Cumulative Effects played a key role in the British Columbia Supreme Court Decision Yahey v British Columbia.

15.07.21 10:30 AM

On June 29, 2021 the British Columbia Supreme Court released its decision in Yahey v. British Columbia


The June ruling followed a 160 day trial and found that cumulative impacts of industrial activities within the traditional territory of the Blueberry River First Nations (BRFN) had infringed upon the rights of the BFRN. Industries under scrutiny include forestry, oil and gas, renewable energy, and agriculture. The decision is uncommon, past cases relating to treaty rights infringement due to cumulative effects have not achieved the same outcome. While the ruling is still pending appeal, industry faces significant regulatory risks on new projects if the BRFN wins the case. Northeast British Columbia would most certainly be affected, and jurisdictions across Canada could face similar claims.


Overview of the Claim

Blueberry is a signatory to Treaty 8.  Part of Treaty 8 is located in northeastern BC.  The treaty promises the indigenous the "right to pursue their usual vocation of hunting, trapping and fishing".   The area in question has had many forestry, oil and gas, hydro-electric and mining developments over the last 120 years.  


The province defended the claim on the basis that the signatories maintain the ability to exercise their rights within their area.


BC Supreme Court Justice Burke stated in her ruling, “Despite having notice of Blueberry’s concerns, I find that the Province has failed to respond in a manner that upholds the honour of the Crown and the obligation to implement treaty promises “ the 500+ page document included, “Allowing development to proceed in the face of these substantial and well grounded concerns could not be said to be acting with good faith, loyalty, or ordinary prudence with a view to Blueberry’s best interests. Ordinary prudence requires long-term planning, looking ahead and considering the likely future effects of current decisions, as opposed to simply stubbornly “staying the course.”


The court reached 4 main conclusions in the decision. 


1. Treaty 8 Protects Blueberry's ways of life


Justice Burke found that Treaty 8 “protects Blueberry’s way of life from forced interference, and protects their rights to hunt, trap, and fish in their territory.”  she also said "that the Crown will not significantly affect or destroy the basic elements or features needed for that way of life to continue.” the Province cannot take up so much land that Blueberry “can no longer meaningfully exercise its right to hunt, trap, and fish in a manner consistent with its way of life.”


2.  The treaty rights have been significantly or meaningfully diminished


Justice Burke held that the appropriate standard to establish infringement in this case was whether Blueberry’s treaty rights

“have been significantly or meaningfully diminished when viewed within the way of life from which they arise and are grounded.”


The Court rejected the Province’s argument that the test for infringement of Treaty 8 was “whether the Crown has taken up so much land that ‘no meaningful right’ to hunt, fish or trap remains,” 


The Court concluded that Blueberry’s treaty rights (in particular their ability to hunt, fish and trap within the territories) had been significantly or meaningfully diminished when viewed within the way of life in which these rights are grounded. The Province did not demonstrate that the infringement of treaty rights had been justified.


3. BC did not diligently implement the treaty


The Province may not continue to authorize activities that breach the promises included in the Treaty, including the Province’s honourable and fiduciary obligations associated with the Treaty, or that unjustifiably infringe Blueberry’s exercise of its treaty rights; and,


4. The parties must consult


The parties must act with diligence to consult and negotiate for the purpose of establishing timely enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry’s treaty rights, and to ensure these constitutional rights are respected.”

The notable aspects of the relief measures are Justice Burke’s basis for treaty infringement, and how this could have country-wide impact on infrastructure developments.


Justice Burke determined that if there is a significant or meaningful diminishment of the treaty rights, they have been infringed upon. The Crown does not have absolute power over taking up lands. The power it holds cannot be used to “make the constitutional protection of Indigenous hunting, trapping and fishing rights meaningless.”


Although the Crown has until July 29th to appeal, its regulatory process will likely go through an overhaul. This case also opens the door for cumulative effects-based litigation nationwide, as it sets a strong precedent. Regulatory frameworks for developments on and off treaty land are under scrutiny, and proponents in British Columbia and elsewhere should take note.


The full decision can be found here: Yahey v. British Columbia 2021 BCSC 1287


Sources:

BC Courts



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