BC Court Agrees Enough is Enough – Balancing Cumulative Effects and Treaty Rights

It’s called death by a thousand cuts. For well over a decade, or longer, First Nations in northern BC and Alberta have raised alarm bells concerning the cumulative effects of development in their traditional territories. They argue that because of extensive forestry, oil and gas, and other industrial activities, they can no longer meaningfully practice their way of life, including hunting, fishing and trapping, as promised by the treaties. In a landmark decision this past June, the British Columbia Supreme Court (BCSC) agreed with them, finding that Treaty 8 protects a nation’s way of life from forced interference.        

Blueberry First Nation is located north of Fort St. John, BC in Treaty 8. It sits above the well-known Montney Formation. The formation, which also stretches into Alberta, will likely form the backbone of any last oil boom(s) in western Canada, and is expected to produce gas for any offshore LNG projects.

In Yahey v British Columbia, 2021 BCSC 1287 (“Yahey”), the BCSC found extensive industrial activity on the traditional territory of Blueberry First Nation unjustifiably infringed the Nation’s treaty rights. The cumulative effects of development prevent the nation from meaningfully exercising its right to hunt, fish, and trap in a manner consistent with its way of life. The nation had been raising these concerns for over 10 years. Pointing to the “honour of the Crown”, the court ordered the province to stop issuing any further permits that could infringe on Blueberry’s rights. The order, which starts six months after the decision, will stay in place until timely and enforceable mechanisms to manage cumulative impacts on treaty rights are established through negotiations with the nation. The province will not appeal.

The Yahey decision is the first time a Canadian court has found that the cumulative effect of industrial development is unjustifiably infringing on treaty rights, creating a roadmap for future litigation.  

Following a series of Supreme Court of Canada decisions in the early 2000s, companies with projects that could affect the rights of Indigenous peoples are required by provinces to consult and, if necessary, accommodate affected Indigenous communities. In Alberta, this “site specific” consultation applies only to a project’s immediate footprint. Concerns raised by Indigenous communities over downstream or cumulative effects of industrial development are deferred to the Government of Alberta’s cumulative effects management tools. These tools consist of a sometimes opaque, and often incomplete, system of land-use frameworks, regional planning initiatives and Integrated Resource Plans.

In the early 2000s, Alberta committed to creating 7 regional plans to manage cumulative effects in the province. Since then, only 2 of the 7 plans are in place: Lower Athabasca and South Saskatchewan. 

With some exceptions, most of Alberta’s cumulative effects management tools are created with some level of input from First Nations concerning how to balance development with Treaty Rights. Much of this input is also simply ignored. Nearly all these tools have been heavily criticized by First Nations as unaccountable and ineffective at balancing development with adequate protection of treaty rights.

One of those nations is Fort McKay First Nation. At night on its reserve, you can see lights from oilsands projects in every direction. The smell of bitumen often lingers in the air and many elders are concerned about contamination of wildlife. In the early 2000s, the Nation put aside their own court challenge based on cumulative impacts in part due to a promise by Alberta to negotiate an agreement that would see stricter management of development within a 10-kilometer radius of its Moose Lake reserve. The area is considered sacred to the Nation and is the last place they can meaningfully practice their way of life. Alberta’s promise languished until 2014 when then Premier Jim Prentice agreed to kick-start negotiations. While the Premier Rachel Notley government moved negotiations along, ultimately a deal was not reached with Alberta until last year, nearly two decades after the idea was first proposed.    

In February of 2021, the Supreme Court of Canada granted leave to appeal to Beaver Lake Cree Nation in another cumulative effects-based case against Alberta. The Nation claims Alberta has systematically failed to uphold Treaty 6 by allowing so many projects in their traditional territory that meaningful exercise of their treaty rights to hunt, fish, and trap are no longer possible. Alberta chose court over negotiating with the Nation, here. Time will tell how the Supreme Court of Canada decides.     

Given the recent string of court victories by Indigenous communities, provinces would be wise to start negotiating robust agreements or start providing Indigenous governments meaningful involvement in natural resource management decisions if they hope to stave off future litigation loses.

Meanwhile, most Métis communities in Alberta are waiting to be consulted at all – for another day.