Incredible Cumulative Impacts victory for Blueberry River First Nations: Yahey v. British Columbia. Will Horgan’s NDP appeal to let industry’s rapes continue another decade or more, notably with how slow the Supreme Court of Canada’s process is?

Congratulations to Blueberry River First Nations for not settling and gagging, and not giving up, and this fantastic win. They filed their complicated massive case in 2015 (my case is simple – one frac’d water well, one person). A mere six years later, they are already through trial with a ruling.

My lawyers took 11 years to get me mostly nowhere except them abruptly quitting, violating the rules of their profession, still withholding my property nearly three years later; lying to me in writing and misrepresenting me to the court in a sworn Affidavit; invoicing me nearly $400,000.00 for legal costs/expenses and costs ordered against me and costing me additionally about $100,000.00 in expenses I paid directly myself.

I wonder now about Klippensteins. Did the firm plan on never getting me to trial? Was their legal strategy to drag me along all those stress-filled years (e.g. Harper’s anti-terrorist RCMP squad and angry oil patch-loving Albertans trespassing on my private property, threatening me to shut up and drop my lawsuit, Glenn Solomon (lawyer for AER) calling me a terrorist in brief filed in court without any evidence, defendants lying in their Statements of Defence, judges lying in rulings etc) for no reason than to fill their pockets, use my suffering and savings to train fresh out of school Cory Wanless, wear me down and make me quit? I didn’t quit, so they did instead. I want to know what they’re hiding in my files they are refusing to send me.

Comment by lawyer Robert Janes on the win and Canada’s fickle Rule of Law 

A tweet replying to discussion on implications of this case to other Treaties/cases:

Tracy [email protected] Replying to @benralstonyxe and @molszyns July 1, 2021:

I work with Duty to Consult & Accommodate everyday. It is a broken process…because of three main hurdles…Rights are not recognized or narrowly construed; impacts to rights are not acknowledged; accommodation is not owed when impacts are not proven. Complete fuckery.

Blueberry River First Nations Statement on the Supreme Court of B.C. verdict June 30, 2021:

A significant, intriguing part of the ruling in my view:

[1894] In summary, I have granted the following declarations:

  1. In causing and/or permitting the cumulative impacts of industrial development on Blueberry’s treaty rights, the Province has breached its obligation to Blueberry under Treaty 8, including its honourable and fiduciary obligations. The Province’s mechanisms for assessing and taking into account cumulative effects are lacking and have contributed to the breach of its obligations under Treaty 8;
  2. The Province has taken up lands to such an extent that there are not sufficient and appropriate lands in the Blueberry Claim Area to allow for Blueberry’s meaningful exercise of their treaty rights. The Province has therefore unjustifiably infringed Blueberry’s treaty rights in permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry’s exercise of its treaty rights in the Blueberry Claim Area;
  3. The Province may not continue to authorize activities that breach the promises included in the Treaty, including the Province’s honourable and fiduciary obligations associated with the Treaty, or that unjustifiably infringe Blueberry’s exercise of its treaty rights; and,
  4. The parties must act with diligence to consult and negotiate for the purpose of establishing timely enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry’s treaty rights, and to ensure these constitutional rights are respected.

Judge orders halt to development on Blueberry River First Nations by John Flatters, June 30, 2021, Energetic City

A judge found the province infringed on treaty rights by allowing industrial development in the traditional territory of the Blueberry River First Nations.

On Tuesday, Supreme Court Justice Burke said the province is no longer authorized to allow development activities that would impact Treaty 8 rights of hunting, fishing and trapping.

BRFN argued the combined ***aka cumulative*** impacts of development like roads, dams, transmission lines, and natural gas extraction have slowly reduced access to natural resources and practices.

Justice Burke said the Crown was allowed to infringe treaty rights by “taking up” land for roads, mines and projects determined to be “for the public good”, but she said there needs to be a limit.

“This power, however, is not infinite. The province cannot take up so much land such that Blueberry can no longer meaningfully exercise its rights to hunt, trap and fish in a manner consistent with its way of life. The province’s power to take up lands must be exercised in a way that upholds the promises and protections in the Treaty,” said Burke.

Once it is determined that a government infringed upon a treaty right, the government must compensate the First Nations. Instead of asking for compensation in the form of land or cash, BRFN is only asking for a halt to further development activities.

