about the future of the region.

“One of the concerns, like with the Aries project, is contaminants can get into the groundwater, and ultimately end up in the Ram River, either by surface runoff or groundwater,” Vance Buchwald, a retired fisheries biologist, told The Narwhal. “And the lower Ram has one of the best bull trout populations in central Alberta.”

“Overall, provincially, we are losing the battle for bull trout,” he said. “All of these insults to the landscape are not helping.”

“There needs to be a balance,” Buchwald said of the multiple uses of the landscape. “I’m not convinced that we’re at the right balance.”

For advocates and long-time lovers of the land along the eastern slopes in Clearwater County, the loss of more wilderness to industrial activity remains a looming threat.

Advocates say once near-pristine wilderness is now marred by industrial development that hasn’t been carefully evaluated to determine the impacts of so much activity. Photo: Amber Bracken / The Narwhal / The Canadian Press

“There’s places where we used to hike into the backcountry and camp … it was a 30 or 40 kilometre hike in any direction to get to a road,” Boschman, the photographer in Red Deer, told The Narwhal.

“Fast forward to now and it’s all logging roads and clear cuts. That sort of land barely exists up there anymore — those big vast chunks of wilderness.”

Amber Bracken’s photos were shot for The Narwhal and The Canadian Press.

Updated July 10, 2021, at 9:30 a.m. MT: This article was updated to clarify that both grizzly bears and bull trout are federal designated species at risk and listed as threatened in Alberta.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Scientists and environmental groups breathed a sigh of relief when Prime Minister Justin Trudeau quickly followed through on a campaign promise to modernize Canada’s environmental laws.

Within a year of being elected, the Liberals initiated four parallel reviews of key environmental legislation weakened or eliminated under former prime minister Stephen Harper.

But now, as that review process is coming to a close, experts are back to holding their breath.

“There is a real climate of concern right now,” Aerin Jacob, Liber Ero scholar and conservation scientist with the Yellowstone to Yukon Conservation Initiative, told DeSmog Canada.

The federal government’s response to bold recommendations for reforming the Canadian Environmental Assessment Act, the National Energy Board Act, the Fisheries Act and the Navigation Protection Act is “underwhelming,” Jacob said.

Federal Response to Environmental Reviews Vague, Concerning

That response — released quietly this summer in the form of a 24-page, diagram-filled discussion paper — was so scant on details experts say it’s distressing.

“This was all under the radar in a very worrying way,” federal Green Party Leader Elizabeth May told DeSmog Canada. “I just get the feeling like someone’s pulling a fast one.”

“Releasing this at the end of June with a public comment period ending August 28th, I can’t begin to imagine the average person or even the attentive environmentalist was properly alerted to the content of this document.”

ICYMI: 10 Reasons Ottawa Should Rebuild Our Environmental Assessment Law from Scratch

After multiple requests, the federal government recently extended the public submissions period until September 15.

May said the federal response lacked substance and paves the way for maintaining the devastating changes made to environmental laws under Harper.

“We’ve had all of these consultations with experts and citizens across Canada and now we end up — either by design or happenstance — with the federal government actually rejecting all the key recommendations by the panels without even explicitly saying so.”

“I’m apoplectic with rage that this is being proposed,” May said.

“Now we’re looking at mild tweaking as opposed to the massive repair of our gutted environmental laws.”

May said the regulatory system has been calibrated to serve the needs of industry.

“The changes to our laws have converted many of our agencies into a corporate concierge service to aid the approval of projects,” she said.

Linda Duncan, NDP member of parliament for Edmonton-Strathcona and Energy and Climate Change critic, said it’s troubling that the Liberals have continued to approve major resource projects while relying on “emasculated” laws and processes.

Federal approvals for several controversial projects, including the Kinder Morgan Trans Mountain pipeline, Enbridge Line 9 pipeline, the Site C dam and the Pacific Northwest LNG export facility, have been granted while the review process has been ongoing.

“The government continues to drag its heels on tabling the promised reforms,” Duncan said, adding onlookers have every right to be concerned appropriate actions won’t be taken to meaningfully restore Canada’s environmental laws.

“The initial concept paper issued by the government in response to their own expert review and public feedback is almost completely dismissive of the reforms called for,” Duncan said.

