Surrounded on three sides by oilsands operations, the Fort McKay First Nation has benefited tremendously from industrial development — while also experiencing firsthand its environmental consequences.

While the nation has historically supported nearby operations, when Prosper Petroleum proposed a 10,000 barrel per day oilsands project near Moose Lake, an area of sacred cultural value for the people of Fort McKay, the community reached a tipping point.

The nation filed a lawsuit against the province of Alberta on December 3, after years of effort to prevent the proposal from going forward failed to protect the treasured region and the Fort McKay way of life.

The lawsuit contends that, because of significant forestry, mining, oil and gas development and road building, Fort McKay’s ability to practice treaty rights — to hunt, fish, trap and gather medicinal plants — relies almost exclusively on their continued access to the relatively intact landscape surrounding Moose Lake.

The community camp at Moose Lake reserve, 60 kilometres west of Fort McKay First Nation. Moose Lake is a lifeline to the traditional culture of the people of Fort McKay. It’s a last refuge, still seemingly far from the impacts of industry. The recently approved Prosper Petroleum oilsands project would come within two kilometres of the reserve. Photo: Aaron Vincent Elkaim / The Narwhal

Mark L’Hommecourt smokes a cigarette on the Target Road lookout, his favourite place to connect to nature on the Fort McKay reserve. L’Hommecourt speaks passionately against the destruction of his land by industry, but often finds himself forced to work with those same companies due to a lack of other opportunities in the region. Photo: Aaron Vincent Elkaim / The Narwhal

As long as the river flows

In 1899, the Fort McKay First Nation became a signatory of Treaty 8, an agreement that promised to preserve the nation’s traditional ways of life “as long the sun shines, the river flows and the grass grows.”

As recently as the 1960s the reserve of Fort McKay had no running water. The people, housed in humble shacks, relied for sustenance on the landscape of Alberta’s northern boreal forest and the Athabasca River — the thread that connected the remote community to the rest of Canada.

This way of life, the Fort McKay say, sustained them for thousands of years.

But as one elder Zackary Powder puts it, “It’s not like it used to be. Everything has changed.”

Smog is seen over the Athabasca River, a place where archeological remains of First Nations people date back over 3,000 years. The river is now lined with industrial sites and is heavily polluted. Locals are warned not to eat the fish which are often found with deformities and tumours. The river feeds into the Athabasca Delta, the third largest freshwater delta in the world, on the edge of Wood Buffalo National Park. Photo: Aaron Vincent Elkaim / The Narwhal

Snared rabbits on the L’Hommecourt trapline. Traditional hunting practices are becoming more difficult for the First Nations people of Fort McKay with less accessible land and questions about contamination of the meat. One of these rabbits was discarded due to an unhealthy looking liver. Photo: Aaron Vincent Elkaim / The Narwhal

Today Fort McKay are a nation of about 800 people, situated 65 kilometres north of Fort McMurray, the heart of the Alberta oilsands, one of the largest oil deposits on the planet.

Over time, Fort McKay has witnessed the incredible transformation of the boreal, from a sustainable resource for their traditional livelihood into “overburden” stripped to make way for open-pit mines, tailings ponds and processing plants.

Over the last two decades, vast swaths of Fort McKay traditional territory have been leased to some of the world’s largest energy corporations.

What has brought significant environmental impact has also offered impressive economic returns, rarely afforded to First Nations on reserves.

Today, Fort McKay’s unemployment is near zero; the average household income is $73,500 a year; they have new roads and housing and own the Fort McKay Group of Companies that generates $200 million annually providing services to industry.

Children play at a playground in Fort McKay First Nation. Photo: Aaron Vincent Elkaim / The Narwhal

Elder Wilfred Grandjambe is seen at his home in Fort McKay First Nation. As a hunter who grew up on the land, Grandjambe is very aware of the negative impacts the oilsands have had on the environment, animals and his culture. Yet with industry as the only employer in the area he understands the catch-22 his community is facing and has himself worked for both Syncrude and Suncor, two of the largest oilsands operators. Grandjambe says he enjoys the comforts they have afforded him. Photo: Aaron Vincent Elkaim / The Narwhal

James Grandjambe celebrates his 92nd birthday with his sister Flora Grandjambe, left, and Chief Jim Bouchier, right, at the Fort McKay Band Hall in February, 2012. Photo: Aaron Vincent Elkaim / The Narwhal

September 2013 – Joely Grandjambe looks at a catch of White Fish and Pickerel that were netted by her grandfather Joe Grandjambe at Moose Lake Reserve. Photo: Aaron Vincent Elkaim / The Narwhal

September 2013 – Maureen Grandjambe arrives with her family to the Moose Lake Reserve on a plane chartered by Suncor Energy, which provide free flights to members of the community. 60 kilometres from Fort McKay, Moose Lake is the only pristine land remaining for the community to practice its traditional culture. Photo: Aaron Vincent Elkaim / The Narwhal

Chief Jim Bouchier, first elected in 1986, has held office in the community for 27 of the interim years. He is chairman of the board for the Fort McKay Group of Companies.

