First Nation Ordered To Produce Private Agreements With Industry – Update On Blueberry River First Nations Treaty 8 Infringement Proceedings

In 2015, Blueberry River First Nations (BRFN) commenced a significant treaty infringement claim against the Province of British Columbia. BRFN claims that the Province is in breach of its obligations under Treaty 8 due to the cumulative impacts of development in BRFN's traditional territory, which has resulted in its members being unable to exercise their traditional practices as intended under the treaty.

The trial is scheduled to commence in BC Supreme Court on March 26, 2018, for over 90 days.

The claim is one of the first to allege an infringement of treaty rights on the basis of cumulative impacts to a First Nation's entire traditional territory.1 If successful, BRFN's efforts to obtain a permanent injunction against further resource development could affect current and future projects in BRFN's traditional territory (including gas and pipeline operations and other major resource projects in the region, including BC Hydro's Site C hydroelectric project). The claim could also set an important precedent for other First Nations in British Columbia and across Canada (treaty and non-treaty) which may consider challenging Crown authorizations and resource development on the basis of cumulative effects.

Pending trial and resolution of its claim, BRFN has unsuccessfully applied for interlocutory injunctive relief against particular resource development activities in its traditional territory - see Yahey v. British Columbia, 2015 BCSC 1302 and Yahey v. British Columbia, 2017 BCSC 899.

Recent document production order

On January 25, 2018, Madam Justice Burke of the BC Supreme Court issued a noteworthy production order decision in Yahey v. British Columbia, 2018 BCSC 123. The Province applied for further production of documents by BRFN in advance of trial covering a number of broad categories, including industry benefits documents (such as impact benefit and revenue sharing agreements, donations, and revenue received by BRFN from companies). The Province argued that such documents are relevant to the issues in the litigation because they:

relate to the Province's pleading that BRFN has benefitted from or acquiesced in the industrial developments, thus preventing BRFN from seeking equitable relief based on the doctrines of "clean hands" and acquiescence, and that IBAs with industrial proponents provide evidence of an adequate alternative remedy to a permanent injunction; speak to the nature of the change foreshadowed by Treaty 8, how BRFN has...