Supreme Court ruled British Columbia to stop authorizing industrial activities that breach Treaty promises

By Bruce Lantz

A Supreme Court decision saying a British Columbia First Nation’s Treaty Rights have been largely ignored by industry and government could have far-reaching implications well beyond the provincial borders.

In a recent landmark decision, BC Supreme Court Justice Emily Burke noted that the territory of the Blueberry River First Nation is affected by oil and gas, forestry agriculture, mining and hydroelectric development, notably BC Hydro’s C$16-billion Site C dam. By 2016, more than 110,000 linear kilometres of roads, pipelines, and transmission and seismic lines had been cut across less than 40,000 square kilometres of land, according to a report which found that 73 per cent of the Blueberry traditional territory is within 250 metres of an industrial disturbance. Burke’s ruling said the nation’s Treaty Rights to hunt, fish, trap and gather have been disrupted by the government’s decision to allow industrial development there.

“This is very worrisome,” said Mayor Dale Bumstead, whose Dawson Creek community sits at the heart of the world-class Montney natural gas play, in Blueberry territory.

“I worry for the development of industry. Does this (decision) mean that there is now the potential to restrict that development? Industry is so important to us, the region and the country, this uncertainty creates worry about industry’s role in the future.”

In her ruling, Burke wrote, “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. The evidence shows that the province has not only been remiss in addressing cumulative effects and the impacts of development on treaty rights, but that it has been actively encouraging the aggressive development of the Blueberry Claim Area through specific royalty programs (including for marginal wells) and Jobs Plan policies.

“Blueberry’s knowledge and its ability to successfully hunt, trap, fish and gather depends on the health and relative stability of the environment. If forests are cut, or critical habitat destroyed, it is not as simple as finding another place to hunt,” the ruling reads.

“To get this confirmation from the Court after all the years we have been raising our concerns with the Crown is a very important recognition of our people, our culture and our way of life,” Blueberry Chief Marvin Yahey said in a news release.

The court ruled the province must stop authorizing activities that breach Treaty promises, but Burke noted she’s prepared to suspend this declaration for six months “while the parties expeditiously negotiate changes to the regulatory regime that recognize and respect Treaty Rights.”

Blueberry lawyer Maegen Giltrow said the six-month clause is “a recognition that this is a whole-scale change” and that “the parties have got to start working diligently to find ways to honour the Treaty Rights. If it doesn’t happen within six months, the hard stop is there.”

Mayor Bumstead said much is at stake, as the decision could affect industrial development not only in northeastern BC but also in northern Alberta and wherever industry operates in First Nations territory.

“It will be interesting to see how Blueberry and other First Nations – and industry – respond and react over the next six months. I’m sure industry will have huge conversations about it.”

Officials with the Canadian Association of Petroleum Producers were not available for comment.