“Jim believes the practice and preservation of the Fort McKay First Nation’s traditional ways of life can occur simultaneously alongside continuous and long-term sustainable oil sands development,” Fort McKay’s website states.

It is now in Bouchier’s name that a lawsuit has been filed against Alberta on behalf of the broader Fort McKay community.

A water truck gets stuck in a driveway in Fort McKay. Since November 2011, water has been delivered to each and every home in Fort McKay after the community realized they had been drinking water with high levels of the carcinogenic chemicals, trihalomethanes and haloacetic acids. Many people complain of rashes and sores from showering in the water. Photo: Aaron Vincent Elkaim / The Narwhal

Crystal and Oren Boucher celebrate their marriage in the Fort McKay First Nation Band Hall. Oren, a long-time employee of Suncor, had terminal colon cancer at the time of his wedding. He passed away one year later on the night of his grandfather — and oldest community elder — James Grandjambe’s 92nd birthday party. Cancer, miscarriage and respiratory illnesses are frequently reported in Fort McKay. Many believe industry is to blame. Photo: Aaron Vincent Elkaim / The Narwhal

Delores Lacord harvests cranberries on the Moose Lake reserve. Each summer, Suncor Energy provides free flights to members of the community to visit their historic hunting grounds to practice their traditional ways. Photo: Aaron Vincent Elkaim / The Narwhal

Garnet Ahyasou stands by Buffalo lake, also known as Namur Lake, while hunting grouse on Fort McKay’s Moose Lake reserve. Photo: Aaron Vincent Elkaim / The Narwhal

Prosper Petroleum’s $440 million Rigel oilsands project would come within two kilometers of the Moose Lake reserve, a remote ancestral territory of unspoiled land with two lakes, Gardiner and Namur, known to the community as Moose Lake and Buffalo Lake.

The community views this land as all that remains of their rights to the wilderness — a lifeline to their culture. Many Fort McKay residents still practice their traditional ways of life here: hunting, fishing, trapping, collecting wild plants and cultivating spiritual practices.

It’s where families take their vacations, where grandfathers pass traditional knowledge to their grandchildren and where people who spent their lives working for oilsands companies build their retirement homes.

The Northern Lights dance over the water at Moose Lake. The area is the only undeveloped land remaining for the community to engage in traditional cultural and spiritual practices and escape into the wilderness. Photo: Aaron Vincent Elkaim / The Narwhal

A strip mine operated by Suncor, one of the largest operators in the Alberta oilsands. This land was once boreal Forest and, under current regulations, every square-kilometre must be returned to near original condition and productive state after mining is complete, a feat that has yet to be proven possible. Photo: Aaron Vincent Elkaim / The Narwhal

The PTI Wapasu Camp, one of many camps to house workers from nearby oilsands projects, is located five minutes from Fort McKay First Nation. The Fort McKay Group of Companies provides custodial and food services for many of the camps. Photo: Aaron Vincent Elkaim / The Narwhal

Suncor Energy, one of the largest producers in the Alberta oilsands, supports a land-access program which flies band members out to a permanent camp at Moose Lake during the spring and fall hunting seasons. While Fort McKay has largely worked in partnership with the oilsands industry, they have been fighting to protect Moose Lake for nearly 20 years.

“Fort McKay is fighting for its cultural survival, as one of the largest industrial projects on the planet devours more of our land that has been our home for millennia…We will not stand idly by and let the area be destroyed,” Chief Boucher said in a statement.

Scarecrows, nicknamed “bitumen,” are used to prevent migratory birds from landing on this tailings pond owned by Suncor. Operations in Alberta’s oilsands used 198 million cubic metres of water in 2016. Water used in in-situ mining operations is not recovered. Waste water from open-pit mining operations and the processing of bitumen ends up in massive tailings ponds, which leach into the Athabasca River. The estimated cost for cleanup of the sprawling tailings ponds is $48 billion. Photo: Aaron Vincent Elkaim / The Narwhal

Yvonne L’Hommecourt, who works as a heavy-haul truck driver for Suncor, boats up the Athabasca river in 2012 while returning to Fort McKay after spending a weekend at her cabin on Poplar Point reserve, between Fort McKay and Fort Chipewyan. Poplar Point is now mostly used for recreation and some trapping. L’Hommecourt spent her summers there as a child and it is where her father is buried. Photo: Aaron Vincent Elkaim / The Narwhal

The future of Moose Lake is important, not only to Fort McKay, but also as a potential warning to First Nations around the country who seek to work productively with resource development while also maintaining traditional lands and ways of life. Fort McKay has often had a voice at the table — something many First Nations struggle to obtain.

