What is the Blueberry decision, and how will it affect the Indigenous legal landscape?
The long-awaited judgment in Yahey v British Columbia (2021 BCSC 1287), a treaty infringement challenge brought by Blueberry River First Nation, has been widely hailed by legal scholars as a groundbreaking precedent with sweeping implications for treaty rights and resource extraction in northeastern B.C. and beyond.
This is the first time that a Canadian court has directly considered the impacts of multiple resource extraction projects on treaty rights, and the first decision to find that authorizing such impacts can amount to a breach of treaty. Given that large swathes of the prairie provinces and Ontario are covered by historic numbered treaties, as shown on this map, the Blueberry decision will reverberate across Canada for years to come.
Blueberry River First Nation mounted a massive legal challenge. Community members, expert witnesses, and thousands of pages of maps and documents painted a complex and detailed picture of the Dane-zaa way of life, the forests, rivers and wildlife that sustain it, and the relentless erosion of both habitat and culture by innumerable clearcuts, seismic lines, gas wells and pipelines. The marathon trial lasted for over 160 days between May 2019 and November 2020.
Blueberry’s travails will strike a sympathetic chord with RAVEN supporters who have followed the Beaver Lake Cree cumulative impacts saga via our ongoing “Defend the Treaties” campaign (13 years and counting!) The good news is that Beaver Lake Cree Nation now has a strong precedent in its favour when it goes to court in 2024.
What does the decision say?
Justice Burke found that, by permitting the cumulative impacts of industrial development on Blueberry’s treaty rights, B.C. has breached its obligation to Blueberry River First Nation under Treaty 8, and unjustifiably infringed Blueberry’s treaty rights.
“The habitat has been fragmented, polluted, and in some cases has disappeared. The wildlife are not as healthy or abundant. [Blueberry members] do not have peaceful enjoyment on their traplines or in their hunting areas, as they smell the sour gas and hear the drones of oil and gas infrastructure. They do not feel safe or welcome in their territory.”
The immediate effect of the decision is that B.C. has had to stop issuing permits for oil, gas and forestry activities on Blueberry territory while it negotiates a final agreement with Blueberry. That alone is “amazing” and “enormous”, according to Maegen Giltrow, legal counsel for Blueberry First Nation. “Nothing lights a fire under everybody’s behinds like an injunction that doesn’t allow any further permitting,” Giltrow said in an interview with The Narwhal.
The essential promise of Treaty 8: does Treaty 8 protect a way of life?
The intention and meaning of Treaty 8, and the mutual obligations of the treaty relationship, were hotly contested by the parties. Justice Burke devotes nearly a hundred pages to these fundamental questions.
True to colonial tradition, B.C. argued that the fundamental purpose of treaty was simply to open up land for settlement and mining. Mutual obligations? Not so much.
According to B.C., yes, treaty protects hunting and fishing rights, but only subject to the Crown’s unfettered right to “take up” lands for development. Treaty would only be infringed if so much land was taken up that no meaningful ability to exercise the treaty right remained.
Justice Burke would have none of it. Reminding B.C. that the treaty must be interpreted “through the lens of both parties”, she wrote:
“The change foreshadowed by the Treaty cannot be understood as eviscerating the fundamental promise that Indigenous peoples’ way of life would not be interfered with,” she wrote. “The evidence has established that Indigenous peoples have lived on this land for thousands of years. It is not reasonable to conclude that the Dane-zaa agreed that their way of life would be fundamentally altered or eradicated […]. They did not agree to adopt a settler’s way of life.” (para 198)
Inherent in the promise of Treaty 8 is that the Crown will “not significantly affect or destroy the basic elements or features needed for that way of life to continue.” Those elements include the existence of healthy mature forests, a variety of wildlife habitats, fresh clean water, and access to these places.
This is a key finding for safeguarding environmental rights. For a meaningful right to fish, the fish have to be healthy enough to eat, not contaminated by methylmercury. Caribou, moose and elk have to have sufficient habitat to maintain their populations. This is not the case on Blueberry territory right now, where 91 per cent of the land is within 500 metres of an industrial disturbance.
Deeply entrenched colonial disregard
It wasn’t sufficient for Blueberry to prove the dire condition of the territory. In order to prove treaty infringement, Blueberry had to show that the damage was caused by what B.C. was doing or failing to do. In a deep dive into the province’s regulatory regime for permitting resource extraction, Blueberry showed that B.C. had failed to implement any mechanism to properly consider cumulative effects on the environment or treaty rights.
The evidence led by Blueberry offers a rare insight into the inner workings of government, and how things are set up to prevent environmental considerations from fettering the growth of industry. Citizens have long suspected it; but the harsh light of the courtroom has exposed the actual mechanisms. Indigenous and non-Indigenous people alike have much cause to be grateful to Blueberry for exposing the colonial mindset and a culture of facilitating industry expansion within the B.C. civil service.
Justice Burke says it plainly: “The Province has no substantive measures in place to protect the Blueberry Claim Area against cumulative impacts from oil and gas development. The Province also scarcely considers treaty rights in its oil and gas regime. (…) The government’s environmental policy is modified in effect to allow oil and gas development to proceed despite its impacts on the environment.”
B.C.’s conduct “frustrates the essential promise of the Treaty”
The decision describes the ways Blueberry was given the runaround by the various government bodies. The court rebuked the province for its “pattern of perfunctory conduct”, and a “fragmented approach to consultation” where Blueberry’s concerns were responded to in an “inadequate, circular fashion”. Blueberry was treated to well-practiced bureaucratic chicanery that included: failing to disclose information about the scope of projects; re-directing Blueberry to an endless parade of officials, none of whom had the interest or the authority to address their concerns; repeatedly sending identical form letters; and persistent delays.
We leave the last word to Justice Burke:
“Based on the whole of the evidence, I find a persistent pattern of redirection on the part of government officials (…), telling Blueberry that its concerns regarding the cumulative effects of development on the exercise of its treaty rights would be addressed elsewhere, at other tables, through other policies or frameworks. These repeated responses (…), reflected conduct that can be considered perfunctory. I conclude this is conduct that “substantially frustrates the purposes of a solemn promise” (…); in particular, it frustrates the essential promise of the Treaty.”