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In Northeastern B.C., one lawsuit that could change everything

Blueberry River First Nation wants industrial development "suspended in our critical areas"

The Blueberry River First Nation has issued a lawsuit that their lawyers say “puts into question future development in the northeast.” And for its chief, Marvin Yahey, the matter is “black and white.”

“We have a treaty right that’s been breached,” he said. “The province isn’t doing their job, end of story. It’s simple.”

Last Wednesday, the First Nation issued a notice of civil claim against the cumulative impacts of industrial development in their traditional territory, which includes the areas around Fort St. John and Dawson Creek.

They argue that cumulative impacts from extensive industrial development violate Treaty 8, which Blueberry River signed in 1900. 

That document is important to the relationship between Blueberry River and the province.

“We have assurance from the province and government that we would be allowed to practice our treaty rights and live life as if we had never signed onto treaty,” said Yahey.

One of these rights is the ability to hunt and fish, along with other traditional activities. Yahey said that members of his First Nation “continue to live our way of life, hunting, fishing and trapping.”

Industrial development, particularly in the oil and gas industry, in northeastern B.C. has increased sharply over the past few decades.

The notice of civil claim singles out government-approved oil and gas, forestry, hydroelectric infrastructure, transportation and agricultural land clearing.

The Blueberry River First Nations council said the cumulative impacts of development have occurred without regard to their treaty rights.

“[Industrial projects] were rubber stamped. As fast as our referrals were coming into our offices, they were coming out the door,” the Blueberry River chief said. “They were approving them on a rapid pace without even dealing with our issues."

Councillor Lisa Hotte said, "Right now there’s deep and irreversible damage to our treaty rights because of cumulative impacts. Sitting at the table, those are the impacts we wanted them to address... Not just talk about them, but have a plan of action moving forward.”

Blueberry has raised their concerns on cumulative impacts in talks with the B.C. government to no avail, they said.

“This isn’t about development,” said Hotte. “This is about a  breach of constitutional rights.”

“We’ve been chatting with the province for some time, and it’s been all talk,” she added. “There’s been no action.”

Yahey would like to see development "suspended in our critical areas" while adequate planning is implemented to protect their way of life for future generations. "Development has to happen in a way that minimizes impacts to our way of life."

John Rich, Blueberry River's legal counsel, said the lawsuit isn't meant to stop resource development in all of Northeastern B.C.

“The court, in a practical sense, is not going to do that anyway. What it can be expected to do, and we hope the courts will cooperate this way, and that is, there has to be better planning for resource development.”

This better planning would “include conservation of values, the natural environment, and the values of Blueberry River First Nation, and that will mean some projects cannot go ahead and some areas will have to be protected,” he added.

“B.C. must ensure that development that does occur respects our treaty rights,” said Yahey. “Necessary protection and planning is not occurring now.”

The Blueberry River First Nation terminated two key agreements with the province in 2013.

"The Province refuses to slow down the destruction of the land and the rapid pace of development is poisoning the air and depleting the water," wrote Blueberry River First Nation (BRFN) in a press release describing their decision at the time.

The agreement, first signed in 2006, said that BRFN recognized that the province fulfilled its duties to consult and avoid any infringement of that band's Treaty Rights. In return, the province agreed to create a trust for the membership of BRFN and pay money into that trust.

Also in 2013, BRFN withdrew from the Long Term Oil and Gas Agreement (LTOGA), signed in 2008, which provided a means for the province to work with Treaty 8 bands. A letter BRFN sent  to the province said the LTOGA consultation process "was inadequate and it did not have regard for the cumulative effects of development in our traditional territory.”

Yahey says oil and gas activities have had “devastating impacts" on Blueberry's way of life and the First Nation has received "few economic benefits from the province. Under previous agreements, we received less than 0.1 per cent of provincial oil and gas royalties, even though the bulk of these revenues come from our

Yahey said the comparative amount of economic benefits his First Nation receives are "miniscule compared to the enormous financial gains reaped by the province, non-Aboriginal businesses and especially the oil and gas proponents themselves,” he wrote in a followup question after the interview. “The issue is the wholly unplanned aggregate impact on our culture and way of life based on hundreds and hundreds of projects across all sectors,  and the vast infrastructure that has accompanied those projects.”

Documents released under the First Nations Financial Transparency Act show that in their 2014 budget, the First Nation received at least $1 million from “oil companies and BC Hydro.”

At least one band-owned business has profited from industrial development. 

Blueberry River First Nation owns Blueberry River Enterprises. On its website, the company writes that it “develop(s) well sites, plant sites, roads, clean-ups, right-of-way and seismic clearing.”

“Blueberry should not be forced to choose between economic participation and the obliteration of our culture and way of life.”

Treaty 8 encompasses 840,000 hectares in parts of Alberta, B.C., Saskatchewan and the Northwest Territories. B.C. signatories include First Nations from Doig River, Prophet River, West Moberly, Saulteau, Fort Nelson, Halfway River and the McLeod Lake Indian Band.

Other First Nations in northeastern B.C. have spoken out against the cumulative impact of industrial development in recent years.

In an email to Alaska Highway News, B.C. Minister of Aboriginal Relations and Reconciliation John Rustad wrote that he “understand(s) Blueberry River First Nations’ concerns regarding natural resource development within their traditional territory and we remain committed to reaching a respectful, long-term government-to-government relationship.”

Rustad said he was “prepared to meet with them again to continue the discussion on their concerns.”

“It’s unfortunate Blueberry River has chosen the path of litigation,” Rustad added. “As for specific allegations in the notice of civil claim, I can’t comment on a matter now before the court.”

An official from the ministry later added that the provincial government would “continue to engage Treaty 8 First Nations on the incorporation of their treaty rights and cultural values through alignment of the northeast cumulative effects programwith the LNG Environmental Stewardship Initiative.”

The initiative was established last September as a way for First Nations to express their concerns about the energy industry.

Peace River North MLA Pat Pimm acknowledged that the government has a duty to consult and accommodate First Nations members, and that “whatever the courts decide, it will be the outcome.”

This is the first lawsuit of its kind for B.C., but not in Canada.

In 2008, the Beaver Lake Cree Nation filed a lawsuit at the Court of Queen’s Bench of Alberta over the cumulative impacts of development on their traditional territory. In 2012, a judge rejected provincial and federal efforts to have the case dismissed. That decision was upheld by the Alberta Court of Appeal in 2013.

As of the first week of March 2015, no trial date had been set, according to Alberta Aboriginal Relations spokesperson Jessica Johnson.

Nigel Bankes, professor of natural resources law at the University of Calgary, said the Blueberry River case will likely take years to wind through the courts.

“I think what it’s drawing attention to is that we need to settle this issue at some point within the so-called Canadian numbered treaties. And the issue we need to look at is if (the courts) impose a limit on the ability of the Crown to take up lands for development within” the lands of the 11 treaties signed between the Aboriginal peoples in Canada. “It’s going to cost a lot of the money, both in terms of lawyers' fees and experts."

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