But when push comes to shove, will that voice be heard?

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A Pennsylvania jury handed down a $4.24 million verdict in a lawsuit centering on water contamination from negligent shale gas drilling in Dimock, PA, a tiny town that made international headlines for its flammable and toxic drinking water.

The defendant in the lawsuit, Cabot Oil and Gas Corp., had strenuously denied that it had caused any harm to the plaintiffs or their drinking water. In 2012, the company reached a settlement with roughly 40 other residents along Carter Road in Dimock, but the terms of that settlement were never made public and included a “non-disparagement” clause that prevents those who settled from speaking out about their experiences with Cabot.

The verdict, which was reported by the Associated Press, comes as long-awaited vindication for the Hubert and Ely families, who refused to settle in part because they wanted their voices heard, they said at a press conference when the trial began in Scranton on February 22.

The lawsuit stretched on for nearly seven years, and the plaintiffs were at one point forced to represent themselves in court after being unable to find legal counsel following the settlement of the vast majority of the plaintiffs.

The Huberts and the Elys still live on Carter Road, hauling their water by truck – a chore that became far more cumberson in the winter when hoses often froze and water tanks must be heated, Scott Ely, a former Cabot subcontractor turned whistleblower, had testified.

The jury directed Cabot to pay Nolen Scott Ely and Monica Marta-Ely each $1.3 million, and an additional $150,000 for their three children, and to pay Ray and Victoria Hubert each $720,000, plus an additional $50,000 for their child.

Because the lawsuit's scope had been narrowed dramatically before trial, the plaintiffs were not permitted to pursue Cabot for any harms done to their health, but only for the damage to property and the personal nuisance that the water contamination had caused.

The case has been closely watched by the oil and gas industry, which has often reached secret settlements in claims of drilling and fracking contamination – creating uncertainty about the frequency and extent of accidents and misconduct.

State and federal environmental regulators have cited non-disclosure agreements as a major hurdle preventing a full assessment of the risks related to the shale oil and gas drilling rush.

The jury's verdict on water contamination in Dimock may have broad implications for the broader debate about the environmental risks of the shale drilling rush nationwide. Although the case did not center on claims that the fracking process (as opposed to drilling, well casing failures, spills or other problems) had directly caused the Ely and Hubert's water contamination, most of the gas wells that the plaintiffs focused their attention on were aimed at the Marcellus shale gas formation.

“This is a huge victory for the people of Dimock, but it’s also a sharp rebuke to the Obama administration for failing to fully investigate threats posed by fracking and dangerous drilling to water supplies in Pennsylvania and across the country,” said Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute. “Because of the EPA’s disturbing history of delay and denial, it took a federal jury to set the record straight about the natural gas industry’s toxic threat to our water.”

In many ways, the case was also a triumph for local grassroots organizers who have worked on the ground to help families in Dimock and across the state since the shale drilling rush arrived. Neighbors, environmental organizers, and locals-turned-activists in the region have spent countless hours helping to haul water for those who, like the Elys and Huberts, lost clean drinking water. 

Without the resources of large environmental groups or law firms at their disposal, the Carter Road families had turned to crowd-funding to help raise some of the costs associated with keeping a legal case going for years. Energy Justice Network, a Philadelphia-based nonprofit, fiscally sponsored the legal fund for the case and have been working with the family since 2009.

“This is a huge victory for Dimock families who have fighting for clean water for over six years,” said Alex Lotorto, Shale Gas Program Coordinator for Energy Justice Network.

The lawsuit pitted solo practitioner Leslie Lewis and attorney Elisabeth Radow against a team of litigators and attorneys from Norton Rose Fulbright, a London-based law firm which in 2014 was the seventh highest-grossing law firm in the world.

Representatives for Cabot denied that the Ely and Hubert families had proven their case sufficiently despite the jury's verdict and continued to assert that the company had acted prudently in its operations on Carter Road. “Cabot is surprised at the jury's verdict given the lack of evidence provided by plaintiffs in support of their nuisance claim,” the company said in a statement provided to DeSmog. “Cabot will be filing motions with the Court to set the verdict aside based upon lack of evidence as well as conduct of plaintiff's counsel calculated to deprive Cabot of a fair trial.”

Of course, the role of a jury is to determine what claims are true and what claims are false, a fact that plaintiff's attorneys had reminded the 8-member panel during closing arguments.

"The truth is to be found in the totality of the evidence," Ms. Lewis had said, according to local press reports. "It’s very important that when a company like Cabot harms Pennsylvania families … that the courts are a sanctuary for people to seek justice."

This piece has been updated to include responses from the parties and interested observers and additional details. Further updates will be added as additional information becomes available.

