PUBLISHED MARCH 8, 2022
Hundreds of permits for resource development across a large swath of British Columbia’s energy-rich northeast have been on hold since last summer, and remain in limbo indefinitely, following a landmark B.C. Supreme Court ruling on the Treaty 8 rights of Blueberry River First Nations.
The decision, which drove the B.C. government to overhaul its entire land use management regime, has implications across the country – especially for the Prairies and Northern Ontario where there are similar numbered treaties that date back a century or more.
In the landmark B.C. Supreme Court decision in June, the courts found the Blueberry’s treaty rights were violated by the overall effect of thousands of energy projects and other developments in their traditional territories.
“I find that the province’s conduct over a period of many years – by allowing industrial development in Blueberry’s territory at an extensive scale without assessing the cumulative impacts of this development and ensuring that Blueberry would be able to continue meaningfully exercising its treaty rights in its territory – has breached the treaty,” wrote Justice Emily Burke in her 511-page decision.
In a surprising move, the province did not appeal the decision. Instead, the government has opted to negotiate with the Blueberry and other Treaty 8 nations over land use in their traditional territories, putting new development applications on hold until an agreement can be reached. The precedent-setting decision also led to a reckoning about the way resource decisions are made across British Columbia.
The case was launched in 2015 by Marvin Yahey, then-chief of the Blueberry nation, arguing the Crown breached the 1899 treaty, which promised the Indigenous signatories and their descendants the right to hunt, trap and fish and otherwise maintain their way of life.
“This court win now gives us a chance to be in the driver’s seat,” Blueberry Chief Judy Desjarlais, Mr. Yahey’s successor, said in an interview. “There won’t be unlimited authorization of activity in our backyard, because there are a lot of critical areas that need to be healed. And the government is now listening.”
Ms. Desjarlais noted that many of her people work in the oil and gas industry, and the objective is to manage development in a sustainable way for both Treaty 8 members and their non-Indigenous neighbours. But there is no time limit on how long it will take to develop a new co-management regime. “Hopefully we’re not stuck at this pause for too long,” she said.
The Blueberry River First Nations represent roughly 500 members, who identify as Dane-zaa people. Their claim area spans 3.8 million hectares of the Peace River region in the northeast corner of B.C., where the land has been carved up in the development of the Montney natural gas play with thousands of oil and gas wells and more than 20,0000 kilometres of pipeline. The Blueberry say the forests, lands, waters, fish and wildlife on which they rely have also been damaged by agricultural, mines and forestry, the municipalities of Fort St. John and Dawson Creek and two major hydroelectric dams, with a third dam – Site C – under construction.
When the provincial government announced the creation of the Ministry of Land, Water, and Resource Stewardship in February, it conceded the old ministry responsible for land and resource management was too big and conflicted to handle the complexity of Indigenous reconciliation and cumulative effects.
“We know that no longer can we look at things on a case-by-case basis, a permit-by-permit basis, a project-by-project basis,” Josie Osborne, the new minister of what has been dubbed LandWARS, said in an interview. “The Yahey decision helps to underscore the importance of addressing things like cumulative impacts in a more holistic way.”
Osler law partner Sander Duncanson, an expert in Indigenous law related to natural resource development, said there is “considerable uncertainty” around whether new developments will be allowed to proceed in the Blueberry River claim area. More broadly, the decision creates new case law that measures cumulative effects in the test for treaty infringement.
That is not binding outside B.C., but he expects Yahey will lead to similar cumulative effects claims across Canada, and it could influence two similar cases currently being heard – the Beaver Lake Cree Nation in Alberta, and Carry the Kettle First Nation in Saskatchewan.
Mr. Duncanson said the Yahey decision holds governments accountable for the dramatic changes to the landscape since the time these historic numbered treaties were signed. “The landscape is changing, both because of the fact that there’s a lot more people on it now than there was then, but also just because of things like climate change. That becomes a very onerous responsibility on government.”
Maegen Giltrow, lawyer for Blueberry River, dislikes the term “veto” to describe her client’s new authority. “It’s a strong word, it is one that gets people’s heart rates up in Canada. What I’d say is, definitely it is no longer the case that the Crown can just unilaterally approve development over the objections of the nation.”
Ms. Osborne’s new ministry represents a commitment by the province to do business differently, but Ms. Giltrow said there are tough tradeoffs ahead.
“Government needs to be prepared to bite the bullet and recognize that cumulative effect management means it can’t be an industry that decides when and where they will develop, driven by market forces. It’s got to be driven by ecological analysis of what preserves the environment for future generations. And that costs money. That’s what it’s going to come down to.”
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