British Columbia Supreme Court Orders First Nation To Disclose Impact Benefit Agreements

The recent decision by the Supreme Court of British Columbia (BCSC) in Yahey v British Columbia (2018 BCSC 123, 25 January 2018) offers interesting insight into the circumstances in which benefit sharing agreements and accommodation payments might be disclosed. The issue of transparency around payments to indigenous groups by project developers is drawing increasing attention in litigation like the Yahey case and in regulatory initiatives like the federal Extractive Sector Transparency Measures Act.

Typically, such payments are protected by confidentiality clauses in the associated agreements between project developers and indigenous groups. However, the broader public interest in transparency can in some circumstances override the private interest to keep the payments confidential. We expect this trend to continue.

Background to the Treaty 8 Infringement Claim and this Decision

This decision is part of an ongoing action—started in 2015—by the Blueberry River First Nation (BRFN) against the Crown for infringement of BRFN Treaty 8 rights and breach of the Crown's fiduciary duty to the BRFN.

BRFN alleges that the Province has caused or permitted industrial development in BRFN's traditional territory to such an extent that the cumulative impacts have "increasingly pushed the Blueberry River First Nations to the margins of their traditional territory, and have now left the members with almost no traditional territory within which to meaningfully pursue their constitutionally protected cultural and economic activities."

Among other things, BRFN is seeking a permanent injunction against further development in its territory. On two occasions BRFN unsuccessfully applied to enjoin the Province from allowing further industrial development in its traditional territory pending trial of the civil claim (Yahey v British Columbia, 2015 BCSC 1302; Yahey v British Columbia, 2017 BCSC 899).

Trial of the action is set to commence on March 26, 2018, though the parties are still attempting to resolve issues relating to what documents should be disclosed in the proceeding.

One of the defences to the claim being advanced by the Province is that BRFN acquiesced to or benefited from the industrial developments in its territory that it says are infringing the exercise of its treaty rights. In support of this argument, the Province requested that BRFN disclose agreements it has entered into with industry parties operating in its territory. When BRFN refused, the...