Canada: British Columbia Supreme Court Orders First Nation To Disclose Impact Benefit Agreements

The recent decision by the Supreme Court of British Columbia (BCSC) in Yahey v British Columbia (2018 BCSC 123, 25 January 2018) offers interesting insight into the circumstances in which benefit sharing agreements and accommodation payments might be disclosed. The issue of transparency around payments to indigenous groups by project developers is drawing increasing attention in litigation like the Yahey case and in regulatory initiatives like the federal Extractive Sector Transparency Measures Act.

Typically, such payments are protected by confidentiality clauses in the associated agreements between project developers and indigenous groups. However, the broader public interest in transparency can in some circumstances override the private interest to keep the payments confidential. We expect this trend to continue.

Background to the Treaty 8 Infringement Claim and this Decision

This decision is part of an ongoing action—started in 2015—by the Blueberry River First Nation (BRFN) against the Crown for infringement of BRFN Treaty 8 rights and breach of the Crown’s fiduciary duty to the BRFN.

BRFN alleges that the Province has caused or permitted industrial development in BRFN's traditional territory to such an extent that the cumulative impacts have "increasingly pushed the 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."

Among other things, BRFN is seeking a permanent injunction against further development in its territory. On two occasions BRFN unsuccessfully applied to enjoin the Province from allowing further industrial development in its traditional territory pending trial of the civil claim (Yahey v British Columbia, 2015 BCSC 1302; Yahey v British Columbia, 2017 BCSC 899).

Trial of the action is set to commence on March 26, 2018, though the parties are still attempting to resolve issues relating to what documents should be disclosed in the proceeding.

One of the defences to the claim being advanced by the Province is that BRFN acquiesced to or benefited from the industrial developments in its territory that it says are infringing the exercise of its treaty rights. In support of this argument, the Province requested that BRFN disclose agreements it has entered into with industry parties operating in its territory. When BRFN refused, the Province brought an application to the court for relief ordering that BRFN disclose the requested documents.

The Disclosure Decision

The Province had requested a broad range of documents. After weighing the relevance and probative value of the documents requested in the context of the issues in the trial, the court ordered BRFN to disclose the following categories of documents:

  1. maps of traditional territory or land use, 
  2. traditional use studies (final versions), transcripts or recordings of interviews with BRFN members for the studies (but only for those members who are scheduled to be witnesses at the trial),
  3. BRFN communication documents, and
  4. agreements, arrangements, joint venture, term-sheets, payments, donations, and programs between or involving the BRFN and industrial project proponents, current or in the past 10 years—except for documents relating to developments that proceeded despite BRFN’s objection and documents related to capacity funding.

The court found such documents would be relevant to British Columbia’s “novel” legal argument in the underlying litigation; namely, that BRFN acquiesced to or benefited from industrial development in its treaty territory. The documents would also be relevant to the Province’s pleading “that Treaty 8 foreshadowed change and that the Province has managed that change honourably.”

The court, however, declined to order the BRFN to disclose:

  1. instructions, notes and drafts of traditional use studies where no final report was prepared,
  2. transcripts or recordings of interviews with BRFN members for the studies where those members are not scheduled to be witnesses at the trial,
  3. agreements between industrial proponents and companies which were owned or controlled by BRFN members, 
  4. Treaty 8 First Nations communications, and
  5. Treaty claim documents.

Implications for Negotiations between Project Developers and Indigenous Groups

Benefit sharing and other development agreements will continue to be valuable tools for both proponents and indigenous groups since they can allow projects to proceed with each party benefiting. These agreements also help build and strengthen relationships between indigenous groups and industry, which assists with the overall reconciliation of the interests of the indigenous groups and the Crown.

Like other commercial agreements, these agreements often contain commercially sensitive information, including terms relating to benefits payments, contracting and employment terms and other substantive non-fiscal terms. While the parties may prefer to keep these commercial terms confidential, the regulatory policy trend is increasingly toward public disclosure of any economic payments to indigenous groups when they exercise governing power over the resource or land. This trend is evident in the extractive resource sector with the recent enactment of the Extractive Sector Transparency Measures Act.

This Yahey decision adds another dimension that must be considered when drafting these relationship agreements. The risk of disclosure is increasing, so the agreements must anticipate broader circumstances for disclosure and allow for that outcome.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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