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Evan Saugstad: Our land, your land, whose land?

At 1900 paragraphs, the B.C. Supreme Court's Blueberry decision is not an easy read. So, after a month’s reading, re-reading, and a couple more of contemplation, what did I conclude?
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Evan Saugstad: "Treaty 8 promised all signatories could hunt, trap, fish, and gather as they had before, while the government (first Canada, then B.C.) could take up lands for settlement, lumbering, trading, and other purposes, predating the discovery of oil and gas in the Peace. It would be a fair statement to say that those involved with drafting and/or signing the Treaty 8 document never imagined what Northeast B.C. would be like today and the difficulties there would be in reconciling this clause."

In July 2019, I wrote about Blueberry River First Nation’s cumulative impacts court case against the provincial government and its importance to all, not only here in the Northeast, but to all of B.C., and concluded, “Simply put, this is an important case, and at its conclusion, we all will lose something. There will be no winners. There can’t be.”

I continued: “Northeast B.C. will not go back to being 1898 and the people of Blueberry River (BRFN) will not go back to live a completely nomadic hunting and gathering lifestyle. Neither BRFN nor the rest of us will disappear. If industry goes away, BRFN members will take as big a hit as everyone else. In the end, I sure do hope that the meaning and intent of Treaty 8 is clarified, and for the betterment of us all.”

Court proceedings began May 2019, concluded November 2020, and in her reasons for judgment in June 2021, Madam Justice Emily Burke of the B.C. Supreme Court wrote, “I therefore conclude that the Province has breached its obligations to Blueberry under the Treaty in failing to act in accordance with the honour of the Crown to implement the Treaty promise that Blueberry’s rights to hunt, fish and trap would continue and that its mode of life would not be forcibly interfered with.” 

In issuing her verdict, Justice Burke found BRFN proved its case and the Government of B.C., the Crown, failed to disprove or justify their infringement of BRFN’s rights as defined in Treaty 8. The verdict is lengthy, 1900 paragraphs, and not an easy read.

If a few words could sum up this trial, it may be this, as taken from the Treaty 8 document that BRFN’s ancestors signed, with others, in 1900: 

“And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.”

Treaty 8 promised all signatories could hunt, trap, fish, and gather as they had before, while the government (first Canada, then B.C.) could take up lands for settlement, lumbering, trading, and other purposes, predating the discovery of oil and gas in the Peace. It would be a fair statement to say that those involved with drafting and/or signing the Treaty 8 document never imagined what Northeast B.C. would be like today and the difficulties there would be in reconciling this clause.

In her decision, Justice Burke noted “this is a novel case,” as previous infringement claims all involved single projects or authorizations.

She noted that, “this is not a static environment, with changes to both the environment and the regulatory regime. The Court’s task, however, is to consider the evidence before it in the context of this claim.”

So, after a month’s reading, re-reading, and a couple more of contemplation, what did I conclude?

Simply put, the B.C. government, through its witnesses and experts, came ill-prepared to justify or defend the magnitude of industrial development (agriculture, forestry, gas and oil, mining, and hydroelectric dams, including Site C) within BRFN’s traditional territory has/had on BRFN’s way of life as guaranteed by treaty.

Although the reasons for judgment are long and detailed, looking down from a 10,000-foot level, it could be summed up in a much shorter version. Justice Burke concluded that BRFN, their experts, witnesses, and band members were more “believable” than those used by the Crown: “I found each of these witnesses compelling and sincere in their testimony.”

A very telling statement on how she viewed the Crown’s defence on wildlife matters: “Overall, I did not have the same confidence in Mr. Simpson’s testimony,” Mr. Simpson being the one who testified on behalf of the Crown.

It’s my opinion that the Crown misread, deliberately or otherwise, that this case was about wildlife, or more explicitly, the lack of access to moose, caribou, martin, and fisher, all BRFN species of concern, and the guarantee that they could “hunt, trap, fish and gather” in perpetuity. The Crown presented little about wildlife, including past and current population levels, the effects industry can have on wildlife, or what government is doing to ensure wildlife exists in sufficient numbers that BFRN can pursue their guaranteed vocations.

Instead, the Crown relied on a plethora of Directors, Regional Managers, District Managers, and other bureaucrats to justify why government has the right to issue an endless number of industrial development permits, licences, and other land allocations, and that these issuances in their entirety have little to no effect on wildlife or on BRFN’s rights to “enjoyment” of the land.

The Crown failed to provide any rationale or insight as to what the limits of industrial development would be before, in their cumulative, they impacted BRFN’s rights. Instead, the Crown asserted BRFN could hunt, fish, trap or gather elsewhere. It also appears the Crown did not gather and present evidence regarding what BRFN members can, cannot, or currently do in respect to these vocations. The Crown only cross-examined BRFN members about those topics and did not try to investigate or lead any evidence to the contrary.

Justice Burke gave the Province and BRFN six months to negotiate an agreement and come to some form of resolution. As an interim measure, government signed an agreement with BRFN that provided $65 million in funding to support land restoration and cultural programs, restart 195 stalled forestry and oil and gas projects, defer 20 others, and committed to negotiations regarding future uses of the lands.

Negotiations continue, now almost 10 months later. The B.C. government did not seek leave to appeal this decision to the Supreme Court of Canada.

Next week, I will look at some key parts as to why Justice Burke came to the conclusions she did.

Read Justice Burke's decision in full below:

Judge Burke, Re Yahey v. Br... by AlaskaHighwayNews


Evan Saugstad lives and writes in Fort St. John.

Have a story or opinion to share? Email your letters to editor@ahnfsj.ca