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Evan Saugstad: What influenced the Blueberry decision?

Justice Burke did find that while the Province has the power to take up lands, it is not infinite and not without limits.
Treaty8-SupremeCourt
Evan Saugstad: "Justice Burke noted government kept changing the rules in respect to assessing cumulative effects; that it kept asking Blueberry River to be patient and give government more time to find solutions; that it would drop one incomplete process in order to begin another, and, in the end, never complete a cumulative effects assessment, all while the number of industrial permits increased."

Last week, I wrote on the background of the B.C. Supreme Court’s decision in Yahey v. British Columbia, with a high-level view of Madame Justice Emily Burke’s findings and some of her reasonings.

I did not read all court documents, only her decision. My writings are based on the premise Justice Burke noted all evidence of significance or bearing when determining this case, and excluded others deemed not of significance.

This was a civil law case, and the first of its kind as all other precedent-setting cases were in opposing a single government action. Justice Burke only considered evidence presented - if the Blueberry River First Nation or the Crown did not bring it forward, she did not go looking.

After reading the decision, I concluded Justice Burke placed greater weight on BRFN’s lack of access to wildlife (moose, caribou, martin and fisher) caused by the cumulative impacts of settlement and industry, and that this was interfering with their treaty rights, versus the Crown’s assertion that government had honoured Treaty 8 through proper consultation and accommodation in justifying such infringements and impacts.

The Crown presented little compelling evidence contrary to that of BRFN. As example, when BRFN stated they currently have a more difficult time time finding moose compared to years prior, that became the fact. BRFN is, and was, under no obligation to report their moose harvest numbers to government. When the Crown did ask BRFN for such information, the courts were told it was not up to BRFN to give evidence against themselves.

The Crown presented little in terms of past or current moose populations. Information such as significant moose die-offs due to long, cold winters, followed by severe tick infestations within the past couple of decades, can partially explain low numbers — some estimate up to 80% died in some areas. The Crown did not present evidence showing moose successfully live in other places where intensive forestry, gas and oil production, and agriculture occur. There was no discussion that only people with treaty rights can harvest cow moose and the influence that this harvest can have on population dynamics.

When the Crown stated that BRFN could hunt in other parts of Treaty 8 where moose and other game were more plentiful, BRFN countered they were used to being able to hunt near home, that travel was difficult or driving on industrial roads more dangerous for some, and that if they did go elsewhere, not knowing the area made hunting more difficult and could be interfering with other nation’s traditional rights.

Justice Burke concluded that post-treaty impacts in Blueberry’s core traditional use area resulted in insufficient moose to satisfy BRFN’s needs, and requiring them to hunt elsewhere was an interference on their traditional way of life.

Both agreed caribou declines were related to industrial impacts, but no significant discussion occurred that caribou in some parts of B.C. also continue to decline despite little to no industrial development. Both sides agreed that martin and fisher numbers have declined but differed as to why.

Justice Burke accepted BRFN’s evidence that, “caribou have declined …and that anthropogenic disturbance has largely caused or contributed to that decline… moose have declined… that anthropogenic disturbance is the likely cause of that decline… that industrial activities… have had negative impacts on marten and fisher… Overall, it is clear that wildlife populations that are important to Blueberry are in a reduced state that is likely to interfere with Blueberry’s hunting and trapping rights. The evidence establishes that the declines are the result of anthropogenic disturbance, including industrial development impacts upon habitat.”

The Crown argued that, “on the facts of this case, Blueberry members are free to hunt, fish and trap, and they have not identified regulatory restraints prohibiting their exercise of rights.”

Justice Burke found otherwise. She also noted government kept changing the rules in respect to assessing cumulative effects; that it kept asking BRFN to be patient and give government more time to find solutions; that it would drop one incomplete process in order to begin another, only to change that, and, in the end, never complete a cumulative effects assessment, all while the number of industrial permits increased. The Crown had no response to these findings.

Justice Burke did find that while the Province has the power to take up lands, it is not infinite and not without limits. When asked, the Crown could not specify those limits.

She also reiterated that, “The Supreme Court of Canada has also repeatedly stated that the treaty rights of Indigenous peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature.”

She noted numerous times the Crown said it would provide further information later in the trial, and never did; that they repeatedly questioned their own reports as not being factual and could not explain that when they had further information available it was never shared with BRFN. In terms of accommodation for impacts, the Crown provide evidence that, “From 2006 to 2013, Blueberry received funding of over $18 million under these agreements.”

Justice Burke’s response? “While this initially appears to be a significant sum, it should be evaluated in light of provincial oil and gas revenues during that time… the Province’s annual revenue could range from $100 million to $175 million in a given year.”

Nothing is noted as to what or if other funding sources from other Ministries or industry was ever provided.

Justice Burke did go into far greater detail in her judgment, these are some examples that I pulled out to give the flavour and overview of her conclusions.

Next week, where do we go from here?

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

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