Fracking operation in progress. Photo via Wikimedia Commons
A groundbreaking legal battle launched earlier this month by a First Nation in BC has the potential to not only stop all industrial development in its tracks in the northeastern corner of the province, but could create a chain reaction of similar lawsuits across the country.
The Blueberry River First Nations, located near Fort St. John, BC, made history earlier this month when they filed suit against the provincial government looking for an interim injunction that would prevent a single additional oil and gas well, seismic line, or hydro project to pop up on their traditional territory until the issue of their treaty rights can be addressed.
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The suit, filed on March 4 in BC Supreme Court, sues the province for allegedly breaching Treaty 8 by allowing “the consistent and increasingly accelerated degradation of the Nations’ territory,” resulting in the loss of members’ ability to exercise their inherent aboriginal harvesting rights on the land.
It’s the first lawsuit in the province—and one of a rare few ongoing in Canada—to challenge a breach of treaty on the basis of cumulative impacts, or the total adverse environmental effects resulting from decades of industrial activity in the area, rather than legally attacking development on a project-by-project basis.
As such, the suit now puts into question all future development in the Peace region, including the recently greenlit Site C dam project on the Peace River and ongoing plans to ramp up LNG production.
But according to legal experts, the case also holds the potential to significantly alter the trajectory of dozens, if not hundreds, of battles between First Nations and the Crown over the issue of treaty rights.
“It could quite literally be a game changer,” said Larry Innes, an attorney with aboriginal rights firm Olthuis-Kleer-Townshend, who works closely with First Nations in similar situations in northern BC, Alberta, and the Northwest Territories.
“If [Blueberry is] successful, particularly at the injunction stage, it has the potential for immediate relief and a bit of a domino effect.”
With the court’s decision, not only does the Crown risk the chance of having its operations severely constrained through a judge’s order, according to Innes, First Nations across Canada will have the legal precedent necessary to file similar actions.
“It would embolden First Nations under similar circumstances and force the Crown and industry to take the matter very seriously,” he said. “That might mean taking the decision out of the Crown’s hands, where the court would give them direction. It could be very dramatic.”
Death by a thousand cuts
According to Blueberry River Chief Marvin Vahey, the First Nation’s traditional lands have been “ravaged” since 1900, when their ancestors signed Treaty 8 and legally bound the Crown to the promise that First Nations would be able to hunt, trap, fish, and harvest traditional medicines from their lands forever.
“Blueberry’s ancestors would not recognize our territory today,” Vahey wrote in a statement accompanying the claim. “It is covered by oil and gas wells, roads, pipelines, mines, clearcuts, hydro and seismic lines, private land holdings, and waste disposal sites, among other things.
“The pace and scale of development have accelerated in the last 25 years, and are now at unprecedented levels.”
Maps released by the First Nation along with the statement of claim show a territory almost entirely consumed by various industrial projects over the past several decades, with 90.8 percent of land disturbed by industrial projects, and a vast portion of the southern territory in line to be flooded by Site C.
Those projects, Vahey argues, have meant death by a thousand cuts to the First Nations’ way of life.
“There are vast dark zones throughout our territory where we are no longer able to practice our treaty rights,” the chief said. “It is the cumulative impact of thousands of provincially authorized activities, from water withdrawals, to major industrial projects such as the Site C dam, which have destroyed our way of life and threaten our continued existence as a people.”
At the same time, Vahey said, the First Nations have not benefitted economically, with Blueberry receiving less than 0.1 percent of provincial oil and gas royalties, despite the region’s status as the leading petroleum hotspot in the province.
BC’s Aboriginal Relations Minister John Rustad gave a written statement on the suit, which he called “unfortunate.”
“Our government is committed to consulting with Blueberry River First Nations and all Treaty 8 First Nations on decisions that may affect hunting, fishing and trapping treaty rights within their respective traditional territories,” Rustad said, adding that the government has established a cumulative effects program to address the impacts of resource development.
“I understand Blueberry River First Nations’ concerns regarding natural resource development within their traditional territory and we remain committed to reaching a respectful, long-term government-to-government relationship,” he wrote. “Our negotiators have been meeting with Blueberry River First Nations to reach an agreement that ensures they are able have both economic opportunities and a role in environmental stewardship within their traditional territory.”
The government has until April 3 to file its response in court.
The problem with cumulative impacts
When it comes to grappling with the gravity of cumulative impacts on the environment, Innes said the missing piece is not a matter of missing science.
“It’s not like we don’t know better,” he said. “Cumulative effects have been part of environmental assessment policy and practice for 20 years or more.”
Instead, Innes argues that the regulatory system is essentially incapable of meaningfully addressing development on more than a case-by-case basis.
“The way cumulative effects are dealt with is cursory, at best,” he said. “Review panels tend to trip over them on the way out the door, or regulators basically say it’s too hard, where they’ll provide direction on say a single well, but say it’s not their mandate to set policy for cumulative effects.”
It’s a matter of passing the buck, Innes said, whereby no regulator is properly equipped to enforce thresholds on development, allowing governments to continue approving projects, undeterred.
“It’s a damning indictment of those who design and implement regulatory systems that set these guys up to fail, where they are given mandates that they can’t fulfill,” he said of the Blueberry suit. “It’s cases like this that forces the government to take their blinders off and stare, I hope, in horror at what they’ve created.”
Similar fight occurring across the border
Blueberry River is not the only First Nation attempting to force a new precedent in aboriginal case law in Canada when it comes to cumulative effects.
In 2008, the Beaver Lake Cree Nation of northeastern Alberta filed a massive suit against the federal and provincial governments, citing some 17,000 treaty violations based on a tally of the number of oil and gas projects on their traditional territory located in the tar sands region.
Beaver Lake member Crystal Lameman, whose uncle and former chief Al Lameman launched the band’s suit, said legal action has become the only legitimate recourse for First Nations who are denied meaningful participation in regulatory hearings and whose concerns are not accommodated by the Crown through consultation.
“The government and industry is making every attempt to put up roadblocks,” she said.
Though the Crown has attempted to have the Beaver Lake case thrown out of court on numerous technicalities, other court rulings have affirmed its validity and secured the First Nation a trial, though no date has yet been set.
Lameman said the decisions affirm the growing sense among aboriginal governments across Canada—backed by numerous recent, precedent-setting court rulings—that the law is on their side when it comes to holding the crown to honour the treaties and its fiduciary duty to First Nations.
“Beaver Lake, Blueberry—we are examples that represent a growing understanding that through aboriginal title and treaty rights, the native rights framework is the best strategy we have to stop unmitigated industrial expansion and the resulting cumulative impacts at the source,” she said.
“Indigenous people are still asserting our rights to free, prior, and informed consent; we’re still asserting our sovereignty over our lands, even if the hand that claims to feed us is still refusing to feed us.”
Meagan Wohlberg is an award-winning journalist based out of Fort Smith, NWT and editor of the Northern Journal. Follow her on Twitter.
