Willie Moon’s family used to catch hundreds of salmon a day on B.C.’s Kingcome River, ensuring a winter supply of smoked fish for members of the remote Dzawada’enuxw First Nation.

“This year I had my net in for the winter dog salmon [chum] and I believe I only caught 13 in the month of November,” Moon, a hereditary leader, told The Narwhal.

“That’s drastic and scary for our people.”

Moon and other members of his community were in Vancouver Thursday to file an Aboriginal rights lawsuit against Canada that challenges federal fish farm licenses within their traditional territory in the Broughton Archipelago — the latest action in the nation’s escalating bid to revive shrinking Pacific salmon and eulachon stocks.

If successful, the lawsuit would not only close fish farms that affect the Dzawada’enuxw nation but could potentially be used by other First Nations to shut down salmon farms throughout B.C.’s coast, according to lawyer Jack Woodward, who is representing the Dzawada’enuxw [pronounced ‘tsa-wa-tay-nook’].  

“Somewhat unfairly, the focus has been on the provincial government’s role in this,” Woodward said in an interview.

“They’re just the landlord… It’s not nice for a landlord to rent space to a person who carries on an illegal business but the real culprit is the person who carries on that illegal business. And that’s exactly what we say is happening here. It’s Canada who’s authorizing this illegal business. It’s the provincial government that rents the space for it.”

Left: A map of Dzawada’enuxw traditional territory, filed as part of the First Nation’s claim. Right: location of fish farms in the Broughton Archipelago.

Last May, the Dzawada’enuxw First Nation took its quest to shut down fish farms to a new level when it filed a claim of Aboriginal title in B.C. Supreme Court, claiming that tenures granted by the province to several companies — the leases that give the farms a place to operate — are not authorized because they are in Aboriginal title areas.

But the lawsuit filed Thursday marks the first time a First Nation has ever challenged fish farm licenses granted by Ottawa based on the assertion of Aboriginal right, said Woodward, who represented the Tsilhqot’in Nation in a landmark case that determined the nation holds title to about 1,900 square kilometres of its traditional territory in B.C.

“These challenges to the federal permits are different,” Woodward said in an interview. “They are challenges to the idea, in contravention of the Dzawada’enuxw’s Aboriginal rights, that you can introduce Atlantic salmon to Pacific waters. That’s the fundamental problem here.”

Farmed Atlantic salmon affecting wild Pacific salmon

There is mounting evidence that Atlantic salmon farming adversely affects declining Pacific salmon runs.

The DFN federal court statement of claim says fish farms expose wild salmon and eulachon populations to higher levels of harmful fish parasites, including sea lice.

It states that viruses, including piscine orthoreovirus (PVR) are known to occur in farmed salmon raised in open net pen farms on the B.C. coast and can be transferred to wild salmon and eulachon populations.

It also claims there is a credible body of scientific evidence indicating a direct link between PRV and heart and skeletal muscle inflammation (HSMI), noting that both PRV and HSMI are known to have deleterious effect on fish.

Fish farms pollute and degrade the marine environment around the net pens and underwater lights can attract wild eulachon and salmon and expose them to increased risk of harm and predation, the statement of claim also says.

“I believe they’re doing a lot of damage to our seafood,” Dzawada’enuxw member Melissa Willie told The Narwhal. “I work in fisheries and I see the damage.”

All five species of salmon are usually found in the Kingcome River, although chum, coho and spring are the most common, Willie said. But last year salmon were so scarce that her smokehouse sat unused. She and other community members had to fill their freezers with sockeye caught outside of their community, said Willie, the DFN fisheries community coordinator.

Fish farms could remain in Broughton

In December, following negotiations with some First Nations but not with the Dzawada’enuxw, the B.C. government announced what it called a “ground-breaking” process.

The government said new recommendations would allow for an orderly transition of 17 fish farms, operated by Marine Harvest Canada and Cermaq Canada, from the Broughton area by 2024 and establish a “farm-free migration corridor in the Broughton in the short term to help reduce harm to wild salmon.”

But seven of the fish farms would be permitted to remain if aquaculture companies reach agreements with First Nations, and displaced salmon farms would be able to set up shop elsewhere on the coast.

The December recommendations were brokered between the B.C. government and three First Nations, but not with the Dzawada’enuxw. Woodward said the recommendations do not address the Dzawada’enuxw nation’s concerns, which include the impact of fish farms on migrating salmon.

