B.C. Supreme Court Declares Breach of Treaty 8 for Cumulative Effects of Industrial Development

On June 29, 2021, the British Columbia (B.C.) Supreme Court (Court) released its long-awaited decision in Yahey v. British Columbia (Yahey). After 160 days of trial and thousands of pages of evidence, the Court determined that the Government of British Columbia’s (the Province) conduct over the past 120 years has infringed the treaty rights of the Blueberry River First Nation (Blueberry).

This decision is significant in being the first to consider the legal test for determining whether cumulative effects arising from provincially authorized developments and regulatory regimes amount to an unjustified infringement of a historic treaty right. With other similar treaty infringement cases currently being pursued across Canada, the guidance from this case is likely to be instructive to other courts.

OVERVIEW OF THE CLAIM

Blueberry is a signatory to Treaty 8 and has a large traditional territory located in northeastern B.C. Treaty 8 promised Indigenous signatories they would have the “right to pursue their usual vocation of hunting, trapping and fishing” throughout the surrendered land, subject to government regulations and land “taken up from time to time” for purposes such as settlement, mining, lumbering and trading. Treaty 8 was supplemented by oral promises to the Indigenous signatories that “the same means of earning a livelihood would continue after the treaty as existed before it”.

Blueberry’s traditional territory has been subject to extensive forestry, oil and gas, hydro-electric, mining and agriculture developments over the past 120 years. The environmental impact in Blueberry’s traditional territory has been significant – less than 14 per cent of Blueberry’s traditional territory consists of intact forest landscape.

In this proceeding, Blueberry alleged that the meaningful exercise of its constitutionally protected treaty rights to hunt, trap and fish in its traditional territory had been infringed by the cumulative effect of industrial activities and developments authorized by the provincial Crown.

The Province defended the claim on the basis that Blueberry’s members maintain the ability to meaningfully exercise their rights within their traditional territory, and emphasized the Province’s express right to “take up” land from time to time under Treaty 8.

ANALYSIS

The Court reached four significant conclusions in this case, each of which we describe below.

A. Treaty 8 protects Blueberry’s way of life

First, the Court ruled that Treaty 8 included a promise to protect Blueberry’s way of life from interference. In reaching this conclusion, the Court considered the most recent Supreme Court of Canada decision addressing the substantive content of Treaty 8, Mikisew Cree First Nation v, Canada (Mikisew). Mikisew concluded that Treaty 8 was not a finished land use blueprint, but rather a document that contemplated change and was intended to govern the ongoing relationship between the parties. Treaty 8 would not have been concluded without the Crown’s assurance that Blueberry’s ability to hunt, fish and trap would be protected from interference as part of their way of life. The Province’s right to take up land granted by Treaty 8 is therefore not an absolute and independent right, but rather one that exists in relation to the competing protections of hunting, trapping and fishing rights.

B. Cumulative effects must significantly or meaningfully diminish treaty rights to constitute an infringement

Very few court decisions in Canada have considered the impact of cumulative effects on Aboriginal rights. In this case, the Court had the opportunity to consider what degree of interference will be necessary to establish infringement of a treaty right in the context of cumulative impacts. The Court concluded Blueberry was required to establish that there had been a significant or meaningful diminishment of the treaty rights.

In doing so, the Court rejected the argument that Treaty 8 is not infringed until no meaningful right to hunt, fish or trap remains. The Court also rejected the argument that the duty to consult, which is triggered by a potential adverse impact to a treaty right (as described in Mikisew), precludes an Indigenous group from bringing an infringement claim in appropriate circumstances. Although meaningful diminishment requires more than any interference with a treaty right, Blueberry did not need to show that its treaty rights had been effectively extinguished.

The Court also confirmed that Indigenous groups need not identify a single source of infringement. Such claims may consider the cumulative effects of development, the history of development of the lands, the whole of a regulatory regime, and the impacts caused by each.

With this test in mind, the Court concluded that Blueberry’s treaty rights (in particular their ability to hunt, fish and trap within the territories) had been significantly or meaningfully diminished when viewed within the way of life in which these rights are grounded. The Province did not demonstrate that the infringement of treaty rights had been justified.

C. The Province did not diligently implement the treaty

The Court determined the Province has failed to diligently implement Treaty 8 by failing to: implement permanent and binding protections for treaty rights; provide decision makers with direction on upholding or implementing treaty rights; and respond to Blueberry’s repeated assertions that the Province was breaching Treaty 8 by failing to consider cumulative effects.
In reaching this conclusion, the Court considered the extensive evidence introduced, by both Blueberry and the Province, with respect to the provincial regulation of natural resource development, the impact of Economic Benefits Agreements (EBA), and the ongoing development of a provincial cumulative effects framework.

The Court considered the impact of EBAs between Blueberry and the Province. The Province attempted to rely on the fact that Blueberry had previously entered into an EBA with the Province and had, between 2006 and 2013, received over C$18‑million in funding as a result of industrial development within its territory. However, in comparison to the C$100 - $175‑million the Province earned annually from the same activities, the Court concluded that such agreements did not indicate Blueberry’s support.

The Province attempted to rely heavily on a cumulative effects assessment framework that has been under development since 2012. The Court determined this framework was of limited impact because of its delayed development. In addition to this, the framework that has been developed to date did not set out thresholds beyond which decision makers should take action to address cumulative effects.

The evidence also demonstrated that the Province had been aware of Blueberry’s concerns with respect to cumulative effects since at least 2012 and had made no meaningful attempt to address Blueberry’s concerns. In fact, the Court found “a persistent pattern of redirection on the part of government officials” in response to these concerns.

Ultimately, the Court issued the following declarations:

1. The Province has breached its obligations to Blueberry under Treaty 8;

2. The Province has unjustifiably infringed Blueberry’s treaty rights by permitting the cumulative impacts of industrial development such that it has meaningfully diminished Blueberry’s ability to exercise its treaty rights;

3. The Province may not continue to authorize activities that breach Treaty 8 or that unjustifiably infringe Blueberry’s treaty rights; and

4. Blueberry and the Province must consult and negotiate for the purpose of establishing timely enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry’s treaty rights.

The Court suspended the declaration in paragraph 3 for six months to allow the Province to negotiate with Blueberry.

TAKEAWAYS

The text and historical context of Treaty 8 is similar to other numbered treaties negotiated across large portions of Canada, from northern Ontario to B.C. and into the territories. Each of the numbered treaties include a “taking up” right on the part of the Crown to use lands in a manner similar to Treaty 8, provided the taking-up does not leave the Indigenous treaty rights holder with no meaningful ability to exercise those rights. In areas of high industrial development subject to historic numbered treaties, Indigenous groups are actively challenging those limits on the basis of cumulative effects.

While it remains to be seen how the Province will respond to Yahey, particularly in light of its commitment to implementing the UN Declaration on the Rights of Indigenous Peoples, the decision represents the first time a court has found that cumulative effects can result in the infringement of historic treaty rights. This is a significant decision given the potential implications for litigation elsewhere in Canada. There is little question that the issues raised in Yahey will be considered by the Supreme Court of Canada at some stage. In the meantime, courts elsewhere will no doubt look to Yahey for guidance on this evolving issue.

For more information, please contact:

Sam Adkins                 604-631-3393
Rochelle Collette        604-631-3379

or any other member of our Indigenous group.