Canada: First Nation Ordered To Produce Private Agreements With Industry – Update On Blueberry River First Nations Treaty 8 Infringement Proceedings

Last Updated: January 30 2018
Article by Canadian ERA Perspectives, Stephanie Axmann and Paul R. Cassidy

Most Read Contributor in Canada, September 2018

In 2015, Blueberry River First Nations (BRFN) commenced a significant treaty infringement claim against the Province of British Columbia. BRFN claims that the Province is in breach of its obligations under Treaty 8 due to the cumulative impacts of development in BRFN's traditional territory, which has resulted in its members being unable to exercise their traditional practices as intended under the treaty.

The trial is scheduled to commence in BC Supreme Court on March 26, 2018, for over 90 days.

The claim is one of the first to allege an infringement of treaty rights on the basis of cumulative impacts to a First Nation's entire traditional territory.1 If successful, BRFN's efforts to obtain a permanent injunction against further resource development could affect current and future projects in BRFN's traditional territory (including gas and pipeline operations and other major resource projects in the region, including BC Hydro's Site C hydroelectric project). The claim could also set an important precedent for other First Nations in British Columbia and across Canada (treaty and non-treaty) which may consider challenging Crown authorizations and resource development on the basis of cumulative effects.

Pending trial and resolution of its claim, BRFN has unsuccessfully applied for interlocutory injunctive relief against particular resource development activities in its traditional territory – see Yahey v. British Columbia, 2015 BCSC 1302 and Yahey v. British Columbia, 2017 BCSC 899.

Recent document production order

On January 25, 2018, Madam Justice Burke of the BC Supreme Court issued a noteworthy production order decision in Yahey v. British Columbia, 2018 BCSC 123. The Province applied for further production of documents by BRFN in advance of trial covering a number of broad categories, including industry benefits documents (such as impact benefit and revenue sharing agreements, donations, and revenue received by BRFN from companies). The Province argued that such documents are relevant to the issues in the litigation because they:

  1. relate to the Province's pleading that BRFN has benefitted from or acquiesced in the industrial developments, thus preventing BRFN from seeking equitable relief based on the doctrines of "clean hands" and acquiescence, and that IBAs with industrial proponents provide evidence of an adequate alternative remedy to a permanent injunction;
  2. speak to the nature of the change foreshadowed by Treaty 8, how BRFN has adapted over time, and how the Province has managed the change honourably; and
  3. demonstrate that to the extent that BRFN was responsible for or acquiesced in industrial developments, there has been no breach.

BRFN objected to such disclosure, including on the basis that obtaining a benefit from industrial development is not recognized as a defence to a breach of treaty right claim.

The judge concluded that such documents were material to the issues and pleadings raised by the Province, and ordered BRFN to produce "agreements, arrangements, joint ventures, term-sheets, payments, donations, and programs" between or involving BRFN and third parties engaged in industrial developments, currently or in the past 10 years.

The judge made a number of notable exceptions to such required disclosure. She declined to order disclosure of documents that relate to industrial developments where BRFN has objected to a project which proceeded despite the objection. She could not see how such documents would be material to the Province's argument that BRFN should be prevented from seeking equitable relief. (However, this appears to be somewhat of an artificial distinction, since BRFN is likely to have objected at some point to a range of industrial development projects affecting its treaty rights, but nonetheless proceeded to enter into agreements in respect of such projects.)

The judge also declined to order disclosure of requests for and receipt of capacity funding from industrial proponents, including capacity funding agreements, as BRFN did not plead that it lacked capacity to engage in meaningful consultation, and she could not otherwise see how such documents were relevant.

The judge further declined to order disclosure of agreements between companies owned and controlled by BRFN members and industry, seemingly agreeing with BRFN on the lack of authority for the proposition that the economic activities of individual First Nations people can derogate from the Nation's collectively held Aboriginal rights, and also noting that such documents are not within BRFN's possession or control.

Discussion

BRFN's Treaty 8 traditional territory covers approximately 38,000 square kilometres in the upper Peace River region. Considering the size of the territory and the variety of industrial activities in the region over the past ten years, a wide number of agreements and arrangements between BRFN and industry may be captured by this disclosure order.

In Canada, the vast majority of benefit agreements between industry and Aboriginal groups, and the payments made under such agreements, are confidential between the parties. There are often strong incentives for both companies and Aboriginal groups to maintain confidentiality in their agreements. Such agreements will often provide for exceptions to confidentiality in the event that they are required to be disclosed by law or in court proceedings. Nonetheless, this ruling may raise concerns for companies who do not wish for their agreements to be disclosed to government or to potentially be made public in the context of a trial.

The judge did not address these potential third party issues and concerns in the course of her judgement. However, she noted that the Province was raising novel legal arguments in the context of a treaty infringement claim with respect to the acquiescence of, and benefits derived by BRFN, in respect of industrial development, and accordingly the documents should be produced. She also noted that her judgement did not deal with the admissibility of such documents at trial – those issues will be dealt with as and when necessary at trial.

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