Environment and Climate Change Minister Catherine McKenna told DeSmog Canada in an e-mailed statement, “We are committed to making environmental assessment and regulatory changes that regain public trust, protect the environment, support reconciliation with Indigenous peoples and ensure good projects go ahead and get resources to market sustainably.”

ICYMI: Trudeau Promised to Fix the National Energy Board. Here’s What His Expert Panel Recommends

Pipeline and Major Project Reviews Plagued With Problems

The laws under review affect everything from fish to water to climate change to how we get energy.

“We entrust government to guide this process that helps us make decisions as a society on what kind of projects and infrastructure we want to see in our environment and on our lands,” said Katie Gibbs, executive director of the science-advocacy organization Evidence for Democracy. “That’s such a fundamental way government touches on and impacts our lives.”

Some of the most contentious project reviews in Canadian history have taken place in recent years.

The Enbridge Northern Gateway and Kinder Morgan Trans Mountain pipeline hearings were beset with problems stemming from what many have identified as a collapse of public trust in the process and Canada’s regulatory bodies.

Matters were made worse when the Harper government forced changes through the budget process to expedite project reviews and weaken public participation in environmental assessments.

Trudeau’s promise of environmental reform spoke directly to the question of how Canada could conduct more meaningful, credible scientific reviews of resource projects with a goal of selecting projects best situated to serve the public interest. (Although it’s important to note Trudeau did not follow through on an explicit promise to restart the Trans Mountain pipeline hearing under a new, modernized review process).

“These are some of the biggest challenges Canadians face today and we have a real opportunity to do things better,” Jacob said.

Is Trudeau Quietly Turning His Back On Fixing Canada’s #Environmental Laws? https://t.co/x9EcM6Nq6B @LindaDuncanMP @ElizabethMay #cdnpoli

— DeSmog Canada (@DeSmogCanada) September 12, 2017

Federal Position Big Step Back From Bold Expert Recommendations

However, the federal government’s discussion paper takes a big step back from the panels’ bold recommendations, Jacob said.

In partnership with 24 other scientists, Jacobs spearheaded the writing of a report, Strong Foundations, that identifies gaps in the government’s response.

“Some of the gaps we talked about mentioned, for example, that we need to have decision rules. These rules would lay out how government — cabinet or the minister, whoever makes the final decision on an environmental assessment — how they came to that decision,” Jacobs said.

Environmental assessments incorporate multiple streams of information, including science produced on behalf of a project proponent, third-party reviews, academic research and traditional Indigenous knowledge.

“All of this information is taken into account in how we make decisions but unless you clearly lay out what role those things play in a decision, it remains a black box.”

ICYMI: Strategic Assessments: A Surprisingly Simple Solution to Canada’s Stalled Energy Debate

Jacobs said the report also touches on the need for greater transparency in the use and sharing of data, incorporation of the precautionary principle, assessment of regional and cumulative impacts as well as impacts of projects on larger national goals like Canada’s climate commitments under the Paris Accord.

Gibbs said Canada has the opportunity to become much more strategic in how and when it uses environmental assessments and what role science plays in those processes.

“One big issue that is left unaddressed is what will even trigger an environmental assessment. Even if you do have an incredibly strong environmental assessment process, if you don’t have a strong evidence-based trigger for what projects actually go through that process, it could end up being meaningless,” Gibbs, a co-author of the Strong Foundations report, said.

Jacob, Gibbs and their co-authors submitted their report to the federal government as part of the discussion paper’s public comment period.

ICYMI: Open Science: Can Canada Turn the Tide on Transparency in Decision-Making?

Fatal Flaws Not Addressed…Yet

Chris Tollefson, lawyer with the Pacific Centre for Environmental Law and Litigation, said the Liberals could take a political hit for missing this generational opportunity to repair legislation.

”The government will have to realize the risk it’s taking here by potentially reigning in its aspirations and rolling over to industry pressure,” he said.

The government has been under tremendous pressure both in terms of lobbying and also tight review timelines, Tollefson said, and that could account for some of the gaps in its current position.

Of prominent concern to Tollefson, who has represented numerous individuals, environmental groups and First Nations in hearings and legal challenges of major projects, is the use of science bought and paid for by project proponents.

“In that respect the current model is fatally flawed,” he said.

One of the panel’s recommendations for environmental assessments is that Canada move to a model that relies on truly independent, cutting-edge science.

“That is a game changer,” Tollefson said.

