British Columbia

After landmark court victory, Treaty 8 Nations lay out vision for energy development in northeastern B.C.

The judgement, from B.C. Supreme Court justice Emily Burke, agreed with the Blueberry River First Nation that the constant approval of new energy projects in the region has infringed on treaty rights meant to protect the Nation's way of life, characterized as 'death by a thousand cuts.'

B.C. Supreme Court found approval of energy projects in Treaty 8 territory is 'death by a thousand cuts'

Blueberry River chief Marvin Yahey speaks with other elected officials from Treaty 8 First Nations outside B.C. Supreme Court in Vancouver Thursday. Chiefs from the Fort Nelson, Salteau, Doig River and West Moberly First Nations said Blueberry' River's victory is a victory for them all. (Blueberry River First Nation/David Suzuki Foundation)

The leaders of Treaty 8 First Nations in northeastern B.C. have laid out their vision for economic development in their territory following a landmark court ruling delivered last week.

The judgement, from B.C. Supreme Court justice Emily Burke, agreed with the Blueberry River First Nation that the constant approval of new energy projects in the region has infringed on treaty rights meant to protect the Nation's way of life. She characterized it as "death by a thousand cuts."

The ruling has implications for all new projects in energy-rich northeastern B.C. where several First Nations are signatories to Treaty 8, signed in 1899. It could also shape the outcome of a separate court case seeking to overturn the approval of the Site C dam.

Blueberry River elected Chief Marvin Yahey said last week's ruling proves the province has "failed" to protect his Nation's treaty rights and that Treaty 8 signatory nations "will not accept anything less than full enforcement of our rights".

"The province can no longer ignore us. We have a seat at the table," he said.

Chief Marvin Yahey of the Blueberry River First Nations said past talks with the government have been 'disappointing' and don't add up to meaningful consultation. (CBC)

However, Yahey also emphasized that his members are open to industrial development so long as it is done sustainably and with Indigenous approval, with an eye to balancing environmental needs along with economic ones.

"If this is done right, there's plenty of work for everyone."

That sentiment was echoed by other Treaty 8 First Nation leaders who joined Yahey, including the elected chiefs of the West Moberly, Salteau, Doig River and Fort Nelson First Nations.

"We're not against development. We want to be part of our economies," said Fort Nelson First Nation Chief Sharleen Gale. "It gives us an opportunity to work collaboratively to determine how future generations will benefit from this land."

'The tipping point has been reached,' judge rules

According to the judgment, Blueberry River successfully demonstrated that projects ranging from the Site C hydroelectric dam to fracking for natural gas and pipeline projects have cumulatively eroded their ability to hunt, trap and fish in their territory — rights guaranteed by the Crown when they invited the Blueberry River First Nation to sign Treaty 8.

 As part of their supporting evidence, Blueberry River mapped out resource projects in their territory in 1965 and 2015, documenting more than 19,974 oil and gas wells in their territory alone, alongside multiple pipelines, resource roads and other industrial disturbances. In her ruling, Burke found that 73 per cent of Blueberry River's traditional territory is within 250 metres of an industrial disturbance and 84 per cent is within 500 metres of an industrial disturbance.

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)

Further, the ruling concluded that less than 14 per cent of forests in the region had been left intact, and there had been a clear decline in the number of moose, caribou and other wildlife in the region. All of this, Burke concluded, is the result of industrial activity and that it interfered with Blueberry River's hunting and trapping rights as outlined in the treaty.

"The tipping point has been reached," Burke wrote. "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."

"The province has therefore unjustifiably infringed Blueberry's treaty rights."

Province must enter negotiations to protect treaty rights

Burke further concluded that not only had the province failed to protect Blueberry River's treaty rights, it had not adequately attempted to do so. Instead, she said the province's regulatory bodies regularly approve projects despite objections from Blueberry River and don't seem to have the tools to turn projects down if they contribute to further erosion of treaty rights.

As a result, she put in an order preventing any new projects from being approved until new mechanisms are in place to ensure treaty rights are being protected.

"I think the decision is mandatory reading for anybody that's interested in the future of resource development in northeastern British Columbia," said Chris Tollefson, a lawyer and professor at the University of Victoria. "It's a very decisive statement that things need to change."

Tollefson noted that Burke had placed a six-month suspension on her order with the very clear guidance that the province and industry use that time to negotiate with Blueberry River about how to approve future projects.

Listen | Environmental lawyer Chris Tollefson analyzes the Blueberry River ruling

The Blueberry First Nation in northeastern B.C. has managed to stop the approval of all new energy projects in the region. That means no new pipelines, no new fracking wells, no new development without their say-so. Lawyer Chris Tollefson breaks down the landmark ruling. 6:49

Implications for Site C

Tollefson also said the ruling could have implications for the Site C dam because of a court challenge from another signatory to Treaty 8.

The West Moberly First Nation has launched a court case arguing the approval of Site C without proper consultation is a violation of their treaty rights, a case Tollefson said could be bolstered by Blueberry River's victory.

"It's Treaty 8, they're neighbours, they're part of the same region, they are facing the cumulative effects," he said. "And the judge has made rulings in the Blueberry River case that are exactly the same defences that are being raised by the province in the Site C case. I think this case will be read very carefully by all of those involved in the Site C litigation."

The excavation of two giant river tunnels to reroute the Peace River was completed in late 2020. (Submitted by B.C. Hydro)

West Moberly First Nation Chief Roland Willson said he believed the ruling paved a path to victory for his court case.

"Everything ... the Blueberry First Nations argued and the judge agreed with are the exact same issues that we have with Site C."

In statements provided to CBC, both BC Hydro and the provincial Ministry of Indigenous Relations and Reconciliation said they recognized the significance of the ruling and are reviewing what it means for the future. However, BC Hydro said the decision "does not have any impact on project construction and work continues safely as planned." 

The province said officials are working to determine next steps, but recognize the "urgency" of moving forward. They did not say whether they would be appealing the case.

Likewise, Brad Herald, vice-president of the Canadian Association of Petroleum Producers, said his organization is still reviewing the decision to "fully understand the details," but he believed partnerships could be found to allow projects to continue.

ABOUT THE AUTHOR

Andrew Kurjata

CBC Prince George | @akurjata

Andrew Kurjata is an award-winning journalist covering Northern British Columbia for CBC Radio and cbc.ca, situated in unceded Lheidli T'enneh territory in Prince George. You can email him at andrew.kurjata@cbc.ca. You can also send encrypted messages using Signal to 250.552.2058.

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