Treaty Infringement And The Management Of Cumulative Effects With Regional Plans

• Law Firm: McLennan Ross LLP
• Subject Matter: Government, Public Sector, Strategy, Management, Indigenous Peoples
• Author: Mr Gavin Fitch, K.C. and Alex Dingman
• Published date: 29 May 2023

In Yahey v British Columbia¹ the British Columbia Supreme Court ruled that the cumulative effects of approved resource development in the traditional territory of the Blueberry River First Nation in northeastern B.C. infringed on the nation's treaty rights to hunt, fish and trap. The B.C. Government elected not to appeal the decision but rather negotiate, as ordered by the Court, an Implementation Agreement² to establish "timely enforceable mechanisms to assess and manage the cumulative impact of industrial development" on the Blueberry First Nations' treaty rights.³

In July 2022, Duncan's First Nation, whose traditional territory is in northwest Alberta, filed a claim modeled on the Yahey claim; i.e. alleging infringement of their treaty rights by the cumulative impacts of development in their traditional territory on Treaty 8 land. The Government of Alberta recently filed its Statement of Defence in response to the claim. In its Statement of Defence, the Government of Alberta denies that its processes for assessing and managing cumulative effects are deficient, and asserts that cumulative impacts are adequately addressed through consultation and evaluation procedures before development projects are authorized.⁴

Given that Treaty 8 encompasses both northern Alberta and northeastern B.C., the result in Yahey and the Duncan's First Nation's claim in Alberta prompt consideration of whether there are differences between B.C. and Alberta that could result in a different outcome in Alberta. One difference is that under the Alberta Land Stewardship Act⁵, the Government of Alberta has existing tools for cumulative effects management.

On paper at least, the Land-Use Framework and ALSA's regional plans are part of the process for cumulative effects management and their existence is a significant difference in the regulatory landscapes of Alberta and British Columbia. Unfortunately, regional planning under ALSA has stalled and there are no regional plans that overlap with Duncan's First Nation's traditional territory. Given the B.C. Implementation Agreement's stated mechanisms for managing the cumulative effects of resource development through long- and short-term land-use planning, the Government of Alberta may wish to reevaluate the need to develop and implement the ALSA's regional plans.

Regional planning and cumulative effects management under the Alberta Land Stewardship Act

When the ALSA was passed in 2009, regional plans were intended as the primary tools for ensuring that conservation and stewardship guided a regional planning process that effectively balances growth...