First Nations' interests guide the courts

Courts are paying more attention to indigenous rights, including effects of development, while First Nations are also defending their impact benefit agreements
First Nations' interests guide the courts

In June, the British Columbia Supreme Court ruled that the B.C. government had unjustifiably infringed the treaty rights of the Blueberry River First Nation through the cumulative effects of provincially authorized industrial development.

This development included significant oil and gas and forestry activities over the past several decades.

In Yahey v. British Columbia, Justice Emily Burke found that B.C. had breached Blueberry Nation’s treaty rights through the province’s conduct several years “by allowing industrial development in Blueberry’s territory at an extensive scale without assessing the cumulative impacts of this development and ensuring that Blueberry would be able to continue meaningfully exercising its treaty rights in its territory ….”

As well, the judge found that “for at least a decade, the Province has had notice of Blueberry’s concerns about the cumulative effects of industrial development on the exercise of its treaty rights. Despite having notice of these legitimate concerns, the Province failed to respond in a manner that upholds the honour of the Crown and implements promises contained in Treaty 8.”

The decision may be a harbinger of things to come, as courts pay more attention to First Nations’ treaty rights, including the cumulative effects of development on their traditional ways of life.

Yahey “has implications, I think, across the country,” says Robert Freedman, senior counsel at Olthuis Kleer Townshend LLP in Vancouver. He represents First Nations in treaty negotiations, regulatory work and consultations.

Blueberry River First Nation was one of the few nations that signed the Treaty 8 agreement, says Freedman. That agreement concluded with the Crown in June 1899 and covered 320,000 square miles in northern Alberta, northeastern British Columbia, northwestern Saskatchewan and the southernmost part of the Northwest Territories.

The First Nation had been “raising concerns for years about the effects of development in their territory,” Freedman says. The court found an infringement on the community’s rights, and “the upshot of the case is that B.C. played lip service for years to their concerns and didn’t look at the cumulative impacts of development” — including diminished herds of caribou, moose and wildlife such as martens and fishers.

The Yahey case emphasized “the failure to consult on cumulative effects, the failure to have any thresholds to assess those impacts on rights,” he adds.

The Supreme Court of Canada’s decision in Southwind v. Canada, released in July, dealt with the Lac Seul First Nation’s land in northern Ontario, which dams had permanently flooded as part of a government hydroelectric project in 1929. And although Southwind dealt more with the valuation for damaged reserve land, it confirmed the Crown’s fiduciary duties to Indigenous peoples, “and that could have an impact on resource development,” Freedman says.

The Crown’s fiduciary duty “structures the role voluntarily undertaken by the Crown as the intermediary between Indigenous interests in land and the interest of settlers,” the Supreme Court said in its decision.

Courts are starting to turn the corner on how development affects the way First Nations people live, says Jeff Langlois, a principal of JFK Law in Vancouver, who practises Aboriginal law, including Crown consultation, and who calls Yahey “a landmark decision.”

Find the Best Aboriginal Law Lawyers in Canada in this directory.

B.C. has announced it will not appeal the Yahey decision, but Langlois contends that the province must develop a different system. “I think it calls for a very different kind of project assessment, but also project planning,” he says, adding that he has seen fewer development proposals succeed. However, he also notices more companies speaking with First Nations and bringing them on as project partners.

In January the Supreme Court of Canada said it would hear an application brought by Beaver Lake Cree Nation in Alberta. Beaver Lake filed an application for advance costs in the amount of $5 million to allow it to proceed with its claim against Alberta and Canada, filed in 2008, that seeks declarations of rights, injunctions, and damages for the cumulative effects of resource developments allowed on their traditional lands protected by Treaty 6. In June 2020 the Court of Appeal of Alberta denied the application, setting aside the Court of Queen’s Bench grant of a rare advance cost order in September 2019. 

Langlois calls the Beaver Lake case “a massive piece of litigation that says it’s not about one individual land-use decision … I would say there’s a real lack of government policymaking going on to manage the cumulative impacts with First Nations’ interests in mind.

“I don’t think the Crown truly appreciates what’s required for these nations to continue to live the way of life that’s protected by treaty,” he adds. “That first foundational piece is missing in all these consultations.”

He advises companies to “be aware of your blind spots” and not over-rely on governments when proposing projects; “make sure that you’re engaging early with nations, … saying, ‘this is on our horizon.’

The climate for energy projects

For infrastructure projects such as pipelines, “it’s a challenging time to go through regulatory processes,” says John Olynyk, a partner in Lawson Lundell LLP’s Calgary office, who works on the project proponent side.

“There’s a range of perspectives on the benefits and the drawbacks of those projects, and for project proponents, it’s a very challenging environment — politically as well as legally.”

That’s because of the impact of pipelines and other major projects on the environment, as well as “the end use of the product that’s being shipped and whether it’s something that we want to continue to encourage or not.”

Particularly in B.C., it may be difficult for such projects to proceed when Aboriginal land title claims remain unresolved, he says. Since resolving these claims falls to the government, those matters are outside of the direct control of the proponent, Olynyk notes.

“There are times when opposition to projects is really focused on the fact that a project is proposed for an area where no settlement has been achieved, and the communities who were affected don’t want to see the project proceed until there’s clarity about their own rights in the area,” he says.

“From a proponent’s perspective, it creates a lot of legal and regulatory uncertainty about the process that they will have to follow to get their project approved; how long it will take, and whether … they’ll be subject to ongoing litigation about different aspects of the project approval process,” as has been seen for some pipeline projects recently.

In recent years, though, companies have been working more with Indigenous communities “on a direct bilateral basis to help understand the community’s concerns, and to address them as best they can,” says Olynyk.

Although many communities have concerns about the impacts of natural resource development projects, they also recognize that those projects can benefit their communities through job training and contracting opportunities, he says. A typical impact benefit agreement between an energy company and a community will provide for economic opportunities and other benefits and environmental commitments by the company.

“Where communities decide that the benefits that flow to them through an impact benefit agreement outweigh the environmental impacts, and where there are commitments made to manage impacts that are acceptable to the community, then communities will support development.”

Alberta First Nations challenge regulatory rulings

In Alberta, Olynyk says, there have been two cases in which First Nations have challenged regulatory decisions that they argued didn’t adequately consider the impact on the communities’ economic interests under impact-benefit agreements they had signed with the project proponents.

One decision would have sent a proposed coal mining project through a rigorous federal environmental assessment process, which the First Nation concerned believed was unnecessary. In a second case, two First Nations are appealing the rejection of a coal mine project.

In July, the Federal Court quashed a June 2020 designation order from the Environment and Climate Change minister that had subjected Coalspur Mines Ltd.’s Vista mine expansion project to review by the federal impact assessment agency. The court found the minister had failed to consult the Ermineskin Cree Nation, which has an impact benefit agreement with Coalspur. Instead, he consulted only Indigenous communities who sought the designation order before issuing his decision. An extensive federal review would have significantly delayed the project, says Olynyk.

In early August, the federal government released its final decision on Benga Mining Ltd.’s Grassy Mountain Coal Project in Crowsnest Pass, in southwest Alberta. A joint federal-provincial panel reviewed the open-pit coal mine project and recommended that the project not proceed because of the environmental impact on Indigenous rights and interests.

However, along with Benga Mining, two First Nations in southern Alberta — Piikani and Stoney Nakoda — that have impact benefit agreements with the proponent are appealing the June decision of the Alberta Energy Regulator that turned the project down. The First Nations argue that the decision didn’t adequately consider how their economic interests, as reflected in those agreements, would be affected.