BC Supreme Court to Consider Cumulative Impacts of Resource Development on Treaty Rights

by Bennett Jones LLP
Contact

On March 3, 2015, Blueberry River First Nation (“BRFN”) sued the Province of BC seeking to break new ground by considering the cumulative impacts of resource development on BRFN’s traditional territory and treaty rights. Members of BRFN are ancestors to signatories to Treaty 8 and its traditional territory lies in the Upper Peace River region in northeastern BC. The outcome of the litigation will directly impact the development of BC’s planned Site C hydroelectric dam on the Peace River (“Site C”) and development of the Montney gas fields located within BRFN’s traditional territory.

The concept of “cumulative impacts” refers to the combined effects of multiple industrial activities on the livelihood of First Nations over time. Treaty 8 grants the right to hunt, trap and fish throughout surrendered lands, except on tracts that are required to be taken up by the Crown from time to time for settlement, mining, lumbering, trading or other purposes. The Crown’s right to take up lands is subject to the duty to consult and, if appropriate, accommodate the concerns of affected First Nations.

Prior to commencing the litigation, BRFN terminated a series of agreements with the Province, including an Economic Benefits Agreement and seven related Resource Management Agreements, on the basis that the Province failed to consider the cumulative effects of development on BRFN’s traditional territory. BRFN allege that the Province breached its obligations under Treaty 8, contrary to the Province’s constitutional obligations and the honour of the Crown, by authorizing the “consistent and increasingly accelerated degradation” of BRFN’s traditional territory through land alienation, resource extraction, and industrial activities without regard to potential adverse cumulative impacts. BRFN state that the cumulative impacts of these Crown-authorized activities have reached the point of infringement, as they have left BRFN members with almost no traditional territory within which to meaningfully pursue their constitutionally protected rights under Treaty 8.

BRFN’s lawsuit is one of the first to assert cumulative impacts as the primary grounds for treaty infringement, and is notable in that it is not directed at a specific project. Previous claims relating to the cumulative effects of resource development have not yet generated any significant judicial commentary. For example, Beaver Lake Cree Nation (“BLCN”) commenced a similar lawsuit in 2008 alleging that the governments of Alberta and Canada permitted the cumulative impacts of resource activities to violate BLCN’s rights under Treaty 6 to hunt, fish, and trap in their traditional territory, but a trial of the claim has not yet been heard. In addition, the Alberta Court of Appeal denied Fort McKay First Nation’s application for leave to appeal the decision of the Alberta Energy Regulator (the “AER”) on grounds relating to the AER’s jurisdiction to consider the cumulative impacts of an application for a major steam assisted gravity drainage bitumen (SAGD) oilsands project in Fort McKay First Nation v Alberta Energy Regulator, 2013 ABCA 355.

Should BRFN’s claim proceed to trial, the case may lead to the first substantive judicial consideration of the significance of the cumulative impacts of resource development on First Nations’ traditional territory and treaty rights, and the meaning of the Crown’s duty to consult and accommodate where land subject to a treaty is taken up for resource development. Since BRFN’s challenge is not directed at a specific project, the court will likely be required to assess the cumulative effects of all of the projects and proposed activity within BRFN’s traditional territory. Pending trial, BRFN may seek an injunction that could restrict government permitting and activities under existing permits, and result in delays for Site C and other resource development in BRFN traditional territory.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.