Photo Credit: The Ely family outside the U.S. District Court in Scranton, PA on the day that trial began. © 2016 Laura Evangelisto

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Chevron lost a high-profile pollution case in Ecuador in 2011 and was ordered to pay $9.5 billion for cleanup of billions of gallons of toxic waste in the Amazon rainforest. So far, the company hasn’t paid a dime — but a recent ruling in Canada might finally force Chevron to pay up.

Chevron appealed the 2011 ruling all the way to Ecuador's highest court, the National Court of Justice, which voted 5-0 in 2013 against the company. But Chevron still refuses to comply with the ruling, and since the Big Oil behemoth has no assets in Ecuador, the plaintiffs were forced to seek enforcement of the decision elsewhere.

Last Friday, the Supreme Court of Canada ruled unanimously to allow Ecuadorian plaintiffs to pursue just such an enforcement action. In the majority opinion, Justice Clément Gascon wrote that the ruling had implications for attempts to hold the entire global oil industry accountable for its pollution and other abuses.

“In a world in which businesses, assets and people cross borders with ease, courts are increasingly called upon to recognize and enforce judgments from other jurisdictions,” Gascon wrote in the 7-0 ruling, according to The Globe & Mail. “Sometimes, successful recognition and enforcement in another forum is the only means by which a foreign judgment creditor can obtain its due.”

Some 30,000 Ecuadorians have been affected by the oil pollution in the Amazon, left behind when Texaco (which Chevron bought in 2000) ceased operating hundreds of oil wells in the country in 1990.

Humberto Piaguaje, the Coordinator of the Union of People Affected by Texaco, welcomed the ruling, saying in a statement, “after 22 years we can perform actions to collect the judgment against Chevron and immediately start repairing our territories."

Chevron is fighting a multi-front battle against the Ecuadorian judgement. The company secured a favorable ruling under RICO statutes in a New York court last year after its lawyers convinced a federal judge that the Ecuador ruling was the result of a corrupt judicial process.

The company has also entered into an arbitration process at the Hague, where its lawyers are attempting to argue that the government of Ecuador absolved Texaco of all liability when it ceased its Ecuador operations and left the country 25 years ago, though Chevron’s main legal defense in that case recently hit a major snag when it was rejected by the arbitrators.

Chevron once issued a statement threatening the Ecuadorians with "a lifetime of appellate and collateral litigation" if they continued to pursue their lawsuit — a company official later vowed to "fight until hell freezes over . . . and then we'll fight it out on the ice" — and the company appears to be making good on that threat.

Still, the Canada ruling comes at a bad time for Chevron, which has lost as much as $100 billion in market value over the past year thanks to cratering oil prices and other factors. Among them is the fact that the company made $24.7 billion from operations over that same time period while laying out $41.7 billion in expenditures and dividend payments.

At some point, says Amazon Watch’s Paul Paz y Miño, Chevron investors have to start wondering if the billions spent by the company on its aggressive, scorched earth legal strategy have really been worth it — especially as Ecuadorians continue to get sick and die as a result of the pollution still littering the forest floor.

“What does that say about [CEO John Watson’s] leadership? If I were a shareholder I’d say you have to pay this back to the company. You can’t mismanage the funds of our shareholders any further,” Paz y Miño told DeSmog.

The Financial Post reports that Chevron has assets worth roughly $15 billion in Canada, more than enough to satisfy the Ecuadorian judgement.

The Canadian assets include a network of Chevron gas stations in B.C.; a 20 per cent-stake in the Athabasca Oil Sands Project in Alberta; a 26.9 per cent interest in the Hibernia Field and a 23.6 per cent interest in Hibernia South Expansion off the shore of Newfoundland and Labrador; a 26.6 per cent interest in the Hebron Field in Newfoundland; an interest in the Duvernay Shale Field; and an interest in the Kitimat LNG Project in B.C.

The Ecuadorian plaintiffs say they want to seize and sell the shares of Chevron Canada to satisfy the $9.5 billion judgment — which has actually risen to $10 billion with interest, according to Amazon Watch’s Paz y Miño, who says the Canadian courts will count that interest.

But even if the plaintiffs ultimately win the enforcement action in Canada, a judge will still have to sort through the so-called "corporate veil" and determine whether the seizure of assets owned by Chevron Canada, which is not directly owned by Chevron, can be used to satisfy the latter's debt. No less than seven companies stand between Chevron Canada and its US-based parent company, according to the Financial Post.

In the end, however, Paz y Miño says the lawsuit has never been about money.

“They’re sitting there twisting a knife into the people of Ecuador,” he told DeSmog. “This isn’t about saying, ‘These people were responsible for something that happened in the past, and they should be held accountable.’ It’s about stopping the poisoning of people that’s still going on. Chevron is continuing to poison people, and won’t clean up the pollution.”  

