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 BCLN was "frivolous, improper and an abuse of process."
The BCLN 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 30, 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.
BLOG CONTINUES AFTER SLIDESHOW
In Nigeria's Akwa Ibom State, an ExxonMobil pipeline ruptured on May 1 and spilled over a million gallons of oil, reported the Guardian. The leak continued for seven days before it was stopped. HuffPost blogger Omoyele Sowore explained in July 2010 that an oil spill from ExxonMobil operations was nothing new to the country. He wrote that an "environmental catastrophe [had] been going on since December 2009." He described the toll on Nigeria: "There's oil on the surface of the ocean, wildlife coated in crude, fishermen losing their businesses." In 2011, the Nigerian government said there had been more than 7,000 oil spills in the country between 1970 and 2000 that could take up to 30 years and $1 billion to clean up.
In May 2010, several thousand barrels of oil spilled from the Trans-Alaska pipeline "during a scheduled pipeline shutdown at a pump station near Fort Greely," explained AP. No injuries were reported and officials said the spill was likely "limited to the gravel on top of the containment area's line."
In June 2010, a Chevron pipeline ruptured and spilled oil into a creek near Salt Lake City, Utah. It was first estimated that over 17,000 to 21,000 gallons spilled into the creek, which leads into the Great Salt Lake, reported AP. Around 150 birds were "identified for rehabilitation." The oil did not reach the Great Salt Lake, however. Chevron was later cited for the spill, which released an estimated 33,000 gallons in total. In March 2012, a group of 66 residents of a Salt Lake City neighborhood sued Chevron for damage caused by the Red Butte Creek spill and a smaller spill in December 2011.
In late July 2010, an Enbridge pipeline in southwestern Michigan sprung a leak and spilled over 800,000 gallons of oil into a creek which flows into the Kalamazoo River. By August, a regional EPA administrator said that significant progress had been made at the site, but "the agency cautioned that it will take months to complete the cleanup," reported AP. By the end of September, the pipeline -- which travels from Ontario to Indiana -- was back in operation. The EPA later reported that about 1.1 million gallons of oil were recovered, but pipeline operator Enbridge said that it would stick with previous estimates that only about 843,000 gallons were spilled.
In July 2010, China experienced what was reported as the "country's largest reported oil spill" after a pipeline rupture near the northeastern port city of Dailan. Several days after the spill, cleanup efforts were underway over a 165 square mile (430 square kilometer) area of the Yellow Sea. The Chinese government reported that about 1,500 tons or 461,790 gallons of oil had spilled, but experts contended that the spill could have been "dozens of times larger," reported AP.
In late April 2011, a pipeline in northwestern Alberta began leaking, and created the worst spill in the province in 36 years, reported the Calgary Herald. About 1,176,000 gallons of oil were reportedly spilled from the Rainbow pipeline, which is operated by Plains Midstream Canada. The Globe and Mail revealed that the pipeline operators "detected a potential problem nearly eight hours before halting the flow of crude." A nearby school in a First Nation community was closed after residents reported "nausea, burning eyes and other symptoms," and several animals were found dead. In late July, Plains Midstream requested to re-open the pipeline and begin to ship oil to Edmonton again.
In June 2011, an oil spill occurred about 25 miles off the coast of China's Shandong province in Bohai Bay. A second spill followed in July. In late August, it was reported that ConocoPhillips had discovered more oil seeps in Bohai Bay, although only "1 to 2 liters (a quarter to a half-gallon) of oil and drilling mud were being released each day." The company reported that the 2011 spills released 29,400 gallons of oil and 2,500 barrels of drilling mud into the bay and that most of it was recovered. In September, China's State Oceanic Administration claimed that oil was still seeping underwater. In early 2012, Texas-based ConocoPhillips reached a settlement deal with the Chinese government for $160 million.
In July 2011, a pipeline beneath Montana's Yellowstone River ruptured and sent an oil plume 25 miles downstream, reported AP. Despite reassurances from ExxonMobil that the pipeline was safe, the July spill released what was originally estimated to be 42,000 gallons of oil. With other 1,000 workers assisting the cleanup, ExxonMobil estimated that it would cost $135 million to clean the river. In January 2012, it was reported that ExxonMobil had increased its estimate of the spill size by 21,000 gallons. AP later reported the estimated spill size as 63,000 gallons. CORRECTION: A previous version of this slide stated the estimated spill size as 63,000 barrels instead of gallons.
