Maybe it was the way Canada kept insisting that their good intentions were enough to excuse abuse and neglect. Or how, though they kept saying “sorry”, they couldn’t help but take up all the space, ‘flagspreading’ their way to occupy 98% of the sofa without once handing over the remote. Tired of watching Beachcombers re-runs and being gaslit over wounds ancient and fresh, Indigenous Peoples negotiated, accommodated and — finally — litigated. 

So it’s no big surprise that Canada’s legal systems tend to borrow from family law when it comes to repairing relationships. From the issuance of Advance Costs to fund litigation, all the way down to the idea of reconciliation itself, instruments developed to settle disputes between quarrelling parties have been adapted to address this country’s most fundamental fallout. 

Let’s look at just one case: colloquially known as the Defend the Treaties trial, Anderson v Alberta was launched in 2008 by Beaver Lake Cree Nation(BLCN). Located 200 km north of Edmonton in the heart of what was once Alberta’s boreal forest, BLCN was faced with the explosive expansion of oil and gas projects in their territory. As a result, the community was finding it increasingly impossible to get out on the land to hunt, fish, and collect berries and medicines. Without these activities, it was growing difficult for families to make ends meet, and to pass on cultural knowledge from elders to parents, and from parents to children. 

Imagine if every time you set out to check on your traplines, you discovered another road, another well, another tailings pond. What you once knew as a sinuous landscape layered with lineages of your ancestral ecosystem knowledge has become a maze of dead-ends and no-go zones. Imagine if the rare caribou or moose you did encounter was inedible, the meat poisoned after the animal licked at the salty-tasting bitumen that seeps to the bog’s surface because of in situ oil sands extraction. 

For the small Indigenous Nation, the writing was on the wall: go to court, or lose everything at the heart of what it means to be Beaver Lake Cree.  

The Ecological Promise at the Heart of Canada’s Treaties

“A truly exceptional matter of public interest.” 

That’s how Canada’s Supreme Court described Beaver Lake Cree Nation’s legal challenge. At its core, the case involves a tiny Nation standing up to Canada and Alberta to demand that the protections assured in Treaty 6 be upheld. The treaty, signed in 1876, spells it out in black and white: Indigenous rights to hunt, fish, and practice cultural activities on their territory are enshrined in perpetuity in one of the country’s oldest contracts. 

The treaty protects not just reserve land, but access to vast tracts of boreal forest that Beaver Lake Cree have been sustained by, and have stewarded, for thousands of years. 

The Defend the Treaties case emphasises that it’s the cumulative impacts of industry on treaty rights that is at issue. A win would force regulators to evaluate new project applications not piecemeal, as is currently the practice, but according to how any well, mine, or pipeline fit into the overall picture affecting the availability, health and productivity of hunting and fishing grounds. 

When the case was filed, environmentalists took notice. A scrappy start-up organisation called RAVEN (Respecting Aboriginal Values and Environmental Needs) took on fundraising for the case. “We felt like it shouldn’t be up to First Nations to bear the huge cost of holding industry to account,” says RAVEN’s founding Executive Director Susan Smitten. “It’s not fair to rely on the poorest people in what is now called Canada 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.” 

Together with Chief Al Lameman, for whom the Defend the Treaties case was initially named, Smitten first stewarded funds from the Cooperative Bank of the UK, whose members invested, recognizing the strategic importance of BLCN’s challenge in halting the devastating impacts of tar sands extraction. Since then, RAVEN has raised more than $2 million dollars to cover a portion of BLCN’s hefty legal bills. 

For the governments of Canada and Alberta, Beaver Lake Cree’s ambitious challenge was a dire portent of a future where oil was no longer king. They knew that adopting a holistic view of project impacts would slow down the gold-rush frenzy that fuels the race to develop Alberta’s tar sands and get at vast deposits of bitumen and natural gas.  

Besides the fact that Alberta is sitting on the largest deposit of crude oil on the planet is the irrevocable climate reality that if we extract and burn it, we’ll assure the extinction of a million species: including, if we really blow it, ourselves. 

