Devil is in the details for resource project developers in wake of landmark cumulative treaty rights decision

By Julius Melnitzer | March 23, 2023

An historic agreement between B.C. and the Blueberry River First Nation could spell greater certainty for proponents of development projects on treaty lands throughout the country.

“The court recognized that it’s hard to protect historical rights when they are being assessed on a project-by-project, piecemeal basis,” said Martin Ignasiak, head of Bennett Jones LLP’s energy regulatory practice. “The important thing about the agreement is BRFN’s recognition that it meets the court’s requirement for managing cumulative impact developments while ensuring constitutional rights.”

Just a few days later, B.C. finalized a consensus document with the Fort Nelson, Saulteau, Halfway River and Doig River Nations, all of which are covered by Treaty 8, which encompasses more than 840,000 square kilometres in B.C., Alberta, Saskatchewan and the Northwest Territories and is home to 39 First Nations.

The government is also in negotiations with other Treaty 8 nations, including McLeod Lake Indian Band, Prophet River First Nation and West Moberly First Nations.

The key elements of the implementation agreement include a commitment to collaborative land-use planning, wildlife management, resource development and forestry preservation by way of a co-management framework. The agreement contemplates that stakeholders, including project proponents, the provincial government and First Nations will address the establishment of areas for permanent protection, consult on minimizing disturbance from oil and gas projects and reduce new disturbances by approximately 50 per cent from 2022.

As well, the agreement creates a $200 million restoration fund, meant to restore land from industrial disturbance by 2025, and an $87.5 million financial package that may increase depending on petroleum and natural gas revenue-sharing and provincial royalty revenues in the next two years.

“The Agreement is intended to manage the cumulative impact of industrial development while creating certainty about where development can take place by the creation of clearly understood no-go zones,” Ignasiak said. “In principle, that’s a lot better than having projects go through 10 years of regulatory processes.”

Although texts of the agreements remain confidential, it’s apparent that they will impose additional regulatory requirements on developers.

“But they will also likely result in greater legal and regulatory certainty associated with both the process of obtaining approvals and their recognition once obtained,” Ignasiak said.

The devil, of course, is in the details.

“There’s a legitimate question about how we’re going to create a process that is workable for industry timelines,” Ignasiak said. “It’s all premised on satisfactory input, but it’s no secret that the rubber will hit the road when there are diametrically opposed views and no room for resolution.”

While the co-management approach is new to the Aboriginal rights arena, it’s similar to what occurs in municipal land-use planning, albeit on a far different scale, with potential implications throughout Canada.

Indeed, estimates are that the 11 numbered treaties that exist represent about 1.2 million square kilometres, or about five per cent of Canada’s land area.

Even seen on its own, the BFRN agreement covers some 38,000 acres just northwest of Fort John, B.C., and includes most of the Montney Formation — one of the country’s most active natural gas development targets — as well as municipalities such as Fort St. John and Dawson Creek, forestry operations, two hydroelectric dams, and the controversial Site C dam under-construction on the Peace River.

In 2016, the David Suzuki Foundation and Ecotrust Canada concluded that more than 110,000 kilometres of pipelines, roads, transmission lines and seismic lines populated Blueberry territory.

Looking beyond B.C., historic treaties are in place in most of northern Ontario, Alberta, Manitoba, Saskatchewan and throughout the Northwest Territories. While Yahey, a lower court decision that has not been appealed, is not binding on other courts in B.C. or the rest of the country, “cumulative effect” claims are burgeoning.

Even before Yahey, the Beaver Lake Cree Nation had filed a claim against Alberta regarding its territory northeast of Edmonton. Carry the Kettle Nakoda Nation followed with a claim against Saskatchewan related to its territory east of Regina.

Since Yahey, mirroring claims have popped up from Duncan’s First Nation in Alberta as well as Chapleau Cree First Nation, Missanabie Cree First Nation and Brunswick House First Nation in Ontario.

Whether and to what extent other courts will follow Yahey remains an open question, as do the reactions of disparate provincial governments even if Yahey is upheld.

But Ignasiak expects more such agreements, with the B.C. model as the template.

“They open the door for development to proceed on a timely basis,” he said.

Sean Sutherland, an Osler, Hoskin & Harcourt litigator who practises out of Calgary and Vancouver, says collaborative regimes can work because they provide stakeholders with feelings of legitimacy and certainty as to process and timing.

“But this co-management approach is yet to be tested, and I believe that the Blueberry lands will be the test case,” he said. “It’s important to remember that the issues are very complicated — the Yahey trial took a year — which means that we can be hopeful but there are no guarantees.”

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