Justice Burke has suspended the order for a period of six months to allow time for the province and First Nations to negotiate changes.

“The Province may not continue to authorize activities that breach the promises included in the Treaty, including the Province’s honourable and fiduciary obligations associated with the Treaty, or that unjustifiably infringe Blueberry’s exercise of its treaty rights.

The parties must act with diligence to consult and negotiate for the purpose of establishing timely enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry’s treaty rights, and to ensure these constitutional rights are respected.”

Click here for the full ruling. …

Court drops bombshell on B.C. natural gas industry, BC infringed treaty, must stop approving industrial development in natural gas heartland by Nelson Bennett with files from Alaska Highway News, June 30, 2021, BIV.com

The B.C. Supreme Court has found the B.C. government infringed the Blueberry River First Nation’s treaty rights by allowing decades of industrial development in their traditional territory.

The ruling will likely have significant impacts for industries in that region, notably the natural gas industry, as the court says the province may no longer authorize activities that would continue to add to the cumulative impacts that breach Treaty 8. If the gov’t appeals, I doubt any activity will be stopped. And if the gov’t does decide to do right and orders industries to stop, companies won’t – especially not oil and gas, they know they can defy court/govt orders with RCMP helping them, most especially the evil ones like Encana/Ovintiv. They’ll just keep raping, like the catholic church does, aided by endless armies of lawyers.

“The province is no longer permitted to authorize industrial development in a way and scale that continues to infringe our rights without our input or taking into account the cumulative effects on our treaty rights,” the First Nation said in a released statement Wednesday, after the ruling came down June 29.

The BRFN is one of the few First Nations in B.C. that signed an historical treaty – in this case, Treaty 8.

The treaty guaranteed signatories access to their traditional ways of life – hunting, fishing and trapping. But decades of development – forestry, road-building, hydro-electric dams, transmission lines and natural gas extraction – gradually reduced the First Nations’ access to these traditional resources and practices.

The cumulative impacts of all that activity constituted a breach of treaty rights, the First Nation argued, and BC Supreme Court Justice Emily Burke has upheld that claim.

One example of the cumulative impacts is declining caribou populations. Burke accepted expert witness testimony that “anthropogenic disturbance, including industrial disturbance, has largely caused or contributed to that decline.”

In her ruling, Burke notes that the Crown may justifiably infringe treaty rights through the “taking up” of lands for things like building roads, mines and industries deemed to be in the public good. But there is, or should be, a limit, Burke found.

“I recognize that the province has the power to take up lands,” she writes in her 512 page ruling.

This power, however, is not infinite. The province cannot take up so much land such that Blueberry can no longer meaningfully exercise its rights to hunt, trap and fish in a manner consistent with its way of life. The province’s power to take up lands must be exercised in a way that upholds the promises and protections in the Treaty.

“I find that the province’s conduct over a period of many years – by allowing industrial development in Blueberry’s territory at an extensive scale without assessing the cumulative impacts of this development and ensuring that Blueberry would be able to continue meaningfully exercising its treaty rights in its territory – has breached the Treaty.”

Typically, when a government has been found to have infringed a treaty right, the First Nation must be compensated somehow, often with cash or land or both. But the BRFN were not asking for compensation – they were asking for a halt to all further development.

Burke has granted that in her ruling. Her orders include:

“The province may not continue to authorize activities that breach the promises included in the Treaty, including the province’s honourable and fiduciary obligations associated with the Treaty, or that unjustifiably infringe Blueberry’s exercise of its treaty rights.”

That doesn’t necessarily mean the province can’t still approve industrial activity, but it can only do so with the approval of the First Nation, and in a way that does not infringe their treaty rights.

This will require changes to various provincial land and resource regulations. And or, many big money bribes. On a positive note, perhaps with BC experiencing the horrors of fossil fuel industry caused climate change directly under the current deadly heat dome, industry and gov’t might find no takers for their bribes.

Burke is suspending  her order forbidding the authorization of industrial activities for six months to allow the province and First Nation time to “expeditiously negotiate changes to the regulatory regime that recognize and respect treaty rights.”

She further orders both the B.C. government and First Nations to “act with diligence to consult and negotiate for the purpose of establishing timely enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry’s treaty rights, and to ensure these constitutional rights are respected.”

It’s unclear whether the ruling will have implications for the Site C dam project on the Peace River or related infrastructure like transmission lines, which are projects that are already approved and under construction. 

The BRFN were among a number of First Nations that had attempted to halt Site C, but their application for an injunction failed.

In a statement to the Alaska Highway News, the ministry of Indigenous Relations and Reconciliation acknowledged the importance of the landmark ruling.

“This is a significant ruling and we will be working to determine the province’s next steps once we’ve had a chance to review what the judge has said,” the minstry said in its statem,ent.

“The written decision is long and complex but in light of the significant implications, we recognize the urgency. This work is a priority, given the timeline established by the court.”

***

The Ruling:

Marvin Yahey on his own behalf and on behalf of all other Blueberry River First Nations beneficiaries of Treaty No. 8 and the Blueberry River First Nations v Her Majesty the Queen in Right of the Province of British Columbia

X.              RELIEF

[1880] I have concluded that the provincial regulatory regimes do not adequately consider treaty rights or the cumulative effects of industrial development.

[1881] I have found that it is the cumulative impacts from a range of provincially authorized industrial developments within the Blueberry Claim Area that have infringed Blueberry’s treaty rights and there are not sufficient and appropriate lands in Blueberry traditional territory to permit the meaningful exercise of their treaty rights. In addition, I have found that the Province had notice of these cumulative impacts on Blueberry’s exercise of its treaty rights. The lack of effective provincial regimes or processes for assessing, taking into account, and managing the cumulative effect of development on Blueberry’s exercise of its treaty rights breaches the Province’s obligations under the Treaty, including its honourable and fiduciary obligations to diligently implement the Crown’s solemn promises and its fiduciary obligations to act with loyalty, good faith, and with ordinary prudence with a view to Blueberry’s best interests in continuing their exercise of rights.

[1882] While the Province did not advance a justification defence, as noted, it had the opportunity to do so. Indeed much of its evidence as to land use and the regulatory framework was led to show that the Province has ways to protect treaty rights and it said it invited Blueberry to participate in these processes.

[1883] The Province was on notice to argue justification and did not do so. While it noted in its trial brief that it would be unfair to hold that the Province has failed to justify any infringement without providing the parties the opportunity to negotiate or for the Province to adduce further evidence, I disagree. This trial was not bifurcated, and timelines and delay have been a pervasive problem during the regulatory process as evidenced by the Province’s responses over the years to Blueberry’s concerns. The Province has known for a significant period of time that its processes are at issue. Accordingly, these infringements have not been justified.

[1884] I therefore find that Blueberry is entitled to the following declarations regarding the Province’s actions and inactions as they relate to Blueberry’s treaty rights and the cumulative effects of industrial development on the exercise of those rights:

  1. In causing and/or permitting the cumulative impacts of industrial development on Blueberry’s treaty rights, the Province has breached its obligation to Blueberry under Treaty 8, including its honourable and fiduciary obligations. The Province’s mechanisms for assessing and taking into account cumulative effects are lacking and have contributed to the breach of its obligations under Treaty 8; and,
  2. The Province has taken up lands to such an extent that there are not sufficient and appropriate lands in the Blueberry Claim Area to allow for Blueberry’s meaningful exercise of their treaty rights. The Province has therefore unjustifiably infringed Blueberry’s treaty rights in permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry’s exercise of its treaty rights in the Blueberry Claim Area.

[1885] Blueberry has also sought a declaration that the Province may not lawfully continue to authorize activities that breach the promises made by the Crown to Blueberry in the Treaty or that infringe its treaty rights. In addition, it has sought a permanent injunction restraining the Province from undertaking, causing and/or permitting activities that breach the Province’s obligations to Blueberry under the Treaty, infringe Blueberry’s treaty rights, or breach the Province’s fiduciary obligations to Blueberry. This declaration and injunction appear aimed at the same result – stopping the Province from issuing further authorizations in breach of their obligations.

[1886] As legal commentators and jurists have noted, in many situations injunctions and declarations are functionally equivalent, and declarations are generally preferred and are well suited to provide relief against governments (Roach at 12.20, 12.30, 12.110, 12.120, 12.260). Declaratory remedies allow governments to conceive of ways to satisfy the judicial declaration and help to maintain the balance in our democratic institutions (Roach at 12.260, 12.261).

