Sander Duncanson
Mar 8, 2022
Following last June’s Supreme Court of British Columbia decision in Yahey v. British Columbia, hundreds of natural resource development permits in the northeast region of the province remain on hold indefinitely. In that case, the Court found that the cumulative effects of thousands of energy and other development projects violated the Blueberry River First Nation’s ability to exercise its Treaty 8 rights to hunt, trap and fish on its traditional territories. Notably, the province did not appeal the decision, but opted instead to overhaul its land use management regime and pause new development applications while it negotiates with the Blueberry River First Nation and other Treaty 8 nations. Last month, it created a new Ministry of Land, Water, and Resource Stewardship, acknowledging that the old ministry was not equipped to deal with the complex matters of Indigenous reconciliation and the overall impacts of decades of developments.
The Globe and Mail’s Justine Hunter spoke to Sander Duncanson, a partner in Osler’s Regulatory, Environmental, Indigenous and Land group, about the case’s implications for resource development in British Columbia and across Canada.
Sander says there is “considerable uncertainty” around the future of new development projects in the area covered by the Blueberry River claim. The decision has also created new case law that considers cumulative effects in determining whether development activities are infringing treaties.
Though the Yahey decision is not binding law in other provinces, it could affect similar cases in Alberta and Saskatchewan that are currently being heard. One consequence of the ruling, Sander says, is that it holds governments accountable for the significant changes to the land since the treaties were signed in the 19th century.
“The landscape is changing, both because of the fact that there's a lot more people on it now than there was then, but also just because of things like climate change. That becomes a very onerous responsibility on government.”
You can read the full article, “How a tiny First Nation forced an overhaul of land use,” on the Globe and Mail’s website.