Purported approval of land use plan under 2023 Implementation Agreement disputed

Notice of Civil Claim (NOCC) File Number: S-244500

BLUEBERRY RIVER FIRST NATIONS, BC, July 8, 2024 /CNW/ - Blueberry River First Nations (Blueberry) has filed a Notice of Civil Claim (NOCC) against the Province of British Columbia (the Province) in order to protect Blueberry's Treaty rights and enforce the Province's constitutional, fiduciary and contractual obligations.

In January 2023, Blueberry and the Province reached an historic agreement – the Blueberry River First Nations-Province of British Columbia Implementation Agreement. This Agreement included mechanisms to manage the cumulative effects of industrial development in Blueberry's territory, and allow the land to heal in order to protect and support Blueberry's Treaty rights and way of life for current and future generations. The Agreement followed a 2021 Supreme Court of British Columbia decision (Yahey v. British Columbia) that found the Province had breached Blueberry's Treaty rights by allowing excessive industrial development in Blueberry's territory. The court described the adverse cumulative effects as "death by a thousand cuts" – each individual project may not in itself be significantly adverse, but, added to all those before and without any accounting of the overall effect, the amount of development threatened the lands on which Blueberry relied. The court ordered the Province to negotiate with Blueberry to ensure the protection of its Treaty rights. The Implementation Agreement was a significant step forward in those negotiations. 

Under the Implementation Agreement, Blueberry and the Province committed to undertake collaborative land use planning to identify where and how oil and gas development would occur in Blueberry's critical cultural areas (also called High Value or HV areas); and, to set New Disturbance caps to manage the rate of oil and gas development via a limit or "cap" on the overall amount of New Disturbance (in hectares) that can occur each year. These New Disturbance caps are a critical tool for managing the cumulative effects of industry, which Blueberry has committed to working with, not against. 

On May 30, 2024, the Province announced that it had reached agreement with Blueberry on the first High Value Plan – the Gundy Plan. However, Blueberry – as represented by the majority of its elected Chief and Council – disputed this purported approval of the Gundy Plan. The Province was well aware of this at the time of issuing its announcement, but it did so anyway.

Blueberry disputes the plan for the following reasons:

• The current Gundy Plan is not in Blueberry's best interests. It removes the New Disturbance caps, a fundamental mechanism to protect Blueberry's Treaty rights from the cumulative effects of oil and gas development, exposing a critical area in Blueberry's territory to potentially unlimited development; and,
• The current Gundy Plan was 'approved' without notice to, or the authorization of, the majority of Blueberry's Chief and Council, contrary to Blueberry's governance model, the terms of the Implementation Agreement, and to the stated position of Blueberry that the New Disturbance cap must remain.

The Province has rejected Blueberry's request to reverse the Gundy Plan's so-called approval to enable the parties to engage in a respectful, good faith resolution of the outstanding issues. Blueberry wants a collaborative working relationship with the Province, and a Gundy Plan that offers the protections envisioned by the 2021 court decision and the Implementation Agreement. Regrettably, the Province has refused, and wants to approve development in Blueberry's critical cultural area without a New Disturbance cap. The Province ignored Blueberry's request to not issue a public statement about the Gundy Plan, and rejected the offer of dispute mediation.

"We reject the purported 'approval' of the Gundy Plan as drawn up by the Province," said Councillor and Implementation Agreement Spokesperson, Wayne Yahey. "Blueberry and the Province were very close to an agreement on the Gundy Plan just prior to the surprise announcement of its approval. The complete removal of the New Disturbance cap means that New Disturbance can be even more concentrated in this critical cultural area as compared to other parts of our territory. We demand that the Province immediately reverse this course and engage with the elected Chief and Council of our Nation in an honourable way to find a balanced path forward for everyone, including industry, in the Northeast."