Woodward also pointed out a different government may be in power in B.C. before the farms move.

“That’s merely a political promise,” Woodward said. “There’s no contractual obligation to remove them.”

And even though most of the tenures included in the phase-out are in the traditional territory of the Dzawada’enuxw, the nation was not part of the agreement, Woodward said.

“So it’s a bit audacious of all the parties to that agreement including the provincial government, to make an agreement about the timing and location of those tenures without consulting the party most affected.”

‘We’re looking at the bigger picture’

The Dzawada’enuxw First Nation doesn’t want to wait five years for fish farms to leave its traditional territory, said Moon, who took part in a Vancouver press conference an hour after the lawsuit was filed along with Woodward, elected Dzawada’enuxw chief Farron Soukochoff and Eddie Garder, president of the Wild Salmon Defenders’ Alliance.

“We still don’t feel it’s enough yet,” Moon said in an interview. “We’re looking at the bigger picture…protecting our territory.”

The Dzawada’enuxw says it has an Aboriginal right to harvest eulachon and salmon for food, ceremonial and social purposes in the “Dzawada’enuxw Rights area” which encompasses both land and sea and stretches from west of Fife Sound near Gilford Island, through the Kingcome Inlet fjord near Broughton Island, and up the Kingcome River.

Woodward said legal experts and First Nations will be watching carefully to see if the federal government adheres to its new policy of ‘respectful litigation’ on matters concerning Indigenous peoples, and to see “if they adhere to their stated embracing of the United Nations Declaration on the Rights of Indigenous Peoples and whether they are going to fight this one or concede.”

A 2018 report by Canada’s commissioner of the environment and sustainable development found the federal government has put wild salmon species in danger by not adequately managing risks associated with salmon farming.

Moon said his nation is determined to remove fish farms to protect wild salmon and eulachon – also known as a candlefish because of its oily composition – and a traditional way of life.

That way of life is showcased in a new exhibit that opened Thursday at UBC’s Morris and Helen Belkin Art Gallery, titled Hexsa’am̠: To Be Here Always. The exhibit features the work of Dzawada’enuxw artists and addresses threats to the land and waters of Kingcome Inlet through film, video, weaving, animation, drawing, language and song.  

“I see the beauty, the quietness, and being able to be free there,” Moon said. “All the fish farms having an impact on our resources, that’s what scares us. Once that’s out of the way we’d feel at peace again and at one with our territory.”

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A First Nation embroiled in a fight against salmon farms in the Broughton Archipelago is taking the battle to a new level by filing a claim of Aboriginal title in B.C. Supreme Court.

The Dzawada’enuxw First Nation, whose main reserve is Kingcome Inlet, is claiming that tenures granted by the province to several companies are not authorized because they are in Aboriginal title areas.

The claim affects 10 fish farms, most of which have licences that expire next month, meaning the province must make a decision whether to renew those licences in the face of the title claim and sustained protests by First Nations. The claims also affect some forest tenures, but they are largely inactive.

The title claim is unique as it includes water as well as land, said lawyer Jack Woodward, who is representing the First Nation.

“This would be the first case to extend the claim of Aboriginal title to the shoreline of the ocean,” Woodward told The Narwhal.

“It may seem surprising that a land claim would extend into water areas, but it is not a surprising concept under the legal system because even the provincial government extends its Land Act into water areas. These very licences are issued pursuant to the Land Act,” he said.

The case could take years to get through the court system, but it will inevitably put pressure on the provincial government and Woodward said other interim measures are likely if the licences are renewed.

“It is likely that there will be some sort of preliminary procedure, whether an injunction or a judicial review of the procedure. It will depend how the decision is made. It is likely the case will form a platform or foundation for pre-trial proceedings,” he said.

The decision to claim Aboriginal title was made after community meetings, followed by a unanimous vote, community member Lindsey Willie told The Narwhal.

There is mounting evidence that the presence of fish farms adversely affects shrinking wild salmon runs, and a collective of First Nations has actively protested against Marine Harvest and Cermaq since last year.

“This is the biggest move we can make. The land was taken from us and it has always been our goal to own our land. Once we do own it, through the title claim, we will be able to have the fish farms removed,” said Willie, who is optimistic the court will rule in favour of the First Nation.

