Tansi Nîtôtemtik,
This month on the ReconciliACTION blog, we discuss the complex relationships between Indigenous peoples, the environment, the Canadian state, and other institutions. Yesterday, our Monday writer grounded this conversation with an introduction to Indigenous understandings of the land and conservation efforts.
This month's discussion seems rather timely, given the recent cover-up of a massive leakage of toxic tailings near the Athabasca Chipewyan First Nation.[1] For nine months, Imperial employees knew that seepage was escaping from the tailing pond.[2] The 5.3 million litres of seepage, the largest spill in Alberta’s history, exceeds all iron, arsenic, sulphates, and hydrocarbon guidelines.[3] The Alberta Energy Regulator discovered in May 2022 some brown sludge outside the boundaries of the tailing pond and conducted studies that lasted into the fall to determine the location of the spill and the type of released contaminants.[4] During this time, band members, unaware of the danger, continued to hunt and fish on the affected lands.[5]
Unfortunately, this is not the first time that a First Nation community has suffered physical harm due to industrial policies. In 2021, the British Columbia Supreme Court (BCSC) decided on Yahey v British Columbia, where the cumulative effects of the industrial development around the First Nation caused significant and accumulated environmental damage.[6] The Blueberry River First Nation (Blueberry River) is located in Treaty 8 territory in a region of BC that has been subject to significant industrialization, including mining, hydroelectric, agriculture, oil and gas projects.[7] The case centred around a specific area where the Nation traditionally hunted, trapped, and fished and the infringement of a right protected under section 35 of the Constitution Act, 1982.
Under Treaty 8, it was guaranteed that signatories and adherent First Nations would have the right to continue their way of life, that is, that they could continue hunting, trapping, and fishing throughout their territory. The inherent promise is that the Crown would not infringe on these basic elements.
The BCSC determined that the cumulative effects of industrial development approved by the provincial government infringed on the Blueberry River First Nation’s treaty rights. The BCSC stated that hunting, fishing and trapping are core aspects of the Blueberry River Nation’s identity. The Court stated that in order to determine that there was an infringement, there can be two tests: (1) that an infringement occurs when there is no meaningful ability to exercise a right, or (2) when there is a significant or meaningful diminishment of the ability to exercise a right.[8]
The BCSC stated that a healthy wildlife population is of fundamental importance to Blueberry River’s treaty rights. The development of industrial activities in the area has contributed to the decline in wildlife populations. As a result, the members can no longer exercise their Treaty rights in a meaningful way.
The Court said that the honour of the Crown requires the government to ensure that regulatory procedures, on an ongoing basis, are sufficient to protect Blueberry River Nation’s Treaty Rights. The Court concluded that the province had breached this requirement as the regulatory processes did not consider the cumulative impacts of the projects. On fiduciary duty the Court stated that the Crown has to implement Treaty 8 in a manner that is in the best interests of the signatories.[9] They held that the project-by-project approach did not address this requirement and that they should have assessed cumulative impacts and then managed those risks to ensure that treaty rights are protected. [10]
Blueberry River is an interesting case because it is the first case where an infringement of section 35 has been found due to cumulative impacts on the environment. Circling back to the recent tailing pond leak in Alberta impacting Athabasca Chipewyan First Nation, it would not be surprising if there is a significant impact on the health of the wildlife on their lands. There are many individuals questioning whether it is safe for community members to consume meat and water that comes from their lands. Only time will tell, but considering the vast industrial development in Northern Alberta, it won’t be long until similar cases are litigated in Alberta.
Until next time,
Team Reconcili-ACTION YEG
[1] Bob Weber, “Alberta First nation angry at Imperial science while tailing pond leaked for 9 months”, CBC News (2 March 23), online:<www.cbc.ca/news/canada/edmonton/alberta-first-nation-angry-at-imperial-s-silence-while-tailings-pond-leaked-for-9-months-1.6766007> [Weber]. [2] Ibid. [3] Ibid. [4] Bob Weber, “Alberta Energy Regulator May have ignored law by not disclosing oilsands leak: lawyer”, CTV News Calgary (6 March 2023), online:<www.calgary.ctvnews.ca/alberta-energy-regulator-may-have-ignored-law-by-not-disclosing-oilsands-leak-lawyer-1.6301094> [Calgary]. It appears, based on information provided by the University of Calgary’s Public Interest Law Clinic, that the AER ignored public law by not informing the First Nations about the seepage. Under the Freedom of Information and Protection of Privacy Act, public bodies are obliged to report without delay to inform the public when there is any risk of significant harm to the environment or to the health and safety of the public. [5] Weber, supra note 1. [6] Yahey v British Columbia, 2021 BCSC 1287. [7] Ibid at paras 10-14, 1079. [8] Ibid at para 528. [9] Ibid at para 92. [10] Ibid at paras 1855-1858.