Treaty Rights And Resource Development: The Cumulative Effects Claims Begin To Pile Up – Indigenous Peoples
In our 2021 legal year in review update, the landmark decision of the BC Supreme Court in Yahey vs British Columbia (Yahey), which determined that the cumulative impact of industrial development on the Blueberry River First Nations’ ancestral lands (Blueberry River) constituted a violation of their rights under Treaty 8.
Yahey prompted other First Nations communities and groups to file lawsuits alleging breaches of contract due to the cumulative impact of industrial development.
The increase in breach of contract lawsuits with cumulative effects is an evolving area of Indigenous law with potentially critical implications for resource development and the regulatory framework for project evaluation across Canada.
The BC Supreme Court’s decision in Yahey
In June 2021, the BC Supreme Court ruled Yaheythat the cumulative impact of resource development in an area of northeast BC constituted a violation of Blueberry River’s Contract 8 rights. As a result of industrial development, at least 85% of Blueberry River’s traditional territory was within 500 meters of an industrial feature. The court found that due to the amount of land claimed by the Province of B.C. for industrial development, Blueberry River did not have sufficient land to exercise its treaty rights to hunt, trap and fish in a manner that would corresponds to his way of life. Additionally, the court ruled that BC’s regulatory system failed to adequately account for or assess the cumulative impact of development on contract rights.
The rise of infringement lawsuits with cumulative effects is an evolving area of indigenous law with potentially critical implications for resource development.
As a remedy, the court stated that the province could not continue to authorize activities that would further violate Blueberry River’s contractual rights. This resulted in a suspension of permit applications in the area. Significantly, the subject area of northeast BC is the site of important resource development activities, including the Site C hydroelectric power plant, most of BC’s natural gas production, and mining and forestry operations.
The BC government did not appeal Yahey. Instead, it entered into negotiations with Blueberry River to assess and manage the cumulative impact of industrial development. The parties reached an initial agreement in October 2021, setting up a $65 million fund for Blueberry River to protect its way of life, restore land and create economic opportunity in the community, among other things. A final agreement to implement changes to BC’s approach to reviewing industrial activities to address cumulative impacts and contract rights is pending.
In front-Yahey Expectations
Even though Yahey being the first decision finding a contract breached on the basis of cumulative effects of development over a period of years, this was not the first lawsuit brought on these grounds. Two previous lawsuits also allege breach of contract based on cumulative effects. The first involves the Beaver Lake Cree Nation, a signatory to Treaty 6, with traditional territory northeast of Edmonton, Alberta. The second involves the Carry the Kettle Nakoda Nation (CTK), a signatory of Treaty 4, with traditional territory east of Regina, Saskatchewan. These claims remain.
Post Office-Yahey Expectations
In July this year mirroring jahey, Duncan’s First Nation (DFN) filed a lawsuit against the Alberta government, alleging an unjustified violation of their treaty rights due to the cumulative impact of development in their traditional territory. Like Blueberry River, DFN is a signatory to Treaty 8. Its traditional territory is in the Peace River area of northern Alberta, an area that supports oil and gas, forestry, mining and other industries.
The central premise of the lawsuit is that as a result of Alberta’s permitting resource development and other activities, DFN no longer has sufficient land and resources to support the meaningful exercise of its treaty rights and way of life. The DFN is applying for a similar relief as in Yahey. These include court orders declaring that Alberta’s regulatory mechanisms are ineffective for assessing cumulative impacts and directing the province to establish new mechanisms for assessing cumulative impacts of development. DFN is also trying to bar the province from allowing activities that further violate DFN’s treaty rights.
In late September, Chapleau Cree First Nation, Missanabie Cree First Nation, and Brunswick House First Nation filed a lawsuit against the Ontario government, alleging that cumulative effects of development violated their treaty rights. The traditional territories of these three First Nations lie within Treaty 9 in the James Bay region of Ontario.
In addition to pursuing the same types of claims and remedies as are asserted in Yahey, these First Nations are seeking several other remedies, including payment by Ontario of a fair share of the net profits the province has made from permitted industrial activities in the region since 1905. They are also demanding a statement that recent changes in environmental legislation and regulations granting exemptions for certain forestry activities unjustly violate their contract rights, as well as a statement that aerial spraying of pesticides without proper authorization violates their contract rights.
Focus on the provision of contract 8 Yaheyprotects a First Nation’s right to hunt, trap, and fish in its traditional territory, subject to state regulations and the government’s ability to claim land for specific purposes. A version of this provision is included in nine of the eleven numbered treaties across the country. These treaties cover an extensive part of Canada, including most of Ontario. parts of British Columbia, the Yukon and the Northwest Territories; and all of Manitoba, Saskatchewan and Alberta.
Given their complexity, it will take several years for these lawsuits to be brought to court (or otherwise resolved). In the short term, First Nations filing these claims could seek injunctions preventing provinces from approving new development projects or modifications to existing projects on their traditional territories. During the course of its litigation, Blueberry River applied for two such injunctions. Both were eventually dismissed by the BC Supreme Court; However, applications for injunctions to prevent development in the disputed areas until the claims are resolved remain possible. Requests for injunctive relief are decided based on the unique facts of each case.
Courts in other provinces do not have to follow the BC Supreme Court’s decision Yahey. As a lower court decision in a federal state, the reasoning in Yahey is not legally binding elsewhere in Canada. Furthermore, Yahey was decided on the basis of extensive historical, anthropological, anthropogenic and oral evidence specific to the claim area, Blueberry River’s historical and contemporary use of the region and the nature of the developments permitted by the province in the Blueberry River traditional area. The decision was also based on the province’s specific permitting and licensing procedures, which the court found ineffective to address the development’s cumulative impact on contract rights. As each province has its own unique history as well as its own development and regulatory system, the extent to which courts in other provinces will adopt the reasoning and outcome Yahey remains to be seen.
The potential for cumulative impacts delaying or halting changes to ongoing projects and the evaluation and approval of proposed projects underscores the importance of early and frequent engagement with local Indigenous communities and groups to discuss concerns, mitigation actions and/or potential Consider impacts on indigenous rights (including cumulative impacts on such rights) and make arrangements to share in the benefits of a project and obtain consent or non-objection.
In addition, project promoters and advocates working in areas where cumulative claims are made should monitor these processes and seek legal advice where they may be directly affected parties. The involvement of operators and advocates is particularly important when a complaining indigenous community or group is seeking an injunctive or permanent injunctive relief that could affect the construction or operation of the project. Both perspective and evidence from operators and proponents can be critical to resisting such facilitation and thereby allowing projects to proceed as planned.
The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.