British Columbia Supreme Court Issues Precedent-Setting Cumulative Effects Decision

• Published date: 12 July 2021
• Subject Matter: Environment, Government, Public Sector, Litigation, Mediation & Arbitration, Energy and Natural Resources, Environmental Law, Oil, Gas & Electricity, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr Sander Duncanson, Martin Ignasiak, Thomas D. Gelbman, Olivia Dixon and Tyler Warchola

Summary

On June 29, 2021, the British Columbia Supreme Court released its decision in Yahey v British Columbia, in which it ruled that the rights of the Blueberry River First Nations (BRFN) under Treaty 8 in northeast British Columbia had been infringed by the cumulative impacts of industrial developments within Blueberry's traditional territory, including forestry, oil and gas, renewable energy and agriculture. This decision marks a significant departure from past cases involving cumulative effects and treaty rights infringement. Depending on the outcome of any appeal, it could materially increase regulatory risks for new infrastructure projects in northeast British Columbia, and could extend to other areas in Canada where similar claims may be made.

Background

BRFN is a relatively small First Nation in northeast British Columbia (B.C.), with a reserve located approximately 80 kilometres northwest of Fort St. John. BRFN has roughly 190 members living on-reserve and 295 members off-reserve.¹ BRFN's traditional territory is approximately 38,000 square kilometres, spanning from the Alberta-B.C. border in the east to the foothills of the Rocky Mountains in the west, south to the Peace River, and north and east to Pink Mountain, Sikanni Chief, Lily Lake and Tommy Lakes. This area includes most of the Montney natural gas play in B.C., agricultural lands, various municipalities (including Fort St. John and Dawson Creek), active forestry areas, hydro-electric projects (including Site C), and several mines. BRFN's territory also falls within the area of Treaty 8, which BRFN's ancestors signed in 1900. BRFN's traditional territory also overlaps, to varying degrees, with the asserted territories of several other Indigenous groups who were not parties to the proceedings before the Court.

In 2015, BRFN filed a civil action seeking, among other things:

• a declaration that the B.C. government infringed BRFN's rights under Treaty 8, particularly the Crown's oral promises that Indigenous signatories would be as free to hunt, trap and fish after the Treaty as they would be had they never entered into it and the Treaty would not lead to forced interference with their mode of life; and
• to enjoin B.C. from approving any further developments within its traditional territory.

After a series of unsuccessful pre-trial applications, including two applications by BRFN to enjoin certain Crown conduct pending the outcome of the trial and a judicial review petition, the B.C. Supreme Court held a full trial to consider BRFN's civil claim. The trial included roughly 70 days of expert and lay witness testimony, tens of thousands of pages of written...