On June 29, 2021, the British Columbia Supreme Court (the “Court”) released the decision Yahey v British Columbia (“Yahey”).^[1] In this landmark case, the Court conducted an extensive and thorough review of the cumulative effects of industrial development in northeastern British Columbia and determined that these impacts breached the promises and obligations owed to Blueberry River First Nation (“Blueberry”) pursuant to Treaty 8.

The first decision of its kind, this case provides a new framework for the consideration of cumulative impacts and provides the Province of British Columba (the “Province”) with notice that cumulative impacts must be properly considered in advance of any further decisions which approve industrial activity in Treaty 8 territory.

Treaty 8

Treaty 8 is one of the historic treaties in British Columbia. Treaty 8 assures adherent First Nations of their rights to hunt, trap and fish throughout Treaty 8 territory, subject to regulation and the taking up of lands by the Province from time to time for settlement, mining, lumber, trade or other purposes.

Parties’ Positions

At trial, Blueberry asserted that, since the signing of Treaty 8, the cumulative effects of various provincially authorized industrial development within their traditional and Treaty territory have damaged the forests, land, watersheds and wildlife such that they can no longer continue their mode of life as promised under the Treaty.  Blueberry further asserted that the Crown failed to diligently implement the Treaty promise to protect Blueberry’s rights and way of life which is a breach of both the honour of the Crown and the Crown’s fiduciary duty towards Blueberry.

The Province alleged that Blueberry’s rights must be balanced against the Province’s right to “take up lands” and that the existing regulations require consultation and these processes were sufficient to avoid infringement and to mitigate potential adverse impacts.

The Court’s Decision

Ultimately, the Court found that:

1. the Province cannot take up so much land that there is a meaningful diminishment of Treaty rights;
2. the Province’s authorization of intensive industrial development was in breach of Treaty 8 as there were no longer sufficient lands in Blueberry’s territory to allow for the meaningful exercise of its treaty rights;
3. the Province’s various regulatory regimes did not have existing legally-enforceable mechanisms to adequately consider cumulative effects; and
4. the Province had consistently and persistently acted with disregard to Blueberry concerns and not shown an appropriate way of taking into account Blueberry’s Treaty rights regarding the cumulative impact of development.

The Court acknowledged that Blueberry had been raising these concerns for decades and that the Province had since implemented new policies that were meant to address Indigenous concerns; however, these policies were not law and thus did not have legally enforceable protections and were thus insufficient.  Due to this uncertainty, the Court noted that the lack of guidance for discretionary decision-makers meant that those few protections that did exist were often whittled down and ineffective.  This case is the first case to analyze treaty rights infringement with a view towards all development in a Treaty area rather than on a project-by-project or statute-by-statute basis.  The remedies offered by the court, in the form of declarations, will also play a role in protecting Aboriginal and Treaty rights. In particular, the following two declarations will have a significant impact:

[…]

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.

[emphasis added]

Yahey is good law with respect to the consideration of cumulative impacts.  The Province now has 6 months to consult with Blueberry and to significantly overhaul its natural resource management regimes to now require adequate consideration of cumulative effects in Treaty 8 territory.

For more information on Aboriginal Treaty rights, or other related questions please contact the writers below