Case Brief: Yahey v. British Columbia, 2021 BCSC 1287

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Case Brief: Yahey v. British Columbia, 2021 BCSC 1287

By Christopher Devlin and Kajia Eidse-Rempel

What this case is about

Blueberry River First Nations (“Blueberry”) brought a claim against the Province of British Columbia (“Province”) alleging the cumulative effects of industrial development authorized by the Province have had significant adverse impacts on the meaningful exercise of their treaty rights under Treaty No. 8.  Blueberry is a party to Treaty No. 8, first signed in 1899 and to which Blueberry’s ancestors adhered in 1900.

Blueberry claimed those cumulative impacts infringed their Treaty rights.  The BC Supreme Court agreed, making several key rulings:

  • Treaty No. 8 protects Blueberry’s way of life from forced interference, and protects their rights to hunt, trap and fish in their territory. Inherent in the promise that there will be no forced interference with this way of life is that the Crown will not significantly affect or destroy the basic elements or features needed for that way of life to continue.
  • Like the duty to consult, infringement lies on a spectrum, somewhere between “no interference” and “extinguishment” of the right. An infringement of rights exists when there has been a significant or meaningful diminishment of the right.
  • By allowing industrial development in Blueberry’s territory at an extensive scale without assessing the cumulative impacts and ensuring that Blueberry would be able to continue meaningfully exercising its treaty rights in its territory, the Province breached the Treaty.
  • The cumulative effects of industrial development authorized by the Province significantly diminished the ability of Blueberry members to exercise their rights to hunt, fish and trap in their territory as part of their way of life and therefore constitute an infringement of their Treaty rights.
  • Despite having notice of Blueberry’s concerns for almost twenty years, the Province failed to uphold the honour of the Crown and implement the promises contained in Treaty 8. The Province also breached its fiduciary duty to Blueberry by causing and permitting the cumulative impacts of industrial development without protecting Blueberry’s Treaty rights.
  • The Province did not show that it has an appropriate, enforceable way of taking into account Blueberry’s Treaty rights or assessing the cumulative impacts of development on the meaningful exercise of those rights, or that it has developed ways to ensure that Blueberry could exercise its rights in a manner consistent with its way of life.
  • The Province may not continue to authorize activities that breach the promises included in the Treaty or that unjustifiably infringe Blueberry’s exercise of its treaty rights.

The court provided six months for the parties to negotiate changes that will incorporate the recognition and respect for treaty rights within the existing regulatory land management regime.

Why this Case is Important

The court interpreted Treaty No. 8 as conferring a limited power on the Province to take up lands under the Treaty. The Province cannot take up so much land such that Blueberry can no longer meaningfully exercise its rights to hunt, trap and fish in a manner consistent with its way of life. This balancing of interests reinvigorates the Treaty relationship as having an on-going basis.  It’s not just something that happened in 1899. Treaty No. 8 established the beginning of an ongoing relationship between Indigenous parties and the Crown that continues today and into the future.

This case puts the issue of cumulative effects squarely on the table. The court held that the Province’s discretionary decision-making processes do not adequately consider cumulative effects and the impact on Treaty rights.  For too long, the law has addressed potential impacts and infringements on an incident by incident, project by project basis and not had regard for the totality of impacts over time on Indigenous rights.  This case really opens the law to a more Indigenous perspective on how those impacts are experienced.

Somewhat inexplicably the Province did not seek to justify the infringements of the Treaty rights.  The Province instead took a “no infringement” approach, arguing that Blueberry had not established that so much land has been taken up in Blueberry’s traditional territory that its members could no longer meaningfully exercise their treaty rights to hunt, trap and fish.  The Province argued that the Mikisew decision modified the Sparrow test for infringement for Treaty 8 to be whether the Crown has taken up so much land that “no meaningful right” to hunt, fish or trap remained.  The court flatly rejected that argument. Although the Province made the strategic choice not to advance a justification defence, the court held the Province ought to have and Blueberry should not be prejudiced by that choice. In any case, the court held that, on the evidence, the infringements would have been difficult to justify.

Finally, this decision continues a line of jurisprudence that suggests Treaty rights are linked to an Indigenous group’s former traditional territory. This follows similar suggestions made by the Supreme Court of Canada in Mikisew Cree in 2005, the Federal Court of Appeal in Prophet River v. Canada in 2017 and by the BC Court of Appeal in West Moberly First Nations v. British Columbia in 2020. While this issue has yet to be directly addressed by the courts, this case may be used to argue limitations of Treaty rights to traditional territories only. First Nations must pay close attention to how narrowly or broadly they assert their traditional territories within Treaty No. 8 and the evidence required to support those assertions.

What Happens Next

The Province has 30 days from June 29th to file a notice of appeal to the BC Court of Appeal.

Given the significance of this decision, it is difficult to imagine the Province not appealing.  The Province likely will want to appeal the court’s ruling that the infringement analysis should be on whether the treaty rights can be meaningfully exercised rather than on whether the rights can be exercised at all.

Notwithstanding its many statements about reconciliation and implementation of the United Nations Declaration of Indigenous Peoples, there is too much at stake with how the Province manages its regulatory authority for it to abide with the implications of this decision. 

Given the breadth of issues, both legal and factual, raised by this case, it is reasonable to expect several intervenors in the appeal.

 

*Update* On Wednesday, July 28, 2021, the Province unexpectedly announced it would not appeal the decision and expressed a commitment to working closely with Blueberry and other Treaty 8 nations, stakeholders and the public to develop provincial resource development processes that respect Treaty 8 rights. It remains to be seen whether the Province will enact sufficient meaningful changes to its regulatory processes to satisfy the court within the six month period allotted.