“If we miss this opportunity to think more broadly about how we assess major projects, to put them into the proper social, environmental and economic context they deserve, that really is a missed opportunity we potentially won’t have for another generation.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Hope may finally be in sight for fixing Canada’s environmental assessment process, after a four-member expert panel released a promising report on the heels of consultations in 21 cities across the country.

Historically, the focus of Canada’s environmental assessment has been on “avoiding harm” and “significant adverse impacts” associated with new projects, but the new approach recommended by the panel would shift the focus to a “net contribution to sustainability,” said Anna Johnston, staff counsel at West Coast Environmental Law.

“The recommendations that the panel has made address a number of the concerns that were raised by the scientific community,” said Aerin Jacob, conservation scientist for the Yellowstone to Yukon Conservation Initiative. “I was pleasantly surprised.”

A key recommendation is to establish an arms-length independent agency with a broad mandate to administer environmental assessments — including gathering information, conducting the review and making the final decision (although cabinet would retain the ability to appeal). This recommendation would take reviews out of the hands of other agencies, such as the National Energy Board.

Another crucial recommendation is for government to move to a model in which the proponent continues to fund the science, but the actual science itself will be provided by independent professionals hired by the government.

“It recognizes that environmental assessment has to be integrated with assessments of the various other impacts, the costs and the benefits,” said Chris Tollefson, executive director of Pacific Centre for Environmental Law and Litigation and a law professor at the University of Victoria. “So we’re moving from an environmental assessment regime to an impact assessment regime, which is a major step forward.”

Major Overhaul of Environmental Laws Possible

There are four expert review panels currently preparing reports for the federal cabinet on environmental and regulatory processes.

Each is taking on a distinct but interrelated piece of legislation: the National Energy Board Act, the Fisheries Act, the Navigation Protection Act and the Canadian Environmental Assessment Act.

Those pieces of legislation were dramatically altered in 2012, during the Conservative government’s overhaul of Canada’s environmental laws — which sparked widespread protests across the country.

The environmental assessment panel went to 21 cities, received more than 500 online submissions and  welcomed more than 1,000 participants at engagement sessions,” according to the government.

Shift Towards ‘Impacts Assessments’ Recognizes Holistic Nature of Project Impacts

The recommended shift from an “environmental assessment” to “impact assessment” might sound like a mere semantic quibble.

But Johnston said it represents a significant move towards a more holistic “sustainability approach” that considers social, cultural and economic impacts in addition to environmental impacts. The report also recommended that environmental assessments should be conducted and decisions made in collaboration with Indigenous governments.

“It makes it clear that we have to not just look at the biophysical impacts of the project — whether there’s going to be significant adverse environmental effects — but instead to look at projects and other proposals in a more holistic way that looks at their impacts on social, economic, cultural and other important components of Canadian society,” Tollefson explained.

However, Johnston notes the report didn’t include a recommended expansion of assessment for cumulative impacts, meaning the negative effects of development from smaller projects on a landscape may still not be adequately evaluated.

Information from Environmental Assessments to Be Made Public

There’s also the issue of information sharing.

Jacob of the Yellowstone to Yukon Conservation Initiative says that one of the things she’s most excited about is a recommendation to make all data from environmental assessments publicly available. While the details are still unclear, Jacob says it would include information sharing and both baseline and monitoring data.

“That’s really key,” she says. “It goes much beyond an individual project: this is about helping Canadians know more about our country. If implemented, that would be tremendously important.

“If you want to know that somebody did something carefully and following particular standards, you have to be able to see all the details of their methods,” she adds. “It helps us build upon the shared body of knowledge. That’s critical.”

However, Jacob notes there’s still ambiguity about the independence of information collecting: although the report is “really explicit” that the new body would be impartial and the lead authority, she says there would still be a reliance on proponent-driven data.

That’s where clarification on what “best available information” looks like is needed.

“I really want to emphasize that scientists of all stripes — whether they’re at universities, working in consultancy companies or NGOs — really care about being involved in this,” she said.

Federal Government Now Seeking Responses to Report

There’s now a public comment period that’s open until May 5, 2017, giving individuals or organizations the ability to respond to the recommendations in the report. Following that, the federal cabinet will decide on changes to legislation, regulations and policies, with the government listing the estimated window of fall 2017.

Johnston said she’s been working closely with government leading up to report, and confirms the government is considering significant legislative amendments. Tollefson added that there will be “momentum towards implementation.”