Image Credit: Jeff Whyte / Shutterstock.com

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The Tsleil-Waututh nation announced it will launch a legal challenge against the Canadian government and the National Energy Board (NEB) Friday over legal compliance and consultation with First Nations in relation to the proposed Kinder Morgan Trans Mountain pipeline expansion.

At an outdoor press conference on Tsleil-Waututh territory overlooking the Burrard Inlet and Kinder Morgan facilities, Chief Maureen Thomas said her nation has been ignored by the government throughout the Trans Mountain pipeline review process.

“Today with a heavy heart we want to announce we are going to….I don’t want to use those words…but we are going to fight,” she said.

Merle Alexander, aboriginal resource lawyer with Gowlings LLP said there are a number of “procedural errors” affecting the pipeline assessment process. “If these decisions aren’t corrected now they’ll affect the entire review process,” he said.

The Tsleil-Waututh nation will commence a legal action in the federal court of appeal, challenging a number of decisions of the NEB that include failed consultation, improper project assessment and a fundamental mischaracterization of the Trans Mountain project which involves an expanded pipeline, a terminal and increased storage facilities.

“The case is really one about legal compliance,” Alexander said. “Tsleil-Waututh is forcing legal compliance with Canadian legal law as well as enforcing their own legal government.”

Rueben George of the Sacred Trust Initiative and project manager of public engagement for the Tsleil-Waututh says the legal challenge is in the interest of all Canadians.

“The actions we take are to benefit everybody,” he said, “because Canada is making the wrong decision in supporting Kinder Morgan.”

“Since time immemorial we have been stewards of our land and we have a track record of taking care of our people.”

“I’ve had the land and waters feed my spirit. Everything we get out of the water is goodness."

“What that is over there is Kinder Morgan,” he said, gesturing over his shoulder to Kinder Morgan’s storage facilities. “What they put in the water isn’t goodness.”

In 2007 the Trans Mountain pipeline ruptured in a Burnaby neighbourhood after a road crew’s excavator accidentally hit the line. Roughly 250,000 litres of oil spilled into the community with 70,000 litres entering the Burrard Inlet.

The proposed pipeline expansion would increase the line’s capacity from 300,000 to 750,000 barrels of oil per day. The increase in capacity could quadruple the number of oil tankers moving through the inlet, from five to more than 20 each month.

Chief Thomas said the case is ultimately about taking a stand.

“We have to take a stand, stand up for what we believe is truly right. What we really believe is right for us is protecting land and waters to the best of our ability. We have to move forward in a way that we really do become aware of what is going on and not take things for granted. You have to be the one to stand up,” she said.

Thomas recounted the decline of local plants and species in the region, saying local people can no longer harvest shellfish from the once-fertile and clean waters.

“When you look at the future you have to make sure you have water, food for your family. Those are necessities. This land, area has been continually declining in providing our people food. Our people once survived from the food of this land. The animals, the plants, they are declining every day. We have to find a way to stop that decline to the best of our ability.”

The Tsleil-Waututh have worked for years to rehabilitate and lessen their impact on the local area. They’ve introduced wind power, salmon rehabilitation projects and have reintroduced elk to the hillside.

“We’re not people that fight,” Thomas said, “but we want to protect and respect these lands.”

Image Credit: @kingcornevj via Twitter

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Barrick Gold's shareholders will be greeted by a familiar sight in Toronto this morning: protesters are once again gathering outside the Annual General Meeting of the world's largest gold mining company to denouce the corporation's human rights and environmental abuses.

Sakura Saunders, of Protest Barrick and one of the demonstration's long-time organizers, told DeSmog that this year's AGM is happening amidst a “perfect storm” of controversies for the company.

“Everyone's angry at Barrick right now. Everyone's mad at [Barrick Chair and founder] Peter Munk because of botched deal after botched deal, fraudulent activity due to their Pascua-Lama mine, and they're also being sued in the British High Court for the killings that have happened with regularity at their North Mara mine,” she said in a phone interview.

The perfect storm

Top of the list for Canada's most prolific mining company is a $6 billion class action lawsuit – totalling over a quarter of Barrick's market capitalization – from shareholders alleging fraud over the company's Pascua-Lama mine, located on the border between Argentina and Chile. Pascua-Lama was meant to be the company's flagship operation at the centre of the largest stock offering in Canadian history in 2009. Slated to start production in 2013, the project has instead been shuttered after ballooning costs and the Chilean government's decision to suspend the mine's license for violating environmental regulations.

The lawsuit, which still needs certification as a class action by the courts, alleges Barrick executives knew and hid information about these environmental concerns from shareholders, causing them to eventually lose millions of dollars in investments.

Barrick is denying the allegations, and has said it will “defend itself against any lawsuit vigorously.”

