Canada: BC's Agreements With Blueberry River And Other First Nations Reopen Land To Development, While Minimizing New Disturbances
Indigenous Law Bulletin

On January 18, 2023, the Province of British Columbia reached an agreement with Blueberry River First Nations that will lead to broad changes to land management and resource development in the northeast of British Columbia. Two days later, on January 20, 2023, the Province announced agreements with four other Treaty 8 First Nations (Doig River First Nation, Halfway River First Nation, Fort Nelson First Nation and Saulteau First Nations) covering similar objectives.

The agreements, made publicly available on March 10, 2023, will result in significant changes in how permits are issued in northeast British Columbia, and where and how development may occur, with particular implications for the Petroleum and Natural Gas ("PNG") and forestry industries.

The Province also announced that discussions are ongoing with the other three Treaty 8 First Nations in British Columbia (West Moberly First Nations, Prophet River First Nation, and McLeod Lake Indian Band).

Background

In June 2021, the BC Supreme Court released its decision in Yahey v. British Columbia, 2021 BCSC 1287, finding that the Province had unjustifiably infringed Blueberry River's Treaty 8 rights by failing to manage cumulative impacts on Blueberry River's traditional territory. As a result, the Court ordered that British Columbia may not continue to authorize activities in Blueberry River's claim area (comprising ~38,000 square kilometres) that infringe Treaty 8 without justification, and required the parties to establish enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry River's treaty rights.

The Province did not appeal the decision, and commenced negotiations with Blueberry River in accordance with the Court's order. The Province also entered negotiations with the other Treaty 8 First Nations in British Columbia who have also experienced impacts from industrial development in the northeast.

In October 2021, the Province and Blueberry River reached an initial agreement in which the Province committed to investments totalling $65 million toward "healing the land", cultural renewal, land protection and wildlife management. This agreement allowed 195 already permitted forestry and oil and gas projects to proceed.

On January 18, 2023, the Province and Blueberry River announced that they had reached an agreement that responded to the Court's direction in Yahey, and on January 20, 2023, the Province announced agreements with four other Treaty 8 Nations.

The Province published these agreements on March 10, 2023.

The Blueberry River Implementation Agreement

The Implementation Agreement is aimed at initiating a new approach to resource management in Blueberry River's claim area. This is achieved through a number of measures, notably including:

• land restoration, including through a $200 million fund that can be augmented by contributions from third parties, and through incentives for industry that would allow restoration expenditures to qualify for royalty deductions (Articles 10, 11);
• land protection in particular high value areas (pictured below) and a cap on "new disturbance" throughout the claim area (Articles 5, 6, 7).

In the press release announcing the agreement, Premier Eby emphasized it is "a cap on land disturbance" not on "production" and noted that industry would have to be "innovative" and "find ways to work with less land disturbance." Ultimately, the goal is to minimize development that results in new disturbances in favour of previously disturbed sites.

For existing and future permit applications for work in the high value areas, the agreement contemplates a payment of $60,000 per hectare of new disturbances to the land restoration fund (Article 14).

Further details of implementation, including land management plans for the high value areas remain to be negotiated. These plans intend to set out new approaches to shared decision-making (Article 7.6). The plans will identify protected areas, areas where planned oil and gas development may occur and the thresholds, criteria and rules that will apply in the development areas. Industry will be engaged in the land management planning process and such plans will be reviewed every five years.

The Implementation Agreement also grants Blueberry River greater involvement in the review of future permit applications for forestry and oil and gas activities in the claim area (Articles 8, 9, 14), provides Blueberry River with economic benefits and commits the Province to negotiate a new fiscal relationship with Blueberry River (Article 15), requires the negotiation of new watershed management plans (Article 13), sets out wildlife management and stewardship initiatives (Article 4), and provides Blueberry River with direct award PNG tenures (Article 15).

The Letter and Revenue Sharing Agreements with Doig River, Halfway River, Saulteau and Fort Nelson First Nations

British Columbia's agreements with the other four Treaty 8 First Nations are comprised of (i) a "Letter Agreement" with each of them that confirms their commitment to a "Consensus Document" negotiated jointly with all four First Nations, and (ii) a separate Revenue Sharing Agreement with each of them. The intention is that these agreements are interim or "bridge" agreements, terminating in March 2024, but with the objective of negotiating more permanent arrangements.

The Consensus Document, dated March 2022, provides the Province's overarching commitments to changes to wildlife management and hunting regulations (pp. 4-5), a framework for PNG royalty sharing (p. 1), and a commitment to a "suite of strategic initiatives to create a paradigm shift in land and resource management", which may include land protection to areas of value to all of the Treaty 8 First Nations, and co-management and shared decision-making (pp. 5-8). The details of implementation are subject to further negotiation among the First Nations and the Province.

The Consensus Document also includes a commitment to complete an overarching Regional Strategic Environmental Assessment, which will inform the new land management decision-making initiatives. The outcomes of this assessment will be provided to project proponents for their consideration in advance of development applications.

The Revenue Sharing Agreements implement the commitment to royalty sharing up to March 2024, and refer to the intention to enter a "new fiscal relationship".

A number of industry proponents have expressed support for the agreements, and for moving forward in a manner that addresses cumulative impacts. We can expect more changes in northeast British Columbia, an area of significant resource potential, as the commitments in these agreements are implemented.

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