Governments to be held accountable in court for not protecting treaty rights

The Alberta Court of Queen’s Bench says a First Nation has the right to challenge the federal and provincial governments in court to ensure their treaty rights are protected into the future.

In her 19-page ruling handed down March 28, Madame Justice B. A. Browne rejected arguments presented by the federal and provincial governments to strike down the court action initiated by Beaver Lake Cree Nation.

“It’s a vindication of what Beaver Lake has said that their treaty protects the core right to the meaningful exercise of treaty rights in that the government can be held accountable for failing to protect that,” said Jay Nelson, legal counsel with Woodward and Company, the firm representing Beaver Lake Cree Nation.

“The treaty is a sacred document for my people and we are very happy that the courts are prepared to back us up to ensure treaty rights are protected,” said Beaver Lake Chief Henry Gladue in a news release.

Former Chief Al Lameman initiated the court action on behalf of Beaver Lake Cree Nation in 2008. The First Nation’s claims were broad, referring not to specific development in the traditional territory but to the overall impact the gas, oil, forestry and mining industries have had and will continue to have.

“What Beaver Lake was arguing was that the combined effect of all of the development occurring in their territories is preventing, is compromising the ability of its members to meaningfully exercise the rights that were promised under the treaty,” said Nelson.

Approvals that have already been granted for development in Beaver Lake’s traditional territory will not be revoked. However, new development could be impacted.

“What Beaver Lake would like to see is protections put in place so that any development does occur is consistent with their treaty right to continue exercising the hunting, trapping and gathering rights,” said Nelson.

Browne has directed the federal and provincial governments as well as Beaver Lake Cree Nation to arrange a case management meeting prior to the end of April. At that time, Nelson said both levels of government will deliver their statements of defence, which neither has yet done.

Browne encouraged the parties to meet outside of the court setting to deal with the issues. The Court also said consultation does not mean “listening” and then proceeding without taking into consideration what has been heard. Browne cited the Haida decision, noting, “the duty (to consult) arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”

Nelson said the Beaver Lake Cree Nation views the situation as “dire,” which was why the litigation was brought. He also noted that the First Nation was actively involved in other legal action in order to protect the region, including being party to the judicial review against the federal government to force Environment Canada to develop a recovery plan for the woodland caribou.

 “The overall challenge… is to focus the issues in this action so that a manageable trial can proceed within a reasonable period of time…,” stated Browne in her case management issues comments.