Blueberry River wins cumulative impacts claim against B.C.

The B.C. Supreme Court has ruled the province breached its treaty obligations to the Blueberry River First Nation due to the cumulative impacts of industrial development in its territory, a decision the justice says has “constitutional implications” for alleged infringements of Aboriginal and treaty rights in Canada.

In her lengthy, 512-page ruling issued June 29, Madam Justice Emily M. Burke concluded the province’s regulatory system for assessing cumulative effects were lacking and contributed to its breach of obligations under Treaty 8.

Justice Burke said the extent of lands that have been taken up for forestry, oil and gas, mining, hydro, and forestry development, as well as associated land disturbances and wildlife impacts, means there are no longer “sufficient and appropriate lands” for Blueberry members to exercise their treaty rights.

“I recognize that the Province has the power to take up lands. This power, however, is not infinite. The Province cannot take up so much land such that Blueberry can no longer meaningfully exercise its rights to hunt, trap and fish in a manner consistent with its way of life,” Justice Burke wrote in the ruling.

“The cumulative effects of industrial development authorized by the Province have significantly diminished the ability of Blueberry members to exercise their rights to hunt, fish and trap in their territory as part of their way of life and therefore constitute an infringement of their treaty rights. The Province has not justified this infringement.”

A map of the traditional territory of the Blueberry River First Nation, which is challenging the cumulative impacts of resource development on treaty rights in B.C. Supreme court. By Ratcliff & Company

Treaty 8 was first signed in 1899, and Blueberry’s ancestors adhered to the treaty the following year in 1900, according to the ruling. The treaty was to protect aboriginal rights to hunt, trap, and fish in the area, subject to regulations by government and except for lands “taken up” for settlement, mining, lumbering, and trading, Justice Burke noted.

“At the time the Treaty was entered into, the Indigenous people were also promised that there would be no forced interference with their mode of life. They would be as free to hunt and fish after the Treaty, as they would be if they never entered into it,” Justice Burke wrote.

“Much has changed over the last 120 years. This case raises questions about what was intended in 1899 and 1900, how much change was anticipated, and how promises made over one hundred years ago are to be honoured and upheld today.”

The trial was lengthy and complex, taking place over more than 160 days in 2019 and 2020 after Blueberry first brought the claim to court in 2015, and which was later postponed in 2018 and restarted in 2019 as the two parties tried to negotiate an agreement.

“This is a historic day for our Nation. The Court has issued a strong, respectful and powerful judgment that holds the Crown to the true meaning of the promises made to our people, and all Treaty 8 people, the promises upon which this country was settled," said Chief Marvin Yahey.

"To get this confirmation from the Court after all the years we have been raising our concerns with the Crown is a very important recognition of our people, our culture and our way of life. Our elders and our young ones and all of us are very moved by this judgment, and now hopeful for the future. Now we have to get to work right away.”

'Constitutional implications'

According to the ruling, the province denied that it had infringed treaty rights, arguing that its regulatory processes for managing development and wildlife included policies such as consultation to consider and mitigate any cumulative impacts of development.

However, Justice Burke wrote that the courts have noted that Treaty 8 is not a final blueprint but the establishment of an "ongoing relationship."

Justice Burke also wrote that the case has "constitutional implications,” noting previous cases where First Nations have alleged treaty rights infringement have focused on either a single project approval, or specific provisions in government statutes and regulations.

“I find that, for at least a decade, the Province has had notice of Blueberry’s concerns about the cumulative effects of industrial development on the exercise of its treaty rights. Despite having notice of these legitimate concerns, the Province failed to respond in a manner that upholds the honour of the Crown and implements the promises contained in Treaty 8. The Province has also breached its fiduciary duty to Blueberry by causing and permitting the cumulative impacts of industrial development without protecting Blueberry’s treaty rights,” Justice Burke wrote.

“The Province has not, to date, shown that it has an appropriate, enforceable way of taking into account Blueberry’s treaty rights or assessing the cumulative impacts of development on the meaningful exercise of these rights, or that it has developed ways to ensure that Blueberry can continue to exercise these rights in a manner consistent with its way of life. The Province’s discretionary decision-making processes do not adequately consider cumulative effects and the impact on treaty rights.”

Read the ruling in full below:

Judge Burke, Re Yahey v. British Columbia, 06-29 by AlaskaHighwayNews on Scribd

Justice Burke said the province cannot authorize further development activities that breach its treaty obligations and promises, or otherwise unjustifiably infringe on Blueberry’s exercise of treaty rights. Burke has given the province and Blueberry River six months to negotiate changes.

That doesn’t necessarily mean the province can’t still approve industrial activity, but it can only do so with the approval of the First Nation, and in a way that does not infringe their treaty rights. This will require changes to various provincial land and resource regulations.

“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 Blueberry’s treaty rights, and to ensure these constitutional rights are respected,” Justice Burke wrote.

It's unclear whether the ruling will have implications for the Site C dam project on the Peace River or related infrastructure like transmission lines, which are projects that are already approved and under construction. The BRFN were among a number of First Nations that had attempted to halt Site C, but their application for an injunction failed.

In a statement to the Alaska Highway News, the ministry of Indigenous Relations and Reconciliation acknowledged the importance of the landmark ruling.

"This is a significant ruling and we will be working to determine the province’s next steps once we’ve had a chance to review what the judge has said," the minstry said in its statement.

"The written decision is long and complex but in light of the significant implications, we recognize the urgency. This work is a priority, given the timeline established by the court."