BC First Nation Commences Treaty 8 Infringement Action Against Province

Blueberry River First Nations (BRFN) has commenced a novel treaty rights infringement claim (Claim) against the Province of British Columbia (Province). The Claim, filed March 3, 2015, alleges that the Province has breached its Treaty 8 obligations due to the cumulative impacts of provincially authorized industrial development in BRFN's traditional territory.1

BRFN's traditional territory is located in the Upper Peace River region of northeastern BC, around and mainly north of Dawson Creek, Fort St. John and Hudson's Hope.

The Claim is significant because it is one of the first treaty rights infringement claims to be argued primarily on the basis of cumulative impacts on a First Nation's entire traditional territory. The other significant case that stakeholders are watching closely is the ongoing claim commenced in 2008 by the Beaver Lake Cree Nation in Alberta alleging that cumulative effects of resource development violates its Treaty 6 rights, discussed in more detail below.

What are the key aspects of the Claim?

BRFN claims that the cumulative impacts of provincially authorized development have reduced access to its traditional territory and caused significant damage to the lands, waters and wildlife that are integral to BRFN's mode of life. BRFN argues that the extent of development has now reached the point of infringement, whereby BRFN's members have lost their ability to meaningfully exercise their treaty rights.

BRFN seeks a court declaration that, by causing or permitting such cumulative impacts, the Province has breached its treaty and fiduciary obligations to BRFN, and has infringed on BRFN's treaty rights. It also seeks interim and permanent injunctive relief against any activities that would cause further cumulative effects. If successful, the Claim could have significant implications for current and future projects located in BRFN's traditional territory.

What are the key terms of Treaty 8?

Treaty 8 is one of Canada's historical "numbered treaties". It was first entered into in 1899 between the Crown and various Aboriginal groups. BRFN and other Treaty 8 First Nations are the descendants of those groups.

Treaty 8 is considered a "land surrender" treaty because, according to the language of the treaty, the First Nation signatories agreed to surrender their lands to the Crown in exchange for certain benefits, including reserve lands and continued rights to pursue their traditional activities of hunting, trapping and fishing...