“This is a real opportunity to make a huge step forward; there may be disagreements on the details but in terms of the broad sweep this is an opportunity that should not be missed,” he said.

Only time will tell how many of the panel’s recommendations are implemented. But experts agree the review process itself has bolstered confidence in the government’s interest in public consultation, which Johnston said stands in stark contrast to the processes that resulted in the changes to the 2012 legislation.

“The panel has recognized that you just don’t get quality decisions when you don’t have public values and input included in that process, and you don’t have community buy-in if the community hasn’t been able to provide their thoughts,” she said.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The Blueberry River First Nation from northeastern B.C. has filed a lawsuit against the province for allowing “unprecedented industrial disturbance” to threaten “their way of life,” according to a press statement released Wednesday.

The suit will call into question the future of industrial development in the northeast region of the province, including the Site C dam and natural gas fracking projects intended to feed B.C.’s burgeoning LNG industry.

The First Nation argues their territory “has been ravaged by development.”

“Blueberry’s ancestors would not recognize our territory today. It is covered by oil and gas wells, roads, pipelines, mines, clear cuts, hydro and seismic lines, private land holdings, and waste disposal sites, amongst other things," Chief Marvin Yahey said. “The pace and scale of development have accelerated in the last 25 years, and are now at unprecedented levels.”

Video showing cumulative impacts of industrial development in Treaty 8 territory.

The Blueberry tribe entered into Treaty 8 in 1900, agreeing to open the territory to development as long as their way of life, which includes hunting, fishing, trapping and gathering traditional plants, remain undisturbed.

“There are vast dark zones throughout our territory where we are no longer able to practice our treaty rights,” Chief Yahey said.

“It is the cumulative impact of the thousands of provincially authorized activities, from water withdrawals, to major industrial projects such as the Site C dam, which have destroyed our way of life and threaten our continued existence as a people.”

An estimated 90.8 per cent of the northeast portion of Territory 8, the Beatton watershed, has been disturbed, according to a Global Forest Watch Canada study from 2012.

When considering areas outside the Beatton watershed, an estimated 66 per cent of the region is considered disturbed by industry.

Increasing oil and gas development threaten to disturb remaining undeveloped areas and “the Site C dam threatens to flood a vast portion of the southern territory,” the press statement notes.

“Despite the devastating impacts of oil and gas activities on Blueberry’s way of life, we have received few economic benefits from the Province. Under previous agreements, we received less than 0.1 per cent of provincial oil and gas royalties, even though the bulk of these revenues come from our territory,” Chief Yahey said.

The Blueberry First Nation said the province has made “no meaningful response” to the threat of industrial encroachment or the issue of cumulative impacts.

The province continues to approve major projects, Chief Yahey said, “without full appreciation that each new approval brings our unique culture closer to extinction. This is a grave situation that the Province continues to ignore."

“We fear things will only get worse with the LNG ‘gold rush’ we are witnessing in our territory today."

Image Credit: Vancouver Observer 

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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.

Signalling 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 BLCN was “frivolous, improper and an abuse of process.”

The BLCN 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 and fish in their preferred manner, throughout their traditional territories and the province.

And there’s the rub. If you’ve got a megaproject that is destroying what you might otherwise be hunting, trapping or fishing, you’ve got a serious constitutional gaffe on your hands. The Constitution is the highest law in the land, and cannot simply be ignored.

The Cumulative Impacts

This puts Canada and Alberta in a tough spot. Over the last decade, as they’ve been welcoming a veritable cascade of new projects in the tar sands area, scientists and conservation groups have been raising the alarm as the consequent research began to show devastating effects on caribou populations and fish species especially hard done by the escalating development.

The BLCN’s traditional territories blanket an area about the size of Switzerland. Thirty per cent of tar sands production, or about 560,000 barrels of oil, are produced on BLCN every day. The oil industry has plans to grow this number to 1.6 million barrels a day.

The once-pristine forest and hunting grounds are now covered with 35,000 oil and gas sites, 21,700 kilometres of seismic lines, 4,028 kilometres of pipeline and 948 kilometres of road.

Perhaps it has taken Canada and Alberta by surprise that the cumulative impacts might be considered at a constitutional level. After all, neither the province nor the federal government have been particularly proactive in studying the cumulative effects of development in the area.

