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British Columbia Supreme Court sets precedent for consideration of cumulative effects on treaty rights

Litigation
20.10.21
By Marlena Bova

On June 29, 2021, the British Columbia Supreme Court released its long anticipated decision in Yahey v British Columbia, 2021 BCSC 1287 (Yahey) wherein the Court determined that the Government of British Columbia's conduct over the past 120 years had infringed the treaty rights of Blueberry River First Nation.

This decision is the first to consider the legal test for determining whether the cumulative effects arising from provincially authorized developments amount to an unjustified infringement of treaty rights.

The case

The British Columbia Supreme Court found in favour of Blueberry River First Nation (BRFN), respecting its claim that the cumulative effects and impacts of industrial development in BRFN's traditional territory in northeastern British Columbia have resulted in its inability to meaningfully exercise treaty rights under Treaty 8.

Despite promises made under Treaty 8 respecting BRFN's rights, the subject area had been exposed to extensive forestry, oil and gas, hydro-electric, mining and agriculture developments for the last 120 years.

The Court found that BRFN's ability to successfully hunt, fish and trap depends on the health and relative stability of the environment Under Treaty 8, the Court agreed that B.C. has the power to "take up" lands, essentially meaning they may authorize the use of the land for industrial development. However, the Court found that the Province's continuous conduct since the onset of Treaty 8 in 1900 permitted industrial development "at an extensive scale without assessing the cumulative impacts" in BRFN's traditional territory. The Court found that B.C. had notice of the cumulative impacts on BRFN's ability to exercise treaty rights since at least 2012, particularly in respect of the impacts caused by oil and gas development. Accordingly, Justice Burke ruled that B.C. had both breached Treaty 8 and infringed upon BRFN's treaty rights.

In coming to its decision, the Court rejected the argument that Treaty 8 is not infringed until no meaningful right to hunt, fish or trap remains. BRFN did not need to show that it had no ability to exercise its treaty rights, but rather that such rights had been significantly or meaningfully diminished, when holistically viewed in the context of their way of life. Likewise, BRFN did not need to allege a treaty infringement from one single regulatory provision or decision. Its claim engaged provincial regimes dealing with forestry, oil and gas, wildlife management as well as provincial efforts to develop mechanisms to consider cumulative effects.

Justice Burke's interpretation modifies the test for treaty right infringement proposed by the Supreme Court of Canada in earlier cases, arguably making it easier for First Nations to establish treaty right infringement(s), particularly in light of the extensive development which has occurred both on and around treaty land. Indeed, the Court acknowledged that "with more and more takings and development it becomes harder and harder for the Crown to fulfill its promise to Indigenous people that their modes of life would not be interfered with".

The result

The Court found that the Province failed to diligently implement the Treaty promise to ensure BRFN's rights to hunt, fish and trap, amongst others, would continue as it did before Treaty 8 without forcible interference, and to protect BRFN's ways of life from the cumulative impacts of development on the land. Specifically, B.C. failed to develop processes to assess whether ecological conditions in the traditional territory were sufficient to support BRFN's way of life, properly assess and manage cumulative impacts to the ecosystems in the territory, and implement a regulatory regime that sufficiently took into account treaty rights when decisions were made in granting interests to land and resources within Treaty 8.

Accordingly, Justice Burke granted four important declarations:

  1. In causing and/or permitting the cumulative impacts of industrial development on BRFN's treaty rights, the Province has breached its obligation to BRFN under Treaty 8, including its honourable and fiduciary obligations. The Province’s mechanisms for assessing and taking into account cumulative effects are lacking and have contributed to the breach of its obligations under Treaty 8;
  2. The Province has taken up lands to such an extent that there are not sufficient and appropriate lands to allow for BRFN's meaningful exercise of their treaty rights. The Province has therefore unjustifiably infringed BRFN's treaty rights in permitting the cumulative impacts of industrial development to meaningfully diminish BRFN's exercise of its treaty rights in its traditional territory;
  3. The Province may not continue to authorize activities that breach the promises included in the Treaty, including the Province’s honourable and fiduciary obligations associated with the Treaty, or that unjustifiably infringe BRFN's exercise of its treaty rights;
  4. The parties must act with diligence to consult and negotiate for the purpose of establishing timely enforceable mechanisms to assess and manage the cumulative impact of industrial development on BRFN's treaty rights, and to ensure these constitutional rights are respected.

In making her order, Justice Burke suspended the 3rd declaration for six months to permit BRFN and the Province time to negotiate changes to the regulatory regime that recognize and respect BRFN's treaty rights.

The Province declined to exercise its right of appeal and instead, began negotiations with BRFN.

The Restoration Agreement

In observance of the six month grace period ordered by Justice Burke, consultations occurred promptly between the Province and representatives of BRFN. On October 7, 2021, the Province announced that the parties had reached an initial agreement that helps provide stability and certainty for forestry and oil and gas permit holders in BRFN's traditional territory in the immediate term (the Restoration Agreement). While the Restoration Agreement is only a first step in responding to the Yahey decision, which further requires the Province and BRFN to develop land management processes that restore the land and protect its ability to support Indigenous ways of life, it was sufficient to ensure existing forestry and oil and gas projects could proceed relatively uninterrupted.

The Restoration Agreement provides for the establishment of a $35 million fund for BRFN to undertake activities to heal the land. These activities seek to create jobs for BRFN members and business for services providers in the region, and will include land, water and infrastructure restoration, habitat connectivity, and training for restoration activities.

In addition, $30 million will be allocated to support BRFN in protecting its Indigenous way of life.

As part of the agreement, 195 forestry and oil and gas projects, which were permitted or authorized prior to the Court's decision and where activities have not yet started, will proceed; however, twenty currently approved authorizations, which related to development activities in areas of high cultural importance, will not proceed without further negotiation and agreement from BRFN. Notice has been provided to the respective permit holders in these cases.

BRFN and the Province continue to work towards finalizing an interim approach for reviewing new natural resource activities on Treaty 8 lands, which is to be followed by the introduction of ecosystem-based management systems that incorporate cumulative impacts into decision-making. The Province has commenced dialogue with other Treaty 8 Nations to ensure all Treaty 8 Nations are consulted in the development of this new approach.

For more specific details on the components of the Restoration Agreement, please see the Province's "Backgrounder on the Initial Agreement between Blueberry River First Nations and the Province of B.C."

If you have any further questions about the decision, please reach out to the author, Marlena BovaCarolyn Wright or Rob Martz. References can be found in the PDF linked at the top of the page.