On March 3, 2015, Blueberry River First Nation
("BRFN") sued the Province of BC seeking to break new
ground by considering the cumulative impacts of resource
development on BRFN's traditional territory and treaty rights.
Members of BRFN are ancestors to signatories to Treaty 8 and its
traditional territory lies in the Upper Peace River region in
northeastern BC. The outcome of the litigation will directly impact
the development of BC's planned Site C hydroelectric dam on the
Peace River ("Site C") and development of the Montney gas
fields located within BRFN's traditional territory.
The concept of "cumulative impacts" refers to the
combined effects of multiple industrial activities on the
livelihood of First Nations over time. Treaty 8 grants the right to
hunt, trap and fish throughout surrendered lands, except on tracts
that are required to be taken up by the Crown from time to time for
settlement, mining, lumbering, trading or other purposes. The
Crown's right to take up lands is subject to the duty to
consult and, if appropriate, accommodate the concerns of affected
Prior to commencing the litigation, BRFN terminated a series of
agreements with the Province, including an Economic Benefits
Agreement and seven related Resource Management Agreements, on the
basis that the Province failed to consider the cumulative effects
of development on BRFN's traditional territory. BRFN allege
that the Province breached its obligations under Treaty 8, contrary
to the Province's constitutional obligations and the honour of
the Crown, by authorizing the "consistent and increasingly
accelerated degradation" of BRFN's traditional territory
through land alienation, resource extraction, and industrial
activities without regard to potential adverse cumulative impacts.
BRFN state that the cumulative impacts of these Crown-authorized
activities have reached the point of infringement, as they have
left BRFN members with almost no traditional territory within which
to meaningfully pursue their constitutionally protected rights
under Treaty 8.
BRFN's lawsuit is one of the first to assert cumulative
impacts as the primary grounds for treaty infringement, and is
notable in that it is not directed at a specific project. Previous
claims relating to the cumulative effects of resource development
have not yet generated any significant judicial commentary. For
example, Beaver Lake Cree Nation ("BLCN") commenced a
similar lawsuit in 2008 alleging that the governments of Alberta
and Canada permitted the cumulative impacts of resource activities
to violate BLCN's rights under Treaty 6 to hunt, fish, and trap
in their traditional territory, but a trial of the claim has not
yet been heard. In addition, the Alberta Court of Appeal denied
Fort McKay First Nation's application for leave to appeal the
decision of the Alberta Energy Regulator (the "AER") on
grounds relating to the AER's jurisdiction to consider the
cumulative impacts of an application for a major steam assisted
gravity drainage bitumen (SAGD) oil sands project in Fort McKay
First Nation v Alberta Energy Regulator, 2013 ABCA 355.
Should BRFN's claim proceed to trial, the case may lead to
the first substantive judicial consideration of the significance of
the cumulative impacts of resource development on First
Nations' traditional territory and treaty rights, and the
meaning of the Crown's duty to consult and accommodate where
land subject to a treaty is taken up for resource development.
Since BRFN's challenge is not directed at a specific project,
the court will likely be required to assess the cumulative effects
of all of the projects and proposed activity within BRFN's
traditional territory. Pending trial, BRFN may seek an injunction
that could restrict government permitting and activities under
existing permits, and result in delays for Site C and other
resource development in BRFN traditional territory.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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