INTRODUCTION

On June 29, 2021, the Supreme Court of British Columbia issued reasons for judgment in Yahey v British Columbia.^[2] In the decision, Madam Justice Burke held that the Province of British Columbia infringed the Blueberry River First Nation’s rights held under Treaty 8, by allowing decades of industrial development in the Nation’s traditional territory.

Justice Burke found that Treaty 8 protects the Blueberry River way of life from forced interference, including its members’ rights to hunt, trap, and fish. These rights were guaranteed by the written terms of Treaty 8 and further oral promises made by the Crown to the adherents of Treaty 8 when it was negotiated in 1899 and 1900. Importantly, Justice Burke found that while Treaty 8 does provide BC with the power to “take up lands” pursuant to the terms of Treaty 8, the power to do so is “not infinite” and “must be exercised in a way that upholds the promises and protections associated with that treaty.”^[3] Accordingly, BC’s right to take up land is limited: it cannot take up so much land that Blueberry River members can no longer meaningfully exercise their rights under Treaty 8.

KEY TAKEAWAYS

Some key takeaways from this significant decision include the following:

• BC must develop and implement a comprehensive method of assessing the cumulative effects of development on Indigenous rights, specifically treaty rights. The Court ordered that it must do so in a very short time frame (6 months), and other provincial and territorial governments may consider whether to follow suit.
• This assessment of cumulative effects on Indigenous rights may need to be integrated into all decisions which relate to authorizing development on lands subject to such rights. As such, government departments, regulators, and tribunals may no longer be able to limit the assessment of a project only on its own individual impacts, but instead be required to evaluate the cumulative effects of approving such project — together with past, present and reasonably foreseeable projects and activities — on treaty rights. In addition to adding significantly to the information required by statutory decision-makers, this may require reconciling the interests of some Indigenous peoples to pursue or support resource development in their territory, and others who may wish to lessen cumulative impacts to their treaty rights, or even outright oppose further development because certain cumulative effects thresholds have been exceeded.
• Proponents wishing to develop projects on lands subject to treaty rights will no doubt begin considering how a particular project may fit into the broader scheme of development on the landscape. Projects that cause minimal effects in and of themselves, and may have been authorized in the past on that basis, may not be justifiable if there has already been extensive development in a particular area, particularly if it is being proposed in a key area for the exercise of treaty rights.

For this reason, such proponents should pay close attention to any assessment framework developed by BC in response to this decision.

THE BACKGROUND

Blueberry River’s territory is located in northeastern British Columbia, above the Montney gas basin. This area has been subject to significant oil and gas exploration and extraction for many decades. Blueberry River is a signatory to Treaty 8,^[4] and the basis of its claims in this case centered on the rights bargained for by Blueberry River under that treaty, and the Crown’s obligations owed to Blueberry River in that regard.

In this case, Blueberry River alleged that, over time, BC has authorized industrial development without due regard for the Nation’s treaty rights. In particular, Blueberry River alleged that the cumulative effects of development have had significant adverse impacts on its members’ abilities to meaningfully exercise their rights, and that BC had consequently breached Treaty 8 and unjustifiably infringed those rights. Accordingly, Blueberry River brought a claim for infringement, arguing that further development activities in its territory should be halted.

THE IMPORTANT PRINCIPLES

Location is Important – Critical Areas in Blueberry River’s Territory

As noted, Blueberry River’s position in this case was that its members were no longer able to meaningfully exercise their treaty rights. It brought forward evidence of specific locations of central importance to exercising those rights. These locations related in significant part to an area referred to as the “Blueberry Claim Area”, which Justice Burke found to generally accord with the area that Blueberry River’s members used and occupied at the time Treaty 8 was negotiated. Justice Burke noted that the extent of this territory and specific locations within it were both important to the assessment of any infringement of treaty rights, and that information related thereto should come from Blueberry River members themselves (including, specifically, from the historical accounts of Elders).