Contravening environmental rules in Chile is just part of the accusations that human rights and environment activists have levelled against the company.

In Tanzania, there have been repeated shootings and killings of people in proximity of Barrick's North Mara mine by police who double as security. The company's subsidiary African Barrick Gold is now being sued in British courts by the families of men who have been killed by security agents, on the grounds that they used excessive force. And in Papua New Guinea, communities next to Barrick's Porgera mine are demanding the company pay for their resettlement after run-off and pollution from the site have made their villages unlivable.

With all these serious, documented abuses abroad, Saunders has mixed feelings about the fact that it is shareholders who are able to seek retribution in the courts, but not those directly impacted themselves.

“I just hope that these lies [about Pascua-Lama] expose the pathological culture at Barrick Gold. Which of course have many other consequences outside of shareholder value,” she said.

An early Barrick Gold demonstration in Toronto took place on April 24, 2014. Photo by @liezelhill via Twitter.

Shareholder activism

MiningWatch Canada is also working to bring awareness to Barrick Gold's activities. This past March they issued a notice to investors about the company's actions in Tanzania. In it, they document various shootings, killings and rapes that have allegedly been committed by security forces and police in and around the mine. They are urging shareholders to recognize the harm being committed by the company and to pressure executives at the AGM.

“[Shareholders] need to pay at least as much attention to the accusations of ongoing human rights abuses and severe environmental damage at Barrick sites around the world, as to the financial predictions of the company’s management based on reserves, pipelines and costs of production, as these severe harms caused by the company result in local-level conflict, opposition and legal action that presents real risks to their investment,” said Catherine Coumans of MiningWatch by email.

Driving this point home, Saunders and Protest Barrick organized a pre-AGM event on April 28, to "help investors bankrupt Barrick." The group distributed information detailing how to join the class action lawsuit. 

End of an era

Barrick's outspoken and controversial founder and chair Peter Munk will also be retiring this year, signalling what some have called the end of an era.

Munk has been ardent in his defense of the company's work, and in his refusal to take action to remedy the impacts of their mines, said Saunders. At the same time, neither she nor Coumans feels his leaving will mark much of a change at the company. “Maybe the company will finally agree to resettle people,” said Saunders. But the problem isn't Munk, she said, “it's that this company continues to operate.”

And while he may be out of the building, the 86-year-old's presence will probably continue to be felt, said Coumans. “[Munk's] influence is likely to continue through his hand-picked co-chair, who will now become chair, and possibly through his son who is also on the board of directors,” she wrote.

Accountability problem

While the biggest and often most visible violator of rights, Barrick is simply a reflection of problems in the mining industry. “Many of the negative impacts Barrick is causing locally, through human rights abuses and environmental degradation, and nationally through tax evasion and avoidance are quite widespread in the sector,” explained Coumans. “Because of Barrick’s sheer size and exposure globally, it is possible to expose a wide range of these harms related to one company, but we are seeing the same negative impacts by other Canadian mining companies.”

And at the root of this widespread problem is the question of accountability. Canada has the largest mining sector in the world, in part because of weak disclosure laws and no legislation for trying Canadian companies for crimes committed abroad.

In an historic ruling last year, a case against Canadian mining company Hudbay for negligence leading to rapes and murders committed by its security personnel at its Fenix mine in Guatemala was allowed to go ahead by the Ontario Superior Court of Justice. But there are still no laws on the books clearly granting victims of Canadian companies' abuses abroad the right to sue them in Canadian court.

This has led to the Open for Justice campaign, started in 2013 and spearheaded by the Canadian Network on Corporate Accountability, to have Canadian parliament adopt legislation making it clear that Canadian companies can be sued by both Canadians and non-Canadians for offenses committed abroad, and the creation of an Ombudsperson to receive complaints and verify the compliance of Canadian extractive companies with legally-binding corporate accountability standards. It's only by bringing in this new legislation that Canada's mining sector – including Barrick – will be pushed to change their actions, said Saunders.

While waiting for legislation with more teeth, though, the plans are to continue protesting, which has seen success at pressuring Barrick and changing the debate on mining in Canada. Over the past few years, Saunders says she has seen her and fellow organizers' concerns go from fringe and rejected, to being seriously discussed in the mainstream press.

“Each year we've come, Barrick has had to admit to what we are saying,” she said. “Each year I feel a lot of validation regarding the accusations against Barrick that have finally been accepted in the mainstream.”

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British Columbia's Gitxaala Nation filed a lawsuit on January 17 claiming the federal Joint Review Panel's (JRP) report that recommended approval of the Northern Gateway pipeline was flawed and unlawful.

The B.C. First Nation's lawsuit is one of many filed in response to the report, including one filed by the Environmental Law Centre on behalf of B.C. Nature and another filed by Ecojustice on behalf of three different environmental groups.

