Blueberry River First Nations Proves Province Breached Treaty No. 8: Yahey v British Columbia, 2021 BCSC 1287
  1. Introduction

This case is significant as it is the first case to examine what it means to be able to meaningfully exercise and enjoy treaty rights and how the cumulative impacts of Crown-authorized development breach or restrict such treaty rights, in this case in relation to Treaty No. 8. The Supreme Court of British Columbia held that the treaty rights of the Blueberry River First Nations (“Blueberry”) were infringed by the Crown, and that such infringement was not justified. This is the first time a court has made this finding in the context of the “taking up” clause found in the various numbered treaties that cover the resource-rich lands from north-west Ontario through to British Columbia and northern Canada.

The claim was brought by Blueberry, whose territory is located in northeastern British Columbia. Blueberry is a party to Treaty No. 8 ( “Treaty 8” or the “Treaty”), which was entered into in 1899 and to which Blueberry’s ancestors adhered to in 1900.

In the claim, Blueberry asserted that the Province of British Columbia (the “Province”) had authorized industrial development without regard for Blueberry’s Treaty rights, or the cumulative impacts of the industrial development on the exercise of Blueberry’s treaty rights. Blueberry alleged that the cumulative impacts of industrial development resulted in adverse impacts on the meaningful exercise of their treaty rights, breached the Crown obligations in the Treaty, and infringed their rights. The Province denied that it had breached the Treaty or infringed Blueberry’s Treaty rights, arguing that the Treaty foreshadowed change and emphasizing the breadth of the Province’s right to take up land from time to time for settlement, mining, lumbering, trading or other purposes.

Blueberry brought the claim after raising their concerns with the cumulative impacts of Crown-authorized development on the practice of their Treaty rights in their territory with the Province for over a decade. Prior to trial, Blueberry had sought to protect their treaty rights through injunction applications enjoining the Province from authorizing activities that would infringe their treaty rights, as well as a judicial review of  a provincial decision incentivizing oil and gas development in their traditional territory. Due to the comprehensive nature of the claims, Blueberry was told that they would need to proceed to trial to have their concerns with cumulative impacts addressed.  The trial was adjourned in 2018 to allow the parties to pursue negotiation and mediation to resolve these issues, but these efforts were not successful (para. 40).

  1. Overview of the Court’s Findings

The Court identified four main issues to be decided in this case as follows:

  • What are the rights and obligations in Treaty 8?
  • What is the test for finding an infringement of treaty rights?
  • Have Blueberry’s Treaty rights been infringed?
  • If Blueberry can no longer meaningfully exercise their Treaty 8 rights, has the Province breached the Treaty in failing to diligently implement the promises contained therein in accordance with the honour of the Crown? The Court also considered whether the Province has breached its fiduciary obligations associated with the Treaty (paras. 61-67).

Protection of the Way of Life is a Fundamental Aspect of the Treaty  

The Court 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 (para. 3). The Court emphasized that First Nations in entering into Treaty No. 8 “did not agree to adopt a settler’s way of life” (paras. 198, 216). While in the Treaty making process there was a foreshadowing of change, the Court held it cannot “be understood as eviscerating the fundamental promise that Indigenous peoples’ way of life would not be interfered with” (para. 198). First Nations are not to be left with empty promises (paras. 198-199).

The “way of life” was held to encompass “means of survival, as well as socialization methods, legal systems, trading patterns, cultural and spiritual beliefs and practices, patterns of land use, and ways of generating and passing on knowledge.” Treaty rights are “exercised at particular places, at particular times, in relation to particular species, and that are connected to a larger way of life.” For the exercise of these rights to be meaningful, “protection must also include recognition that the rights to hunt, fish and trap are, in essence, rights to maintain a culture and identity” (para. 215).

The Power to Take up Lands is Not Infinite

The Court found that the Province has the power to take up lands under the Treaty (the issue of land sharing under Treaty No. 8 was not raised by the parties or addressed by the Court, and has yet to be decided by the courts).However, the Court held that this power is not infinite. The Province cannot take up so much land such that Blueberry can no longer meaningfully exercise its rights to hunt, trap and fish in a manner consistent with its way of life. The Province’s power to take up lands must be exercised in a way that upholds the promises and protections in the Treaty (paras. 3, 275).

No Rights Remaining is not the Test for Infringement

The parties disagreed on the applicable test for the infringement of treaty rights. The Province argued that it is only when so much land has been taken up that no meaningful right to hunt, fish or trap remains within a First Nation’s traditional territory that an infringement will be made out (paras. 495, 503). Blueberry argued that to be “meaningful its members must be able to exercise their rights as part of a mode of life that has not been significantly diminished” (para. 492).

