Treaty breach claim based on cumulative impacts

Allegations of treaty breach results from decades of industrial activity in Peace River region

'It’s pretty straight forward: Their treaty says they will always have access to their land, and they can’t do that if it’s under water.' - BC Treaty Commissioner Sophie Pierre

A generation of industrial development that has compromised the rights to hunt, trap and fish in the Peace River region is a breach of treaty rights, the Blueberry River First Nation argues in a claim filed in B.C. Supreme Court March 3.

The claim is unique, says former B.C. attorney general and treaty minister Geoff Plant, because it is based not on any specific activity or alienation of a specific right, but rather on the cumulative impact on the livelihood of Treaty 8 First Nations from decades of industrial activity.

“This case is the first case I know of in Canada where a First Nation is raising a complaint about cumulative impacts of multiple activities and it will almost certainly make new law to that extent,” Plant said.

The Blueberry River First Nation is a signatory to Treaty 8, which was enacted in 1900. It covers a wide swath of land in northern Alberta, Saskatchewan and the northeastern portion of B.C. It is one of only two historical treaties signed by First Nations in B.C.

The treaty is straight-forward in guaranteeing the rights in perpetuity of the signatories to carry on their livelihoods in a traditional way, through hunting, trapping and fishing.

Chief Marvin Yahey, who brought the suit against the B.C. government, says decades of industrial activities – including forestry, mining and natural gas wells and pipelines – have “increasingly pushed Blueberry River First Nations to the margins of their traditional territory, and have now left the members with almost no traditional territory within which to meaningfully pursue their constitutionally protected cultural and economic activities.”

The claim seeks injunctive relief against any further impacts. Should the injunction sought be granted, one of the projects it could affect is the Site C hydroelectric dam.

Although the treaty was signed by the Government of Canada, the First Nation holds the B.C. government to account for approving industrial activities which they say have infringed their treaty rights.

Plant believes the case will have greater implications for the B.C. government than the businesses carrying out industrial activities in the Fort St. John region, where hundreds of millions of dollars have been invested in new gas wells and pipelines.

“The essence of the allegation is the cumulative impact (which) really ought to be of more concern for government than for business,” Plant said.

Unlike modern-day treaties negotiated under the BC Treaty process, historical treaties do not have dispute resolution mechanisms, meaning First Nations who feel their rights have been breached must go to court, if they cannot resolve their disputes through government-to-government negotiation.

“In our view, the main problem with that is that there’s never been a real process for how those treaties will be implemented with interpretations that are relevant to today,” said Sophie Pierre, chief commissioner for the BC Treaty Commission.

“From what I’ve read, with this First Nation, it’s pretty straight forward: their treaty says they will always have access to their land, and they can’t do that if it’s under water.”

She referred to the flooding that will occur in the Peace River valley for the creation of Site C hydroelectric dam.

There are other signatories to Treaty 8 that the provincial government will need to deal with as well, Pierre added.

“There are obligations there, and the governments must live up to them. Every time they choose to ignore them, they get into trouble and the courts find against them.”

nbennett@biv.com