Blueberry River First Nations (BRFN) has commenced a novel treaty rights infringement claim (Claim) against the Province of British Columbia (Province). The Claim, filed March 3, 2015, alleges that the Province has breached its Treaty 8 obligations due to the cumulative impacts of provincially authorized industrial development in BRFN’s traditional territory.[1]

BRFN’s traditional territory is located in the Upper Peace River region of northeastern BC, around and mainly north of Dawson Creek, Fort St. John and Hudson’s Hope.

The Claim is significant because it is one of the first treaty rights infringement claims to be argued primarily on the basis of cumulative impacts on a First Nation’s entire traditional territory. The other significant case that stakeholders are watching closely is the ongoing claim commenced in 2008 by the Beaver Lake Cree Nation in Alberta alleging that cumulative effects of resource development violates its Treaty 6 rights, discussed in more detail below.

What are the key aspects of the Claim?

BRFN claims that the cumulative impacts of provincially authorized development have reduced access to its traditional territory and caused significant damage to the lands, waters and wildlife that are integral to BRFN’s mode of life. BRFN argues that the extent of development has now reached the point of infringement, whereby BRFN’s members have lost their ability to meaningfully exercise their treaty rights.

BRFN seeks a court declaration that, by causing or permitting such cumulative impacts, the Province has breached its treaty and fiduciary obligations to BRFN, and has infringed on BRFN’s treaty rights. It also seeks interim and permanent injunctive relief against any activities that would cause further cumulative effects. If successful, the Claim could have significant implications for current and future projects located in BRFN’s traditional territory.

What are the key terms of Treaty 8?

Treaty 8 is one of Canada’s historical “numbered treaties”. It was first entered into in 1899 between the Crown and various Aboriginal groups. BRFN and other Treaty 8 First Nations are the descendants of those groups.

Treaty 8 is considered a “land surrender” treaty because, according to the language of the treaty, the First Nation signatories agreed to surrender their lands to the Crown in exchange for certain benefits, including reserve lands and continued rights to pursue their traditional activities of hunting, trapping and fishing within the surrendered lands, except within such tracts that the Crown may “take up” “from time to time for settlement, mining, lumbering, trading or other purposes.”

When does the “taking up” of lands amount to treaty infringement?

Valid provincial authority to “take up” treaty lands while limiting treaty rights was confirmed by the Supreme Court of Canada (SCC) in Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48. Grassy Narrows involved Treaty 3 in Ontario, which contains similar “taking up” language as Treaty 8 (our article onGrassy Narrows is available here).

Despite the permissive language of Treaty 8 (and other numbered treaties), the SCC has held that provinces’ “taking up” rights are subject to certain limits. There may be a point at which “taking up” will constitute an infringement of treaty rights (and an action for infringement of treaty rights may be available to a First Nation), in any of the following circumstances:

(a)  if, in exercising its taking up powers, a province: (i) fails to uphold the honour of the Crown; (ii) breaches its fiduciary duties in dealing with Aboriginal interests; or (iii) breaches its duty to consult and accommodate treaty rights, as appropriate, whenever they are sufficiently impacted;[2] or

(b)  if the taking up of lands would leave a First Nation with “no meaningful right” to exercise its treaty rights within its traditional territory,[3] or would result in a “meaningful diminution” of a treaty right.[4]

How will the Claim proceed?

BRFN has framed its Claim broadly, such that each of the above-noted grounds for treaty rights infringement could be argued. Given the expansive nature of the Claim, if it proceeds to trial, it will involve a complex factual analysis of historical and present-day evidence regarding provincially authorized land use and impacts on BRFN’s ability to exercise its treaty rights, as well as interpretive analysis of Treaty 8 and the rights and obligations of the parties under the treaty, and the application of legal principles to the facts. The treaty rights infringement analysis will ultimately involve a consideration of whether the cumulative impacts of provincially authorized development have left BRFN with “no meaningful right” to exercise its treaty rights.

