Treaty Infringement and the Management of Cumulative Effects with Regional Plans

In Yahey v British Columbia^[1] the British Columbia Supreme Court ruled that the cumulative effects of approved resource development in the traditional territory of the Blueberry River First Nation in northeastern B.C. infringed on the nation’s treaty rights to hunt, fish and trap.  The B.C. Government elected not to appeal the decision but rather negotiate, as ordered by the Court, an Implementation Agreement^[2] to establish “timely enforceable mechanisms to assess and manage the cumulative impact of industrial development” on the Blueberry First Nations’ treaty rights.^[3]

In July 2022, Duncan’s First Nation, whose traditional territory is in northwest Alberta, filed a claim modeled on the Yahey claim; i.e. alleging infringement of their treaty rights by the cumulative impacts of development in their traditional territory on Treaty 8 land.  The Government of Alberta recently filed its Statement of Defence in response to the claim.  In its Statement of Defence, the Government of Alberta denies that its processes for assessing and managing cumulative effects are deficient, and asserts that cumulative impacts are adequately addressed through consultation and evaluation procedures before development projects are authorized.^[4]

Given that Treaty 8 encompasses both northern Alberta and northeastern B.C., the result in Yahey and the Duncan’s First Nation’s claim in Alberta prompt consideration of whether there are differences between B.C. and Alberta that could result in a different outcome in Alberta.  One difference is that under the Alberta Land Stewardship Act^[5], the Government of Alberta has existing tools for cumulative effects management.

On paper at least, the Land-Use Framework and ALSA’s regional plans are part of the process for cumulative effects management and their existence is a significant difference in the regulatory landscapes of Alberta and British Columbia.  Unfortunately, regional planning under ALSA has stalled and there are no regional plans that overlap with Duncan’s First Nation’s traditional territory.  Given the B.C. Implementation Agreement’s stated mechanisms for managing the cumulative effects of resource development through long- and short-term land-use planning, the Government of Alberta may wish to reevaluate the need to develop and implement the ALSA’s regional plans.

Regional planning and cumulative effects management under the Alberta Land Stewardship Act

When the ALSA was passed in 2009, regional plans were intended as the primary tools for ensuring that conservation and stewardship guided a regional planning process that effectively balances growth management and existing property rights. The ALSA divided Alberta into seven regions according to the major watersheds in the province: Lower Athabasca; Lower Peace; North Saskatchewan; Red Deer; South Saskatchewan; Upper Athabasca; and Upper Peace. Since 2009, only the Lower Athabasca Region and the South Saskatchewan Region have approved regional plans. The remaining five regions have either not started the regional plan development process or, in the case of the North Saskatchewan Region, are still in the process of drafting a regional plan following local consultation with stakeholders.^[6] The Duncan’s First Nation territory is situated at the convergence of three of these regions:  the Upper Peace, Lower Peace, and Upper Athabasca.

Had these regional plans been developed and implemented in those regions, the Government of Alberta may have been able to point to them as a basis for distinguishing the legislative and regulatory context governing resource development in Duncan’s First Nation’s traditional territory from the regime in B.C. Indeed, in Yahey the Supreme Court of British Columbia specifically pointed to the Province’s lack of “mechanisms for assessing and taking into account cumulative effects” as contributing to its breach of its obligations under Treaty 8.^[7]

The Land-use Framework that preceded the ALSA’s enactment made cumulative effects management a central goal of the Government of Alberta, which sought to move away from a piecemeal project-based approval and mitigation process towards a more comprehensive regional approach.^[8] This objective can also be found in the two existing Lower Athabasca and South Saskatchewan Regional Plans, which each state their intention to use a “cumulative effects management approach to balance economic development opportunities and social and environmental considerations”.^[9]

Avoiding treaty infringement through regional planning

The ALSA^[10] and the two existing regional plans anticipate the possibility that regional development could adversely impact the rights of Indigenous peoples, and state their intention to consult with Indigenous rightsholders prior to development decisions being made.^[11] These statements of purpose have arguably not yet translated into meaningful action. This state of affairs may be reaching a turning point, however, given not only the Duncan’s First Nation’s claim, but also the recently begun 10-year Review of the Lower Athabasca Regional Plan. This context lends weight to older calls for formal regional planning mechanisms to address the consequences of cumulative effects on the exercise of Indigenous peoples’ Aboriginal and treaty rights.

