Case Law Update: Summary Of Yahey v. British Columbia

• Published date: 21 July 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Clark Wilson LLP
• Author: Mr Saul Joseph and Melanee Bryniawsky

On June 29, 2021, the British Columbia Supreme Court (the "Court") released the decision Yahey v British Columbia ("Yahey").¹ In this landmark case, the Court conducted an extensive and thorough review of the cumulative effects of industrial development in northeastern British Columbia and determined that these impacts breached the promises and obligations owed to Blueberry River First Nation ("Blueberry") pursuant to Treaty 8.

The first decision of its kind, this case provides a new framework for the consideration of cumulative impacts and provides the Province of British Columba (the "Province") with notice that cumulative impacts must be properly considered in advance of any further decisions which approve industrial activity in Treaty 8 territory.

Treaty 8

Treaty 8 is one of the historic treaties in British Columbia. Treaty 8 assures adherent First Nations of their rights to hunt, trap and fish throughout Treaty 8 territory, subject to regulation and the taking up of lands by the Province from time to time for settlement, mining, lumber, trade or other purposes.

Parties' Positions

At trial, Blueberry asserted that, since the signing of Treaty 8, the cumulative effects of various provincially authorized industrial development within their traditional and Treaty territory have damaged the forests, land, watersheds and wildlife such that they can no longer continue their mode of life as promised under the Treaty. Blueberry further asserted that the Crown failed to diligently implement the Treaty promise to protect Blueberry's rights and way of life which is a breach of both the honour of the Crown and the Crown's fiduciary duty towards Blueberry.

The Province alleged that Blueberry's rights must be balanced against the Province's right to "take up lands" and that the existing regulations require consultation and these processes were sufficient to avoid infringement and to mitigate potential adverse impacts.

The Court's Decision

Ultimately, the Court found that:

1. the Province cannot take up so much land that there is a meaningful diminishment of Treaty rights;
2. the Province's authorization of intensive industrial development was in breach of Treaty 8 as there were no longer sufficient lands in Blueberry's territory to allow for the meaningful exercise of its treaty rights;
3. the Province's various regulatory regimes did not have existing legally-enforceable mechanisms to adequately consider cumulative effects; and
4. the Province had consistently and...