Rosanne Kyle, lawyer for the Gitxaala Nation, said that the "Gitxaala were given the opportunity to speak, but were not heard."

The Gitxaala Nation's lawyers said that the review panel did not properly consider Aboriginal rights and title or weigh the public interest against the pipeline's economic benefits to the Alberta oilsands.

The band participated in the hearings, expending significant resources in submitting more than 7,500 pages of documentary evidence, providing nine expert witnesses and including a 320-page submission detailing the adverse effects of having as many as 230 supertankers moving through Gitxaala Nation territory annually.

The band claims tanker traffic in traditional waters violate their Aboriginal rights and title, noting the potential catastrophic effects an oil spill in the region's narrow coastal channels may have on Gitxaala way of life and the ecosystems they've harvested from for centuries.

The suit observes that the review panel had a mandate to consider the band's constitutionally protected rights in a meaningful way, and chose to ignore it.

"The Gitxaala played by the rules," said Clarence Innis, acting chief of the Gitxaala Nation. "The JRP had a responsibility to take our concerns seriously but it didn't."

Kyle also said that a series of recent government reports support the Gitxaala's concerns but were released too late to be considered by the panel for their report.

Ivan Giesbrecht, spokesman for Northern Gateway Pipelines, said in an e-mail that "Northern Gateway does not believe this will necessarily delay the review by the federal government of the (Joint Review Panel's) report," reports CTV News.

Despite the multiple lawsuits questioning the report's decision, Giesbrecht added that the JRP's recommendations were "based on science and the input of experts," and that the evidence presented was the "most thorough and comprehensive proceeding in Canadian history."

Cabinet has 180 days from the time it received the report, released in December, to make a final decision on the pipeline, adhering to the 209 conditions laid out in the report.

Image: Jennifer Castro / Flickr

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Environmental groups, including ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation, filed a lawsuit today to block cabinet approval of the proposed Northern Gateway pipeline.  

Ecojustice lawyers representing the three groups filed the lawsuit at the federal court level, saying that the Joint Review Panel's (JRP) final report on the pipeline is based on insufficient evidence and does not satisfy the legislated requirements of the environmental assessment process.

"The JRP did not have enough evidence to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on certain aspects of the environment," said Karen Campbell, Ecojustice staff lawyer.

The panel, a joint effort of the National Energy Board and the Canadian Environmental Assessment Agency, held an 18-month review of the proposed $6.3 million Enbridge pipeline, which would ship 520,000 barrels per day of diluted oilsands bitumen to the B.C. coast for export on tankers.

The three groups behind the lawsuit were participants in the review process.

Campbell said that the panel made its recommendation "despite known gaps in the evidence, particularly missing information about the risk of geohazards along the pipeline route and what happens to diluted bitumen when it is spilled in the marine environment."

For example, the panel's conclusion that diluted bitumen is unlikely to sink in an ocean environment was refuted by a federal report released last week. This suggests that potential spills could have more serious environmental impacts and be more difficult to clean up than the panel's report makes evident.

Karen Wristen, executive director of Living Oceans Society, said that they "have no choice but to go to court and challenge the JRP's final report."

"The panel's recommendation was made without considering important evidence that highlights the threat Northern Gateway poses to the B.C. Coast," Wristen said.

The panel also failed to consider the final recovery strategy for humpback whales or identify mitigation measures to reduce the impacts on caribou, as required by sec. 79(2) of the Species at Risk Act.

"The proposed tanker route travels directly through humpback whale critical habitat identified in the recovery strategy. Yet the panel refused to consider this potential conflict when making its recommendation," said Dr. Paul Paquet, senior scientist at Raincoast Conservation Foundation.

Paquet said that "the panel's failure to consider the project's likely adverse impact on the whales makes no sense," considering that "the federal government will be required to legally protect the humpbacks and their habitat beginning in April."

Although the panel's final report concluded that 35 per cent of the Northern Gateway's economic benefit would come from upstream oilsands development, it did not address the environmental impacts associated with oilsands development, despite a clear request to do so.

Nikki Skuce, senior energy campaigner with ForestEthics Advocacy, said that the panel "cannot consider the so-called economic benefits of oilsands expansion tied to this pipeline but ignore the adverse impacts that expansion will have on climate change, endangered wildlife and ecosystems."

"The environmental assessment process is supposed to consider both sides of the coin, and in this instance the panel failed," Skuce said.

The panel's environmental assessment found the oil tanker and pipeline project was unlikely to have adverse environmental effects, aside from cumulative impacts on some grizzly bear and caribou populations. Campbell said this conclusion was reached "without considering all the necessary and available science."

Campbell added that the report "only tells part of the story, and we are asking the court to ensure that this flawed report doesn't stand as the final word on whether Northern Gateway is in the national interest."    

