Blueberry River First Nation Chief Judy Desjarlais at signing ceremony for the Blueberry River Implementation Agreement in January. | BC Government
First Peoples Law Report: BIV – Business Intelligence for BC: A legal challenge by Treaty 8 First Nations to an agreement the B.C. government struck with the Blueberry River First Nation is adding to the uncertainty that has hung over the multi-billion dollar natural gas industry in northeastern B.C. since the summer of 2021.
That’s when the B.C. Supreme Court sided with the Blueberry River First Nation (BRFN) in a cumulative impacts claim. The court found that, in permitting industrial activities – logging, road-building, oil and gas activities, etc. – the B.C. government had breached the BRFN’s Treaty 8 rights to hunt, fish and trap as they had historically done, as per Treaty 8.
But in trying to fix the problem for Blueberry River First Nation (BRFN), the B.C. government is now impinging on the rights of other Treaty 8 First Nations whose territories overlap with BRFN – so the First Nations are claiming petitions to the B.C. Supreme Court.
The B.C. government responded to the 2021 court ruling with a land use agreement with BRFN in January this year – the Blueberry River Implementation Agreement – that gives the First Nation more say over land use and resource extraction in their traditional territory, which overlaps with the territories of other First Nations that are also party to Treaty 8.
Two of them – Doig River and Halfway River – are now going to court to challenge that agreement.
Meanwhile, it appears there has also recently been disagreement within BRFN band council itself on how provisions of the Blueberry River Implementation Agreement should be interpreted. All of which may add to investor risk for oil and gas companies operating in northeastern B.C.
“It is a concern,” said Tristan Goodman, CEO of the Explorers and Producers Association of Canada. “It’s problematic in British Columbia right now. There isn’t sufficient certainty, and it is starting to negatively impact revenues and royalties for both Indigenous nations as well as the B.C. government.”
“It brings uncertainty for the nation, too,” Blueberry River First Nation Chief Judy Desjarlais told BIV. “Once investment leaves, you have no resources coming into the community.”
Some oil and gas activity in northeastern B.C. got put on hold between the Supreme Court decision in June 2021 and the announcement of the Blueberry River Implementation Agreement in January, 2023. The BC Energy Regulator database shows new wells drilled fell from 467 in 2021 to 374 in 2022.
“Some of that is attributable to the lack of certainty on permitting,” Goodman said.
BRFN and other Treaty 8 nations in B.C. – and Alberta – occupy territory that is in the natural gas-rich Montney formation. The new implementation agreement puts restrictions on activity in certain areas designated “high value.”
But now BRFN’s neighbours are saying the agreement gives BRFN a veto of sorts over activities in their territory, which overlaps.
In a Sept. 22 petition to the BC Supreme Court, the Halfway River First Nation (HRFN) seeks a declaration that the B.C. government breached its duty to consult the First Nation by “misrepresenting” the Blueberry River implementation agreement. The agreement could negatively impact the HRFN’s own Treaty 8 rights, the First Nation says.
And in an Oct. 5 filing to the B.C. Supreme Court, the Doig River First Nation (DRFN) is seeking a judicial review of the government’s decision to implement the Blueberry River Implementation Agreement and an order that the province “refrain from authorizing activities pursuant to the terms of the Blueberry Agreement that have the potential to adversely affect Doig’s treaty rights without Doig’s consent until appropriate accommodation measures have been put in place.”
The court petitions speak of the B.C. government’s failure to consult Doig and Halfway River First Nations at the “deep end of the consultation spectrum.” “Halfway River did not see the text of the Blueberry Agreement until six weeks after British Columbia signed the document with Blueberry River,” the HRFN petition states.
The Blueberry River Implementation Agreement establishes disturbance caps for things like oil and gas extraction that are intended to limit the amount of new disturbances to the land in high-value areas.
The challenge is that much of this land overlaps with the core territories of DRFN to the east and HRFN to the west, and in essence gives BRFN a greater say over what can or can’t take place in territory shared with other nations.
