by Don Richardson, IBA Braiding
A Landmark Decision for First Nation Oversight and Management of Cumulative Impacts
“That persistent reality [of industrial development] has contributed to a compilation of adverse effects — or as is said — ‘death by a thousand cuts.’” - Justice Emily Burke of the British Columbia Supreme Court, in Yahey v. British Columbia, 2021 (BCSC 1287), June 29, 2021.
With this landmark decision, the B.C. government and Blueberry First Nations are asked to “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.”
Blueberry River First Nations are located in northeastern British Columbia and are members of the Treaty 8 First Nations. Blueberry River's territory extends over 38,300 square kilometres, including the Montney Basin, a major shale gas and tight oil resource area, with extensive industrial activity. Across 73% of the nation's territory, there is at least one road, hydro reservoir, pipeline, or gas well within a 250 metre radius.[1] The construction of the W. A. C. Bennett Dam in the 1960s flooded parts of the nation's territory.
There is no doubt Blueberry River First Nations have experienced massive cumulative impacts. What remains to be seen is how B.C. and the First Nations will work together to establish timely enforceable mechanisms to assess and manage the cumulative impact of industrial development.
“Blueberry’s knowledge and its ability to successfully hunt, trap, fish and gather depends on the health and relative stability of the environment. If forests are cut, or critical habitat destroyed, it’s not as simple as finding another place to hunt,” said Justice Burke.
Blueberry River Territory: Mule Deer and City of Fort St. John. Photo Credit: Jukka Jantunen
Quotes from Justice Burke
“I recognize that the province has the power to take up lands,” Justice Burke writes in her mammoth 512 page ruling. “This power, however, is not infinite. The province cannot take up so much land such that Blueberry can no longer meaningfully exercise its rights to hunt, trap and fish in a manner consistent with its way of life. The province’s power to take up lands must be exercised in a way that upholds the promises and protections in the Treaty."
“I find that the province’s conduct over a period of many years – by allowing industrial development in Blueberry’s territory at an extensive scale without assessing the cumulative impacts of this development and ensuring that Blueberry would be able to continue meaningfully exercising its treaty rights in its territory – has breached the Treaty.”
“I find a persistent pattern of redirection on the part of government officials in resource sectors, including oil and gas and forestry, as well as those involved in Indigenous relations, telling Blueberry that its concerns regarding the cumulative effects of development on the exercise of its treaty rights would be addressed elsewhere, at other tables, through other policies or frameworks."
While the judgement includes an order forbidding the authorization of industrial activities, Justice Burke decided to suspend that order for six months - which takes us to the end of December, 2021 - to allow the province and First Nation time to “expeditiously negotiate changes to the regulatory regime that recognize and respect treaty rights.”
Aurora Borealis over the Crooked River in Treaty 8 - Photo Credit: Robert Downie
A New Blueberry- B.C. Cumulative Effects Regulatory Regime
But what might a new ecologically responsible cumulative effects regulatory regime that respects Blueberry River First Nations rights look like?
Evidence from the case includes Blueberry's evidence that across its territory "projects approved between 2013-2016" included:
" 2,600 oil and gas wells
1,884 kilometres of petroleum access and permanent roads
740 kilometres of petroleum development roads
1,500 kilometres of new pipelines
9,400 kilometres of seismic lines, and
harvesting of approximately 290 forestry cutblocks."[2]
Blueberry's lawyer spoke about:
opportunities to extract resources at reasonable rates in the region while reducing impacts on Blueberry's territory and rights,
ensuring the harvest of timber is not disproportionally focused on the core of Blueberry’s territory,
ensuring sufficient recovery time in areas that have been clear-cut before harvesting further on adjacent blocks,
reducing waste wood from forestry and oil and gas that is cut but then left or burned,
compelling greater use of horizontal drilling and existing sites in oil and gas development to reduce surface disturbance,
ensuring any new development is mitigated by immediate restoration of a greater portion of land in order to begin to close the gap between development and restoration in the territory, and
implementation of protected areas at least in proportion to those found elsewhere in British Columbia
"In her decision, the judge offered very strong protection to our Treaty rights for the future. The province is no longer permitted to authorize industrial development in a way and scale that continues to infringe our rights, without our input or taking into account the cumulative effects on our Treaty rights. The province must now work with us in a new way to develop an approach that protects our territory and recognizes our rights. We celebrate the new framework and path forward for our nation and the territory that is so central to our past and our future," Message for Blueberry River First Nations Members, June 30, 2021 - Major Court Victory for Blueberry River First Nations in Protecting Lands and Way of Life for Future Generations.
Paddling Together
Paddling Together: Co-Governance Models for Regional Cumulative Effects Management, a 2017 report produced by West Coast Environmental Law provides some related insights on what the future cumulative effects regulatory regime might look like for Blueberry River First Nations and the B.C. government. Paddling Together looks at at best practices and models from around the world, and focuses on solutions that move beyond reactive, proponent-driven project-based assessment and operational permitting, to focus on the big picture at a strategic and regional level.
Paddling Together examines options for:
structuring collaboration between levels of government, including Indigenous governments, and between responsible agencies in the context of regional cumulative effects management;
ensuring that Indigenous legal orders equally inform co-governance structures, including identification of decision-makers, decision-making processes, and relevant criteria for decision-making;
integrating scientific and Indigenous knowledge into collaborative management of cumulative effects;
engaging stakeholders and the public in the process of collaborative management of cumulative effects;
giving effect to information, recommendations and decisions of collaborative management bodies; and
funding collaboration in regional cumulative effects management.
Five Potential Outcomes for a New Cumulative Effects Regulatory Regime
Paddling Together suggests the following five broad potential outcomes for the new ecologically responsible cumulative effects regulatory regime that respects Blueberry River First Nations rights:
Agreement: an agreement between Blueberry and B.C. to cooperate in some form of Regional Impact Assessment to better understand cumulative impacts, and to establish some form of Regional Assessment body to oversee assessments;
Regional Assessment Approach: a Regional Assessment report that describes existing and foreseeable sources of impacts on valued components - the rights and values that need to be protected, and in turn the attributes of those rights or values are often called “valued components” that can be measured, managed and maintained over time to ensure the integrity of the value or right;
Scenarios for Possible Futures: developing scenarios of “possible futures” regarding the pace and scale of development and how this will impact valued components;
Targets and Management Objectives: developing low risk targets and related management objectives for valued components, using a precautionary approach based on best available science and Indigenous knowledge;
Legally Binding Agreement on Implementing Outcomes: an agreement for implementing outcomes of Regional Impact Assessment that might include agreed upon approaches to:
land use planning - including legally binding measurable management objectives); · project-level assessment; · tenuring and regulatory;
joint approaches to permitting new projects through some form of collaborative project-level assessments;
joint approaches to future policy development for the ongoing cumulative effects regulatory regime;
a monitoring authority, with enforcement capabilities, appointed to monitor effects of human activities experienced within the region, implement outcomes from project-level and regional impact assessments, make recommendations for improved implementation where needed, and enforce the outcomes of land-use planning and project-level assessments, and
sources and mechanisms for funding the cumulative effects regulatory regime.
Background on Treaty 8
Blueberry River First Nations are a signatory to Treaty No. 8 signed on 21 June 1899 by the Crown and First Nations of the Lesser Slave Lake area. The treaty covers roughly 841,487.137 square kilometres of what was formerly the North-West Territories and British Columbia, and now includes northern Alberta, northwest Saskatchewan, and portions of the modern Northwest Territories and B.C. It is the largest treaty by area in the history of Canada. Canada was motivated to get the First Nations to sign the treaty before there was widespread recognition of the value of the resources on First Nation lands.
The boundaries of the proposed treaty were based on mining areas, the presence of prospectors, transportation corridors to the Klondike gold areas, and the need to create peace between the few existing settlers and the First Nations. Retired Indian agent James Walker wrote to Clifford Sifton, superintendent general of Indian Affairs, in November 1897, “They will be more easily dealt with now than they would be when their country is overrun with prospectors and valuable mines be discovered. They would then place a higher value on their rights.”
Based on the promise that nothing would be done to interfere with their way of life, the old and poor would be taken care of, that medical care would be provided as needed, and the guarantee that they would be able to hunt, trap and fish as they had always done, the Treaty signatories agreed to sign Treaty 8 with the Crown.