The Court held that it is “illogical and, ultimately, dishonourable to conclude that the Treaty is only infringed if the right to hunt, fish and trap in a meaningful way no longer exists.” The Court went on to find that “Courts should not be limited to adjudicating treaty right infringement claims once a First Nation has already lost its ability to exercise its rights and carry on its way of life” (para. 514). Blueberry did not have to show “that they have ceased exercising their treaty rights in order to make out their infringement claim” (para. 1107). The Court concluded that “the appropriate standard through which to consider the question of infringement in this case is: whether Blueberry’s treaty rights (in particular their ability to hunt, fish and trap within their territories) have been significantly or meaningfully diminished when viewed within the way of life from which they arise and are grounded.” In other words, can Blueberry members hunt, fish and trap as part of a way of life that has not been meaningfully diminished? (para. 541).

The Court further confirmed that Treaty rights are not ascertained on a treaty-wide basis and that to assess whether Blueberry can meaningfully exercise treaty rights, the Court must focus on  Blueberry’s traditional territory and the areas that it continues to use today (paras. 544, 573, 657).

Cumulative Impacts on Treaty Rights

In applying the test to Blueberry, the Court considered the cumulative impacts of lands taken up for development in Blueberry’s traditional territory on the meaningful practice of treaty rights. The Court confirmed the need to consider the effects of past development, as “with more and more takings and development it becomes harder and harder for the Crown to fulfill its promise to Indigenous people that their modes of life would not be interfered with” (para. 520). In considering whether the disturbances constitute lands taken up, the Court applied the test of whether the lands have been put to a “visible, incompatible use” with the exercise of treaty rights (para. 1062).

Significantly, by 2018, disturbance had increased such that 85% of the Blueberry’s claim area was within 250 metres of an industrial disturbance (para. 1122) and critical wildlife populations had declined due to the disturbance (paras. 1124-1128). Consistent themes in the members evidence were that: they are not able to exercise their rights as they used to; they cannot access the preferred hunting, trapping and fishing places within the core of their territory, and have to travel further from their homes and even to areas outside of the Blueberry claim area to find signs of wildlife; the habitat has been fragmented, polluted, and in some cases has disappeared; the wildlife are not as healthy or abundant; they do not have peaceful enjoyment on their traplines or in their hunting areas, as they smell the sour gas and hear the drones of oil and gas infrastructure; and they do not feel safe or welcome in their territory (para. 1099).

The Court concluded that “the time has come, the tipping point has been reached, and that Blueberry’s treaty rights (in particular their rights to meaningfully hunt, fish and trap within the Blueberry Claim Area) have been significantly and meaningfully diminished when viewed within the way of life in which these rights are grounded” (para. 1116). The Court, therefore, found that Blueberry’s treaty rights had been infringed (paras. 3, 1132).

The Province has Positive Obligations to Uphold Treaty Promises

Blueberry argued that the honour of the Crown gives rise to positive obligations on the Province to diligently implement and uphold the promises contained in Treaty No. 8, and that the Province breached these obligations (para. 1165). Blueberry further argued that the Province breached its fiduciary obligations to Blueberry where the Crown was exercising discretionary control over its interests and took express actions that ran contrary to their Treaty rights (para. 1170).

The Court held that, for at least a decade, the Province had notice of Blueberry’s concerns about the cumulative effects of industrial development on the exercise of their treaty rights. Despite having notice of these legitimate concerns, the Province failed to respond in a manner that upholds the honour of the Crown and implements the promises contained in Treaty 8 (para. 3). The Province “had not, to date, shown that it has an appropriate, enforceable way of taking into account Blueberry’s treaty rights or assessing the cumulative impacts of development on the meaningful exercise of these rights, or that it had developed ways to ensure that Blueberry can continue to exercise these rights in a manner consistent with its way of life.” The Province’s “discretionary decision-making processes did not adequately consider cumulative effects and the impact on treaty rights” (paras. 3, 1781-1786).

The Court found that there was a “persistent pattern of redirection” on the part of Province where the Province continuously pointed Blueberry to other processes that would deal with their concerns about cumulative impacts – none of which actually did (para. 1779). This conduct was found to frustrate “the essential promise of the Treaty” (para. 1779).

The Court agreed with Blueberry that the Province had failed to:

  1. develop processes to assess whether the ecological conditions in Blueberry’s traditional territories are sufficient to support Blueberry’s way of life;
  2. develop processes to assess or manage cumulative impacts to the ecosystems in Blueberry’s traditional territories and/or on their treaty rights;
  3. implement a regulatory regime or structure that will take into account and protect treaty rights, and that will guide decision-making for taking up lands or granting interests to lands and resources within Treaty 8; and,
  4. put in place sufficient interim measures to protect Blueberry’s treaty rights while these other processes are developed (para. 1787).

The Province was also found to have breached its fiduciary duty to Blueberry by causing and permitting the cumulative impacts of industrial development without protecting Blueberry’s treaty rights (para. 3). Allowing development to proceed in the face of Blueberry’s substantial and well grounded concerns was not acting with good faith, loyalty, or ordinary prudence with a view to Blueberry’s best interests. Ordinary prudence on the part of the Province “required long-term planning, looking ahead and considering the likely future effects of current decisions, as opposed to simply stubbornly ‘staying the course’” (para. 1805).

