The BC Supreme Court decision in Yahey v. British Columbia, 2021 BCSC 1287, marks several important precedents in the recognition and enforcement of the constitutional rights protected by section 35 of the Constitution Act, 1982.
The case was brought as a final effort by the members of Blueberry River First Nations to get relief from the unceasing development of the territories they have traditionally relied upon in northeastern British Columbia. For more than 20 years, Blueberry had been raising alarm bells with government that the accumulating effects on the landscape and wildlife from decades of forestry, oil and gas, hydroelectric, agricultural, and other development was increasingly encroaching on their ability to carry on their Indigenous way of life and infringing their rights under Treaty 8.
After 160 days of trial, Blueberry successfully obtained a Court declaration that the province had breached the treaty rights recognized under s. 35. The Court found that the promises in Treaty 8, and under s. 35, are to protect the way of life of the Indigenous plaintiffs, and the measure of infringement lies in the Indigenous experience. Infringement arises when meaningful diminishment of the way of life is shown, which can arise from the cumulative impacts of development. Justice Burke found it would be “illogical and, ultimately, dishonourable” to conclude that the infringement of Blueberry’s treaty rights occurs only when there is no ability left to exercise treaty rights, and the Crown has a positive obligation to proactively protect the rights.
Importantly, the Court found that Blueberry’s way of life requires a healthy and stable environment, and that this is constitutionally protected.
The Court order prevents further authorization of development over 3.8 million hectares until the infringement of Blueberry’s treaty rights is removed. The order directs the province to work with Blueberry to develop a land management regime that demonstrably protects the ecosystems necessary for the exercise of treaty rights and effectively manages the cumulative impacts of development. The Court held that site specific mitigation measures do not prevent infringement. Instead, a holistic land management system that protects treaty rights and prevents development beyond sustainable limits is required.
In a significant and historic step, the province did not appeal the Court’s decision, enabling Blueberry and the province to work on implementing the Court’s order. Since the decision, the provincial government has created the Ministry of Land, Water and Resource Stewardship, conceding the old ministry responsible for land and resource management was too big and conflicted to handle the complexity of Indigenous reconciliation and cumulative effects. The new Minister, Josie Osborne, has said to the Globe and Mail that the business-as-usual, project-by-project approach is no longer appropriate, citing the Yahey decision as underscoring the importance of addressing cumulative impacts.
“The Treaty always contemplated balance,” Blueberry River Chief Judy Desjarlais has said. “But, after decades upon decades of industrial development occurring without Blueberry River’s input or consent, there is no longer a place free from impact, no way to practice our culture and traditional way of life. The Court decision confirmed Treaty 8 protects our way of life and changes to how the land is used must be made.”
Ultimately, the strong Court remedy enables reconciliation more than the regime of consultation ever did. The Court noted that in the decades of consultation preceding the trial, the Crown held the power in the relationship, proceeding as it intended where there was disagreement, never denying a permit based upon concern for the treaty rights. This approach contributed to the infringement. The decisive remedy issued by the Court addressed this imbalance, creating the space for Blueberry and the province to work together to develop a land management regime to restore and protect the land and ecosystem for future generations.