Cumulative effects - The impact of “a tide of change” on Indigenous treaty ‎rights

For sometime now, uncertainty has existed as to how the cumulative environmental effects of industrial development should be evaluated in relation to a potential infringement on Aboriginal or treaty rights. For the first time, a court has carried out a deep dive into this issue and considered whether there has been an infringement of a First Nations’ treaty right due to the cumulative environmental impacts of industrial development. 

When the prairies were first being settled, some of the Indigenous tribes of northeastern British Columbia negotiated the preservation of their rights to hunt, trap, and fish. The British Columbia Supreme Court’s decision in Yahey v British Columbia analyzes the cumulative impacts of industrial development in treaty territory finding the government’s conduct “frustrates the essential promise of the Treaty”. The Court held that the government’s protection of treaty rights has been ineffective, largely allowing the rights to meet a “death by a thousand cuts”. The judgment seeks to ‎ensure Indigenous people are not left “with an empty shell of a treaty promise”.

Treaties granting ‎the government rights and powers to take up land and pass regulations to conserve wildlife create ‎an “uneasy tension” between guaranteeing rights and imposing limitations on them. Courts have long been managing this “ongoing relationship” since neither ‎the treaty rights or the Crown’s rights are absolute.‎

Since this decision was rendered, the Province of British Columbia has issued a statement advising that it has decided not to appeal the decision and will work closely with the First Nations in the Treaty 8 territory, stakeholders and the public to build a path forward for resource development which provides economic activity, environmental sustainability and respect for Treaty 8 rights. This is a further demonstration that given the multitude of complex issues, including public policy issues that exist in cases of this nature, litigation is not always the best route to address such matters.

Significance of decision

This decision has lowered the bar for what will constitute an infringement of a treaty right. Rather than restricting the court’s analysis to one proposed industrial project at a time, this precedent setting case reviews various government policies and the projects that the provincial government has approved over a period of many years that cumulatively impact the original treaty promises. The lower Court expanded the protection of treaty rights by modifying the “no meaningful exercise of the rights” test endorsed by the Supreme Court of Canada to a comparative test finding an infringement when there has been a “significant or meaningful diminishment” of rights. Going forward, we expect more comprehensive holistic reviews prior to approval of new industrial projects on treaty lands. The impact of this decision is to effectively broaden the duty to consult and accommodate.

Background

Yahey is a member of the Blueberry River First Nation, which asserts a traditional territory of 38,000 square kilometres in the upper Peace River region of northeastern British Columbia. The Blueberry River First Nation adhered to Treaty No. 8 in 1900. While Treaty 8 governs 840,000 square kilometres of land and includes Indigenous signatories and adherents that spoke Cree, Dane-zaa and Chipewyan, this case considers less than 5% of that territory, only the area significant to Blueberry River First Nation. Yahey claimed that treaty rights have been eroded as polluted or disrupted land does not provide adequate hunting, trapping, and fishing for the Blueberry River First Nation. Forestry, the development of oil and gas, mining, hydro-electric infrastructure, land clearing, roads and other impacts have resulted in the breaking up of connectivity corridors. These corridors were previously integral habitat for wildlife. Traditional hunting knowledge has been disrupted as animals are less predictable in a changing landscape. Denied a stable environment, Yahey sought the assistance of the court to prevent further breaches of Blueberry River First Nation’s treaty rights.

The decision 

The Court provided four declarations:

1. The Province of British Columbia has breached its obligations under Treaty 8. Cumulative effects have not been properly taken into account or assessed when reviewing industrial development.


2. Blueberry River First Nation can no longer meaningfully exercise their treaty rights in their traditional lands. The province permitted industrial development that cumulatively has diminished treaty rights.


3. British Columbia may no longer authorize activities that breach the promises included in the Treaty. This declaration is suspended for six months to allow negotiation.


4. The parties must diligently consult and negotiate to assess and manage the cumulative impact of industrial development on Blueberry River First Nation’s treaty rights by establishing timely enforceable mechanisms.

Details of the decision

Canada, including its Indigenous communities, has changed significantly over the past century. This decision seeks to ensure the government honours its original promise not to interfere with a way of life that existed at the turn of the 20^th century, by emphasizing how industrial development has disrupted the hunter-gatherer semi-nomadic livelihood of 1900. 

Reconciling these issues is a difficult task given the continued economic development of Canada. This was demonstrated through a 160-day-case argued over one and a half years, resulting in a lengthy decision being released on June 29, 2021.

The Court noted that the Province of British Columbia did not provide an argument to justify the infringements on Blueberry River Nation’s treaty rights. The decision did acknowledge that the Blueberry River First Nation received over $18 million from 2006 to 2013 from an Economic Benefits Agreement with the Province of British Columbia. It is possible that a defence to justify the infringement of a treaty right will be further developed in subsequent litigation.

It was also noted by the Court that future considerations that may cause habitat alteration are:

• anthropogenic disturbances and activities;
• industrial development;
• climate change;
• a shift from a semi-nomadic way of life to a semi-settled one; and
• other factors that disrupt what previously was a relatively stable environment.

The Blueberry River First Nation was successful in stopping future industrial development authorizations in its traditional territory and the Province of British Columbia must now seek to engage with the Blueberry River First Nation to commence a negotiation process on how these matters will be addressed. As demonstrated in many cases considering Indigenous rights, the Court encouraged good faith negotiation, rather than litigation. 

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