Blueberry River First Nation triumphs over BC government – .

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Blueberry River First Nation triumphs over BC government – .


“The province has taken land to such an extent that there is not enough suitable land in the area claimed by Blueberry to allow Blueberry to exercise its treaty rights in any meaningful way. The province therefore unjustifiably violated Blueberry’s treaty rights. – Judge Emily Burke

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VICTORIA – The government of British Columbia this week lost an important Indigenous treaty rights case with far-reaching implications for natural gas development and the C-site project.

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The Blueberry River First Nations, whose traditional territory in northeastern British Columbia includes the natural gas-rich Montney Basin, were the big winners.

Judge Emily Burke’s decision is 462 pages long, supported by 160 hearing days and thousands of pages of factums.

But the summary is simplicity itself.

Blueberry is one of the many First Nations of the Treaty 8 group and therefore a party to agreements with the Crown signed at the end of the 19th century.

The 122-year-old text – and accompanying oral pledges – guaranteed Blueberry the right to hunt, fish, trap, and continue their traditional way of life.

Blueberry River argued that British Columbia violated its treaty rights by persistently and uncontrollably approving industrial development.

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The judge agreed.

“The province has taken land to such an extent that there is not enough suitable land in the area claimed by Blueberry to allow Blueberry to exercise its treaty rights in any meaningful way,” he said. she writes. “The province has therefore unjustifiably violated Blueberry’s treaty rights.

She also found that these breaches had continued “for at least a decade”, despite numerous warnings from Blueberry.

She ordered British Columbia to cease and desist: “The province cannot continue to allow activities that violate treaty promises… or that unreasonably interfere with Blueberry’s exercise of its treaty rights.

Instead: “The parties must act diligently to consult and negotiate with the goal of establishing timely and enforceable mechanisms to assess and manage the cumulative impact of industrial development on Blueberry’s treaty rights.

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With time “of the essence,” she suspended the first half of her order for six months “while the parties quickly negotiate changes to the regulatory regime that recognize and respect treaty rights.”

On an optimistic note, she acknowledged that “the parties have shown some ability to work together on difficult issues in the past”.

Three years ago the New Democrats tried to negotiate a deal with Blueberry.

But talks broke down in the spring of 2019 on the issue of the province’s unilateral desire to continue oil and gas development in the territory.

“The government has hit us with a take it or leave it position … to return to the status quo for accelerated approval of a large oil and gas development in our territory,” Blueberry said returning to court. .

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The take it or leave it allegation featured prominently in Judge Burke’s findings this week.

“I find a persistent pattern of reorientation on the part of government officials in the resource sectors, including oil, gas and forestry, as well as those involved in Indigenous relations, telling Blueberry that his concerns about the effects cumulative development over the exercise of its treaty rights would be addressed elsewhere, at other tables, through other policies or frameworks, ”she wrote.

“This lingering reality has contributed to a compilation of ill effects – or as they say – ‘death by a thousand cuts’. “

In response to the ruling this week, the provincial government has promised to read and digest all the implications.

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Blueberry has officially stated that 80 percent of its traditional territory is already cleared for development. He is unlikely to be open to violating the remaining 20 percent.

Tough call for New Democrats, given natural gas is a mainstay of provincial resource development, including plans to export natural gas – partly from the Montney Basin – in liquefied form through the terminal currently under construction in Kitimat.

The case has implications for another issue that is crucial to the NDP’s resource policy.

While Blueberry’s primary concerns are natural gas and logging, the decision is about hydroelectric development.

The Site C dam straddles the territory claimed by Blueberry. Another Treaty 8 First Nation, West Moberly, will go to court next year to claim that Site C – and other dams on the Peace River – infringe its treaty rights.

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If the findings in the Blueberry case could set a precedent, they would likely strengthen West Moberly’s claim. While construction is well advanced on Site C, dozens of permits still need to be approved.

New Democrats will be tempted to appeal the Blueberry decision, at least to save time.

But Judge Burke took note of the reasons for the urgency of the case and the rigor of the procedure.

“This case is extraordinary for the amount of data and detail it involves and the breadth of topics it covers, including: history, ethnography, wildlife science, geology, geography, forestry, land use planning and the operation of various government regulatory regimes, ”she wrote with the grounds of appeal in mind.

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“The court focused on the overarching evidence and issues, and addressed them as necessary to resolve this case. This has been a remarkably difficult task, but necessary to undertake in a timely manner due to ongoing nature allegations of the impacts presumed to be occurring in Blueberry territory.

We remember how these considerations came into play seven years ago in the Tsilhqot’in case. The Supreme Court of Canada sided with trial judge David Vickers’ Aboriginal title findings in large part because he had studied the issues so thoroughly.

With that waiting, the New Democrats should probably come to the negotiating table, instead of making Blueberry wait even longer for the violation of their 122-year-old treaty rights to end.

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