[1887] While the Province is not immune from injunctive relief where a constitutional violation has been found (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at paras. 70-74 with respect to charter violations), in my view declaratory relief is preferable here.

[1888] I therefore issue further declarations as follows:

  1. The Province may not continue to authorize activities that breach the promises included in the Treaty, including the Province’s honourable and fiduciary obligations associated with the Treaty, or that unjustifiably infringe Blueberry’s exercise of its treaty rights; and,
  2. The parties must act with diligence to consult and negotiate for the purpose of establishing timely enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry’s treaty rights, and to ensure these constitutional rights are respected.

[1889] Finally, the parties are at liberty to negotiate any further resolution or apply for further direction and/or clarification of the remedy.

[1890] The task ahead is complex and difficult, but the parties have shown some ability to work together on difficult issues in the past, and some of the work is already underway through other processes. The Court has provided some legal guidance as part of its analysis that may assist with the crafting of regulations and processes that respect the constitutionally protected rights at issue.

[1891] In view of this and the evidence of processes underway to address these concerns, I am prepared to suspend declaration #3 for 6 months while the parties expeditiously negotiate changes to the regulatory regime that recognize and respect treaty rights. While time is of the essence, the matter is complex. I expect the Province to comply with the direction that it not authorize activities in a way that infringes treaty rights; I recognize, however, that the parties may wish to address specifics as a result of this decision. The parties now have the opportunity to incorporate these rights more specifically in regulating the management of the land.

[1892] In view of the result, I am inclined to award costs to Blueberry. The parties, however, will have liberty to apply if that is necessary.

[1893] I close by thanking counsel and the parties for their exceptional hard work and thorough submissions, in what has been a difficult, challenging case of first instance. In June of 2020, because of COVID-19, this was also one of the first trials in British Columbia to move to a virtual format for the latter part of the evidence. Substantial credit must go to counsel who, with significant effort, agreed to and were part of the development of this remote format, ultimately enabling the matter to proceed.

[1894] In summary, I have granted the following declarations:

  1. In causing and/or permitting the cumulative impacts of industrial development on Blueberry’s treaty rights, the Province has breached its obligation to Blueberry under Treaty 8, including its honourable and fiduciary obligations. The Province’s mechanisms for assessing and taking into account cumulative effects are lacking and have contributed to the breach of its obligations under Treaty 8;
  2. The Province has taken up lands to such an extent that there are not sufficient and appropriate lands in the Blueberry Claim Area to allow for Blueberry’s meaningful exercise of their treaty rights. The Province has therefore unjustifiably infringed Blueberry’s treaty rights in permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry’s exercise of its treaty rights in the Blueberry Claim Area;
  3. The Province may not continue to authorize activities that breach the promises included in the Treaty, including the Province’s honourable and fiduciary obligations associated with the Treaty, or that unjustifiably infringe Blueberry’s exercise of its treaty rights; and,
  4. The parties must act with diligence to consult and negotiate for the purpose of establishing timely enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry’s treaty rights, and to ensure these constitutional rights are respected.

[1895] I have suspended declaration #3 for 6 months so that the parties may negotiate changes that recognize and respect Blueberry’s treaty rights.

Refer also to:

Looking to the lying Supreme Court of Canada *is* an impossible choice in our oil-patch-raped-and-polluted country, but there is no other choice. Thank you Beaver Lake Cree Nation, for making it. Many of our top court judges were put there by Steve Harper, oil patch lover and Charter hater.

BC Tap Water Alliance Press Release: Blueberry River First Nations vs Govt BC Trial Evidence Says: 91 percent of Blueberry territory lands are within 500 m of an industrial disturbance, primarily oil and gas.

BC Government Cumulative Frac Fraud & Abuse? Blueberry River First Nation says province not doing enough to prevent resource development from impacting Treaty 8 rights

Specific Claims Tribunal found Canadian government breached its obligations to First Nations when it botched a 1948 land swap. Blueberry & Doig First Nations win “75-year-old legal battle” over access to oil & gas beneath their reserves

2015: Chief Marvin Yahey and Blueberry River First Nations files lawsuit against British Columbia Government, Believed to be first case based on cumulative impact of numerous developments, including hydraulic fracturing

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