Blueberry River First Nation re-launches cumulative impacts lawsuit – full statement

Blueberry River First Nation

Fracking "reflux water" pit in the Bakken Formation, North Dakota | Image: Joshua Doubek, CC BY-SA 3.0

The following is the full statement from Blueberry River First Nation on their decision to bring a historic cumulative-impacts lawsuit back to the BC Supreme Court – as posted to their website on May 24, 2019.

[view/download in PDF format: BRFN statement on cumulative impacts lawsuit]

 


 

BLUEBERRY RIVER FIRST NATIONS CHIEF AND COUNCIL STATEMENT

Blueberry River First Nations v. Province of British Columbia, Treaty 8 Cumulative Impacts Trial to Begin May 27, 2019 in BC Supreme Court

Blueberry River First Nations has been forced to turn back to the Courts to enforce our treaty rights against the Province of British Columbia. We are set to start trial in BC Supreme Court in Vancouver on Monday May 27, 2019 in Blueberry River First Nations v. Province of British Columbia VA S-151727.

We are going to trial to protect our treaty rights and our future generations against the impacts of further development in our territory.

Our Nation had been willing to negotiate and work collaboratively with government toward resolution of the cumulative impacts crisis in our territory, however the provincial government has taken a unilateral position on oil and gas development in our territory that has left us with no choice but to go back to litigation.

Instead of pursuing reconciliation and negotiating a solution, we are forced to seek a court imposed order to protect our treaty rights, which may prohibit any further taking up of land in our territory until our treaty rights are met.

Under Treaty 8, government has a right to take up land for settlement, but a corresponding duty to protect a way of life. That was the fundamental promise of Treaty 8.

We have carried on our Dane-Zaa way of life centered on hunting, trapping and fishing for generations, even while our territory was being settled and developed.

But the balance has been lost.

Now more than 73% of our territory is within 250 meters of a clear-cut, oil and gas well, processing plant, road, dam or other industrial infrastructure. The rivers, streams and muskeg are drying up, mineral licks are disappearing. The wildlife we rely on are disappearing. There is almost nowhere left for us to go to hunt, trap, fish and be at peace in the places we have always known as Dane-Zaa people.

This is not what our elders agreed to in signing Treaty 8.

This is a historic case to establish that there is a limit to the government’s right to take up land in our Treaty 8 territory, and that limit has been breached. We will ask the Court to enforce the limit to the Crown’s rights in our territory under Treaty 8.

—BLUEBERRY RIVER FIRST NATIONS CHIEF AND COUNCIL


Backgrounder
Blueberry River First Nations Cumulative Impacts Case vs. Province of British Columbia


HISTORY
British Columbia’s Abandoned Corner, and Abandoned Nations

A little over 100 years ago, the Canadian government sought the consent of Blueberry River First Nations’ (BRFN) and other Treaty 8 Nations’ ancestors to the settlement of the territory which our people had occupied for many generations. Our ancestors would not consent unless the government promised that our way of life, centered on hunting, fishing and trapping throughout our territory, would be preserved, even amid settlement. The Crown made that solemn promise to us. That promise was the foundation of Treaty 8.

However today, Blueberry River First Nations says that promise has been broken. Through early settlement and development we lost key areas such as the Peace River, Charlie Lake and Montney. Our displacement has increased to today, when our people attempt to continue to practise our promised Treaty Rights surrounded by some of the highest densities of industrial disturbance in British Columbia. Our territory is becoming unrecognizable to us.

Blueberry River First Nations is one of the Treaty 8 Nations that has taken a stand against this unmanaged onslaught of landscape disturbance.

In 2015, we launched a civil claim against the BC government asserting that the scope and scale of industrial development authorised by the BC government has gone too far, that their members can no longer meaningfully carry on their traditional activities as was assured under the treaty – “for as long as the sun shines and the rivers flow.”

We are turning to the Court to enforce Treaty 8 and to prevent the further taking up of land until our Treaty Rights are met.

DISTURBANCE SNAPSHOT

Based on the Atlas of Cumulative Landscape Disturbance in the Traditional Territory of BRFN 2016 there were already:

  • 110,300 km of linear features (including roads, transmission lines, seismic lines and pipelines) exist in 38,327 km2 of territory – or 2.88 km of linear disturbance per square kilometre.
  • areas with much higher linear disturbance density (ranging from 6.1 to 12 km per km2 with other areas spiking over 24 km per km2
  • 19,974 oil and gas wells of which 36% are active. Many of these wells are now considered ‘abandoned’ – with no one on the hook for clean-up and removal, as companies come, make money, or go broke, and leave.
  • Overall, 73% of the area inside BRFN traditional territory is within 250 metres of an industrial disturbance, and approximately 84% is within 500metres of an industrial disturbance.
  • On top of this, areas that were once core territory for the Nation are now Agricultural land – 28% of BRFN’s territory is zoned or converted to Agricultural Land Reserve (ALR).
  • Plus, two hydro dams, W.A.C. Bennett and Peace Canyon, lie within BRFN traditional territory, and construction on a third dam, Site C, is now underway.

