The Piecemeal Infringement of Treaty Rights

By Bruce McIvor

Case Comment on Yahey v. British Columbia, 2015 BCSC 1302

During the early years of the development of modern Aboriginal law in Canada, First Nations with so-called ‘numbered treaties’ could argue that governments were obligated to justify any infringement of their treaty rights.

This changed with the Supreme Court’s 2005 Mikisew decision. The Court held that when governments exercise their right to ‘take up’ land under the numbered treaties (including exploiting Indigenous lands for forestry, mining, etc.) their obligations are limited to consultation and perhaps accommodation. Governments will only be liable for treaty infringement if they take up so much land as to leave a First Nation with no meaningful ability to exercise their treaty rights.

For many treaty First Nations this has meant the slow erosion of their treaty rights by a thousand cuts—no one decision fatal by itself, but the cumulative effect devastating nonetheless. Blueberry River First Nations in Treaty 8, for example, estimates that two-thirds of its traditional territory has been developed for industrial purposes or is within 250 metres of industrial development. At the current rate of development by 2060 all of its lands will have either been developed or be within 250 metres of development.

What it is about

Blueberry River is fighting back. In March it filed a lawsuit against British Columbia alleging the province had breached Treaty 8 because the cumulative effect of development in its territory (including forestry, mining, hydroelectricity and oil and gas) would soon make it impossible for its members to meaningfully exercise their treaty rights.

Following the filing of the lawsuit, Blueberry River sought an injunction to prevent British Columbia from selling 15 timber sale licences pursuant to forestry plans approved in 2010 and 2011. Blueberry River alleged that the sale of the licences would contribute to the cumulative effects of development in its territory and therefore should not be allowed until its lawsuit for treaty infringement was heard.

What the Court said

The Court concluded that the ‘balance of convenience’ did not favour the First Nation and so denied the injunction application.

In doing so, the Court considered the relationship between the specific logging activities which Blueberry River sought an injunction against and the wider alleged treaty breach which it characterized as the cumulative effect of numerous developments due to continued unchecked development in the First Nation’s territory.

The Court emphasized that the area intended for logging under the timber sale licences was less than a tenth of one percent of Blueberry River's territory and that about 90 percent of ongoing development complained of by the First Nation would be unaffected by the injunction. It concluded that the proposed logging was not the ‘tipping point’ beyond which a First Nation might not be able to meaningfully exercise its treaty rights.

A central concern for the Court was that if Blueberry River succeeded on the application there might be a series of applications against discrete development proposals which could effectively put a stop to all development in Blueberry River's territory without its approval.

The Court left open the possibility that the First Nation might come back to court and obtain a general injunction against all development in its territory, but concluded that the public interest would not be served by a piecemeal, project-by-project approach to protecting the First Nation’s treaty rights.

Why it matters

Given that the piecemeal limitation of treaty rights is one of the greatest challenges First Nations face in their ongoing struggle to defend their treaty rights, it is bitter irony that a court would invoke a piecemeal argument in rejecting an injunction to stop development.

Government’s refusal to seriously consider cumulative effects and support First Nation-driven land use planning undermines effective responses to the steady erosion of treaty rights. Instead, governments invoke the duty to consult as they undermine treaty rights one decision at a time.

Properly applied, the duty to consult and accommodate has the potential to meaningfully address the issue. But all too often governments—and companies— pour their energies and resources into the procedural aspects of consultation and avoid seriously engaging with First Nations on issues of real concern. The very fact that a First Nation has been forced to file a lawsuit for treaty infringement demonstrates the failure of the duty to consult to protect treaty rights.

While the ‘tipping-point’ may not yet have been reached, it is definitely in sight for many treaty First Nations. Governments must recognize that it is in everyone’s interests, Indigenous and non-Indigenous alike, to work with First Nations to find real solutions. If not, frustration will grow, lawsuits will be filed, risk will increase and opportunities will be lost.

Read the full decision.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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