The whole industry is built on the pressure of short-term imperatives. Especially in the years since the Copenhagen and Paris climate agreements, the race has been on to squeeze as much profit out of the tar sands as possible before serious emissions controls come along to curtail development and ultimately make their product obsolete. If industry continues at its rampant pace, there just won’t be any caribou left for Beaver Lake Cree Nation members to hunt – that would turn the conversation from one about conservation of precious resources into one about compensation for irrevocable losses. 

The challenge for Beaver Lake Cree is simple and urgent: if tar sands development continues to expand in their territories, BLCN’s treaty won’t be worth the parchment that it’s written on. 

Court to First Nations: How broke are you? 

After a decade of fighting motions to strike and appeals, the Nation has won the right to have its case heard in court: the trial is set for 2024. Beaver Lake Cree are also making the case for why the government should advance them the money needed to pay for it. 

12 long years after filing the Defend the Treaties challenge, Beaver Lake Cree Nation was exhausted and flat out of funds. So, in 2018, Chief Germaine Anderson applied for what are known as Advance Costs. 

Let’s just go back to the family law analogy. When a married couple who disagree are seeking a divorce, if the husband holds all the financial cards, it puts the wife at an unfair disadvantage. He can finagle the house, the car, and even the kids if she is reduced to relying on legal aid or forced to go under-represented. To avoid that kind of scenario, the courts developed an instrument so that the richer party would be ordered to advance a set amount to the more ‘impecunious’ party, allowing them to afford a decent lawyer. Though they are sometimes called ‘awards’, Advance Costs are not grants but rather are a tool to level the playing field so that both parties are on more equal footing. 

To receive Advance Costs, the less wealthy party has to turn out their pockets in front of the court and prove just how broke they are. 

That’s exactly what Beaver Lake Cree Nation did. It really should come as no surprise that a rural Indigenous Nation — struggling to cope with outdated infrastructure, substandard housing and a shabby education budget — might not be able to sustain million-dollar litigation. But the Nation had to argue for the necessity of, for example, paying for the delivery of clean drinking water to community members ahead of spending that money on litigation. 

Having gone through the patronising process of being nickel and dimed by the government, the Nation managed to prove their ‘impecuniousness’ and in 2019 BLCN was awarded Advance Costs. Had that lower court ruling stood, it would have required Alberta, Canada and BLCN to share the costs of litigation to the tune of $300k each, annually, for the duration of the trial. 

In keeping with tactics the powers that be had been deploying all along, the award decision was appealed and overturned. With their very existence as a people at stake, fiercely committed to seeing justice done, BLCN took their Advance Costs fight to the Supreme Court of Canada. 

A milestone for Indigenous justice

After months of nail-biting, in March 2022 Beaver Lake Cree Nation received a unanimous Supreme Court Decision that will echo down the years as a landmark ruling on Indigenous access to justice. In a 9-0 decision, the Supreme Court of Canada overturned Alberta’s removal of Beaver Lake Cree’s Advanced Cost order.

The Supreme Court recognized that in an era defined by reconciliation and respecting Indigenous self-determination — to take care of pressing community needs first, before spending on court costs — must come first.

While the SCC ruling requires Beaver Lake Cree Nation to go back to the trial judge for a deep dive into BLCN’s financial situation and how it meets the fine-print criteria of “pressing needs” set out by the court, their appeal is a huge win for access to justice. 

It is also a big win for RAVEN. 

“It’s not every day we watch the needle move to advance the law in favour of Indigenous rights,” says Smitten. “We’re really proud to be part of this, and humbled by the never-flagging determination of BLCN’s leadership.”

All’s fair in love and litigation

Advance costs are actually extraordinarily rare, as they require that applicants pass a series of legal tests. Anderson v. Alberta clarified what those tests will be going forward. One thing that has not changed is that Advance Costs are only available for cases that are considered to be in the public interest. The court determined that there is a strong public interest in obtaining a ruling on the claims brought forward by Beaver Lake Cree Nation in its Defend the Treaties challenge. That alone may seem obvious — tar sands expansion affects us all, and Albertans, Indigenous and settler alike, have treaty obligations that should matter to everyone. 