In the face of the Province's improper approval of the Gundy Plan and its outright rejection of any discussion regarding that, the majority of Blueberry's elected Chief and Council have determined that the Nation has no choice but to bring legal action seeking the protection of the court once again.

"The approach taken by the Province is an affront to the dignity of our people, respect for our governance and right of self-determination as a First Nation, including pursuant to UNDRIP and DRIPA," said Councillor and Implementation Agreement Spokesperson, Shelley Gauthier. "It denies our Treaty rights, the achievement of the Implementation Agreement, the honour of the Crown, and the Province's fiduciary responsibilities and duty to negotiate in good faith. But even with this transgression, we remain committed to collaborative implementation of the Agreement with the Province."

Despite this court filing, Blueberry continues to work with the Province on referrals, land use planning and other aspects of the Implementation Agreement. Together, a truly Blueberry-approved Gundy Plan – including New Disturbance caps – would ensure a sustainable and balanced approach to oil and gas development, amicable working relations under the Implementation Agreement, and respect for Blueberry's Treaty rights.  

BACKGROUNDER

About Blueberry River First Nations

Blueberry River First Nations is a Treaty 8 Nation with a traditional territory that extends over 3.8 million hectares of the Peace River region in northeastern British Columbia. The Nation is dedicated to collaborating with industries, partners, and governments to create an approach to land management that balances responsible development with the protection and practice of its Treaty rights. Guided by its cultural and traditional values, the Nation is working to enhance the quality of life for current and future generations.

Blueberry has a Custom Election Code, with five elected Councillors representing the five Blueberry family groups. The Councillors elect a Chief. Together, the Chief and five Councillors make decisions by majority on behalf of Blueberry members. It is the same democratic, majority vote decision-making model that all elected levels of government in Canada are based on.

Under the Implementation Agreement, issue resolution for High Value Plans (s. 7.11) contemplates a meeting between the Chief and Minister of Energy, Mines and Low Carbon Innovation. Because of a related internal governance dispute, Blueberry and the Province agreed to make decisions under the Implementation Agreement at a Senior Officials Table, which includes all of Blueberry's Chief and Council. Despite this, the Province had a private meeting with the Chief to seek approval of the Gundy Plan, without notice to all Chief and Council. This private meeting also occurred contrary to the text of the Implementation Agreement, which includes the requirement to provide all Chief and Council with all materials for joint evaluation and presentation of the issues in dispute.

About the Gundy Complex HV1C Plan

The Gundy Complex is an area long identified by Blueberry members as a critical cultural area requiring protection. Blueberry previously sought 100% protection of the area, but agreed to allow 40% of it to be developed under the conditions of the Implementation Agreement, including New Disturbance caps and planning to identify where development could occur.

The Gundy Complex is located in the core of Blueberry's territory and, as outlined in the Implementation Agreement, is subject to New Disturbance caps (Area A and Area 1). Each year, there can be up to 200 ha of New Disturbance in Area A and up to 200 ha of New Disturbance in Area 1 (s. 14.1). The Gundy Plan covers a small portion of Area A and Area 1 (Schedules M and N).

Blueberry and the Province have been collaborating on the Gundy Plan for over a year, with Blueberry engaging its membership on the plan and the ~60% protected area throughout that time. Industry development plans in this area could far exceed annual New Disturbance caps and there is no other mechanism in the Gundy Plan to manage the rate of new oil and gas development. The current 'approved' Gundy Plan only addresses where development can occur, and what mitigation measures and setbacks should be applied. There is no threshold in the current plan for the amount of new land disturbances that can occur in a year or any other time period.

As provided for under the Agreement (s. 7.15) Blueberry was, and remains, open to discussing and reviewing whether New Disturbance caps may be adjusted following an agreed-to Gundy Plan at the Annual Meeting (which Blueberry and the Province agreed would include all of Chief and Council). Blueberry does not agree to outright elimination of the New Disturbance caps from critical cultural areas through High Value area planning or otherwise.

SOURCE Blueberry River First Nations