The history of the Lower Athabasca Regional Plan may be instructive to how the Duncan’s First Nation’s claim could unfold. Dating back to 2013, Indigenous rightsholders criticized the Lower Athabasca Regional Plan for failing to meaningfully consider the exercise of Indigenous peoples’ treaty rights and traditional land use in the context of the Jackpine Mine Expansion project’s approval.^[12] This criticism prompted Indigenous groups in the region who had opposed the project to apply under the ALSA for a review of the Lower Athabasca Regional Plan. The findings of this review are communicated in the Review Panel Report 2015 (the “Gilmour Review Panel Report”).^[13]

After hearing submissions from the Indigenous applicants and reviewing the Lower Athabasca Regional Plan and its enabling legislation, the Gilmour Review Panel Report concluded that the Government of Alberta should initiate plans to develop a “Traditional Land Use Management Framework” as a means of including Indigenous peoples in regional land-use planning.^[14] Specifically, the Government of Alberta was encouraged to consider the “Traditional Land Use and Resource Use Management Plans” proposed by the Athabasca Chipewyan First Nation and Mikisew Cree First Nation.^[15] These First Nations recommended that such plans be informed by the following objectives:

• Create an appropriate, culture-group specific vision for what constitutes the conditions for the meaningful practice of Treaty 8 rights currently and into the future;
• Identify the Valued Components (resources or conditions), tangible and intangible, that are central to the Aboriginal and Treaty Rights (rights) of the First Nations;
• Identify criteria and culturally appropriate indicators that can be used to measure the First Nations’ ability to practice these rights;
• Examine the current nature and extent of the Valued Components in the First Nations’ Traditional Lands, and a historical baseline of these components;
• Identify the current and likely pressures, including but not limited to industrial development on the Valued Components;
• Predict the likely future nature and extent of the Valued Components in the First Nations’ Traditional Lands;
• Identify broad land and resource management strategies, as well as possible mitigation tools, that can support and improve the continued meaningful exercise of Treaty 8 rights (e.g. key protected or conservation areas, hunting restrictions, setbacks, timing windows, among others);
• Integrate the information into appropriate information and management tool formats (e.g. [geographic information system] GIS, planning documents, management objectives for particular use areas or districts; community based monitoring and adaptive management strategies) for use in resource and land use planning, decision-making and consultation processes.^[16]

Moving forward in managing cumulative effects

It remains to be seen whether the 10-Year Review of the Lower Athabasca Regional Plan will lead to the adoption of a Traditional Land Use Management Framework. Intuitively, such an instrument could be incorporated alongside existing management frameworks under the Lower Athabasca Regional Plan, each of which exists to guide the regulatory action of decision-makers in response to different regional impact indicators and limits. Traditional Land Use would thus become one of the several management initiatives facilitating the plan’s implementation, such as the Air Quality, Surface Water Quality, and Groundwater Management Frameworks completed in 2012, or the Surface Water Quantity and Tailings Management Frameworks developed in 2015.^[17]

The adoption of such a framework, however, would be unlikely to influence the Alberta Court of King’s Bench’s consideration of the Duncan’s First Nation’s claim. Without a regional plan in place in the regions overlapping the traditional territory at issue in the claim, the Court will be left to examine Alberta’s regulatory mechanisms for cumulative effects management that exist outside of the ALSA. Arguably, this represents a missed opportunity, particularly as the ALSA and its regional plans were expressly intended to address the issues raised in Duncan’s First Nation’s litigation, and where there has already been so much thoughtful consideration around meaningfully incorporating Indigenous co-management under the ALSA’s regional land-use framework.

For more information on how this decision may affect you or your business, please contact Gavin Fitch, K.C., Alex Dingman, or another member of our Environmental & Energy Practice Group.