But the court went further. Recognizing that we are in a new era where self-determination and reconciliation confer upon First Nations the right to allocate spending as they see fit, the Supreme Court affirmed that Indigenous governments — not courts — are best suited to set their own priorities and identify the needs of their communities. 

The Court also found that when a government has used delay and outspend tactics — bloating the costs of, and timeline for, urgent legal action — the court should ‘exercise its discretion’ in awarding Advance Costs. From now on, the fact that a First Nation might choose to allocate its limited funds to address the needs of its community – including for cultural survival and to fund basic services that most other Canadians take for granted – should not be used as a basis to disqualify the First Nation from advance costs for litigation to protect its Section 35 rights. 

Back to our family law metaphor: the court’s new ruling means that the person in charge of the household and children will be able to determine their own priorities and needs ahead of what some judge decides is ‘best for them’. This ruling takes some of the paternalism out of the Advance Cost process and opens the door for Nations to meet government and industry on a more level playing field. 

The Supreme Court also awarded solicitor-client costs to Beaver Lake Cree Nation for all three levels of court hearings related to the Advance Cost application and appeal. Now that Canada and Alberta have to pay BLCN back for what the Nation spent on the Advance Costs process, BLCN can immediately use these funds to gather evidence, elder testimony, and prepare arguments for what could be one of the most monumental legal challenges Canada has ever seen. 

An ambiguous win

BLCN’s victory was a major milestone in the Nation’s decades-long process to push back against the cumulative impacts of industrial development in their territory. But you’d never know what a big win they scored from reading mainstream media coverage. 

Most outlets failed to recognize the groundbreaking nature of the SCC ruling. Headlines reported both that the Nation had won, and that they had lost. Partly, that’s because the Nation was sent back to the lower court in Alberta for a rehearing on Advance Costs, this time using the new test set out by the Supreme Court. But under those conditions, the Nation not only qualifies: they literally set the standard. The opportunity to go back to the court to adjudicate the award amount and terms under these new Supreme Court criteria may result in an even larger sum being awarded to the Nation. 

Karey Brooks, lawyer for Beaver Lake Cree Nation, is unequivocal. “The Supreme Court of Canada ruling is a huge win for access to justice.” 

She explains that the Court recognized Indigenous self-determination when it emphasised that a Nation’s pressing needs must be understood within the broader context from which a First Nation government makes decisions.

“I think it’s a huge win in that respect.” 

Fair’s Fair: Enshrining Access to Justice into Law

Going before the courts – for both advancing the original claim to trial and to achieve Advance Costs — Beaver Lake Cree Nation has been validated, and their right not only to pursue their case but to receive support, fully affirmed.

“The greatest barrier to justice – and victory for this court challenge – is the high cost of the legal system,” says RAVEN’s Susan Smitten. “How fantastic that a small group of dedicated donors was able to shore up this challenge to fund a trial that could stagger the tar sands behemoth. Also: how spooky to think how many worthy cases have faltered due to lack of resources.”

The implications of this judgement are nation-wide and capture in law the sovereignty of a Nation’s decision-making. Judges will now be able to take into account systemic factors such as the history of colonialism, displacement, and residential schools and how that history continues to operate today. 

Thanks to Beaver Lake Cree Nation, Indigenous Peoples will no longer, as a judge in Alberta’s Court of Queen’s Bench put it, have to “stand naked before the court.”

No matter how the lower court chooses to award Advance Costs, Beaver Lake Cree will still be on the hook for hundreds of thousands of dollars a year for the duration of the trial, which could last several years. No matter how the court rules: RAVEN will be there. 

“When we join forces as Indigenous Peoples and settlers, we can move mountains – and create better laws” Susan Smitten, Executive Director, RAVEN

This story was generously funded through support from Metcalfe Foundation.