One reason for that optimism is that Woodward is leading the case, Willie said.

Woodward represented B.C.’s Tsilhqot’in Nation in a historic case that resulted in a Supreme Court of Canada ruling in 2014 that the Tsilhqot’in hold title to about 1,900 square kilometres of their traditional territory.

The ruling, which ended a 25-year legal fight, was the first time an Aboriginal group in Canada had won a title claim, and has resulted in a dramatic shift in the legal landscape.

The Haida, Cowichan Tribes and Nuchatlaht First Nation are among title cases that are now wending their way through the courts.

When Aboriginal title is recognized, the province loses jurisdiction and the Tsilhqot’in decision made it clear that First Nations consent is then required for resource development.

Forests, Lands and Natural Resource Operations Minister Doug Donaldson was not available for comment Monday, but a ministry spokeswoman said the province is engaged in government-to-government conversations with five bands and six First Nations in the Broughton Archipelago.

“It is too early in the process to presuppose the outcomes of those discussions,” she said.

Donaldson previously offered hope to those protesting against salmon farms in areas such as the Broughton Archipelago, where young wild salmon swim past the pens, by saying the government is “very interested “ in moving salmon farms to land-based operations — something salmon farmers claim is not practical.

In 2013 the ‘Namgis First Nation started B.C.’s first land-based Atlantic salmon farm in Port McNeill. The operation, called Kuterra, began selling land-farmed salmon to market in 2014. Since then, however, little other investment in land-based aquaculture in B.C. has taken place despite rapid growth in the U.S.

Members of the the Dzawada’enuxw First Nation believe change needs to come quickly if wild salmon are to be saved.

Hereditary Chief Joe Willie said the fish farming industry infringes on the First Nation’s way of life by breaking the natural circle of life that has sustained the community since time immemorial.

“This cannot continue,” he said.

Dzawada’enuxw Chief Willie Moon emphasized that the ancestral lands have never been ceded and the Dzawada’enuxw people have lived in the territory since time immemorial.

“Our identity comes from these lands and waters,” he said.

And Woodward is as optimistic as the band members that, eventually, the title case will be won.

“There’s no doubt that we will win, but it does take time,” he said.

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With the announcement on Wednesday that the B.C. government will file its reference case on the ability of the province to regulate the transport of diluted bitumen in the Court of Appeal by April 30th, it’s finally official: the much-debated constitutional question will be put to the test.

Alberta Premier Rachel Notley has repeatedly said that B.C.’s intention to regulate the transport of diluted bitumen will “break the rules of Confederation,” but provinces have strong jurisdiction over the environment according to Jocelyn Stacey, an assistant professor specializing in environmental law at UBC’s Peter A. Allard School of Law.

“[B.C.] can enact constitutionally valid legislation when it comes to protecting the environment, as long as it’s not specifically targeted at a federal project like the Kinder Morgan pipeline,” Stacey told DeSmog Canada.

“A court’s going to have to take a look at that to make sure that that legislation is actually with respect to the environment, not in relation to a federal undertaking,” Stacey said.

“The question that arises after that is: well what happens if that provincial legislation, even if valid, conflicts or would impair the pipeline?”

This is the question the courts will try to answer with B.C.’s reference case.

“The court needs to have the actual content of those regulations so that it can discern whether those regulations are valid and then, assuming they’re in relation to the environment, being able to assess whether or not they would impair the pipeline project,” Stacey said.

The specifics of the regulations are not yet available, but in January B.C. announced a proposal to restrict the transport of diluted bitumen until a scientific inquiry into the impacts of a spill could be completed alongside a proposed new proposed regulations under B.C.’s Environmental Management Act to improve oil spill response and recovery.

‘The constitution at work’

Stacey echoed comments made to DeSmog Canada last week by Jack Woodward, who drafted Section 35 of the constitution on aboriginal rights.

“They’re not getting how the constitution works,” Woodward said in response to statements by Alberta Premier Rachel Notley and Prime Minister Justin Trudeau implying B.C.’s actions are illegal or unconstitutional.

“It’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably  govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.

Stacey called the debates over the pipeline “the constitution at work.”

“Every major development project is subject to both federal and provincial legislation, as well as local bylaws and in some cases Indigenous law as well,” she said.  

Most things regulated by multiple levels of government

Most things in Canadians’ daily lives are regulated by multiple levels of government and pipelines like Kinder Morgan Trans Mountain are no different.