The HRFN says that, in executing the Blueberry River agreement, the B.C. government is now “severely restricting Halfway River’s ability to participate meaningfully in the management of industrial activities in the portion of Halfway River’s territory that overlaps the claim area.”
Blueberry River First Nation claim area overlaps other Treaty 8 nation territories.
The BRFN claim area is 38,000 square kilometres.
“Doig’s core treaty territory is almost entirely subsumed within the claim area,” the DRFN petition to the court states. “Basically, the province has kind of given Blueberry a veto,” Doig River First Nation Chief Trevor Makadahay told BIV. “Blueberry has a total, separate agreement, and their agreement that they’re working on is totally infringing on everybody else’s territories. It just doesn’t work for us.
“We’ve been voicing our concerns for over a year, and nobody was listening to us, so that’s why there’s the JR (judicial review).”
One of the concerns DRFN brings up is that these new restrictions could create a “ripple effect” in which pressure for industrial development could get pushed out of Blueberry River territory into Doig River core territory.
DRFN also claims the agreement gives BRFN “a veto over the conversion of Crown forest to fee simple land, potentially interfering with the implementation of Doig’s Treaty Land.”
Makadahay explained that his nation recently won a specific claims case, which would allow provincial Crown land to be converted to reserve land, but that the Blueberry River agreement would actually allow the BRFN to block that conversion.
The DRFN court challenge also says the agreement gives BRFN “unilateral ability to waive oil and gas rules throughout the claim area, effectively providing it with a veto over oil and gas development.”
The DRFN seeks a court order that the province “refrain from authorizing activities pursuant to the terms of the Blueberry Agreement that have the potential to adversely affect Doig’s treaty rights without Doig’s consent until appropriate accommodation measures have been put in place.”
In addition to the uncertainty now arising from the disagreements between Treaty 8 First Nations over land use decisions, there also appears to have been some recent internal division within the BRFN itself, between Chief Desjarlais and other band council members.
In August, four band councillors challenged Desjarlais for what they characterized as a unilateral decision affecting Petronas. In a letter circulated within the community, the four councillors said that Desjarlais granted Petronas an exemption to disturbance caps for a high-value area known as the “Dancing Ground.”
“Only band council can grant an exemption to permit the development,” the letter states. “The chief also acted contrary to the wishes of the majority of council and gave Petronas the exemption they were seeking to allow them to break the Implementation Agreement without council approval and then develop in an HV1 (High Value) area,” the letter alleges.
Dejarlais flatly rejects the charge she acted unilaterally with respect to Petronas. “That is a statement that is untrue,” she told BIV. “Because there is a process within our nation that we have to follow in regards to the permitting. And as the chief of the nation, I followed my process and I adhered to the collaboration agreement between the B.C. government and myself.”
In a statement that she issued in August to the band’s membership, in response to the letter issued by the four band council members, Desjarlais said that the B.C. government had been made aware that there were “governance issues” within the BRFN, and that the government had recommended mediation.
“There’s no question that the government needs to continue to work with these nations to resolve this situation for the nations themselves, as well as for business opportunities within the province,” Goodman said. “Any uncertainty is not good for business. “If we’re not careful here, B.C. could end up in a situation where … other jurisdictions that have more certainty do look more attractive.”
Asked for a government response to the recent court challenges, the Ministry of Water, Land and Resource Stewardship issued the following statement:
“Our government continues to take steps to right past wrongs and uphold the legally protected Treaty Rights of Treaty 8 Nations. Earlier this year, we signed historic agreements with eight Treaty 8 First Nations including Blueberry River, Saulteau, Doig River, Halfway River, Fort Nelson, McLeod Lake, West Moberly and Prophet River to create a new path forward for responsible resource development in northeast B.C. that also protects Treaty Rights.
“Our approach is one of negotiation and agreement-making, and right now, we’re focusing on implementing those agreements with these First Nations.”