While BC argued that a First Nation could not bring claims to “core” or preferred areas within its territory, Justice Burke disagreed, stating that:

“[w]hen faced with allegations that important or core areas within a nation’s traditional territory are being impacted or destroyed, it is no answer to say: go elsewhere, you have a large territory.”^[5]

In other words, the issue of whether Blueberry River members could still exercise their rights in other areas (which may have been of lower cultural, ecological, or spiritual significance) was irrelevant. This finding corresponds with prior jurisprudence, including the comments of the Supreme Court of Canada in Mikisew Cree First Nation v Canada (Minister of Canadian Heritage),^[6] where Justice Binnie rejected a similar argument, stating that “it makes no sense from a practical point of view to tell the Mikisew hunters and trappers that, while their own hunting territory and traplines would now be compromised, they are entitled to invade the traditional territories of other First Nations distant from their home turf (a suggestion that would have been all the more impractical in 1899).”^[7]

The Test for Infringement – A Significant or Meaningful Diminution of Treaty Rights

A central and novel issue in Yahey concerned the proper test to prove infringement of rights under treaty, especially where the infringement in question is not alleged to arise from one specific project or event, but rather the cumulative effects of several projects or events that have occurred over an extended period of time.

The infringement test was first developed in R v Sparrow,^[8] where the court set out three key considerations for an infringement analysis:

1. whether the limitation on the right is unreasonable;
2. whether the limitation imposes undue hardship; and
3. whether the limitation denies the holders of the right their preferred means of exercising that right.

In R v Badger,^[9] a case dealing with Indigenous people ticketed for wildlife offences while exercising their rights under Treaty 8, the Supreme Court of Canada confirmed that the Sparrow test applies to an alleged infringement of treaty rights. Later, in Mikisew Cree, the Supreme Court of Canada examined Treaty 8 again in the context of a winter road being proposed, and noted that where a First Nation had no meaningful right to hunt, fish, or trap remaining in its territory, bringing an action for treaty infringement is a legitimate response.

In Yahey, relying on Mikisew Cree, BC argued that an action for infringement requires proof that there is no meaningful right to hunt, fish, or trap remaining whatsoever. Blueberry River countered that the proper way to interpret Mikisew Cree is to focus on whether there was a meaningful right left, not whether the rights can be exercised at all.

Justice Burke rejected BC’s argument, finding instead that Mikisew Cree “left the door open for holders of treaty rights to bring actions alleging their rights have been infringed, but did not set the threshold for such infringement claims as requiring proof that no rights remain.”^[10] Justice Burke noted that the appropriate test for an infringement occupies a “middle ground” between two ends of a spectrum. On one end, infringement is not established by any interference with the rights in question; on the other end, a claimant is not required to prove that the Crown has taken up so much land that no ability to hunt, fish, or trap remains whatsoever.

In applying this test, Justice Burke stressed that it is critical for a court to include context in their analysis. To do so, a court must consider a number of factors, including:

• applicable governmental regulatory schemes, as a whole;
• the history of development on the lands in question; and
• the historical use and allocation of relevant resources.

Thus, the appropriate test is to consider whether there has been a significant or meaningful diminution of the rights when viewed within the way of life from which they arise and are grounded.^[11]

Applying this test to Blueberry River’s claim in Yahey, Justice Burke found that the extent of the lands taken up by BC for industrial development rendered the remaining, undeveloped parts insufficient to allow Blueberry River members to meaningfully exercise their rights as promised under Treaty 8. In reaching this finding, Justice Burke examined data from 2018 which indicated that 85 per cent of the Blueberry Claim Area was within 250 metres of an industrial disturbance and 91 per cent was within 500 metres. Justice Burke concluded that the cumulative effects of provincially-authorized industrial development have significantly impaired the ability of Blueberry River members to exercise their rights to hunt, fish, and trap, which in turn amounted to an unjustified infringement of Blueberry River’s rights under Treaty 8.

Justice Burke found that BC had not met its obligations under Treaty 8 in a number of specific respects, for example:

• for at least a decade, BC had notice of Blueberry River’s concerns about cumulative effects of development, but failed to respond in a manner consistent with the honour of the Crown and the terms of Treaty 8;
• despite BC’s arguments to the contrary, provincial consultation processes “have not resulted in a consequential way to assess the cumulative effects of development in the Blueberry Claim Area”^[12] and “provincial regulatory regimes do not adequately consider treaty rights or the cumulative effects of industrial development”^[13]; and
• BC’s “piece-meal project-by-project approach” to consulting with Blueberry River regarding the effects of authorizing development in the Blueberry Claim Area was inadequate.

