Adding It All Up - Cumulative Impacts of Industrial Development & First Nations’ Rights

On June 29, 2021, the British Columbia Supreme Court (the “Court”) rendered a decision in the Yahey v. British Columbia case. The case held for the first time that the Crown’s power to take up lands for industrial development under a treaty could result in a violation of a First Nation’s treaty rights if industrial development on the lands resulted in the First Nation no longer being able to meaningfully exercise their treaty rights. The decision may have significant impacts on industrial developments involving forestry, oil and gas, and renewable energy in Canadian provinces.

BACKGROUND

The Blueberry River First Nation (“Blueberry”) has its territory in northeastern British Columbia (the “Province”). The territory falls within Treaty 8, which encompasses northern Alberta, northern Saskatchewan, northeastern B.C. and the southwest of the Northwest Territories. Treaty 8 was first signed in 1899 by Blueberry’s ancestors.

Treaty 8 protects Blueberry’s way of life from forced interference and their rights to hunt, trap, and fish in their territory. A taking up clause in the Treaty allowed the Province to take up lands within the Treaty territory for a specific purpose including settlement, mining, lumbering, or trading. Over the years, the Province had allowed forestry, oil and gas, hydro-electric infrastructure and agricultural development in the Treaty 8 territory.

To Blueberry, the extent of the Province’s development and displacement was fundamentally not what either party contemplated in entering into Treaty 8. It argued that the taking up clause did not modify, diminish or abrogate the Treaty’s essential promise to protect Blueberry’s way of life. The Province argued that Treaty 8 did not promise continuity of nineteenth-century patterns of land use but, rather, signalled the dawn of a period of transition.

The Court sided with Blueberry. It held that the Crown's power to take up lands must still honour the essential guarantee and promise of the Treaty to the Indigenous people. In this case, the extent of the lands taken up by the Province for industrial development meant that Blueberry no longer had sufficient and appropriate lands to meaningfully exercise their Treaty rights.