In an action for treaty rights infringement, the justification analysis, commonly referred to as the Sparrow test, is applied.[5] If an infringement of BRFN’s treaty rights is found, the Province must demonstrate how such infringement is justified. The test involves a consideration of governmental objectives and whether the Crown’s actions were consistent with its fiduciary duties to the First Nation. Since Tsilhqot’in, an analysis of whether the Crown discharged its duties of consultation and accommodation may also be required. This would be a challenging test for the courts to apply in respect of BRFN’s Claim, considering the factual complexities and the many competing interests involved.

Can BRFN obtain injunctive relief?

As legal proceedings can take months or even years to reach the trial stage (not to mention to proceed with any appeals), the immediate concern for many resource proponents with operations in BRFN traditional territory is the broad injunctive relief sought by BRFN pending resolution of its Claim.

While it is difficult to predict how the court may respond to BRFN’s application for interim injunctive relief, in our view it will be challenging for BRFN to obtain injunctive relief against current or operating projects in its traditional territory, as it would be difficult to demonstrate how the balance of convenience favours granting the injunction in those circumstances. For reasons of procedural fairness, it also seems unlikely that a court would be willing to grant a sweeping injunction prohibiting all resource development in the region. In our view, a court may be more willing to consider injunctive relief on a case-by-case if there is a compelling case that BRFN’s ability to meaningfully exercise its treaty rights is at risk.

The Other Case to Watch: Lameman v. Alberta – Beaver Lake Cree Nation Alleges Violation of its Treaty 6 Rights by Cumulative Effects of Resource Development

Another case that stakeholders are closely watching is a claim against the Alberta and Federal governments by the Beaver Lake Cree Nation (BLCN), which alleges that the cumulative effects of oil and gas, forestry and mining activities have violated BLCN’s Treaty 6 rights to hunt, fish and trap (BLCN Claim). Treaty 6 was signed on September 9, 1876 and encompasses central areas in Alberta and Saskatchewan. As with Treaty 8, Treaty 6 provides that the signatory First Nations surrendered their land rights in exchange for certain benefits, including continued rights to pursue their “avocations of hunting and fishing” except for in such tracts that may be taken up by the Crown for settlement, mining, lumbering or other purposes. BLCN’s traditional territory straddles the Alberta-Saskatchewan border near Lac La Biche.

The BLCN Claim was launched in May 2008. According to BLCN’s Statement of Claim, there are approximately 300 resource development projects underway in the area covered by Treaty 6, in respect of which approximately 19,000 individual authorizations have been issued by the provincial and federal governments. While BLCN originally sought to have all projects and authorizations revoked, the case management judge dismissed this part of the lawsuit. BLCN now seeks damages for the governments’ refusal to acknowledge treaty rights and a declaration that the cumulative effects of resource development projects have unjustifiably limited its treaty rights.

The Alberta and Federal governments also sought to have other portions of BLCN’s amended Statement of Claim struck on the basis that if BLCN was permitted to argue that cumulative effects violated its Treaty 6 rights to hunt, fish and trap, the amount of evidence required for a trial would be unmanageable. However, the Alberta Court of Appeal (ABCA) delivered a decision in April 2013, Lameman v. Alberta, 2013 ABCA 148, allowing BLCN to proceed to trial based on its amended Statement of Claim. The ABCA noted, “The reality of the risk of 19,000 side trips in this litigation does not seem to have been compellingly apparent to the case management judge and we cannot say that, on the record provided to use, her instincts were incorrect.”[6] The ABCA also noted that, over the 5 years of the course of the litigation, no application had yet been made by BLCN for an interim injunction. The parties are now awaiting a trial date to be set.

In addition to the issue of treaty rights infringement, the BLCN Claim is being closely watched because of its potential implications for consultation and regulatory review processes. With the recent commencement of the BRFN Claim, provincial governments, First Nations and resource proponents will also be watching developments in the BLCN Claim closely due to the significance and potential implications of this case. For example, environmental assessment review processes generally require a cumulative environmental effects assessment, but a successful outcome for BLCN or BRFN could lead to changes in other permitting processes. This could add a layer of complexity to permit application processes, particularly where cumulative effects considerations need to be incorporated into regulatory reviews. This would also necessitate better information sharing among Aboriginal groups, governments and resource proponents.