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

by Bennett Jones LLP

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.

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