The lawsuit seeks a federal court ruling to prevent the government from relying on the flawed report to approve Northern Gateway.

A spokeswoman for Natural Resources Minister Joe Oliver said the government would not comment on the lawsuit, reports the Globe and Mail.

"As the minister said before, we will thoroughly review the report, consult with affected First Nations, and then make our decision," said Melissa Lantsman, Oliver's director of communications. "Our government will continue to take action to improve the transportation safety of energy products across Canada."

Cabinet is set to make a decision based on the panel's recommendation in the following six months. Under the new environmental assessment framework forced through in the 2012 spring omnibus budget, cabinet has final decision-making power over Northern Gateway, bound by the 209 conditions laid out in the panel's report.

Image Credit: Pembina Institute / Flickr

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Over 140 groups, including environmental organizations, unions and freedom of expression advocates have signed a petition urging the Ontario legislature to enact strong legislation to prevent the abuse of Strategic Lawsuits Against Public Participation (SLAPPs).

According to a press release from Greenpeace Canada, anti-SLAPP laws have already been implemented in Quebec, a majority of US states (28) and several other countries "to prevent powerful companies and individuals from lodging meritless lawsuits, often for defamation, which are designed not to protect reputation but to silence critics."

These lawsuits "make it more difficult for civil society to act as watchdog of the powerful," curbing freedom of expression by saddling defendants, "often public interest advocacy groups, with with massive legal fees, draining their resources and distracting them from their core work," says Greenpeace.

Shane Moffatt, forest campaigner for Greenpeace Canada, said that "these meritless lawsuits tangle up our courts and waste taxpayers' dollars," and that "it is time to move quickly to protect Ontarians when talking about the issues that matter most to them."

The petition presented to Ontario MPPs has been signed by over 140 groups, including Greenpeace Canada, Canadian Journalists for Free Expression, Council of Canadians, Marineland Animal Defense, and the Centre for Law and Democracy. The petition expresses concern at the increasing use of SLAPPs and denounces it as a form of "legal harassment" by corporations and governments that is a "growing threat to meaningful citizen participation."

The groups stand behind the right of individuals and organizations "to freely express opinions on issues of public interest, including the future of Canada's forests, without fear of lawsuit."

The petition cites "citizens reporting of environmental violations, filing complaints with government agencies, contacting the media, speaking at public meetings, participating at hearings before administrative tribunals or engaging in public campaigns" as among the activities that provoke SLAPPs.  

"Deep pocketed corporations must be prevented from attacking organizations or individuals with abusive lawsuits to shut down public debate," said Maude Barlow, national chair of the Council of Canadians. "They undermine the court system and impose a chilling effect on public debate."

Several of the groups supporting the petition have been targeted by SLAPPs. Greenpeace Canada is fighting a $7-million defamation lawsuit brought by logging giant Resolute Forest Products, donations towards fighting which can be made online. Marineland Animal Defense founder Dylan Powell is facing a $1.5 million SLAPP from Marineland. Both cases are for engaging in public interest criticism.

The issue of SLAPPs being abused came to prominence in Ontario when Big Bay Point residents were hit with a $3.2 million lawsuit by developers.

"Our organizations play a crucial role in shining a light on issues the public would otherwise never be aware of," said Powell, of Marineland Animal Defense. "Unfortunately, case law offers little protection and this legislative void will be used as leverage until anti-SLAPP legislation exists."

"The need for effective anti-SLAPP laws has been proven around the world," said Toby Mendel, Executive Director of the Centre for Law and Democracy and Annie Game, Executive Director of Canadian Journalists for Free Expression. "It is critical that Ontario and other Canadian jurisdictions bring themselves into line with these global developments."

Organizations can sign the petition letter online.

Image Credit: CNW Group / Green News

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.

Residents of Mayflower, Arkansas, are suing ExxonMobil for damages in a class action lawsuit that is seeking more than $5 million in compensation for property damage.

"This Arkansas class action lawsuit involves the worst crude oil and tar sands spill in Arkansas history," the lawsuit reads. The filed claim indicates more than 19,000 barrels of oil were spilled.

Both the Attorney General Dustin McDaniel and the US Department of Transportation's Pipeline and Hazardous Material Safety Administration (PHMSA) have indicated investigations into the pipeline rupture are ongoing.

Between 2010 and 2012, pipeline incidents incurred more than $662 million in property damages annually. More than 20 years of PHMSA records indicate levels of pipeline related accidents are consistent – around 250 occur each year – while the cost of those accidents is steadily increasing.

These recently released images show the scope of the damage has grown far beyond the nearby residential street:

Above Image Credit: Alyssa Martinez / Drew Crownover / Annie Dill / Alex Shahrokhi via Imgur.

The EPA's On Scene Coordinator also recently released images of the scene:

Image Credit: EPA On Scene Coordinator.

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.