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A ‘just transition’ is defined as ‘a vision-led, unifying and place-based set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy’ by the Climate Justice Alliance. Just transitions take a holistic view of where we are going, as well as how we get there. When thinking of a just transition towards green energy, one of the groups that will be disproportionately affected is Indigenous communities. This is a direct result of a disproportionate dependency on fossil fuels to fuel both energy needs and daily life requirements. Additionally, these communities are also likely to experience the effects of climate change much more than others due to these changes impacting many aspects of their lives. Some of these changes can include loss of land and resources, extreme weather events impacting agriculture, future supply chain issues, and more. As a result of this, it is of paramount importance that for these indigenous communities, we ensure the transition to green energy is a just one.

This is where Melina Laboucan-Massimo saw an opportunity to make a difference. Laboucan-Massimo is Lubicon Cree, from the community of Little Buffalo, located in Alberta, Canada. Little Buffalo is an oil sands region, and as a result, Laboucan-Massimo grew up witnessing firsthand the negative impacts that oil sand development has had on the environment, as well as the development of her Indigenous community. To put into perspective how little the oil sands have done for Indigenous communities, Laboucan-Massimo states in this article with the Nobel Women’s Initiative that since 1978 over $14 billion had been made off of her family’s traditional territory, yet they still don’t have running water. She goes on to say that the more than 2600 oil wells on the land make it impossible to live sustainably, to make matters worse, almost 70% of Lubicon territory has been leased for future development without the consent of the Lubicon people, directly violating their charter rights.

Laboucan-Massimo has been attending protests about this matter since 1988, at the tender age of 7 years old. This first protest was in her Lubicron Cree community of Little Buffalo which held a 6-day protest against oil and gas drilling on their land. While her parents and grandparents were part of the blockade, Laboucan-Massimo watched from the safety of their car, with this experience having a profound impact on her. This protest in 1988 was a whole 34 years ago, yet oil and gas drilling continues on this land, much to its detriment. If the community of Little Buffalo sounds familiar, then you were probably paying attention to the news in 2011. This is because in 2011 the Rainbow Pipeline spill occurred on this land, causing a total of 28,000 barrels of oil to be spilled – the largest oil spill in Alberta in three decades. This spill is still impacting the community to this day, and those responsible for it, Plains Midstream, were only fined a measly $1.3 million two years after the spill. Were those funds used to clean up the area or were they enough to cover the costs of those cleanup efforts? No and no. After this spill, Laboucan-Massimo felt even more inspired to take action, saying in an interview with Mongabay, “Wow, I need to really start building: What does transition technology look like? What does a just transition look like in our communities? That’s why I founded Sacred Earth Solar, which began with my Master’s thesis…”

The creation and inspiration behind Sacred Earth Solar are why I find Laboucan-Massimo to be so inspiring personally. Sacred Earth Solar was born out of their Master’s degree thesis in Indigenous Governance, with a focus on energy which was completed at the University of Victoria. As part of her thesis, Laboucan-Massimo proposed building a solar-powered center in her hometown of Little Buffalo, in order to ensure just transition to green energy. This proposal was not without resistance, with Laboucan-Massimo recalling in an interview with Fashion Magazine, “One of my professors actually tried to dissuade me from doing it—he said ‘It’s too big of an undertaking, you’re not going to finish in time.’” Despite these concerns, Laboucan-Massimo decided to go ahead with the project due to her determination of creating a just transition for her community, as well as wanting to inspire others to do so. This was completed in 2015 and since then, the project has provided power to the community’s health center. This project, now known as the Piitapan Solar Project, involved the installation of 80 solar panels resulting in a 20.8kW renewable energy project – not only does this provide green energy, but also creates jobs in the community, and provides a template for other communities to follow. How inspiring is that? Despite even professors voicing their concerns, and having no experience directly in that field, Laboucan-Massimo followed through on her mission of creating a more sustainable future for her community.

