Canada: B.C. Restricts Oil And Gas Developments In Blueberry River First Nation Territory

The British Columbia Oil and Gas Commission (OGC) recently announced new interim measures for oil and gas developments in Blueberry River First Nation (BRFN) traditional territory. The interim measures address concerns raised by BRFN with respect to new oil and gas development activities by prohibiting or restricting new surface disturbance in defined critical areas of BRFN territory, while managing development activities in other specified areas.

The interim measures follow the adjournment of a treaty infringement claim by BRFN against the Province of British Columbia that alleged the cumulative effects of industrial development on its territory had breached the government's obligations under Treaty 8. After the adjournment of the claim, and significant consultation and negotiation between the OGC, BRFN and the Ministry of Energy, Mines and Petroleum Resources, the parties signed a Regional Strategic Environmental Assessment Interim Measures Agreement, which came into force on July 16, 2018.

BACKGROUND

On March 5, 2015, BRFN sued the B.C. government claiming the cumulative effect of the Crown's conduct over a period of many years – by allowing industrial development at an extensive scale in BRFN's traditional territory – effectively deprived BRFN of substantive rights under Treaty 8 to hunt, trap and fish. BRFN sought declarations and injunctions for: the alleged infringement of its Treaty 8 rights; the Crown's breach of Treaty 8 and its fiduciary duties; and to prevent further Crown authorization of development activities that infringe BRFN's treaty rights. The trial was set to commence on March 28, 2018 over a period of 90 days.

In 2015, the B.C. Supreme Court (Court) denied an initial injunction application by BRFN to prevent the B.C. government from proceeding with a planned auction of 15 logging licences pending resolution of their infringement claim. The Court ruled it would not be appropriate to attempt to deal with future proposed activities on a piecemeal basis. Subsequently, in 2017, BRFN brought a further injunction application to prevent a broader range of proposed oil and gas and logging activities from going ahead. The Court denied this application also. For further details, please see our June 2017 Blakes Bulletin: B.C. Court Denies First Nations Injunction Request to Stop Development Pending Resolution of Action.

On June 29, 2018, B.C. announced that both parties had agreed to adjourn the pending litigation until October 15, 2018 as an outcome of productive negotiations.

INTERIM MEASURES

The new interim measures apply to applications that fall within three identified areas in BRFN territory, located in the Peace Region of northeastern B.C. Area 1 is the northern-most area of BRFN territory. Area 3 is the southern-most region, near Fort St. John. Area 2 is the largest of the three regions, located midway between Areas 1 and 3, and farther to the west.

The management objective of the interim measures in Areas 1 and 3 is "no new surface disturbance". Within Area 2, new surface disturbance will be "restricted" and may occur provided the disturbance meets one of the following conditions:

  • Occurs on private land
  • Occurs on Crown Agricultural Land Reserves that have been converted to agricultural use
  • Occurs for safety and environmental purposes
  • Occurs on existing pads or other areas previously disturbed by industrial activities
  • Occurs in cut blocks less than 20 years old
  • Is required by the proponent of the North Montney Mainline to support the construction of the National Energy Board North Montney Mainline Project
  • Is supported by agreements between industry and BRFN (e.g., Impact Benefit Agreements, contracts, etc.)

Applicants will be required to submit a "Regional Strategic Environmental Assessment Interim Measures Form" when applying for oil and gas activities in these areas. The OGC will incorporate the interim measures into both the application review process and the area-based analysis (ABA). Any Area 2 applications that could result in new surface disturbance and do not meet the above criteria will receive further review by the OGC, and if approved, the OGC will require "timely offset restoration". Additionally, the OGC will apply further requirements when an ABA identifies an area proposed for development as an enhanced management and/or regulatory policy area (as defined under the ABA policies of the OGC). In such cases, applicants will be required to submit a mitigation strategy.

IMPACT

The OGC's new interim measures are the product of significant negotiation and consultation between the province and BRFN following the adjournment of BRFN's treaty infringement claim. By tailoring the regulatory approval process for all new development applications, the OGC's interim measures attempt to address some of the concerns raised by BRFN in its litigation with respect to the potential cumulative effects of additional industrial development on the traditional use of certain treaty lands.

While it remains to be seen whether these measures will in fact address BRFN's concerns, it is significant that one of the criteria for determining if surface disturbances in Area 2 may proceed is whether they are supported by an agreement between industry and BRFN. The express reference to agreements with Indigenous groups as an important, if not determining, factor in regulating resource-related activities appears to be an approach the B.C. government is increasingly prepared to pursue. On June 20, 2018, the B.C. government announced a similar policy change to the regulation of salmon farming operations, declaring that, prior to being issued future tenures, proponents must have agreements in place with relevant Indigenous groups. This is a trend we will continue to watch, particularly in light of the ongoing review of other environmental legislation by the B.C. government, including the B.C. Environmental Assessment Act.

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© 2018 Blake, Cassels & Graydon LLP.

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