BC’s changing regulatory landscape: BC and Treaty 8 First Nations negotiate collaborative approach to address cumulative effects of resource development

British Columbia has announced that, following 2021’s Yahey v British Columbia¹ decision, it has reached agreements with five Treaty 8 First Nations over the province’s management of natural resources. The agreements, which have not yet been released, signal significant changes to how future resource development will occur in the province in both the near term and in the years ahead.

The essential background – 2021 British Columbia Supreme Court decision

The agreements are the result of negotiations arising from the 2021 British Columbia Supreme Court decision in which Blueberry River First Nation successfully sued British Columbia, a decision the province chose not to appeal. 

In that decision, the court was highly critical of many aspects of the province’s regulatory regime and concluded that cumulative effects from industrial development had severely undermined Blueberry River’s treaty rights, leaving them with no meaningful ability to exercise their Treaty 8 rights in their traditional territory. Specifically, the court found the province’s regulatory processes did not adequately consider, or consult on, cumulative impacts, nor were there meaningful enforcement mechanisms to limit development to protect Blueberry River’s treaty rights from those impacts. The court ordered British Columbia and Blueberry River to act with diligence to negotiate on a collaborative approach to resource management that addresses cumulative effects. 

The agreements announced are the culmination of those negotiations as well as additional negotiations with four other Treaty 8 First Nations: Fort Nelson, Saulteau, Halfway River and Doig River First Nations. The province has said discussions are ongoing with three other Treaty 8 First Nations: West Moberly First Nation, Prophet River First Nation, and the McLeod Lake Indian Band.

While more details are to be announced over the coming weeks, the agreements’ basic outlines have now been made public. 

Blueberry River First Nations Implementation Agreement²

On January 18, 2023, British Columbia announced the Blueberry River First Nations Implementation Agreement (Implementation Agreement) that includes both a financial component for remediation and reclamation activities as well as a framework for managing resources going forward.

Significantly, the Implementation Agreement commits to:

• shorter term limits on development in Treaty 8 lands while a regime for the long-term management of cumulative effects is implemented;
• caps on new land disturbances within the Blueberry River’s territory (to a maximum of 750 hectares annually);developing an “ecosystem management approach” to land use planning and forestry;
• implementing “land protections” (including old forest growth protection) covering more than 650,000 hectares in Blueberry River’s high-value areas;
• completing multiple watershed-level land use plans within the next three years;
• co-management of wildlife, including moose management in particular; and
• allowing a set of high-value plans focused on petroleum and natural gas (PNG) sector activities to be completed within 15 months. 

For PNG specifically, the Implementation Agreement also anticipates collaboration between the province, companies, Blueberry River and other nations for development plans with measures to include:

• establishing areas for permanent protection from new development;
• focusing disturbance from PNG wherever possible in areas already developed;
• reducing new disturbance from PNG by approximately 50% from pre-court decision years;
• introducing operational and strategic planning expectations for the sector, applicable to all new proposed activities; and
• limiting overall new disturbance from PNG activities in Blueberry River’s claim area, designated at 750 hectares, as further detailed planning and restoration activities can be developed and agreed to.³ 

The Implementation Agreement also provides an $87.5 million financial package to Blueberry River and a $200 million land restoration fund, as well as contemplating oil and gas royalty revenue sharing with Blueberry River.

While the Implementation Agreement is not yet public, the Oil and Gas Commission of British Columbia has already issued a detailed summary of its implications for PNG development. 

Consensus Document

On January 20, 2023, British Columbia announced it had reached consensus with four other Treaty 8 First Nations “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.”⁴ This co-developed set of initiatives, termed the “Consensus Document,” similarly commit the province to implement measures to address the cumulative effects of resource development on the signatories’ treaty rights, including new land-use plans and protection measures as well as a new revenue-sharing approach.

The new framework and key takeaways

The outlines for both the Implementation Agreement and Consensus Document, if fully implemented, represent a major shift in resource management in the territories covered by the agreements over the coming years. 

According to the province the agreements are intended to set a path for future development that “will transform how the Province and First Nations steward land, water and resources together, and address cumulative effects in [Treaty 8 territory].”⁵ As a result, proponents can expect consultation on cumulative impacts on treaty rights will be an express requirement when seeking approvals; the new regulatory regime will aim to assess cumulative impacts on First Nations’ treaty rights with some specificity; and new mechanisms will be developed to limit the scope of development where those impacts are identified. 

Takeaways

While the anticipated outcome may be responsive to the court’s direction in Yahey, in the short term the agreements risk creating some regulatory uncertainty for industry as the actual details of the new framework will need to be developed in the coming years. Significantly:

• the scope and conditions under which future development may occur are not fully known at this stage;
• it is unclear at this time how the 750-hectare cap will be allocated or how the footprint of proposed  developments will be calculated; and
• the implications (direct or consequential) for development on private land remains to be seen as the various contemplated Watershed Management Basin Plans are implemented.

The full implications of the agreements announced by British Columbia on resource development and management within the province remain to be seen. It is worth noting that in the Yahey litigation that led to the province’s decision to seek a negotiated resolution for addressing issues related to cumulative impacts from industrial development, the province did not argue the alleged infringements were justified, nor did it appeal the trial court’s decision. As a result, there is still little guidance that might indicate how courts in other jurisdictions in Canada, appellate or otherwise, would rule on the issue of cumulative impacts.