“British Columbia Supreme Court drops a bombshell on the natural gas industry.”
This sentence was used by some Canadian newspapers and online magazines to describe the ruling of the litigation Yahey vs. British Columbia.
The case was brought to court by Blueberry River First Nation (BRFN) in 2015 to slow the relentless industrial development in the nation’s traditional territory, authorized by the province of British Columbia without seeking approval from the nation.
Defined as “death by a thousand cuts,” this was the first case in Canadian legal history in which the cumulative effects of industrial development (the combined interaction of oil and gas extraction, logging, hydroelectric dams and other resource-based development projects), intertwined with Treaty 8 infringements, were addressed in court.
Total disaster or historic opportunity?
The outcomes of the case have been received with mixed feelings; a total disaster for oil and gas companies; a historic opportunity for Treaty 8 First Nations in northern British Columbia.
It can set an important precedent (that can be used in other disputes, such as West Moberly First Nation vs. BC Hydro on the Site C dam) with regards to the consent a nation is entitled to give (or not to) before a project is approved. This takes over the simple duty to consult and accommodate. It tells the province that it must ensure a more comprehensive inclusion of the nation in the decision-making process.
According to British Columbia’s Attorney General David Eby, the province will follow this path and won’t appeal the decision to the Supreme Court of Canada.
In light of these developments, it is worth reflecting on the implications the ruling will have when it comes to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) at the provincial and federal level, following the approval of Bill-41 by the province of British Columbia and Bill C-15 by the federal government.
Is this decision a real “bombshell,” as it has been depicted? Or does it represent an important step towards the implementation of UNDRIP within the provincial and federal legal framework, as it was already established with the approval of the above mentioned bills?
The case of free, prior and informed consent
To shed light on the issue, it is worth mentioning that one of the most contested principles established in UNDRIP is the right to free, prior and informed consent (FPIC).
Indigenous Peoples are entitled to give (or not to) FPIC before the final approval of any development project and the exploitation of natural resources found in their traditional territories.
Such a provision has triggered relevant debate throughout Canada and in British Columbia, with the meaning of the word consent being the bone of contention.
Perhaps, the ruling of the Yahey vs. British Columbia case might help to properly address the issue. Declaration No. 4 of the reasons for judgment states that:
“the parties must consult and negotiate to establish enforceable mechanisms to assess and manage the cumulative effects of industrial development on the BRFN traditional territory, so to ensure that Constitutional and Treaty rights are respected.”
Although FPIC wasn’t mentioned in the reasons for judgment, the content of declaration No. 4 may well be interpreted as a way to implement it.
What does this mean for the Canadian energy sector, stakeholders and affected Indigenous Nations? Is this the last straw, the “bombshell” that will bring the energy sector to its knees in a resource-dependent province like British Columbia?
What does it mean to do things right?
Right after the ruling, BRFN hosted a press conference outside the B.C. Supreme Court. Chief Marvin Yahey affirmed: “We are not against industry, if this is done right there’s plenty of work for everyone.”
What does “right” mean in this context? What can be learned from this litigation in order to do the right thing in future? In my view, the term right has two meanings.
On the one hand, it means to finally recognize that Indigenous Nations are proper, independent governments, with which companies and provincial governmental agencies must establish, maintain and nourish government-to-government relationships — or nation-to-nation.
On the other hand, it means that nations are responsible for the decisions they make and are accountable towards their members. This resonates with what has been established under the Framework Agreement on First Nation Land Management, which gives nations a chance to opt out of the 44 sections of the Indian Act related to lands management by developing a community Land Code. Once ratified, the nation assumes full administrative and law-making authority of reserve lands and natural resources. Several nations have already developed or are in the process of developing a Land Code.
Doig River First Nation (DRFN) is following this path, as I experienced during my fieldwork in British Columbia. I had a chance to work with the DRFN Land Office on a project aiming to understand how FPIC could be implemented in such relevant legislation according to community values.
The way forward: How do we envision our common future?
All things considered, the ruling of the litigation may well have positive effects on different sectors.
It may benefit the energy industry operating in British Columbia and throughout Canada by setting certain boundaries and procedures to be followed. At the same time, it can promote Indigenous Peoples’ rights by paving the way to fully implement what has been established in old and new treaties.
Nevertheless, these actions might not be sufficient on their own when it comes to promoting long-lasting socio-environmental sustainability if a different way of thinking about development and green energy is not promoted. Although the very presence of human beings on Earth has had and will always have an impact on the environment and the whole ecosystem, it should be questioned how such an impact could be minimized.
We should be asking what is really needed and by whom, which development projects are beneficial in the long-term and whether projects that are totally dependent on the market demand should be approved. These are big challenges, and to properly address them it is necessary to question how we live, what we want or need, and how we envision our common future. The way in which we conceive development is a matter of mindset; how we frame and make sense of it can be changed if we challenge what the current society deems to be essential.