Court rules B.C. violated First Nation’s treaty rights in precedent-setting case

Click to play video: 'Landmark legal ruling could impact resource development projects across B.C.'
Landmark legal ruling could impact resource development projects across B.C.
WATCH: The recent Treaty 8 B.C. Supreme Court ruling could have a major impact on Site C and other industrial development projects. Ted Chernecki reports. – Jul 7, 2021

The B.C. government will have to rethink its approach to development in parts of northeastern B.C. in the wake of a recent precedent-setting court ruling in favour of the Blueberry River First Nations.

The June 29 B.C. Supreme Court ruling found that the province, through decades of approvals of industrial projects including oil and gas and hydroelectric development, violated the First Nations’ treaty rights to hunt, fish and otherwise maintain its way of life.

The decision, the culmination of a legal battle that began in 2015, further ordered the province to stop issuing new permits in the area, subject to a six-month grace period.

“What a precedent-setting judgment it is. It’s the first one to deal with cumulative impacts, the first one to deal with breach of treaty in Canada for a claim like this,” Maegen Giltrow, counsel for the Blueberry River First Nations told Global News.

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The Blueberry River First Nations is one of the few Indigenous groups in B.C. with a formal treaty with the Crown — the 1899 Treaty No. 8.

In her ruling, B.C. Supreme Court Justice Emily Burke found industrial development in the band’s territory “at an extensive scale” failed to consider the cumulative impacts on the First Nations.

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“The fundamental promise that was made to them … was that while there would be settlement in the area. It would never be so extensive that their way of life would be fundamentally impaired,” Giltrow said.

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“The court said they were right, that essentially development had gone too far.”

By 2021, there were more than 110,000 linear kilometres of roads, pipelines and transmission lines in the nation’s 40,000 square kilometres of territory, Burke found. About 73 per cent of the traditional territory is now within 250 metres of an industrial disturbance, she noted.

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“I conclude that the extent of the lands taken up by the Province for industrial development (including the associated disturbances, impacts on wildlife, and impacts on Blueberry’s way of life), means there are no longer sufficient and appropriate lands in Blueberry’s territory to allow for the meaningful exercise by Blueberry of its treaty rights,” she wrote.

Burke ruled the province had notice of the First Nations’ concern for at least a decade, and had failed to demonstrate it had an enforceable way to assess the ongoing impacts of development.

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Fort St. John Mayor Lori Ackerman said the economies of both Indigenous and non-Indigenous residents of the region are deeply entwined with resource and industrial development.

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That economy, she said, is strongly reliant on certainty — meaning the government needs to get to work coming to an accommodation with the Blueberry River First Nations.

“First and foremost, the treaty needs to be respected,” she said.

“The province is going to have to come to the table, understand that the treaty has been here for 122 years, understand that the community has felt it is not being consulted in an appropriate and adequate fashion, and figure out how we move forward from there.”

The ruling states the province can no longer authorize activities in the territory that breach the nation’s treaty rights or unjustifiably infringe on them, but gives the parties six months to negotiate first.

It also requires both sides to “act with diligence to consult and negotiate” in developing an enforceable mechanism to deal with the cumulative impact of development on the territory.

The Blueberry River First Nations were also awarded court costs.

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