Canada: Disclosure Of Private Impact Benefit Agreements Ordered In BC Treaty Right Infringement Case

Impact benefit agreements ("IBAs") between industrial proponents and Indigenous groups are becoming an important way for proponents to address regulatory risks and for Indigenous groups to benefit from industrial development in their traditional areas. Because IBAs may contain commercially sensitive information such as financial contributions, employment commitments and contracting commitments, they are typically considered to be confidential as between the proponent and the Indigenous group. 

But what happens when the Indigenous group files a claim against a government for allowing industrial development to infringe on its Aboriginal or treaty rights under section 35 of the Constitution Act, 1982? Is the fact that the Indigenous group has entered into IBAs relevant to the litigation? If so, do the IBAs need to be produced along with other relevant documents for the purposes of the litigation? A recent decision from the BC Supreme Court,  Yahey v. British Columbia, 2018 BCSC 123, says they are relevant, and do have to be produced. This is a very significant decision for proponents who have entered into IBAs and who wish to preserve the confidentiality of those IBAs.

The Blueberry River Treaty Infringement Litigation

The decision arises out of litigation commenced by the Blueberry River First Nations against the Province of British Columbia. Blueberry River has sued the Province for allowing industrial development to infringe its rights under Treaty 8 and, among other things, is seeking a permanent injunction against allowing further industrial development. (Blueberry River applied, twice, for an interim injunction to prevent further industrial development pending trial, but they were denied an injunction both times. (See the earlier decisions here and here.)

The trial is currently scheduled to commence in March 2018. However, the parties are still seeking to resolve differences about the disclosure of documents that may be relevant to the litigation. As part of this disclosure process, the Province asked Blueberry River to disclose agreements with industrial proponents. When Blueberry River refused, the Province applied to court for an order requiring Blueberry River to produce the agreements. This led to the decision released on January 25 by the BC Supreme Court.

The Province's Application for Production of Agreements with Industrial Developers

In its application for disclosure, the Province asked that Blueberry River be ordered to produce (among other things) IBAs, requests for capacity funding and receipt of capacity funding from proponents, revenue sharing agreements with industrial proponents, memoranda of understanding with industrial proponents, cooperation agreements with industrial proponents and agreements or arrangements with industrial proponents about training and education programs. 

The Province took the position that these documents were relevant to the litigation because they relate to the Province's defence that Blueberry River benefited from and acquiesced to industrial development; they speak to the nature of the change foreshadowed by Treaty 8 and how the Province has managed that change honourably; and they relate to Blueberry River's pleading that industrial development has caused a breach of their treaty rights. Blueberry River opposed production of the agreements on the grounds (among others) that benefiting from industrial development was not a defence to their treaty right infringement claim.

The Court's Decision on Production of Agreements

The Court held that certain documents must be disclosed, even though the Province's defence claims that Blueberry River acquiesced to or benefited from industrial development was "novel":

One of the Province's core arguments in this litigation is that Blueberry River First Nations has acquiesced in or benefited from the industrial developments that it says are infringing the exercise of its treaty rights. This is a novel legal argument in the context of a treaty infringement claim that raises novel legal issues, particularly with respect to the cumulative impacts of industrial development on the exercise of treaty rights.

The Province also argues that these documents are pertinent to its pleading that Treaty 8 foreshadowed change and that the Province has managed that change honourably.1

On this reasoning, the Court ordered that Blueberry River produce "...agreements, arrangements, joint ventures, etc. between or involving Blueberry River First Nations and Industrial Development Proponents, currently or in the past ten years."  However, the Court did not order the production of documents that relate to projects that Blueberry River opposed, as the Court held that there could be no argument about Blueberry River having acquiesced to those projects, and therefore the agreements were not relevant. 

The Court also refused to order the production of agreements between members of Blueberry River and industrial proponents, on the grounds that there is no authority for the proposition that economic activities of individual Indigenous people can derogate from the group's collectively held Aboriginal or treaty rights. Finally, the Court refused to order the production of capacity funding agreements between Blueberry River and industrial proponents, because in the Court's view the agreements were not relevant to the case as pleaded by Blueberry River. 

In the result, Blueberry River was ordered to produce "...agreements, arrangements, joint ventures, term-sheets, payments, donations, and programs between or involving Blueberry River First Nations and Industrial Development Proponents, currently or in the past, except: (i)    documents that relate to industrial developments where Blueberry River First Nation has objected to a project which proceeded despite the objection; and (ii)   requests for and receipt of capacity funding from Industrial Proponents, including capacity funding agreements."2

It should be noted that the issue of confidentiality of IBAs was not a consideration in the decision.  It is not clear whether Blueberry River raised confidentiality as an argument against disclosure; in any event the issue is not mentioned in the decision. 


This decision should be of interest to industrial developers who have entered into or are considering entering into IBAs with Indigenous groups. If Indigenous groups sue governments for infringement of their Aboriginal or treaty rights, this decision shows that governments can take the position that those IBAs are relevant and seek disclosure on those grounds. In such cases, the fact that an IBA may have confidentiality obligations as between the Indigenous group and the proponent may not necessarily shield the IBA from disclosure. 

Governments are increasingly interested in greater transparency regarding the financial aspects of agreements between industrial proponents and Indigenous groups. Disclosure laws like the federal Extractive Sector Transparency Measures Act (ESTMA) and First Nations Financial Transparency Act and the now-repealed Alberta Aboriginal Consultation Levy Act3 show that governments are part of a trend towards greater disclosure of (at least the financial aspects of) private commercial arrangements between Indigenous groups and industrial proponents. (See our previous blog posts on ESTMA here, here, and here.) The production of full agreements, in the context of litigation, could also result in broader disclosure of non-financial aspects of these agreements, including contracting and employment opportunities.

The potential for agreements to be disclosed in litigation, along with the impact of disclosure laws like those identified above, should be taken into account by industrial proponents when considering whether to enter into IBAs and the terms that they will contain. This decision also reinforces the importance of taking care that IBAs and other agreements are carefully prepared (including carefully crafted confidentiality provisions) to contemplate possible disclosure requirements.  IBAs have proven to be a useful tool for industrial proponents to manage risk and for Indigenous communities to obtain benefits.  Care needs to be taken in the preparation of these agreements to ensure that the tool is not used in a manner that was not contemplated by the parties to such agreements.


1 Yahey, at ¶¶ 43 and 44.

2 At ¶57, emphasis in original.

3 SA 2013, c A-1.2.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Keith B. Bergner
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions