Cumulative Impacts on the Exercise of Treaty Rights

27 Apr Cumulative Impacts on the Exercise of Treaty Rights

 

The entirety of Alberta is subject to historic treaties, encompassing 45 First Nations and 140 reserves (approximately 812,771 hectares of land).[1]  Most of Alberta is covered by three treaties: [2]

• Treaty 6 signed in 1876, covers central Alberta and Saskatchewan, 16 First Nations.
• Treaty 7 signed in 1877, covers southern Alberta, 5 First Nations.
• Treaty 8 signed in 1899, covers portions of Northern Alberta, British Columbia, Saskatchewan and part of the Northwest Territories, 24 First Nations.

Small remaining portions of Alberta are subject to Treaty 4 signed in 1874 (in the southeast corner of the province) and to Treaty 10 signed in 1906 (along the eastern border).[3]

The numbered treaties all indicate that the respective First Nations “cede, release, surrender and yield up to the Government of Canada for Her Majesty the Queen and her successors for ever, all their rights, titles, and privileges whatsoever to the lands”.  In exchange, the Crown agreed to set aside lands as reserves, to provide annuities, to provide specified items (such as clothing, farming equipment, and ammunition), and to provide education.  As well, the First Nations were allowed to continue hunting, trapping and fishing throughout the surrendered lands except those lands that may be taken up for settlement, mining, lumbering or other purposes, and subject to regulations that may be made.[4]

Although Indigenous rights are constitutionally protected, under the current settler legal system land may be taken up by provincially authorized activities, projects and developments.  However, the cumulative impacts of numerous land use and resource development decisions are not effectively addressed by the current legislative framework.  The question of whether cumulative effects from taking up in the form of multiple provincially authorized activities, projects and developments could amount to a breach of treaty rights was considered by the B.C. Supreme Court in Yahey.[5]

Yahey v British Columbia

In this case, the Blueberry River First Nation (BRFN) argued that the cumulative effects from provincially authorized activities, projects and developments – including oil and gas, forestry, mining, hydroelectric, agriculture and others – within and adjacent to their traditional territory have resulted in significant adverse impacts on the meaningful exercise of their treaty rights.  The BRFN argued that this amounted to a breach of treaty No. 8 obligations by the Crown.  The Crown, on the other hand, argued that the test for treaty infringement is whether so much land has been taken up in the BRFN’s traditional territory that its members cannot meaningfully exercise their treaty rights.  The Crown asserted that the BRFN’s members can still meaningfully exercise their treaty rights.

Ultimately, the Court determined that the Crown breached its obligation to BRFN under Treaty No. 8, including its honourable and fiduciary obligations.  It found that the Crown has “taken up lands to such an extent that there are not sufficient and appropriate lands in the Blueberry Claim Area to allow for [BRFN’s] meaningful exercise of their treaty rights… has therefore unjustifiably infringed [BRFN’s] treaty rights in permitting the cumulative impacts of industrial development to meaningfully diminish [BRFN’s] exercise of its treaty rights”.[6]

The Yahey decision is very lengthy, reflecting the “extraordinary” amount of evidence regarding “history, ethnography, wildlife science, geology, geography, forestry, land use planning and functioning of various governmental regulatory regimes”.[7] It also contains a comprehensive review of the jurisprudence on treaty rights and infringement, as well as, jurisprudence specific to Treaty No. 8 (although none of the latter allege breaches of treaty rights).  Based on its review of the evidence and jurisprudence, the Court states that while “Treaty 8 did not promise continuity of nineteenth patterns of land use, this did not mean that both foundational and incidental elements of that way of life, including the continued existence of healthy environments used for hunting, trapping and fishing and the continuation of other cultural and spiritual practices connected with those activities were not also promised and protected”.[8]  The Court concluded that, historically, the perspective of the BRFN was that most of the Treaty area would remain unoccupied and be available for hunting, trapping and fishing.

The Court also stated that the right to take up land is not an “independent” right but rather it exists in relation to the protection of hunting, fishing and trapping rights[9] and that Indigenous rights are “not subject to, or inferior, to the Crown’s right to take up land”.[10]  There must be a balance that allows the exercise of rights to remain meaningful in the face of the Crown’s ability to take up lands.  But, in fact, the Court found that there  “is not sufficient appropriate lands in the Plaintiff’s traditional territories… to permit the meaningful exercise of their Treaty 8 rights.  Sufficient habitat, territory and wildlife have not been preserved to allow Blueberry members to carry out their hunting, trapping, and fishing mode of life.”[11] Furthermore, looking at the various industrial regulatory frameworks in place, there are no substantive measures in place to address or to protect the BRFN’s claim area from cumulative impacts.

Agreement between Blueberry River First Nation and British Columbia

As part of its decision, the Court in Yahey ordered that the Crown was no longer allowed to authorize activities that unjustifiably infringe on BRFN’s exercise of its treaty rights.  Furthermore, the BRFN and the Crown were directed to “consult and negotiate enforceable mechanisms to assess and manage the cumulative impacts of industrial development on [BRFN’s] treaty rights and to ensure these constitutional rights are respected”.[12]

Following the decision, the BC government and the BRFN entered into negotiations culminating in the Blueberry River First Nations Implementation Agreement (BRFN Agreement) which was signed in January 2023.[13] Under the agreement, there are initiatives related to wildlife management, land-use plans, petroleum and natural gas planning, adoption of ecosystem-based forest management, and funding for land restoration, wildlife stewardship and cultural and capacity investment.[14]

The BRFN Agreement sets a variety of purposes and goals including initiation “of a new approach to resource management and protection of Treaty Rights” and a cumulative effects goal to “enhance restoration to heal the land”, to create new areas protected from impacts of industrial development and to support and constrain certain development activities while a Cumulative Effects Management Regime is being implemented.[15] Other articles in the BRFN Agreement address:

• wildlife management with specific references to grizzly bear, caribou herd and moose management;[16]
• land protections related to forestry and oil and gas activities;[17]
• a Restoration Fund;
• a Cumulative Effects Management Regime; and
• watershed basin land use planning, and water use.[18]

The BRFN Agreement sets out specific rules for oil and gas development, notably establishing land disturbance caps for specified areas, disturbance fees (paid into the Restoration Fund) and setbacks.[19]

There are numerous Schedules to the BRFN Agreement that, among other things, set out the boundaries of the claim area (to which the BRFN Agreement applies), identify high value areas, set disturbance caps, set requirements for an ecosystem based management framework for forest management, identify watershed management basins, set out an environmental flow needs framework for water management, and set out a revenue sharing formula.

Some implementation detail can be gleaned from the BRFN Agreement – Rules for Oil and Gas Development issued by the BC Oil & Gas Commission.[20]  THE BRFN Agreement is meant to develop a new approach to resource management and protection of Treaty rights, with a focus on limiting new disturbances (there is an annual cap of 750 hectares per year within the claim area with sub-caps set for certain parts of the claim area).  Certain areas have been identified as being high value areas which will be protected from new disturbances (depending on the category, 100%, 80% or 60% protection) with accelerated restoration. In addition, priority watershed management basins have been identified for planning as integral to future development in the area.  As well, BRFN traplines have been identified and increased engagement expectations have been set for oil and gas activities in those areas.  In addition, there are disturbance fees payable and setbacks for certain values (such as grizzly bear dens, BRFN cabins, and wetlands). The BC Oil & Gas Commission also indicates that it will be transforming the application and permitting processes.

Under the BRFN Agreement,  a consultation process and issue resolution process for new oil and gas activity applications within a high value 1 area is established.[21]  In event that these processes do not result in agreement that the application is consistent with the approved HV1 plan or satisfactorily resolves the BRFN’s site specific concerns, then the decision may be challenged by the BRFN.  In other words, the ultimate decision still lies with the provincial decision-maker.

The BC government has also entered agreements with other Treaty 8 First Nations (which at this time remain confidential).[22]  These agreements represent a “consensus on a collaborative approach to land and resource planning, and to advance regional solutions to benefit everyone living in northeastern B.C. and Treaty 8 territory”.[23]  Initiatives under this consensus include a new approach to wildlife co-management, new land use plan, a cumulative effects management systems, a restoration fund, a new revenue-sharing approach, and education actions.

What implications does this decision have in Alberta?

Since it is a BC Supreme Court decision, the decision in Yahey is not binding in Alberta.[24] However, it is an interesting decision in that it expands the rights to hunt, trap and fish to being a right to a way of life (as opposed to discrete, narrow rights to hunt, trap and fish).[25]  As well, rather than just considering the extent of lands taken up, the decision considered the effects of taking up land on surrounding lands and the wildlife populations.[26]

Similar actions asserting unjustifiable infringement of treaty rights due to cumulative effects of development in traditional territories are underway in Alberta.  For instance, the Beaver Lake Cree claim in Anderson[27] asserts that the province improperly allowed its lands to be taken up for industrial and resource development.  This claim was commenced in 2008 and a trial is set to commence in January 2024.

More recently, in a Statement of Claim filed on July 18, 2022, the Duncan’s First Nation asserts that their treaty rights have been significantly diminished by the province’s decisions with respect to resource development, agriculture, transportation and settlement activities.[28]  The Duncan’s First Nation assert that Treaty 8 ensures “the right to carry on their way of life free from interference as well as the rights to hunt, fish, trap and gather natural resources in their traditional territory”.[29]  They seek an order that declares “Alberta’s regulatory mechanisms are insufficient to address cumulative effects, directing the province to establish new mechanisms for assessing cumulative impacts of development, and prohibiting the province from permitting any activities that further infringe … treaty rights”.[30]

As mentioned, the Yahey proceeding involved an “extraordinary” amount of evidence regarding history, ethnography, wildlife science, geology, geography, forestry, land use planning and functioning of various governmental regulatory regimes. Successful litigation in Alberta may require the similar levels of evidence as the onus remains on the First Nations to demonstrate that an infringement of treaty rights is occurring. Furthermore, the approach taken in Yahey – that is, considering Treaty rights as a way of life rather than discrete rights to hunt, trap and fish – may or may not be adopted by the Alberta courts.

Nevertheless, this decision and the subsequent agreements provide an example for respecting Treaties 6, 7 and 8 in Alberta. By and large, there is a lack of legislative acknowledgement of Treaty rights in Alberta which seems at odds with both the honour of the Crown and specific Treaty promises.  There is no clear Treaty right impact consideration integrated into Alberta’s legislative schemes for environmental and resource development decision-making.  This is exacerbated by the current piece-meal approach to land-use and natural resource development which fails to adequately address cumulative impacts on Treaty rights.  Instead, consideration of Treaty rights in environmental and natural resource decision-making usually is distilled down to a process requirement for consultation and accommodation with little room for Indigenous centred planning or co-management arrangements.

An Alberta Example: The Moose Lake Access Agreement

The Moose Lake Access Management Plan (MLAMP) also provides an example of land use planning approach designed to address Indigenous concerns around cumulative impacts on traditional lands.[31]  The MLAMP is intended to be adopted as a subregional plan under the Alberta Land Stewardship Act (ALSA) for the larger Moose Lake watershed and in the interim, it has been adopted as policy.

The MLAMP applies to all Crown lands in a specified Moose Lake 10km zone (10KZ) extending from the boundaries of the Fort McKay First Nations reserves and includes portions of the Birch Mountains Wildland Provincial Park and portions of the Red Earth Caribou Range.  The area is identified as a place of importance by the Fort McKay First Nations who “see this as their last meaningful place to practice Treaty rights and traditional uses”. [32]  It is also valued by the Fort McKay Metis and other Indigenous groups for traditional uses.

The MLAMP was “developed to address concerns of the Fort McKay First Nation related to increased development pressures and associated environmental impacts on the exercise of Treaty rights, traditional land uses, cultural practices and associated interests on and near their Moose Lake reserves”.[33] The purpose of the MLAMP is to “define outcomes and management actions to maintain ecological integrity and biodiversity within the 10KMZ to support the exercise of section 35 rights, traditional land uses and cultural practices while simultaneously enabling well-managed, responsible, development of resources”.[34]

The MLAMP limits the total amount of buffered footprint for industrial resource development to 15% (15,537 ha) with disturbance limits allocated by resource sector. Developers are required to manage their development footprints within acceptable parameters by measuring interior habitat along with sector-specific components of land and footprint management actions with interior habitat being the percentage of native terrestrial and aquatic cover that is a specified distance from development footprint (i.e., specified distance is the buffer).

Within each sector, individual companies are granted an allocation during the application stage.  In the event that a sector’s allocation is reached and additional buffered footprint is requires, overage credits may be allocated towards that sector.  These overage credits come from 2,023 hectares of the disturbance limit within the 10KZ that were unallocated at the MLAMP was created.  That overage credit may be allocated to the sectors of forestry, oil and gas, or aggregate by Alberta Environment and Parks. Alberta Environment and Parks determines whether overage credits can be allocated, how much a sector can receive and the duration for which credits are allocated.

While the primary activity in the 10KZ and surrounding area is bitumen extraction, forestry, oil and gas, and aggregate operations also take place. The MLAMP indicates that existing resource dispositions will be honoured but for most industries no new dispositions will be made within the 10KZ. In particular, the MLAMP states that within the 10KZ:

• Existing sand and gravel agreements will be honoured but no new sand and gravel extraction activities will permitted and all rights are reserved from disposition.
• No new coal or metallic and industrial minerals extraction activities will be permitted and all rights are reserved from disposition.
• Any new or existing seismic footprint (i.e. geophysical exploration) does not count as disturbance within the oil and gas sector allocation or the overall disturbance limit although it is expected existing lines will be reused. Any new clearings  must adhere to standards outlined in the MLAMP.
• Existing petroleum and natural gas agreements will be honoured and development of existing agreements may proceed as long as activity is aligned with disturbance limits. All project applications submitted to the Alberta Energy Regulator must include an assessment of a company’s total buffered footprint as a proportion of the company’s total subsurface agreement area.  No new petroleum and natural gas agreements will be issued.
• Oilsands leases issued after the approval date of the MLAMP will be issued with conditions that limit surface disturbance activities to those associated with monitoring, exploration and access.
• Allocation of lands for commercial peat harvesting will be consistent with the principles in the Allocation and Sustainable Management of Peat Resources on Public Land policy and will be considered as being in an area of high sensitivity.[35]
• No new transmission lines will be permitted.

For the portion of the Birch Mountains Wildlife Provincial Park within the 10 KZ, the existing surface restrictions under the Provincial Parks Act apply.[36]  The MLAMP indicates that cooperative management for this park will be implemented collaboratively with interested Indigenous communities.

Non-resource development activities are not considered to contribute to disturbance limits.  These activities include trails for traditional land use by Indigenous peoples, commercial recreation, and registered fur management areas (RFMAs).  Despite this, the MLAMP indicates that no new commercial recreation developments – including fishing lodges, boat launches, cabins – are not permitted within the 10KZ.  The MLAMP also states that both traditional land user and RFMA holders should use existing linear features and sets guidance for the creation of new trails.

In addition to the disturbance limits, the MLAMP sets out recovery milestones which, as they are met, reduces the footprint with the goal of habitat recovery.  As a company meets the specified criteria for restoration, reforestation or reclamation, the buffered footprint is progressively reduced creating room within the disturbance limit for additional development.

As an example, under the MLAMP the forestry industry is allocated a 1,500 ha buffered footprint within the 10KZ.  Aside from the buffered footprint allocation, there are specific requirements for the forestry industry within the 10KZ:

• The forestry industry is accountable for forest harvest areas and related roads (i.e., used to calculate the footprint under the disturbance limit). Forest management activities not related to timber harvest (such as forest health and fire prevention) are not counted toward the sector allocation.
• The footprint associated with forest harvest will not be attributed to forestry where it overlaps with buffered footprint from more permanent activities (like persistent access roads).
• The forestry industry must adhere to management objectives identified in the applicable forest management plan. As well, commercial forest harvesting must align with the forest management plan’s spatial harvest sequence, general development plans, and the Northeast Alberta Timber Harvest Planning and Operating Ground Rules.
• The forestry operators must engage with overlapping and/or adjacent energy sector companies during the oil sands planning phase to align operations, manage footprints, and ensure effective use of merchantable timber that will be removed for oil sands operations.

For the forestry industry, the recovery milestones are:

1. Reforestation complete as per Reforestation Standard of Alberta = 50% buffer reduction.
2. Establishment survey complete as per Reforestation Standard of Alberta =100% buffer reduction.
3. Performance survey complete as per Reforestation Standard of Alberta = footprint removal.

Aside from setting disturbance limits and recovery milestones, there are provisions addressing restoration of legacy seismic disturbance, air quality, water quality and quantity, wetland abundance and health, fish and wildlife management, access management, monitoring, and governance within the MLAMP.

The approach taken with the MLAMP need not be an isolated example. Negotiations could be undertaken to create plans to manage cumulative impacts of land-use and resource decision-making on the exercise of Treaty rights and taking up of lands.  These plans could cover similar matters as those covered in the BRFN Agreement and applicable in BC.

Probably the most effective way to implement such negotiated plans would be as sub-regional plans under ALSA (or as policy documents pending completion of regional planning under ALSA). This is because ALSA enables the development of regional plans designed to plan and manage landscapes which bind regulators and decision-makers, and may affect statutory consents.[37]  Regional plans, in turn, may authorize the preparation of subregional or issue specific plans.[38] As well, agreements or arrangement may be adopted or incorporated into a regional plan.[39]Regional and sub-regional plans can (and do) set out regulatory requirements.

Without the legislative authority imparted by ALSA, it may be arguable that decision-making is fettered by undue reliance on a negotiated agreement between the government and one or more First Nations that is not aligned with the relevant decision-making legislation. This is because statutory decision-makers are constrained by their enabling legislation which may set specific considerations for making decisions.  In the case of an agreement which is not implemented as an ALSA sub-regional plan or incorporated into an ALSA regional plan, legislative change may be required for full implementation and to avoid potential fettering of decision-makers.  This concern seems to be reflected in the BRFN Agreement – Rules for Oil and Gas Development issued by the BC Oil & Gas Commission which indicates that its application and permitting processes are being transformed to align with the BRFN Agreement.[40]  Indeed, the BRFN Agreement itself contemplates that legislative changes will be required to allow its implementation.[41]

In the event ALSA plans are used as a means to manage the cumulative impacts of land-use and resource decision-making on the exercise of Treaty rights and taking up of lands, it be kept in mind that there are limited enforcement options.  A person may make a written complaint that a regional plan is not being complied with which may trigger an investigation that, in turn, may lead to the matter being passed onto a Minister, government department or municipal government for resolution.[42]  In addition, the stewardship commissioner may apply for a Court Order for a non-compliance with a regional plan that cannot be remedied or rectified under another piece of legislation.[43]

As well, there are limited options to challenge the contents of a ALSA plan.  Requests to review a regional plan may be made within 12 months of the plan’s adoption.[44] Otherwise, there may be only limited opportunity to seek judicial review of a regional plan.[45]

 

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Other reports in The Environment and The Constitution Series

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[1] Government of Canada, First Nations in Alberta (Ottawa: 2013, Aboriginal Affairs and Northern Development Canada).

[2] Ibid.

[3] Government of Canada, Maps of Treaty-Making in Canada: Pre-1975 Treaties of Canada, online: https://www.rcaanc-cirnac.gc.ca/eng/1100100032297/1544716489360.

[4] Treaty 6 refers to hunting and fishing; Treaty 7 refers only to hunting; and Treaty 8 refers to hunting, trapping and fishing.

[5] Yahey v British Columbia, 2021 BCSC 1287 [Yahey].

[6] Ibid. at para. 1894.

[7] Ibid. at para. 5.

[8] Ibid. at para. 272.

[9] Ibid. at para. 275.

[10] Ibid. at para. 532.

[11] Ibid. at para. 1180.

[12] Ibid. at para. 1894.

[13] Blueberry River First Nations Implementation Agreement between His Majesty the King in Right of the Province of British Columbia as represented by the Minister of Energy, Mines and Low Carbon Innovation, the Minister of Water, Land and Resource Stewardship, the Minister of Indigenous Relations and Reconciliation, the Minister of Forests and the Minister of Environment and Climate Change Strategy AND Blueberry River First Nations (January 18, 2023) [BRFN Agreement]. See also Government of BC, News Release: Province, Blueberry River First Nations reach agreement (January 18, 2023), online: https://news.gov.bc.ca/releases/2023WLRS0004-000043.

[14] BRFN Agreement..

[15] BRFN Agreement at Art. 2.

[16] Ibid. at Art. 4.

[17] Ibid. at Art. 5, 6, 7, 8 and 9.

[18] Ibid. at Art. 10, 11, 12, 13 and 17.

[19] Ibid. at Art. 14.

[20] BC Ministry of Energy, Mines and Low Carbon Innovation and BC Oil & Gas Commission, BRFN Agreement – Rules for Oil and Gas Development (n/d), online: https://www.bcogc.ca/files/documents/20230126_FINAL-PNG-Info-Bulletin-detailed-document.pdf.

A cons[21] BRFN Agreement at Arts. 7.14 and 9.3.

[22] Government of BC, News Release: B.C., Treaty 8 First Nations build path forward together (January 20, 2023).

[23] Ibid.

[24] The decision has not been appealed by the Provincial Crown and a new framework is currently being negotiated.  Government of British Columbia, Attorney general’s statement on Yahey v British Columbia (July 28, 2021), online: https://news.gov.bc.ca/releases/2021AG0117-001488.

[25] Maureen Killoran et al, “Treaty infringement claims for cumulative effects come to Alberta” (August 29, 2022), Osler Blog online: https://www.osler.com/en/resources/regulations/2022/treaty-infringement-claims-for-cumulative-effects-come-to-alberta [Killoran].

[26] Ibid.

[27] Anderson v Alberta, 2022 SCC 6 (CanLii).  This particular decision pertains to an application for advance costs to fund the litigation.

[28] Gladue v Alberta, online: http://jfklaw.wpenginepowered.com/wp-content/uploads/2022/09/DFN-–-Statement-of-Claim-–-18-July-2022.pdf [Gladue]. See also Killoran, supra note *.

[29] Ibid. at paras. 2 and 3.

[30] Killoran, supra. note 23.

[31] Moose Lake Access Management Plan (Edmonton: 2021, Government of Alberta) [MLAMP].

[32] Ibid. at 6.

[33] Ibid. at 15.

[34] Ibid. at 14.

[35] Alberta Environment and Parks, Allocation and Sustainable Management of Peat Resources on Public Land, AEP Public Land Management 2016 No. 9 (Edmonton: 2017, Government of Alberta).

[36] Provincial Parks Act, RSA 2000, ch. P-35.

[37] Alberta Land Stewardship Act, SA 2009, ch. A-26.8 at s. 13 and 15 discusses the legal nature and effect of regional plans.

[38] ALSA at s. 22.

[39] ALSA at s. 22.

[40] BC Ministry of Energy, Mines and Low Carbon Innovation and BC Oil & Gas Commission, BRFN Agreement – Rules for Oil and Gas Development (n/d), online: https://www.bcogc.ca/files/documents/20230126_FINAL-PNG-Info-Bulletin-detailed-document.pdf.

[41] For example, see BFRN Agreement at Art. 12.3.

[42] ALSA at s. 62.

[43] ALSA at s. 18.

[44] ALSA at s. 19.2.  Indeed, six First Nations sought review of the Lower Athabasca Regional Plan: see Lower Athabasca Regional Plan Review Panel Report (2015).

[45] ALSA at s. 15(3) is a privative clause which limits actions to challenge the binding nature of regional plans.  For discussion of whether this is a general privative clause, see Maria Lavelle, Ambiguity and the Amendments to the Alberta Land Stewardship Act(2012) 49:3 Alberta L.R. 579.

 

 

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