“The Tipping Point Has Been Reached”: Implications of Yahey v. British Columbia in Alberta
By Ariane Wilson
It is no secret that the Government of Alberta has failed to uphold its responsibilities under existing Treaties in the Province. One such example is Alberta’s oil and gas industry. Making up the bulk of the Province’s revenues, the industry has greatly contributed to ongoing violations of Indigenous and Treaty rights as well as to extensive cumulative effects in the Province.[1] However, changes are coming. The success of Blueberry River First Nation’s (BRFN) lawsuit against the Government of British Columbia (Yahey v. British Columbia) has set a precedent for what provinces can “get away with” (or not) when it comes to industrial development and the impacts development has on Indigenous and Treaty rights. As Justice Burke noted in the Yahey decision: “Recognizing that rights are not frozen does not mean that rights can be whittled away or made meaningless because of changes to the environment where they were once exercised. Indigenous peoples are not to be left with an empty shell of a treaty promise.”[2]
Yahey v. British Columbia: Key Findings and Case Results
The Yahey decision focused on four questions: (1) what are the rights and obligations in Treaty 8? (2) What is the test for finding an infringement of treaty rights? (3) Have Blueberry’s rights been infringed and consequently, are there sufficient and appropriate lands in BRFN’s territory to allow for the meaningful exercise by BRFN of its treaty rights? And (4) If the plaintiffs can no longer meaningfully exercise their Treaty 8 rights, has the Province breached the Treaty?[3] The case had to contend with many issues including:
the interpretation of Treaty 8,
determining a test for treaty infringement, uncovering the limit of each parties’ rights and obligations under treaties,
as well as the test for determining whether cumulative effects have reached a “tipping point” at which Indigenous peoples’ ability to meaningfully exercise their rights has been significantly diminished.
Justice Burke concluded that in British Columbia, “The Province has not, to date, shown that it has an appropriate enforceable way of considering treaty rights or assessing cumulative impacts of development on the exercise of treaty rights.”[4] Moreover, the Justice declared that in causing and permitting cumulative impacts of industrial development on Blueberry’s Treaty 8 rights, the Province breached its obligations under Treaty 8 and that the Province took up lands to such an extent that there are no longer sufficient and appropriate lands to allow for the meaningful exercise of BRFN’s treaty rights. The case decision triggered negotiations between BRFN and the Province of BC resulting in the signing of the Blueberry River First Nation Implementation Agreement in January 2023 which sets out new framework for resource management and stewardship to be rolled out collaboratively between the Province and BRFN.[5]
Implications of the Yahey Decision for Alberta
The Yahey decision marks the beginning of the end for governments’ unrestricted and unaccountable approaches to industrial development across the country. In a similar way to British Columbia, and potentially to a further extent, Alberta has taken an unchecked and unhindered approach to approving industrial development. Despite cumulative effects being on Alberta’s radar since at least 1997, previous strategies and approaches to cumulative effects mitigation have proven to be far from effective.[6] For example, the regulatory frameworks implemented in Alberta (such as the Alberta Land Use Framework and the subsequent Lower Athabasca Regional Plan) have reinforced a pattern of redirection in government sectors that greatly contribute to cumulative effects by passing off responsibilities between departments and regulatory bodies.
Further, Alberta’s attempts to address cumulative effects, such as through the multistakeholder Cumulative Environmental Management Association (CEMA, established in 2000) never fulfilled their mandates. As CEMA’s president noted when the Government of Alberta chose to move CEMA’s research projects “in-house” in 2017: “There’s this empty hole or black box of unfinished work that doesn’t seem to be getting done. And it doesn’t seem to be a priority to anybody.”[7] In 2023, CEMA no longer exists, and Alberta’s commitment to dealing with cumulative effects is largely disconnected and ineffective, a point recently reiterated by Cronmiller and Noble, who explain that provincial monitoring programs meant to “support cumulative effects science are often short-lived initiatives or disconnected from land use planning and regulatory decision making.”[8] They conclude that there is little public trust that long-term monitoring will be done and be able to detect and manage cumulative impacts of development in Alberta.
All of this reiterates Alberta’s failure to consider and address cumulative effects generally, but how have these failures affected Indigenous and Treaty rights? What role will all of this play in forthcoming litigation against the Province of Alberta? While British Columbia had to contend with only a small portion of Treaty 8 in the province’s north, Alberta will have to contend with the promises the Crown committed to in Treaties 6, 7, and 8. While similar, each Treaty has unique clauses and responsibilities. For example, Treaty 6 Elders maintain that Crown representatives only requested the use of the land to the “depth of the plough” for the Queen’s subjects to farm in negotiating the Treaty.[9] Additionally, Alberta will need to consider what this means in the context of Métis rights, an ever evolving field where communities both within and outside of the Otipemisiwak governing structure are requesting redress for continued and unmitigated development on their traditional territories.
As Justice Burke maintained in the Yahey decision, treaty interpretation must go beyond the written text and should work to uncover the parties’ common intentions by considering the context in which the treaty was negotiated, concluded, and committed to in writing.[10] Evidently, the large-scale sub-surface resource development that has occurred in Alberta has violated Treaty promises and prevented Indigenous peoples from meaningfully exercising their Indigenous and Treaty rights due to the effects of development on the land, wildlife, water, and other resources. This is only one of the potential differences that may come up in cumulative effects litigation between Alberta First Nations, Métis and the Province, but the principles of the Yahey decision will still apply.
All of this indicates that Alberta’s time is coming, and the status quo will no longer be accepted. The culture of treating Indigenous and Treaty rights as an afterthought and of making promises to Indigenous peoples with no meaningful action to back government commitments, as well as the ineffective approaches to managing cumulative effects will no longer be justifiable. As Justice Burke put it in the Yahey decison, the “tipping point” at which Indigenous rights are greatly diminished and can no longer be meaningfully exercised has been reached. The time has come to do something about it.
[1] Indigenous Watch Dog. 2022. “‘Backed into a corner’: Duncan’s First Nation sues Alberta for cumulative impacts of industry.” https://www.indigenouswatchdog.org/current-problems/stakeholder/ab/treaties-and-land-claims/
[2] Yahey v. British Columbia, 2021 BCSC 1287, [109].
[3] Yahey v. British Columbia, 2021 BCSC 1287, [62-67].
[4] Yahey v. British Columbia, 2021 BCSC 1287, [1809].
[5] Government of British Columbia, 2023. “Province, Blueberry River First Nations reach agreement.” https://news.gov.bc.ca/releases/2023WLRS0004-000043
[6] Kennet, Steven. 2007. “Closing the Performance Gap: The Challenge for Cumulative Effects Management in Alberta’s Athabasca Oil Sands Region.” https://prism.ucalgary.ca/server/api/core/bitstreams/0f501ffb-12a1-4f12-a525-45ad2a255258/content
[7] Thurton, David. 2017. “Indigenous people ‘losing their voice in oilsands,’ says stakeholder group.” CBC News. https://www.cbc.ca/news/canada/edmonton/cema-cumulative-environmental-management-association-fort-mcmurray-1.4142499
[8] Cronmiller and Noble. 2018. “The discontinuity of environmental effects monitoring in the Lower Athabasca region of Alberta Canada: institutional challenges to long-term monitoring and cumulative effects management.” Environmental Reviews, 26(2): 1. https://cdnsciencepub.com/doi/10.1139/er-2017-0083
[9] Venne, Sharing, 2011. “Understanding Treaty 6: An Indigenous Perspective,” In Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference, edited by Michael Asch. University of British Columbia Press.
[10] Yahey v. British Columbia, 2021 BCSC 1287, [104].