In August 2011, an oil rig off the eastern coast of Scotland began leaking oil into the North Sea. Royal Dutch Shell, which operates the Gannet Alpha oil rig, initially reported that 54,600 gallons of oil were spilled. A second leak soon occurred, turning the spill into the worst in the North Sea in a decade, reported AP. Several days later, Shell announced that it had "closed a valve from which oil was spilling into the North Sea," according to AP. The spill released about 1,300 barrels of oil, which spread out over a 2.5 square mile (6.7 square kilometer) area.
In mid-November 2011, Brazilian authorities began investigating an offshore spill near Rio de Janeiro, reported AP. Chevron initially reported that between 400 and 650 barrels of oil had spilled into the Atlantic, while a nonprofit environmental group using satellite imagery estimated that the spill rate was at least 3,738 barrels per day. Chevron soon claimed full responsibility for the spill. The brazilian division's COO said, Chevron "takes full responsibility for this incident," and that "any oil on the surface of the ocean is unacceptable to Chevron," reported AP. In December, Brazilian prosecutors announced that they were seeking $10.6 billion in damages from Chevron for the spill that leaked nearly 126,000 gallons of oil. In March 2012, a Brazilian federal judge allowed prosecutors to file criminal charges against Chevron and Transocean and 17 executives from both companies were barred from leaving Brazil.
In October 2011, a Liberian-flagged cargo ship ran aground on a reef in Northern New Zealand and began leaking oil. With oil washing up on shore, a government minister deemed it the country's largest maritime environmental disaster a week later. Although over 2,000 sea birds were killed by the spill that spilled about 400 tons of fuel oil, 343 little blue penguins were rescued and cleaned of oil. [Watch video of the penguins' release into the wild here.] In January, half of the stricken Rena began sinking into the sea after breaking apart and spilling over 100 cargo containers.
The spill, which took place near the coast of Nigeria, was reported as "likely the worst to hit those waters in a decade," according to AP. After two days, the spill had affected 115 miles (185 kilometers) of Nigerian coastline. Several days after the December 20 spill, Shell reported that the leak -- which occurred about 75 miles offshore -- had been contained before it reached the Nigerian coast. The spill, which covered 350 square miles of ocean at its peak, was reported as having released less than "40,000 barrels -- or 1.68 million gallons" of oil.
In June 2012, 126,000 gallons of sour crude oil leaked from a submerged pipeline into the Red Deer River in Alberta, Canada before being swept downstream to the Gleniffer Lake and Reservoir, a main source of drinking water for several communities near the spill. A $75 million class-action lawsuit was filed against the owners of the pipelines, and in October 2012, the Canadian government banned fishing in the river in order to study the long-term environmental impacts of the spill. This was the second major spill in the province and for the company that owns the line, Plains Midstream Canada, in two years. In 2011, 1.1 million gallons of oil leaked into the Peace River from a damaged pipeline in a remote corner of the province.
In October 2012, 336,000 gallons of diesel fuel spilled into the Arthur Kill waterway as a result of Superstorm Sandy when two storage tank were damaged by 13-foot waves. The spill contaminated the narrow band of water that separates Staten Island from New Jersey, releasing a strong chemical odor into the air as the diesel rose to the surface and evaporated. Officials said a majority of the fuel spilled was captured by booms and that it was fortunate diesel spilled rather than crude oil because cleanup and dissipation would be much faster.
In late March 2013, ExxonMobil's Pegasus pipeline ruptured and spilled about 5,000 barrels (210,000 gallons) of Canadian heavy crude oil into a residential area in Mayflower, Arkansas. Exxon later removed a damaged 52-foot section of the pipeline. The company's cleanup efforts -- which reportedly included using paper towels -- were criticized in the media. Local residents began reporting health issues not long after the spill. Arkansas Attorney General Dustin McDaniel has also expressed his concern for the health of Mayflower residents, reported The Huffington Post's Lynne Peeples. One month after the spill, the same pipeline leaked one barrel of oil into a residential yard in Missouri.
In January 2013, a barge carrying 668,000 gallons of light crude oil on the Mississippi River crashed into a railroad bridge. An 80,000 gallon tank on the vessel was damaged, spilling oil into the waterway, which prompted officials to close the river for eight miles in either direction. The spill led to a backup of more than 1,000 barges and the accident is still under investigation. Workers finished clean-up in early February, but the Coast Guard said 7,000 gallons of crude oil are still unaccounted for. This was the second collision of an oil tanker on the Mississippi in the past year. In February 2012 two barges collided which led to a five-mile wide closure.
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 BCLN'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
Five 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, colour, 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 BCLN 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 U.K. 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."
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