When new oil and gas projects are approved in Canada, whether it’s an individual drill pad, a sour gas line, or a massive oil sands mine, their environmental impacts are assessed individually. If, for example, a company applies for a permit to build the 20,000th piece of fossil fuel infrastructure on Beaver Lake Cree territory in northern Alberta, the project will be assessed based solely on its individual potential impact, not on the cumulative ramifications that 20,000 pieces of infrastructure could have on waterways, wildlife, or the ecosystem more broadly.
Beaver Lake Cree territory is dotted with 35,000 pieces of oil and gas infrastructure, and its land is pock-marked by 21,700 kilometres of seismic lines, 4,028 kilometres of pipeline and 948 kilometres of road. In fact, nearly 90 percent of the nation’s land is occupied by industrial development. This commercial activity has fundamentally altered the environment and effectively erased an ecosystem.
The Beaver Lake Cree are a Treaty 6 nation. There are many ways in which Canada has failed to live up to its treaty commitments, in particular by permitting the wholesale extraction of resources lying below “the depth of a plow.” Yet the Crown also guaranteed that the Beaver Lake Cree (and other signatories) would retain the right to hunt, fish, and live more or less as they were living for thousands of years within their territory. As the Nation puts it, Canada promised that they “would be able to maintain their way of life.”
The first oil and gas installation didn’t eliminate that possibility. Neither did the 100th, the 1,000th, or the 30,000th, individually. But somewhere between occupying zero percent of their land and 88 percent of their land, a line was crossed by permitting so much industrial development that hunting, fishing, and an entire way of life were no longer possible.
Which is why the nation sued both Canada and Alberta in 2008. Fifteen years later, the case has yet to be heard, primarily because the provincial and federal governments have been using every legal tool in their arsenal to delay it. They are afraid of the challenge it poses to Canada’s claim of absolute sovereignty over Treaty land.
This battle over Treaty rights and industrial overdevelopment is one of the core stories featured in Toronto publisher Between the Lines’ The End of This World: Climate Justice in So-Called Canada. According to the authors, it illustrates both where the climate justice movement needs to go and, at least partially, how we get there.
In the face of the Trudeau government’s attempts to limit and co-opt the radical concept of “just transition,” Crystal Lameman, a member of the Beaver Lake Cree, and her co-authors present a holistic and internationalist vision of what the term means. They do this by presenting a series of principles meant to guide action towards justice both within and across borders at the same time as accelerating climate mitigation to successfully limit warming to 1.5C. First and foremost amongst these principles is that “a just transition asserts Indigenous sovereignty here and abroad.”
The authors justify this focus throughout the book by illustrating the fundamental differences between Indigenous ways of being and those stemming from European culture (or from capitalism and colonialism). Indeed, the Indigenous peoples of Turtle Island and around the world tend to view humans as part of a web of relationships with the Earth and its more-than-human contents. The dominant European culture, meanwhile, situates us in an oppositional “us-versus-them” dynamic focused on domination, seeing humans as separate from nature. The implications of that ontological difference are made manifest by the fact that despite centuries of marginalization and oppression, Indigenous peoples today steward 80 percent of the planet’s remaining biodiversity.
With this in mind, the book attempts to paint a hopeful picture of a near-future where the Canadian government has reimagined its Treaty relationships and established structures of shared governance over the country’s land base. In this vision, Indigenous communities are the primary decision-makers regarding development on their land. Fossil fuel companies are mostly nationalized and their rapid wind-down is co-managed by the government and the nations whose land it occupies, preventing capture and abuse by Crown corporations like BC Hydro and Nalcor Energy. Universal public services are provisioned and based on Indigenous principles of care.
In short, the authors show us that a Canada that actually lives up to and prioritizes its Treaty obligations can be a country that works for all of us, accelerating every aspect of a truly just transition.
Circling back to the Beaver Lake Cree lawsuit, it is, according to the nation, the first case challenging Canada’s approach to approving industrial development on Treaty lands. The authors and the Beaver Lake Cree agree: when they win (after Canada runs out of methods by which to delay the trial) it will set a precedent that has the potential to transform Canada’s relationships with Indigenous peoples and its approach to land use and industrial development writ large.
