Blog: Stand by for more Treaty 8 challenges

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The “bombshell” court decision that held BC violated treaty rights of the Blueberry River First Nations is sending shockwaves into other treaty regions — especially in Alberta.

Justice Emily M. Burke of BC Supreme Court ruled that decades of “cumulative” resource developments approved by BC infringed on Blueberry rights under Treaty 8 of 1899.

Treaty 8 reserved the right of First Nation signatories to “pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered” — although subject to some conditions to allow for government resource extraction (including an explicit allowance for the Crown to take tracts necessary for mining).

Importantly, Madam Justice Burke covered the issue of a long series of resource projects, and their cumulative impact.

In its court case, the nation listed the following cumulative projects in its 38,327 square km of territory:

  • 110,300 km of roads, transmission lines, seismic lines and pipelines;
  • 19,974 oil and gas wells, of which 36% were active;
  • Two big dams (W.A.C. Bennett and Peace Canyon) in the traditional territory, and a third (Site C) under construction;
  • 73% of the territory is within 250 metres of an industrial ‘disturbance’, and 84% is within 500 metres of such;
  • 28% of the territory is labelled by BC as Agricultural Land Reserve;
  • And Blueberry’s core territory is zoned for high-intensity forestry, with less than 1% protected.

Blueberry told the court: “This is not a case where there is a single mechanism, or law that infringes the right – it is the cumulative effect of oil and gas and forestry authorizations in the context of existing private land, agricultural and hydro-electric authorizations, which result in the infringement.”

With that list and argument in front of her, Madam Justice Burke ruled that the Blueberry River nations’ treaty rights to hunt, fish and trap in their territory had indeed been diminished.

“I find that the Province has, for approximately two decades, been aware that the cumulative effects of development in the northeast portion of BC were leading to changes in wildlife habitat and water quality that posed serious concerns, and that by the late 1990s much of the Blueberry Claim Area was being significantly impacted by industrial development.
“The Province has also, for at least a decade and likely more, had notice from Blueberry that it was concerned about the impacts of cumulative development in the Blueberry Claim Area, and on the exercise of their treaty rights. 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 Province has taken up lands to such an extent that there are not sufficient and appropriate lands in the Blueberry Claim Area to allow for Blueberry’s meaningful exercise of their treaty rights. The Province has therefore unjustifiably infringed Blueberry’s treaty rights in permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry’s exercise of its treaty rights in the Blueberry Claim Area.”

The judge gave BC and Blueberry a six-month break so they may “negotiate changes that recognize and respect Blueberry’s treaty rights.”

Now Alberta is rightfully nervous, as Treaty 8 also covers the northern half of Alberta. (Treaty 8 further extends into northwestern Saskatchewan and southeastern NWT. Treaties 4, 6 and 7 cover the remainder of Alberta.)

If any province has encouraged and approved natural-resource development in Treaty 8 territory it is Alberta.

Think of the oilsands, for starters.

Anthony L. Moffa of the University of Maine School of Law noted in 2017: “In light of concerns over the above-described treaty rights, forty-four First Nations from Treaty 6, 7, and 8 communities in Alberta recently demanded a moratorium on oil sands authorizations by the Canadian government until comprehensive land management planning can occur.
“Despite the explicit exception for mining activities on ceded lands in the treaties, some legal scholars and commentators agree with the tribes’ perspective and maintain that the current extent of development, especially in northern Alberta, constitutes a de facto breach of treaty rights guaranteeing First Nations the ability to maintain their traditional lifeways.”

In 2020, the Alberta Supreme Court overturned a regulatory permit for a small oilsands project, and noted that 70 per cent of the Fort McKay First Nation’s traditional territory is leased for oilsands purposes.

Justice Sheila Greckol noted that the Alberta government knew the nation objected to “consultation” on a project-by-project basis because doing so meant the cumulative effects of development were never addressed.

More recently, Grand Chief Arthur Noskey of the Treaty 8 First Nations of Alberta slammed Alberta Premier Jason Kenney’s United Conservative Party government, for marking the anniversary of the Natural Resources Transfer Act of 1930 that shifted  control over Crown land and natural resources to Alberta.

Said Noskey: “The UCP government celebrated 91 years since the Dominion of Canada illegally transferred our natural resources to the province through the Natural Resources Transfer Act. Again, celebrating the exploitation of our way of life and subjugating our peoples.”

You can bet that Chief Noskey has been celebrating himself — celebrating the BC Supreme Court decision on the Treaty 8 rights of the Blueberry Nations.

Here is the full BC court decision.

In it are these key declarations by Madam Justice Burke:

  1. In causing and/or permitting the cumulative impacts of industrial development on Blueberry’s treaty rights, the Province has breached its obligation to Blueberry under Treaty 8, including its honourable and fiduciary obligations. The Province’s mechanisms for assessing and taking into account cumulative effects are lacking and have contributed to the breach of its obligations under Treaty 8;
  2. The Province has taken up lands to such an extent that there are not sufficient and appropriate lands in the Blueberry Claim Area to allow for Blueberry’s meaningful exercise of their treaty rights. The Province has therefore unjustifiably infringed Blueberry’s treaty rights in permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry’s exercise of its treaty rights in the Blueberry Claim Area;
  3. 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 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.

Stand by for six months of negotiations in BC, and for a similar case or cases being argued in Alberta. And, as lawyers predict, in other Canadian regions covered by treaties.

(Posted here 15 July 2021)

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