This blog was prepared with the assistance of summer law student Dexter Bricker.
The British Columbia Supreme Court has found that the cumulative effects of industrial development in Blueberry River First Nation’s (“Blueberry”) traditional territory have unjustifiably infringed its Treaty rights.
In Yahey v British Columbia, 2021 BCSC 1287, the Court ordered the Province of British Columbia to:
- stop authorizing activities that breach unjustifiably infringe Blueberry’s Treaty rights; and
- negotiate with Blueberry to establish timely and enforceable mechanisms to assess and manage the cumulative impacts on Blueberry’s Treaty rights and to ensure those rights are respected.
Justice Burke also held that:
- the Province’s mechanisms for accounting for cumulative effects were lacking and contributed to the Province’s breach of its Treaty obligations; and
- the Province had “taken up” lands under Treaty to such an extent that Blueberry no longer had sufficient and appropriate lands to meaningfully exercise its Treaty rights.
Yahey v British Columbia is the first time a Canadian court has found that cumulative impacts of past Crown decisions have infringed Aboriginal or Treaty rights. All previous infringement cases have focused on a single decision.
This case is expected to significantly contribute to the development of the law on infringement of Treaty rights, the Crown’s duty to consult and accommodate, and governments’ management of cumulative impacts on Aboriginal and Treaty rights.
It will be important to monitor how governments react to Yahey v British Columbia and any appeals of this decision.
Blueberry adhered to Treaty 8 in 1900. Treaty 8 protects Blueberry’s way of life including a meaningful right to hunt, trap and fish in its traditional territory. Blueberry’s traditional territory includes 38,000 km2 in the upper Peace River – the heart of the oil and gas industry in British Columbia.
Treaty 8 allows the Province to “take up” lands for settlement, mining, trading or other purposes. The Province has used that power to take up lands and has authorized extensive forestry and oil and gas development within Blueberry’s traditional territory.
Infringement Test in Treaty Context
A key issue in the case was whether the Province had taken up lands under Treaty 8 to such an extent that it infringed Blueberry’s Treaty rights.
The Province argued that authorizing lands for industrial use does not constitute “taking up” under Treaty 8 if those lands were still accessible to Blueberry members who can still exercise their Treaty rights in a limited way. It also argued, that in effect, a Treaty right was not infringed unless Blueberry members could no longer exercise that right at all.
The Court disagreed with the Province. Justice Burke held that the Province’s power to take up lands under Treaty 8 is not infinite – sufficient land must be left to meaningfully exercise Treaty rights. She further held that lands with significant disturbances, such as clearcutting, meant those lands were not available to meaningfully exercise Treaty rights – those lands had, in effect, been taken up despite Blueberry’s ongoing efforts to exercise its Treaty rights.
Justice Burke also held that an inability to exercise Treaty rights at all was not required to constitute infringement. She found that the extensive taking up of lands through industrial use constituted an infringement: “the tipping point has been reached, and that Blueberry’s treaty rights …. have been significantly and meaningfully diminished when viewed within the way of life in which these rights are grounded.”
The analysis in Yahey on Treaty infringement could have significant implications for the numbered Treaties across Canada.
The Duty to Consult and Regulatory Regimes
Justice Burke also found that the Province’s reliance on past consultation to prevent infringement was misplaced when that consultation was not sufficient to address cumulative effects and their impacts to Treaty rights.
She reviewed and analyzed the way in which the Province’s regulatory regimes (including forestry and oil and gas) failed to assess and manage cumulative effects on Treaty and Aboriginal rights.
The failure of project-specific consultation and the related regulatory regimes to grapple with the cumulative impacts on Treaty and Aboriginal has long be a sore point for Indigenous rights-holders. This case is one of the few to provide guidance on this question and will no doubt have reverberations across the country.
The MLT Aikins Indigenous practice group lawyers will watch for further developments in government policy and appeals of Yahey v. British Columbia.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.