Stacey points to pesticide use as an example of something that is regulated by all three levels of government in a compatible way.

“The most restrictive level of regulation in many cases is at the local level, where many municipalities have bylaws that prohibit the use of cosmetic pesticides,” Stacey said. “And because that doesn’t conflict with any higher level of government, all three levels of regulation are still allowed to exist and operate harmoniously.”

But what happens when different levels of governments are feeling less harmonious?

The billion-dollar question now is: what kind of regulations can B.C. come up with that don’t cross the line into “impairment” of the pipeline?

One example would be implementing additional permitting requirements.

“So in order to increase the transport of bitumen, any prospective transporter would have to submit certain documentation and fulfill certain reporting requirements about emergency response for example before the province would grant an approval,” Stacey said.

That type of legislation would build on the B.C. Supreme Court’s decision in the Coastal First Nations case against the Enbridge Northern Gateway pipeline, where the court recognized that the pipeline disproportionately affected B.C.’s interests.

In that case, the province of British Columbia and Enbridge Northern Gateway were ordered to pay $230,000 in court costs to both the Gitga’at First Nation and Coastal First Nations. The B.C. Supreme Court found the province erred when it signed an agreement that granted environmental decision-making authority for the pipeline to the federal government.

The concern over bitumen spills was also addressed in the National Energy Board’s conditions for the approval of Trans Mountain.

“One of the conditions … that Kinder Morgan has to comply with under the NEB approval is it has to satisfy the NEB that it can and is prepared to clean up a bitumen spill in any environment under any conditions before the pipeline is allowed to start operation,” Stacey noted.

“This isn’t something that B.C. is coming up with out of thin air. This is actually a problem that’s been recognized by the NEB and has been agreed to by Trans Mountain in moving forward with this project.”

Which leads us to the next billion-dollar question: can Kinder Morgan prove it can clean up a bitumen spill, given the lack of basic research on the issue?

“Even if B.C. can’t impair the operation of the pipeline, it might be that by moving forward with some conditions, it can access information that it doesn’t otherwise have access to that would allow B.C. to better prepare for a spill response.”

During the National Energy Board review, Kinder Morgan refused to provide its oil spill response plan to the B.C. government, citing security concerns.

“It goes back to a dissatisfaction with the NEB’s process in evaluating the pipeline and I think a concern that the NEB is not going to be a regulator that sufficiently protects B.C.’s environmental interests,” Stacey said.

“B.C. likely wants to have a little bit more control and insight over pipeline operation.”

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In the fall of 1981, Jack Woodward was a young lawyer in Ottawa when NDP leader Ed Broadbent and prime minister Pierre Trudeau struck a deal to include aboriginal rights in the Canadian constitution.

“I banged out a first draft,” Woodward recalls. “I typed it out on a manual typewriter. I had to do it in a hurry.”

In less than an hour, Woodward had laid the foundation of Section 35, the part of the Canadian constitution that recognizes and affirms the rights of Indigenous peoples.

In the ensuing 37 years, Woodward has come to know a thing or two about Canada’s constitution. For one, he fought the Tsilhqot’in Nation’s title case for a quarter century, resulting in the landmark Supreme Court ruling that the nation holds title to about 1,900 square kilometres of its traditional territory in B.C.

So when Woodward hears pundits and politicians bandying around the phrase “unconstitutional,” his ears perk up.

“The government of Alberta will not — we cannot — let this unconstitutional attack on jobs and working people stand,” Alberta Premier Rachel Notley said after the B.C. government announced its intention to limit the transport of diluted bitumen through the province in January.

“She’s completely wrong about that,” Woodward told DeSmog Canada. “And if she was right, she could go to court. But she knows she’s not right, so that’s why she’s using that word as if it is a political tool rather than a legal tool … That’s a superficial and incorrect view of how the Canadian constitution works.”

Woodward says Notley is referring to pre-1982 classic constitutional questions about the divisions of powers between federal and provincial governments.

“But since 1982, you also have the additional complexity of constitutional protection of aboriginal rights, which in some cases override either federal or provincial powers,” Woodward said.

Indigenous rights are not a footnote in the ongoing constitutional saga over the the Kinder Morgan Trans Mountain pipeline — they’re at the centre of it. And yet, they’re virtually absent in media coverage of Canada’s pipeline pandemonium.