Justice Burke concluded that BC’s existing regulatory framework did not adequately consider cumulative effects and that the accumulated effects of discretionary decision-making under various statutes has led to the infringement of Blueberry River’s rights. Under the Supreme Court of Canada’s decisions in Sparrow, Badger, and Mikisew Cree, once an infringement has been established, the onus shifts to the Crown to demonstrate that the infringement is justified. However, in this case BC did not attempt to justify the infringement, arguing instead that “it could not advance a justification defence before the scope of [the rights claimed by Blueberry River] were known.”^[14]

Justice Burke disagreed, holding instead that “[t]he starting point is that the Indigenous people are entitled to what they have been granted in the Treaty.” As such, “[t]he Province must be taken to know the promises the Crown made to Indigenous people, and which it is bound to uphold today.”^[15]

THE COURT’S ORDERS

As a result of these findings, Justice Burke granted four declaratory orders:

1. BC’s Breach of Treaty 8 – In causing and/or permitting the cumulative impacts of industrial development on Blueberry River’s treaty rights, BC breached its obligation to Blueberry River under Treaty 8, including its honourable and fiduciary obligations. BC’s mechanisms for assessing and taking into account cumulative effects are lacking and have contributed to the breach of its obligations under Treaty 8;
2. Unjustifiable Infringement – BC has taken up lands to such an extent that there are not sufficient and appropriate lands in the Blueberry Claim Area to allow for Blueberry River’s meaningful exercise of its treaty rights. BC has therefore unjustifiably infringed Blueberry River’s treaty rights in permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry River’s exercise of its treaty rights in the Blueberry Claim Area;
3. No Further Authorizations (delayed implementation) – BC may not continue to authorize activities that breach the promises included in Treaty 8, including its honourable and fiduciary obligations associated with Treaty 8, or that unjustifiably infringe Blueberry’s exercise of its treaty rights; and,
4. New Mechanisms Required – The parties must act with diligence to 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, and to ensure these constitutional rights are respected.^[16]

Justice Burke suspended declaration #3 for six months to enable the parties to “negotiate changes that recognize and respect Blueberry’s treaty rights.”^[17]

A New Cumulative Effects Precedent

Justice Burke noted that in previous cases where Indigenous groups have alleged an infringement of Treaty rights, those claims have been premised on a single project approval or specific legislative provision. This case may therefore be used to argue that the cumulative effects of authorized development in a particular territory have infringed treaty rights.

Structuring Discretion by Provincial Decision-makers

Following Yahey, provincial decision-makers may need to restructure relevant regulatory systems to provide specific guidance relating to the exercise of discretionary powers, to minimize or avoid further infringements. This stems from Justice Burke’s strong criticism of BC’s decision-making structures over natural resource development. Referring to comments first made by the Supreme Court in R v Adams,^[18] Justice Burke found that BC “could not simply adopt an unstructured discretionary administrative regime which risked infringing Aboriginal rights. Instead, the statute or regulations had to provide specific guidance regarding the exercise of discretion which sought to accommodate the existence of the rights.”^[19]

Indeed, in this case Justice Burke was particularly concerned about the level of discretion afforded to individual decision-makers which lacked appropriate regard to cumulative effects and impacts to Blueberry River’s rights. Justice Burke held that “[i]n the end, these processes are at the discretion of the Province and its agencies, with no clear ability for Blueberry to enforce its treaty rights. That has to change.”^[20] Justice Burke added the following:

“The Province continues to have all the power, and ultimately little incentive to change the status quo. There is a clear need for timely, definitive, enforceable legal commitments that recognize and accommodate Blueberry’s treaty rights.”^[21]

Ultimately, Justice Burke found that the Crown “must guard against unstructured discretion and provide a guide for the decision-maker.”^[22] Specific guidance regarding the exercise of discretion must therefore be developed to correct BC’s current practices in this regard.

BC now has six months to consider adjustments to its applicable regulatory systems. In so doing, BC will need to engage with Blueberry River on establishing a mechanism for assessing the cumulative effects of development, and means to protect Blueberry River’s treaty rights.