The legal challenge offers what the authors identify as a “non-reformist reform,” a concept developed by French-Austrian philosopher André Gorz meant to identify reforms to the capitalist status quo that hold potential for or build momentum towards longer term anti-capitalist outcomes. It is meant as a way to distinguish tactics that legitimate and maintain the prevailing order from those that may have near-term benefits while still contributing to the long-term goal of ending capitalism.
There is no question that pursuing this legal challenge is a non-reformist reform: it holds immense potential value in the short-term for the Beaver Lake Cree, for other Treaty nations, and for all of us fighting for a livable future. It also holds the potential to contribute to the longer term project of eroding the capitalist state’s claim to legitimacy.
But that latter transformative potential is just that, potential—even if they win in court. Progress isn’t guaranteed.
Earlier this month, the government of British Columbia and a number of Treaty 8 nations announced a series of new agreements concering land management. These agreements are the culmination of another cumulative effects lawsuit brought against the provincial government by the Blueberry River First Nation, a nation whose territory has been devastated by BC’s fracked gas boom. The BC Supreme Court ruled in their favour in 2021. After nearly two years in something of a legal limbo, the province and five different Treaty 8 nations committed to new revenue sharing and land use planning frameworks.
The nations are excited about these agreements, and they should be: they’re a huge step forward. But they also raise some questions and concerns, too. BC’s new premier, David Eby, said in a statement, “I’ve always believed that negotiation, rather than litigation, is the way forward for achieving reconciliation and strengthening vital government to government relationships.” Yet Eby oversaw the fight against the Blueberry River First Nation as the province’s attorney general. He also oversaw BC’s efforts to claim in court that the Nuchatlaht Nation had abandoned its territory and directed the use of criminal charges against land defenders on Wet’suwet’en territory. He did all of this after his government passed legislation committing to implement the UN Declaration on the Rights of Indigenous Peoples.
Politicians often engage in doublespeak and Eby’s previous actions are not on their own a basis to write off these agreements. If anything, they are the opposite: proof that legal challenges can force governments to change course.
But it’s worth mentioning that these announcements were celebrated by oil and gas companies. Extractive firms have plans to more than double fracked gas production in Treaty 8 land over the next seven years to feed LNG Canada and a bevy of newly proposed export facilities on the coast.
The question of whether or not these court challenges are transformative isn’t decided when the ruling comes down from the court. It is decided as the settler state probes the limits of the new boundaries created by the court, a political process mediated by the full spectrum of actors including not just the First Nations and Canada’s legal system, but also social movements—and corporations. Whether or not Blueberry River’s legal challenge turns out to be reformist or non-reformist is still up in the air. The same will be true when the Supreme Court of Canada eventually rules on the Beaver Lake Cree case.
But the point is that we can’t just wait and see. What happens next depends on how well social movements and Indigenous nations can work together to force the state to live up to its obligations—both its original treaties and its new agreements. The End of This World opens with an anecdote about an industry insider who penned a study about corporate risk in Alberta. He identified meaningful cooperation between Indigenous peoples and the environmental movement as an “apocalyptic scenario” for the industry.
He was right, of course, and therein lies the lesson that The End of This World’s authors are trying to teach us: a just transition in Canada starts and ends with Indigenous sovereignty. However, because the erasure of that sovereignty is built into the Canadian state, a just transition isn’t achievable without leveraging the power of social movements to challenge Canada’s legacy of land theft and genocide.
Precedent-setting legal challenges like the Blueberry River and Beaver Lake Cree cases are important, but they alone cannot change the way that Canada attempts to eliminate inherent rights. Indeed, the government has been ignoring its own laws for 150 years. The environmental and climate movements need to help leverage cases like these to fundamentally challenge the settler state as we know it, with the ultimate goal being a system of shared governance like the Treaties originally envisioned. Without that, climate justice remains a pipe dream.
Nick Gottlieb is a climate writer based in northern BC and the author of the newsletter Sacred Headwaters. His work focuses on understanding the power dynamics driving today’s interrelated crises and exploring how they can be overcome. Follow him on Twitter @ngottliebphoto.