Beyond Indigenous rights, landmark rulings such as the Tsilhqot’in decision have emphasized something called “co-operative federalism.”

“The modern trend of federalism is that nobody has the upper hand — and everyone has to work it out,” Woodward said.

Prime Minister Justin Trudeau’s statements on the Trans Mountain pipeline also seem ignorant of that reality.

“Look, we’re in a federation,” Trudeau has said. “We’re going to get that pipeline built.”

But Canada’s constitution governs by the principle that you err on the side of allowing two different laws to exist if at all possible, Woodward says.

“So it’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably  govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.

United Conservative Party Jason Kenney may opine that the inability of a Texas-based company to build a pipeline means “Canada is broken,” but in reality, this is exactly the way federation was designed to work.

“It’s simply not credible that all aspects of provincial constitutional jurisdictions can be crushed by a federal pipeline law,” Woodward said. “Some of them must prevail.”

A law clearly directed at protecting the health and safety of the residents of Burnaby and Vancouver would be a strong law within provincial jurisdiction, Woodward said.

“Just because the federal government has jurisdiction over pipelines doesn’t mean that they can sterilize the provincial jurisdiction over health and safety.

“Similarly, protection of the land and marine environment, that’s pretty potent. The protection of habitat for fish, even preventing oil spills because of the devastating impact it would have on tourism — that’s valid provincial legislation.”

Woodward said instead of throwing the constitution around as if it’s a “political slogan,” everyone is better off to let the courts do their job.

“Horgan is right to have this calm and patient attitude because what’s the point of jumping up and down and screaming ‘I’m right, you’re wrong’? It’s going to be decided by a judge.”

On Thursday a summit between Notley, Trudeau and B.C. Premier John Horgan was announced for this Sunday. Horgan vowed not to back down on preparing a court reference.

“We are in a court of law, which is what civilized people do,” Horgan said. “I don’t feel there is any need for sabre-rattling or provocation or threats. I will defend to the end the rights of British Columbia to defend our coast.”

What about Notley and Trudeau, who don’t seem to want to wait for a court ruling?

“Short of going to court, politicians can get legal advice and their legal advice will be the same as what I’ve said to you, which is there’s no black and white here. This is a grey area. It’s a series of grey areas, where the different aspects of federal and provincial jurisdiction and aboriginal rights collide.”

It’s unreasonable to expect these conflicting rights to be resolved by the end of May.

“When I hear Kinder Morgan having a little hissy fit and saying they want a decision by the end of May, I just laugh,” Woodward said. “You can’t decide all of these things by May. This is an irreversible decision, so it should take some time.”

As for the oft-repeated belief that what B.C. is doing is illegal or unconstitutional, Woodward says “if that’s the prevailing wisdom, they’re all wrong. They’re not getting how the constitution works.”

“Everything in Canada is moderated. You don’t have absolute rights,” he added.

What’s more, Woodward said the federal government’s jurisdiction over interprovincial pipelines needs to be seen in the context of the times.

“When that power was given to the federal government, it was not contemplated that there would be such enormous environmental consequences. They didn’t even think about climate change, for example. They didn’t think about catastrophic oil spills and tanker traffic. They were just trying to clear up regulatory clutter, so that one jurisdiction could create a uniform regulatory system. It was never intended that the federal jurisdiction over interprovincial pipelines would utterly trounce the underlying provincial jurisdictions over health and safety and property rights and the environment.”

As for the notion that Canada is in a constitutional crisis, Woodward disagrees.

“We have one of the oldest written constitutions in the world. It has survived far worse crises than this and it will survive into the future. Our constitution has embedded into it flexibility, ability to change, a fundamental ability to grow with the times,” he said. “There’ve been far worse constitutional crises.”

Woodward pointed to the time in the 1930s when the entire banking legislation of Alberta was struck down by the Supreme Court of Canada as an example.

“Now that’s a constitutional crisis much worse than this,” he said. “This pipeline already exists and we’re talking about expanding it. Alberta has taken a matter of degree and decided to characterize it as a fundamental point of principle or point of departure and they’re simply wrong about that. It’s not a constitutional crisis.”

The bottom line is that this pipeline punch-up will ultimately get resolved in typical Canadian fashion, according to Woodward.

“It’s all going to be worked out through the standard Canadian process of compromise.”

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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.