British Columbia Supreme Court Sets Precedent For Consideration Of Cumulative Effects On Treaty Rights

• Published date: 22 October 2021
• Subject Matter: Litigation, Mediation & Arbitration, Energy and Natural Resources, Oil, Gas & Electricity, Trials & Appeals & Compensation
• Law Firm: Burnet, Duckworth & Palmer LLP
• Author: Ms Marlena Bova

On June 29, 2021, the British Columbia Supreme Court released its long anticipated decision in Yahey v British Columbia, 2021 BCSC 1287 (Yahey) wherein the Court determined that the Government of British Columbia's conduct over the past 120 years had infringed the treaty rights of Blueberry River First Nation.

This decision is the first to consider the legal test for determining whether the cumulative effects arising from provincially authorized developments amount to an unjustified infringement of treaty rights.

The case

The British Columbia Supreme Court found in favour of Blueberry River First Nation (BRFN), respecting its claim that the cumulative effects and impacts of industrial development in BRFN's traditional territory in northeastern British Columbia have resulted in its inability to meaningfully exercise treaty rights under Treaty 8.

Despite promises made under Treaty 8 respecting BRFN's rights, the subject area had been exposed to extensive forestry, oil and gas, hydro-electric, mining and agriculture developments for the last 120 years.

The Court found that BRFN's ability to successfully hunt, fish and trap depends on the health and relative stability of the environment Under Treaty 8, the Court agreed that B.C. has the power to "take up" lands, essentially meaning they may authorize the use of the land for industrial development. However, the Court found that the Province's continuous conduct since the onset of Treaty 8 in 1900 permitted industrial development "at an extensive scale without assessing the cumulative impacts" in BRFN's traditional territory. The Court found that B.C. had notice of the cumulative impacts on BRFN's ability to exercise treaty rights since at least 2012, particularly in respect of the impacts caused by oil and gas development. Accordingly, Justice Burke ruled that B.C. had both breached Treaty 8 and infringed upon BRFN's treaty rights.

In coming to its decision, the Court rejected the argument that Treaty 8 is not infringed until no meaningful right to hunt, fish or trap remains. BRFN did not need to show that it had no ability to exercise its treaty rights, but rather that such rights had been significantly or meaningfully diminished, when holistically viewed in the context of their way of life. Likewise, BRFN did not need to allege a treaty infringement from one single regulatory provision or decision. Its claim engaged provincial regimes dealing with forestry, oil and gas, wildlife management as well as...