Defence of
Treaty Rights
Blueberry River First Nations Bring Historic Cumulative-Impacts Lawsuit Back to BC Supreme Court
The following item
reports
on
the statement from the Blueberry
River First Nations' Chief and Council on their decision to bring a
historic cumulative-impacts lawsuit back to the BC Supreme Court
-- as posted to their website on May 24. The Treaty 8
Cumulative Impacts Trial, Blueberry River First Nations v.
Province of British Columbia, began
on May 27 in the BC
Supreme Court.
Chief and Council said:
 "Blueberry River First
Nations has been forced to turn
back to
the Courts to enforce our treaty rights against the Province of
British Columbia. [...] We are going to trial to protect our
treaty rights and our future generations against the impacts of
further development in our territory.
"Our Nation had been willing to negotiate and work
collaboratively with government toward resolution of the
cumulative impacts crisis in our territory, however the
provincial government has taken a unilateral position on oil and
gas development in our territory that has left us with no choice
but to go back to litigation.
"Instead of pursuing reconciliation and negotiating a
solution, we are forced to seek a court imposed order to protect
our treaty rights, which may prohibit any further taking up of
land in our territory until our treaty rights are met.
"Under Treaty 8, government has a right to take up land
for
settlement, but a corresponding duty to protect a way of life.
That was the fundamental promise of Treaty 8.
"We have carried on our Dane-Zaa way of life centred on
hunting, trapping and fishing for generations, even while our
territory was being settled and developed.
"But the balance has been lost.
"Now more than 73 per cent of our territory is within
250
metres of a clear-cut, oil and gas well, processing plant, road,
dam or other industrial infrastructure. The rivers, streams and
muskeg are drying up, mineral licks are disappearing. The
wildlife we rely on are disappearing. There is almost nowhere
left for us to go to hunt, trap, fish and be at peace in the
places we have always known as Dane-Zaa people.
"This is not what our elders agreed to in signing Treaty
8.
"This is a historic case to establish that there is a
limit to
the government's right to take up land in our Treaty 8 territory,
and that limit has been breached. We will ask the Court to
enforce the limit to the Crown's rights in our territory under
Treaty 8."
Backgrounder on Blueberry River First Nations
Cumulative
Impacts Case vs. Province of British Columbia
Map of Natural Gas Projects in Northern BC. Blueberry
First Nations' territories at top right of map. Click image to enlarge.
History: British Columbia's Abandoned
Corner,
and Abandoned Nations
A little over 100 years ago, the Canadian government
sought
the consent of Blueberry River First Nations' (BRFN) and other
Treaty 8 Nations' ancestors to the settlement of the territory
which our people had occupied for many generations. Our ancestors
would not consent unless the government promised that our way of
life, centered on hunting, fishing and trapping throughout our
territory, would be preserved, even amid settlement. The Crown
made that solemn promise to us. That promise was the foundation
of Treaty 8.
However today, Blueberry River First Nations says that
promise
has been broken. Through early settlement and development we lost
key areas such as the Peace River, Charlie Lake and Montney. Our
displacement has increased to today, when our people attempt to
continue to practise our promised Treaty Rights surrounded by
some of the highest densities of industrial disturbance in
British Columbia. Our territory is becoming unrecognizable to
us.
Blueberry River First Nations is one of the Treaty 8
Nations
that has taken a stand against this unmanaged onslaught of
landscape disturbance.
In 2015, we launched a civil claim against the BC
government
asserting that the scope and scale of industrial development
authorized by the BC government has gone too far, that their
members can no longer meaningfully carry on their traditional
activities as was assured under the treaty -- "for as long as the
sun shines and the rivers flow."
We are turning to the Court to enforce Treaty 8 and to
prevent
the further taking up of land until our Treaty Rights are
met.
Disturbance Snapshot
Based on the Atlas of Cumulative Landscape Disturbance
in the
Traditional Territory of BRFN 2016 there were already:
- 110,300 km of linear features (including roads,
transmission
lines, seismic lines and pipelines) exist in 38,327 per square
kilometre of
territory -- or 2.88 kilometres of linear disturbance per square
kilometre.
- areas with much higher linear disturbance density
(ranging from 6.1 to 12 km per square kilometre with other areas
spiking over
24 km per square kilometre.
- 19,974 oil and gas wells of which 36 per cent are
active. Many of these wells are now considered 'abandoned' -- with
no one on the hook for clean-up and removal, as companies come,
make money, or go broke, and leave.
- Overall, 73 per cent of the area
inside BRFN traditional territory is within 250 metres of an
industrial disturbance, and approximately 84 per cent is within
500 metres
of an industrial disturbance.
- On top of this, areas that
were once core territory for the Nation are now Agricultural land
-- 28 per cent of BRFN's territory is zoned or converted to
Agricultural
Land Reserve (ALR).
- Plus, two hydro dams, W.A.C. Bennett and
Peace Canyon, lie within BRFN traditional territory, and
construction on a third dam, Site C, is now underway.
And:
Like much of BC, there is a forest industry in the
northeast.
But unlike parts of BC, this area has not seen much change in
forestry practices since the 1980s. Here, measures to protect
wildlife values and old growth have not been implemented, and
basic forestry requirements such as green-up are not required.
Blueberry's core territory is zoned as a high intensity forestry
zone. To make matters even worse, less than 1 per cent of BRFN's
territory is protected -- so there are no core areas to enforce
as off-limits to development, or that can provide core habitat
for the species and ecosystems that underscore the ability of
BRFN to meaningfully practise Treaty Rights.
There are many other signs that all is not well with the
land
and waters here:
Grizzly bears and boreal caribou are extirpated from
their
historic range on this southern corner of BC's boreal. The
remainder of the caribou in Blueberry's territory are declining
rapidly, and without immediate action are likely to disappear
completely. Government policies and development are resulting in
low numbers of moose, and those we find are often unhealthy and
inedible. First Nation members won't drink the water because of a
combination of the smell of hydrocarbons in the air, and the
intense water use in fracking for gas. There is suspicion of
eating animals that may have come into contact with contaminated
areas. And Induced Seismicity -- the scientific word for human's
creating earthquakes -- is increasing. The special page on BC's Oil
and Gas Commission website highlights that during 14 months when
monitoring was in place (in 2013/ 2014) there were 231 'induced'
seismic events in core Blueberry territory.
Why is BRFN's Traditional Territory being so harshly
affected?
Under the boreal forest and muskeg lies one of the
world's
largest shale gas deposits, and the last 15 years has seen an
intense development to see who can corner this market. More than
80 per cent of BRFN's core territory is already tenured -- handing out
rights to companies to extract the gas. Recent announcements on
LNG development on BC's coast provide the incentive for ongoing
future development of this high intensity greenhouse gas fuel,
promising that the pace and intensity of gas development will
continue over the next decades. Yet, there are still no protected
areas and no areas off limits to development. Restoration actions
are needed urgently -- the massive footprint that exists already
must be dealt with, and faster than new footprint hits the ground,
if the land is to be allowed to recover faster than it
deteriorates. This work cannot be delayed any longer.
Recent Government Reports Confirm the Problem
British Columbia's Chief Forester has recognized that
the core
of Blueberry's territory has been disproportionately clear cut
over recent years (87 per cent of the regional harvest coming out
of the core of Blueberry territory). National Energy Board
records show that thousands of new wells and related oil and gas
infrastructure are planned for the core of Blueberry's
territory, which lays over the North Montney gas basin. That
development is on top of the extensive development that has
already occurred (see summary of Atlas findings above). British
Columbia's Auditor General has recently confirmed the massive
environmental and ecological liability sitting in Blueberry's
territory and the northeast of the province, with tens of
thousands of abandoned and orphaned oil and gas wells left
unremediated. Government's plan to electrify the gas fields means
more infrastructure and development is planned in the region.
Background on Negotiations and Trial
While we are willing and prepared to fight in Court to
protect
our treaty rights, and those of our future generations, we had
hoped to avoid this.
Blueberry has worked hard over the past year to try to
collaborate with the Province of British Columbia to begin to
address the cumulative impacts of oil and gas, forestry and other
development in our territory. As we have reported to our
families, positive first steps were being taken on many fronts.
Our Nation was hopeful that good faith efforts by both parties
could avoid the need for us to ask the Courts to impose measures
to enforce our treaty rights.
However, citing pressure from the oil and gas industry,
government has hit us with a take it or leave it position,
undoing months of hard work to build a collaborative solution
that would better manage new development, to now revert to
"business as usual" for fast track approval of extensive further
oil and gas development in our territory.
Despite widespread recognition by government,
scientists,
First Nations and the public that the watersheds in which
Blueberry people have lived for generations have been heavily
impacted by development, especially over the last twenty years,
the Province is forcing our Nation to prove this in Court over
many months.
The Crown made our grandparents a fundamental promise in
entering into Treaty 8: that our future generations would always
be able to carry out our treaty rights on a landscape capable of
supporting us and the wildlife and waters upon which we depend.
Instead of acknowledging the fundamental promise, the Crown is
denying that the Treaty provides us any protection against the
cumulative impacts of development.
The territory that we live in, and that we, our parents
and
grandparents have always relied upon is now so developed, it is
becoming unrecognizable to us. We have almost nothing left to
pass on to our future generations.
The lands, waters and wildlife that we are fighting to
save
and restore are essential to the health of our present and future
generations.
We do not see how forcing us to this course can meet
this
provincial government's commitment to fully adopt and implement
the United Nations Declaration on the Rights of Indigenous
Peoples (UNDRIP), and the Calls to Action of the Truth and
Reconciliation Commission.
We repeat our disappointment in being forced to spend
precious
time and money litigating when we would prefer to continue the
real work of solving this crisis.
This article was published in
Volume 49 Number 21 - June 8, 2019
Article Link:
Defence of
Treaty Rights: Blueberry River First Nations Bring Historic Cumulative-Impacts Lawsuit Back to BC Supreme Court
Website: www.cpcml.ca
Email: editor@cpcml.ca
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