Written by Mikayla Hill, David Bursey, Shawn Munro, Marie Buchinski and Sharon Singh
On October 7, 2021, the Blueberry River First Nation (BRFN) and the Province of British Columbia (Province) reached an initial agreement in response to the recent court decision in Yahey v British Columbia [Yahey]. The initial agreement advances the reconciliation of BRFN Indigenous and public interests, and clarifies the implications for certain development projects in the area that have been coping with the uncertainty created by the Court’s decision.
The precedent-setting Yahey case was the first in Canada to recognize an infringement of treaty rights resulting from the cumulative effects of various projects approved over many years and the provincial regulatory regime itself—rather than from the effects of a specific project. The Court decided that the cumulative effects of industrial development infringed BRFN Treaty 8 rights, and declared that the Province may not continue to authorize activities that contribute to those cumulative effects. Our recent blog, Recent Developments in Aboriginal Law: Cumulative Effects, Equitable Compensation and Duty to Consult, discusses the Yahey decision, and the Court's findings regarding cumulative effects and the infringement of BRFN's Treaty 8 rights.
The initial agreement is the first step in responding to the British Columbia Supreme Court's declaration in Yahey, with more steps to follow.
Background on the Yahey case
Treaty 8 territory spans northeastern British Columbia to northwest Saskatchewan and into the Northwest Territories. BRFN's traditional territory is located in northeastern British Columbia and encompasses the areas surrounding Fort St. John and Dawson Creek.
In March 2015, the BRFN filed a lawsuit against the Province alleging that the cumulative impacts of industrial development on BRFN's traditional territory constituted an unjustifiable infringement on BRFN's Treaty rights, further details of which are described in our previous blog, BC Supreme Court to Consider Cumulative Impacts of Resource Development on Treaty Rights.
During a lengthy trial, the Court considered the nature and the scope of promises embedded in Treaty 8. The Court found that an integral part of the Treaty was the written and oral assurance given by the Crown at the outset of the Treaty that BRFN would be able to continue their "way of life". The Court noted that inherent in this promise is the understanding that the Crown would not significantly affect or destroy elements required to continue BRFN's "way of life", including the right to hunt, trap, and fish on BRFN traditional territory.
After considering the cumulative effects from industrial development and the evidence of land disturbance, impacts on wildlife and the resulting effects on the ability of BRFN members to exercise their Treaty rights, the Court concluded that the ability of BRFN members to hunt, fish and trap as part of their "way of life" had been significantly diminished. So much so that it had reached a "tipping point" and BRFN Treaty rights had been infringed.
On June 29, 2021, the Court declared that the cumulative effects of years of development authorized by the Province unjustifiably infringed BRFN's Treaty rights. The Court also concluded the Province had breached its fiduciary obligations under the Treaty by failing to adequately consider the cumulative effects of permitting various activities associated with oil and gas, forestry, mining, agriculture and hydroelectric infrastructure.
To prevent future infringement, the Court declared that the Province "may not continue to authorize activities that breach the promises included in the Treaty … or that unjustifiably infringe [BRFN's] exercise of its treaty rights" (paras 1888 and 1894). The Court suspended this declaration for six months to allow BRFN and the Province to work together to change the regulatory authorization regime to recognize and respect BRFN's Treaty rights.
The Province did not appeal the Yahey decision and began to negotiate a solution with BRFN. The Province has appointed a lead negotiator and special adviser to support the involvement of Treaty 8 Nations, governments and industry in the negotiations, which are focused on developing "long-term solutions for collaborative decision-making that protect treaty rights and manage the cumulative impacts of industrial development."
The Initial Agreement
On October 7, 2021, BRFN and the Province announced an initial agreement that "begins to support healing the land, and helps provide stability and certainty for forestry and oil and gas permit holders in BRFN's traditional territory in the immediate term."
As outlined in the Province's public announcements, it will provide $65 million in funding to the BRFN under two sets of initiatives:
- A $35-million fund for the BRFN to undertake activities to heal the land, creating jobs for BRFN members and business for service providers in the northeast region, including:
- land, road and seismic restoration;
- river, stream and wetland restoration;
- habitat connectivity;
- native seed and nursery projects; and
- training for restoration activities.
BRFN will decide the restoration priorities and how to allocate the funds. The Province will assist in a non-decision-making role to coordinate restoration activities.
- $30 million in funding for activities to support the BRFN in protecting their Indigenous way of life, including:
- work on cultural areas, trap lines, cabins and trails;
- educational activities and materials, including teaching traditional skills and language;
- expanding Blueberry River resources and capacity for land management; and
- restoring the health of wildlife through wildlife management, habitat enhancement including prescribed burning and research.
These funds will support programs and projects, such as rebuilding trap lines and hunting cabins, building trails, hiring BRFN Lands Department staff, predator control and habitat enhancement.
The initial agreement confirms that 195 forestry, oil and gas projects that were authorized before the Yahey decision will proceed. Twenty other projects that also had been approved, including eight forestry permits and twelve oil and gas permits, are still on hold pending further negotiation and agreement from BRFN because these projects are located in areas of high cultural importance to the BRFN. While details of these permits are not publicly available, the Province has provided notification to the respective permit holders.
Permits relating to hydroelectric projects were not part of the initial agreement. However, due to construction scheduling, the Province and BRFN have agreed to discuss the BC Hydro Site C dam project on the Peace River, which overlaps with BRFN traditional territory.
Next Steps and Implications
The initial agreement is only the first step to reconciling the Provincial regulatory approval regime with the interests of BRFN, particularly related to managing adverse cumulative effects of industrial development on BRFN Treaty rights. A full review and restructuring of the relevant aspects of the regulatory approval regime is a complex undertaking that affects many interests in the area, not just those of the Province and BRFN.
The Province and BRFN are moving to finalize an interim approach to review new applications for resource development and activities to balance the BRFN Treaty rights, the economy and the environment. The Province is also seeking to engage with other Treaty 8 First Nations, including Doig River, Fort Nelson, Halfway River, McLeod Lake, Prophet River, Saulteau and West Moberly First Nations, so each of these Treaty 8 First Nations are included in the development of the new permitting and authorization process and, in response to concerns detailed by six Treaty 8 First Nations, is reported to have recently endorsed a "regional focus" to address the issues.
The goal is to establish a collaborative system that protects Treaty 8 rights in the regulatory approval process, while also supporting environmental sustainability, stable economic activity and employment.
While the negotiations continue towards developing an applications framework that assesses the cumulative effects of new applications and their impact on BRFN Treaty rights, BRFN and the Province have been prioritizing review of applications for decision "based on emergency, environmental protection and public safety reasons."
The Province and BRFN have also committed to providing "regular updates to, and [to] seek input from, Blueberry members, industry, local governments and residents of the Northeast as negotiations proceed."
These negotiations are breaking new ground and will affect how industrial and resource projects are approved throughout Treaty 8 territory. Certainty around the regulatory approval process is critical to attract the sustainable development that the Province and BRFN seek.
Bennett Jones has extensive expertise respecting project development, permitting processes and Indigenous consultation. If you have any questions regarding the Yahey decision, how your projects may be affected by the initial agreement, or how the continued negotiations may affect your organization’s interests, please contact a member of the Bennett Jones Aboriginal Law group.