True, scientists have been fretting about loss of caribou herds and habitat for decades, even citing the Species At Risk Act as a potential legal cause to slow the pace and scale of tar sands development. But Canada ignored those pleas for caution as long at it could — until another legal action forced them to release the recent Federal Caribou Recovery Act last fall.

And it was only a few months ago that Environment Canada scientists announced tar sands pollution was present in bodies of water up to 100 kilometres from the centre of development. The accumulating toxins, they discovered, disrupt fish embryos at the developmental stage. The federal government worked overtime to downplay the significance of the research last fall, even preventing lead researchers from discussing their findings with the media.

Overall, the federal government has been just as culpable as provincial leaders in keeping these growing environmental effects under-reported, or under wraps. The BLCN’s upcoming litigation may be the change in tide that brings the cumulative impact discussion to centre-stage.

The Cause for Hope

5 years ago Crystal Lameman’s uncle Chief Al Lameman filed the original claim on behalf of the Nation.

“In 2008 I don’t think my uncle knew the attention this litigation would gain,” Crystal said. “His intent and purpose was to protect what little we have left but it has created this movement, this mobilization of a people and it’s a great feeling seeing people mobilize beyond the confines of race, color, and creed. This recent win means our judicial system is clearly standing strong in the law of Canada and it gives me hope.”

And Crystal has much cause for hope, according to Jack Woodward, renowned Native Law expert and lawyer on the case.

“The Beaver Lake case will define the point where industrial development must be curtailed to preserve treaty rights,” he said.

“At issue is the cumulative impact of industry, not each individual project. The court will be asked to say if the level of industrial activity in the hunting grounds has now crossed the line to make it impossible to reasonably exercise the harvesting rights. If the Beaver Lake are successful there will be constitutional controls on development to allow the land to recover and to prevent any further encroachments that might disturb wildlife populations.”

A precedent-setting ruling of that sort would have significance for any other First Nation making similar claims regarding the overall impacts of industrial development. This could have serious ramifications for other First Nation groups living near the tar sands or newly-industrialized zones like British Columbia’s northeast.

“This would be the most powerful ecological precedent ever set in a Canadian court,” says Woodward, “because it protects the entire biological system with a view to preserving its sustainable productivity.”

Other legal protections like the Fisheries Act or the Species at Risk Act, he says, amount to a “piece by piece approach.” The Beaver Lake Cree litigation “is based on protection of the entire ecosystem,” he adds, and determining that crucial point when that system “can’t take it anymore.”

“So the precedent that will be set by the Beaver Lake case is that it will be the first time a court is asked to draw the line defining too much industrial development in the face of constitutionally protected treaty rights.”

The Battle Ensues

Susan Smitten of Respecting Aboriginal Values and Environmental Needs (RAVEN), a non-profit group supporting the BLCN action since 2009, says just getting the case to trial has been tremendously difficult and expensive.

But the very importance of the case has brought help from all directions.

“We have raised something like $850,000 for the BLCN to cover costs,” she said, “plus we found pro bono lawyers from the UK to assist with the first round on the motion to strike.” People donated, lawyers worked at half-rate, and volunteers gave their time, all to keep the possibility of reaching trial alive.

“Canada and Alberta have done absolutely everything they can to delay and outspend” the BLCN, says Smitten. “This is particularly disappointing with respect to our federal government, which one would hope might support First Nations rights, and honour the promises made.”

However, she says, the tactics of perpetual delay are common practice when it comes to First Nations’ disputes. The government hopes the problem will fade away “because the band can’t keep up with the costs,” she adds.

Smitten estimates the costs could skyrocket up to $15 million once all is said and done.

“With this win, I hope everyone sees the value in assisting this band — morally, financially, emotionally, physically. This is doable. It’s going to trial.”

“I’m always so impressed and astounded that [the BLCN] stay with it,” Smitten said. “The energy it takes to keep this moving forward is incredible.”

The trail represent more than the preservation of First Nation rights and territory, to Smitten. The threat of climate change, she says, is something we all face collectively. Yet, average Canadians don’t have the special constitutional status of First Nations.

“Our Aboriginal peoples will be the ones that rescue Canada from the worst effects of the tar sands,” says Smitten.

“But it’s not fair to rely on the poorest people in our nation to stand alone and be the voice of reason in this effort. They have the power of their treaties to protect the planet, and we have the power of a nation to support them. I just encourage people to get behind the line they’ve figuratively and literally drawn in the tar sand.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.