B.C. court ruling could mean First Nations consent needed for any new project on historic treaty lands – Financial Post

Sander Duncanson

Jul 28, 2021

A recent decision from the Supreme Court of British Columbia, Yahey v. British Columbia, notes that the provincial government must consider the “cumulative effects” of multiple development projects in the Blueberry River First Nations (BRFN). The case may require First Nations’ permission for new developments on historic treaty lands and could have a significant effect on industrial projects across the country.

The Financial Post’s Julius Melnitzer spoke with Sander Duncanson, a partner in Osler’s Regulatory, Environmental, Aboriginal & Land Group, for insight on the decision.

“The decision can be construed as granting Blueberry River First Nations (BRFN) a veto on new development over its entire territory, thereby transferring control of a substantial portion of B.C.’s resource base from the province to BRFN,” explains Sander.

“The upshot is that B.C.’s legal authority to authorize new developments, like roads and wind farms, must take into account cumulative effects management that ensure that the combined impact of new developments don’t produce an infringement on treaty rights,” Sander says. “It’s hard to imagine, however, what that would look like without full consent from Blueberry and all the other First Nations whose treaty rights overlap.”

“It could also materially increase regulatory risks wherever similar historic treaties are in place, including most of northern Ontario, right across the Prairies and the Northwest Territories,” Sander notes. “We expect that Yahey will lead to similar claims that could change the future of resource and infrastructure development in Canada.”

“Most companies are quite concerned about how the decision impacts other parts of the country, even where the treaties are slightly different or where there are no treaties.”

For more information, read Julius Melnitzer’s full article, “B.C. court ruling could mean First Nations consent needed for any new project on historic treaty lands”, on the Financial Post website.