British Columbia·Analysis

Collision between Indigenous hunting and oil development rights set for legal showdown in B.C. court

The Blueberry River First Nation (BRFN) is fighting to draw a legal line to stop the incremental erosion of its land — and by extension its treaty rights.

‘This is a pioneering case; at some point a line has to be drawn'

'Before oil and gas development, I used to be able to hunt all over the territory. Not anymore,' said Wayne Yahey, a councillor with the Blueberry River First Nation, in an affidavit to the courts. (Blueberry River First Nation)

The Blueberry River First Nation (BRFN) is fighting to draw a legal line to stop the incremental erosion of its land — and by extension its treaty rights.

A civil case launched in 2015 revolves around a 38,000-kilometre patch of the province, that while tucked in B.C.'s far right corner, north of Fort St. John, is at the epicentre of provincial oil and gas development.

"There is frustration because there is so much activity happening in their territory everyday. It is very hard for them to take," said BRFN lawyer Maegen Giltrow.

Last week, the First Nation lost a legal bid to stop any new industrial permits in the area, but a court ruling agreed that industry was causing "irreparable" damage.

Legal experts say the Blueberry River First Nation is poised to take on the B.C. government over the erosion of its treaty rights, because so little of its territory has been left untouched by oil and gas development. This image shows dramatic clouds over the Pink Mountain area. (Blueberry River First Nation)

"This is a pioneering case. It will become a leading precedent. It is a collision between constitutionally-protected rights under treaties and an attitude by the provincial government that it is allowed to take away those rights on an incremental basis over time with no consequence," said Chris Tollefson, an environmental law professor at the University of Victoria.

"At some point a line has to be drawn." 

Damage proven

Pipelines, roads and dams have invaded the land that now has 19,974 oil and gas wells and only 14 per cent of intact forest land.

The BRFN argues the cumulative damage is robbing them of their treaty rights to hunt and fish, as moose, marten, beaver, lynx and caribou disappear.

"This is an important point," said B.C. Supreme Court Justice Emily Burke in the May 31 ruling that denied the bid for an injunction to stop any new industrial permitting until the dispute heads to civil court in March 2018.

The Blueberry River First Nations is alleging that most of its territory has been disrupted by development. These 2015 maps compare industrial activity today to 50 years ago. (Blueberry River First Nations)

While Burke sided with the province, citing concerns about the economic hit the local economy would take if permits paused, she also underscored the "serious" issues raised by the First Nation.

"The judge [found] that harm caused by this continued development would be irreparable. It could not be compensated by money," said Tollefson.

Most of the territory — 73 per cent — is within 250 metres of an industrial disturbance, according to a 2016 report by the David Suzuki Foundation,that created maps from provincial data.

Missing Moose

Tribal members with deep roots in the territory offered evidence to the court.

Marvin Yahey, chief councillor of Blueberry River, described how his grandfather Charlie was a "Blueberry Dreamer" who used to dance and drum and sing on the Dancing Grounds, one of this First Nation's most important spiritual, ceremonial and cultural sites.

Hunters say they can no longer find moose in the traditional spots they used to before oil and gas development. They are trying to protect areas like Pink Mountain and Lilly Lake, where wildlife remain. (Philippe Morin/CBC)

"The Dancing Grounds have helped me through difficult times in my life and provided me with strength," he said.

But hunting is no longer good there. The animals are scared away by forestry activity, he added.

"I have not caught a moose in that area in many years," he wrote in an affidavit.

Hunters now travel 150 kilometres from the reserve to Pink Mountain to hunt moose.

"Before oil and gas development, I used to be able to hunt all over the territory. Not anymore. Last summer, I spent 18 days in the bush. I travelled 98 miles on horseback. I did not see a single moose," said Wayne Yahey.

The Site C dam on the Peace River would flood an 83-kilometre stretch of valley south of Fort St. John, B.C. Two First Nations fought the $8.8-billion project, claiming it violated their treaty rights, but the Federal Court of Appeal rejected their legal challenge in January 2017. (Christer Waara/CBC)

Even when animals are found, elders refuse to eat the meat, after having watched them lick chemicals from old flare pits.

Ministry officials refused comment, because the government remains in a caretaker mode until leaders are installed.

But legal experts say, with little BRFN land left untouched, the First Nation is best poised to take on the province over treaty rights.

The case will be heard in the spring of 2018 and watched carefully by all sides — to see if this First Nation can draw a line that truly protects treaty rights before industrial damage renders them meaningless.

B.C.'s Peace River country is embroiled in legal battles with Indigenous groups fighting oil and gas development they believe threatens their traditional way of life. (Chris Gale/Wild North Photos)


Yvette Brend

CBC journalist

Yvette Brend works in Vancouver on all CBC platforms. Her investigative work has spanned floods, fires, cryptocurrency deaths, police shootings and infection control in hospitals. “My husband came home a stranger,” an intimate look at PTSD, won CBC's first Jack Webster City Mike Award (2017). Got a tip?