Although Justice Burke made clear that changes of this nature are required, it is unclear what specific changes will be made both to BC’s method of cumulative impact assessment and the relevant regulatory systems. Further, it is unknown which parties will be involved in negotiating these changes beyond the parties involved in this case (other Indigenous groups, the federal government and industry stakeholders will undoubtedly be very interested in any proposed changes).

As a result, this decision is expected to have a significant impact on industries involved in resource development, particularly in Treaty 8 territory. At present, liquefied natural gas is seen by the provincial government as a key component of BC’s economic growth. With large sources of oil and gas still available in Treaty 8 territory, the government and industry will have to assess how to move forward with such development in light of Yahey. Industry representatives may anticipate a newly modified regulatory and cumulative effects assessment regime when seeking to engage in development in Treaty 8 territory. It is unclear whether this decision will affect any projects or developments which have already been approved.

Implications for Neighbouring Indigenous Groups

First Nations throughout Treaty 8 may now wish to bring similar challenges to industrial development near their communities. However, Yahey was a lengthy trial involving an extraordinary amount of evidence, including specific evidence from Blueberry River Elders going back many years. It is unclear whether, or the extent to which, the circumstances facing Blueberry River may be comparable to other areas of Treaty 8 territory. It is also unknown whether BC will be able to put a new regulatory process in place within the six month period provided by the Court.

On the other hand, some neighbouring Indigenous groups may be contemplating or already be involved in economic opportunities associated with industrial development. Any new regulatory process will have to consider the fact that some First Nations have opted to participate in economic development initiatives which may impact treaty rights, and therefore may be viewed as part of a set of infringing cumulative effects by neighbouring First Nations. This is likely to present a complex issue.

Broader Implications to Other Treaty 8 Jurisdictions – Alberta, Saskatchewan and the Northwest Territories

While this decision is focused on BC, the implications are likely farther reaching, given that the territory covered by Treaty 8 extends over a large portion of northern Alberta, Saskatchewan and the Northwest Territories. First Nation adherents to Treaty 8 in these other jurisdictions may rely on Justice Burke’s consideration of cumulative impacts and the corresponding limitation on the “taking up” clause to bolster arguments of infringement. In addition, similar “taking up” clauses are present in several other numbered Treaties across Canada. It remains to be seen how this decision will affect the interpretation and protection of rights under such other treaties, where “taking up” may be interpreted differently based upon the context of the treaty and the oral promises made at the time of signing.

Conclusion

Subject to any appeal by BC, the Court’s interpretation in Yahey of the law governing infringement of treaty rights, and of the Crown’s obligations under Treaty 8, is likely to inform other Canadian courts adjudicating claims of treaty right infringement by cumulative adverse impacts arising from Crown decisions authorizing resource development. As such, this decision has potentially far reaching implications across the country.

1. An earlier version of this article was published in the Gowlings WLG newsletter, see: gowlingwlg.com/en/insights-resources/articles/2021/bc-court-cumulative-effects-infringe-treaty-rights/.
   *Wally Braul, Maya Stano, Josh Jantzi, Paul Seaman are partners at Gowlings in Vancouver and Calgary. Mark Youden is an associate with the firm.
2. Yahey v British Columbia, 2021 BCSC 1287 [Yahey].
3. Ibid at paras 3, 1809.
4. A treaty within the meaning of the Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. The  Crown’s obligations under Treaty 8 have the force of constitutional law.
5. Yahey, supra note 2 at para 595.
6. 2005 SCC 69 [Mikisew Cree].
7. Ibid at para 47.
8. [1990] 1 SCR 1075, 70 DLR (4^th) 385.
9. [1996] 1 SCR 771, 133 DLR (4^th) 324.
10. Yahey, supra note 2 at para 508.
11. Ibid at para 541.
12. Ibid at para 1735.
13. Ibid at para 1880.
14. Ibid at para 1832.
15. Ibid at paras 1833–34.
16. Ibid at paras 1884, 1888.
17. Ibid at para 1895.
18. [1996] 3 SCR 101, 138 DLR (4^th) 657.
19. Yahey, supra note 2 at para 465.
20. Ibid at para 1416.
21. Ibid at para 1417.
22. Ibid at para 1767.