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Heavy machinery operates in the pit at the Shell Albian Sands located in Alberta's oil sands north of Fort McMurray, Alberta .

Kevin Van Paassen/The Globe and Mail

A small First Nations band in Alberta has racked up a big win against the energy industry, clearing the way for a trial over whether its treaty rights are being infringed upon as industrial development such as the oil sands expands.

The Beaver Lake Cree Nation argues the so-called cumulative effects of oil sands and other industries such as mining and forestry violated their treaty rights. The provincial and federal governments grant permits which allow for development. Beaver Lake Cree Nation launched a legal battle five years ago and now Edmonton and Ottawa have lost their attempt to have it tossed out.

The cumulative effects argument is a touchy topic in Alberta and if the Beaver Lake Cree Nation comes out on top, it could force the governments to revamp the way they review and approve industrial projects – namely the oil sands. In short, it could put a damper on a key driver of the Canadian economy.

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"This case is about limiting the development of the tar sands," lawyer Drew Mildon, who represents Beaver Lake Cree Nation, said in an interview.

Energy, mining and forestry projects are typically judged case-by-case, but Beaver Lake Cree Nation argues the overall effect of numerous projects hinders their traditional way of life. The Beaver Lake Cree Nation believes its ability to hunt, fish, and trap have been dented because of roughly 300 projects in which about 19,000 permits have been granted, according to a judgement from the Court of Appeal of Alberta delivered April 30.

Canada, the judgement said, handed out at least seven of these permits, with the remaining falling to Alberta. The land involved covers a "large portion" of northeast Alberta – both inside and outside of any reserve. It includes the Cold Lake Weapons Range.

"The basic question of the case is: Are the cumulative impacts of the tar sands development in their territory risking the treaty rights or rendering them meaningless? Because you can't do that," Mr. Mildon, who works for Woodward & Co. and is based in Victoria, said. "They're constitutionally protected."

The judgement means the case can go to trial, which Mr. Mildon expects to begin winding its way through the legal system this fall. He believes the appeal judgement demonstrates the Beaver Lake Cree Nation has a viable case.

"Usually in big cases like this that really threaten development . . . . the process is usually to try burn the First Nation out at the early stages by outspending them, and that tends to happen through a bunch of pre-trial motions," he said.

"It's big news to get to this stage."

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Originally, the case was even larger in scope as the Beaver Lake Cree sought to revoke the authorizations for past and current developments on lands in northeastern Alberta. But the court shot that down. Mr. Mildon said his clients are now seeking compensation for losing hunting and fishing rights due to those past and current projects.

"But really the question is how does the First Nation get more management control over future infringements?"

The 800-person Beaver Lake Cree are footing most of their own legal bills, Mr. Mildon said, with significant start-up donation from England's Co-operative Bank and others.

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