And:

  • Like much of BC, there is a forest industry in the northeast. But unlike parts of BC, this area has not seen much change in forestry practices since the 1980s. Here, measures to protect wildlife values and old growth have not been implemented, and basic forestry requirements such as green-up are not required. Blueberry’s core territory is zoned as a high intensity forestry zone.
  • To make matters even worse, less than 1% of BRFN’s territory is protected – so there are no core areas to enforce as off-limits to development, or that can provide core habitat for the species and ecosystems that underscore the ability of BRFN to meaningfully practise Treaty Rights.


There are many other signs that all is not well with the land and waters here:

  • Grizzly bears and boreal caribou are extirpated from their historic range on this southern corner of BC’s boreal. The remainder of the caribou in Blueberry’s territory are declining rapidly, and without immediate action are likely to disappear completely.
  • Government policies and development are resulting in low numbers of moose, and those we find are often unhealthy and inedible
  • First Nation members won’t drink the water because of a combination of the smell of hydrocarbons in the air, and the intense use water in tracking for gas. There is suspicion of eating animals that may have come into contact with contaminated areas.
  • And Induced Seismicity-the scientific word for human’s creating earthquakes-is increasing. The special page on BC’s Oil and Gas Commission website highlights that during 14 months when monitoring was in place (in 2013/ 2014) there were 231 ‘induced’ seismic events in core Blueberry territory.


Why is BRFN’s Traditional Territory being so harshly affected?

  • Under the boreal forest and muskeg lies one of the world’s largest shale gas deposits, and the last 15 years has seen an intense development to see who can corner this market. More than 80% of BRFN’s core territory is already tenured – handing out rights to companies to extract the gas.
  • Recent announcements on LNG development on BC’s coast provide the incentive for ongoing future development of this high intensity greenhouse gas fuel, promising that the pace and intensity of gas development will continue over the next decades.
  • Yet, there are still no protected areas and no areas off limits to development.
  • Restoration actions are needed urgently- the massive footprint that exists already must be dealt with, andfaster than new footprint hits the ground, if the land is to be allowed to recover faster than it deteriorates. This work cannot be delayed any longer.

Recent Government Reports Confirm the Problem

  • British Columbia’s Chief Forester has recognized that the core of Blueberry’s territory has been disproportionately clear cut over recent years (87% of the regional harvest coming out of the core of Blueberry territory).
  • National Energy Board records show that thousands of new wells and related oil and gas infrastructure are planned for the core of Blueberry’ s territory, which lays over the North Montney gas basin.
  • That development is on top of the extensive development that has already occurred (see summary of Atlas findings above). British Columbia’s Auditor General has recently confirmed the massive environmental and ecological liability sitting in Blueberry’s territory and the northeast of the province, with tens of thousands of abandoned and orphaned oil and gas wells left unremediated.
  • Government’s plan to electrify the gas fields means more Infrastructure and development is planned in the region.

BACKGROUND ON NEGOTIATIONS AND TRIAL

While we are willing and prepared to fight in Court to protect our treaty rights, and those of our future generations, we had hoped to avoid this.

Blueberry has worked hard over the past year to try to collaborate with the Province of British Columbia to begin to address the cumulative impacts of oil & gas, forestry and other development in our territory. As we have reported to our families, positive first steps were being taken on many fronts. Our Nation was hopeful that good faith efforts by both parties could avoid the need for us to ask the Courts to impose measures to enforce our treaty rights.

However, citing pressure from the oil and gas industry, government has hit us with a take it or leave it position, undoing months of hard work to build a collaborative solution that would better manage new development, to now revert to “business as usual” for fast track approval of extensive further oil and gas development in our territory.

Despite widespread recognition by government, scientists, First Nations and the public that the watersheds in which Blueberry people have lived for generations have been heavily impacted by development, especially over the last twenty years, the Province is forcing our Nation to prove this in Court over many months.

The Crown made our grandparents a fundamental promise in entering in to Treaty 8: that our future generations would always be able to carry out our treaty rights on a landscape capable of supporting us and the wildlife and waters upon which we depend. Instead of acknowledging the fundamental promise, the Crown is denying that the Treaty provides us any protection against the cumulative impacts of development.

The territory that we live in, and that we, our parents and grandparents have always relied upon is now so developed, it is becoming unrecognizable to us. We have almost nothing left to pass on to our future generations.

The lands, waters and wildlife that we are fighting to save and restore are essential to the health of our present and future generations.

We do not see how forcing us to this course can meet this provincial government’s commitment to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and the Calls to Action of the Truth and Reconciliation Commission.

We repeat our disappointment in being forced to spend precious time and money litigating when we would prefer to continue the real work of solving this crisis.

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See this statement on the BRFN website in webp file format

View/download this statement in PDF format: BRFN statement on cumulative impacts lawsuit 

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