After the establishment of this solar project, Laboucan-Massimo created the aforementioned Sacred Earth Solar. Sacred Earth Solar has now branched out to create projects outside of the Piitapan Solar Project in Little Buffalo. In all of its work, Sacred Earth Solar ensures that a just transition, as defined earlier in this article, can take place. According to their website, Sacred Earth Solar currently assists Indigenous communities in exploring renewable energy within the broader context of antiracist climate work, ensuring that these communities are given priority in keeping their communities safe and healthy. A just transition is one that Laboucan-Massimo is very passionate about, and in addition to setting up Sacred Earth Solar, also sits as the Senior Director of Just Transition at Indigenous Climate Action, an organization that aims to integrate Indigenous rights and knowledge into developing solutions for the climate crisis. Other initiatives by Sacred Earth Solar, and as a result Laboucan-Massimo, include the solarization of the art studio at Nimkii Aazhibikong with Onaman Collective in partnership with Indigenous Climate Action, which will serve as a centre for the language revitalization, transmission of indigenous knowledge, and communal space for Anishinaabek and surrounding Indigenous communities to have a communal space to share teachings. Another initiative included sending several sets of solar panels to Indigenous youth who were protesting at Ada’itsx/Fairy Creek. These solar panels were used to power the kitchen and charge devices so that they could have communication, but also record the police brutality that was on display. Laboucan-Massimo in addition to sending these panels also joined Indigenous leaders, environmental activists, and other celebrities in the condemnation of the logging at Ada’itsx/Fairy Creek. Sacred Earth Solar has continued to provide green energy for those fighting for climate justice by solarizing three homes at the Gidimt’en checkpoint in Wet’suwet’en Territory. This was done so that families could have access to their territory as the Gidimt’en checkpoint is directly in the path of the proposed Coastal Gas Link pipeline. Additionally, Sacred Earth Solar has been creating tiny homes that run off of solar energy to assist those protesting the Trans Mountain pipeline. These tiny homes are set up directly in the path of the pipeline, acting as both an act of resistance, but also a symbol of how green energy can be used for a just transition.

As you can see, Laboucan-Massimo’s Master’s thesis has grown a movement towards a just transition outside of her home community of Little Buffalo. Sacred Earth Solar may, in my opinion, be one of her most notable initiatives, however, Laboucan-Massimo has done much more than this. In addition to being the Director of Just Transition at Indigenous Climate Action, she was appointed as the first Indigenous research fellow at the David Suzuki Foundation where she has continued her research on Climate Change, Indigenous Knowledge, and Renewable Energy. In order to disseminate the message around green energy in Indigenous communities, Laboucan-Massimo created the Power to the People series. This series takes a look at the renewable energy revolution in Indigenous communities around Canada and the world, showcasing how a just transition may occur. This series found many different projects from wind farms, to solar plants, to tidal electric projects, and serves as a showcase for how other communities may become self-sufficient. Laboucan-Massimo has also worked alongside icons such as Jane Fonda, David Suzuki, and Naomi Klein to help build a better future for not only Indigenous people but the planet. She has also given many speeches which have inspired many, some of these including US Congress, the Harvard Law Forum, in British Parliament, and numerous international organizations like Amnesty International, allowing for her message of equitable climate justice to be heard around the world.

If you did a thesis, I implore you to think back to it. I can remember the thesis I completed in my undergraduate degree very well. Now, prior to this, have you thought about your thesis since completing it? Furthermore, has your thesis been of use? For some of you I’m sure that answer is yes, but for others like myself, not so much. It is of such great inspiration that Laboucan-Massimo took an issue that was so dear to her, and despite resistance from even her own professors, turned this thesis into a project that has since spiraled outwards, creating a movement. It is a great message of being the change you want to see, no matter how big the mountain you must climb is. Laboucan-Massimo could have stopped there, feeling that by improving her community she has done enough, but instead she has since campaigned to create a just transition to green energy for Indigenous people and communities around the world, and also acts as an example of how the entire world must act. It is for these reasons that Melina Laboucan-Massimo is an Every Day Eco-Hero.

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