Justification

While the Province pleaded justification, the Province did not in oral or written argument advance a justification defence. The Province argued that it could not advance a justification defence before the scope of the rights was known. The Court disagreed – holding that the Province must be taken to know the promises made to First Nations in Treaty 8. Further, the Province had repeatedly said its regulatory regimes do recognize and take into account First Nations’ Treaty 8 rights, so “the suggestion that its regime cannot be justified until the scope of the rights has been delineated by the Court is circular and without merit” (paras. 1834, 1840). The Court concluded the infringements were not justified by the Province (para. 1857).

 

Remedy

Among other things, the Court granted a declaration that “[t]he 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”. This declaration was suspended for six months to allow the parties to negotiate changes that recognize and respect Blueberry’s treaty rights (paras. 1894-1895). Declaratory relief was preferred over injunctive relief as it allows the government to conceive of ways to satisfy the declaration, and it is presumed that the government will comply with both the letter and spirit of the declaration (paras. 1874, 1886).

The Province has indicated that it will not appeal the decision and has recommitted to a negotiated resolution with Blueberry.

  1. Why is this Case Significant?

This case is the first case to dive into what it means to be able to meaningfully practice treaty rights in the context of alleged infringements based on the cumulative impacts of Crown-authorized development. The Supreme Court of Canada in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 telegraphed that “[i]f the time comes that in the case of a particular Treaty 8 First Nation ‘no meaningful right to hunt’ remains over its traditional territories, the significance of the oral promise that ‘the same means of earning a livelihood would continue after the treaty as existed before it’ would clearly be in question, and a potential action for treaty infringement, including the demand for a Sparrow justification, would be a legitimate First Nation response” (para. 48). This case builds on the language in Mikisew (a case that was ultimately decided on the basis of procedural obligations, but that did not apply the infringement analysis).

The test for infringement set by the Court of “whether  treaty rights have been significantly or meaningfully diminished” is explicitly grounded in the way of life of the particular First Nation, and the traditional territory of the First Nation. The case places obligations on the Crown to understand and accommodate those ways of life and to protect the areas that First Nations have traditionally relied upon for the practice of their rights.  The decision also removes the often repeated Crown position that it is sufficient to send First Nations out to find another place to hunt outside their core traditional territory (paras. 433, 657), when their traditional territory is the site of their way of life. The Court focused the infringement analysis on Blueberry’s traditional territory (para. 659).

The decision further places substantive limits on the Province’s right to take up lands in Treaty 8, and positive obligations on the Province to manage the cumulative impacts of development on the practice of Treaty rights. The Court emphasizes that Treaty 8 is not a final blueprint and it can evolve with time. It established the beginning of an ongoing relationship. The promises contained in Treaty 8 have become harder to keep as time has gone on, and the Court sets out important principles to guide this ongoing relationship. It is no longer appropriate to consider impacts to Treaty rights on a project-by-project basis – the cumulative impact of developments must be considered and addressed. The positive obligations placed on the Crown to diligently implement Treaty promises, and manage cumulative impacts, will have implications for other First Nations.

Finally, the case assessed the adequacy of current regulatory regimes, particularly with respect to forestry and oil and gas, in British Columbia and the processes that are currently in place to assess and address cumulative effects (e.g. Area Based Analysis and Cumulative Effects Framework), holding that the Province is not “effectively considering or addressing cumulative effects in its decision-making”, or appropriately taking into account and assessing the cumulative impacts of development on Treaty rights (paras. 1751, 1781, 1783). These finding have important implications for other First Nations where the Crown is relying on these decision-making structures and processes in consultation or otherwise to protect Aboriginal/ Treaty rights from the cumulative impacts of development.

Finally, the result of the negotiations with the Crown will potentially impact other First Nations as the Crown reviews its discretionary decision-making structures and the processes that it currently has in place to consider cumulative impacts and Aboriginal/Treaty rights. For all First Nations, the Province should be ensuring that its regulatory regime takes into account and protects Aboriginal/Treaty rights.

As Blueberry is not the only Treaty First Nation in British Columbia, and a number of pre-confederation Douglas Treaties raise similar questions.  The decision will have significance for a range of Crown policies and practices, as the focus on remedies in the case was geared to declarative relief in situations where governments are not complying with the letter and spirit of the law.

The Court granted a combination of broad declarations regarding the infringement of Blueberry’s Treaty rights and breach of the Treaty, along with more specific declarations about what is required to remove the breaches of the Treaty and uphold Blueberry’s treaty rights in order to guide the parties. Blueberry sought, and the Court granted, a forward-looking declaration that prohibits the Province from authorizing 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. The structure of this relief is significant as it requires that the Province act with diligence to establish enforceable regulatory measures to substantively protect Blueberry’s Treaty rights, and places the onus on the Province to show that any proposed activities do not breach the promises in the Treaty, or unjustifiably infringe Blueberry’s exercise of their Treaty rights, before they can be authorized.