IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Yahey v. British Columbia,  
021 BCSC 1287  
2
Date: 20210629  
Docket: S151727  
Registry: Vancouver  
Between:  
Marvin Yahey on his own behalf and on behalf of all other  
Blueberry River First Nations beneficiaries of Treaty No. 8 and  
the Blueberry River First Nations  
Plaintiffs  
And  
Her Majesty the Queen in Right of the Province of British Columbia  
Defendant  
Before: The Honourable Madam Justice Burke  
Reasons for Judgment  
Counsel for the Plaintiff:  
Maegen M. Giltrow  
Gregory J. McDade, Q.C.  
Lisa C. Glowacki  
Jamie Arbeau  
John R. Rich  
F. Matthew Kirchner  
Michelle L. Bradley  
Yahey v. British Columbia  
Page 2  
Counsel for the Defendant:  
Rick Williams  
Patrick G. Foy, Q.C.  
Tim Pritchard  
Hugh Gwillim  
Chris Robb  
Jeff Echols  
Ramsey Glass  
Andrea Jarman  
Place and Date of Trial:  
Vancouver, B.C.  
May 27-31, 2019  
June 3-7, 10-14, 2019  
July 29-31, 2019  
August 1-2, 6-7, 9, 12-16, 27-30, 2019  
September 3-6, 9-13, 23-24, 27, 30, 2019  
October 1-4, 7-11, 21-25, 28-31, 2019  
November 1, 4-8, 25-29, 2019  
December 2-6, 2019  
January 23-24, 27-31, 2020  
February 3-7, 18-21, 24-27, 2020  
March 2-6, 9-13, 2020  
June 17-19, 22-26, 29-30, 2020  
July 2-3, 20-24, 27-31, 2020  
August 4-6, 2020  
October 19-23, 26-30, 2020  
November 2-6, 16-20, 23-27, 30, 2020  
Place and Date of Judgment:  
Vancouver, B.C.  
June 29, 2021  
Yahey v. British Columbia  
Page 3  
I.  
OVERVIEW..................................................................................................... 6  
II.  
BACKGROUND............................................................................................ 11  
A. Blueberry........................................................................................................ 11  
B. The Province.................................................................................................. 14  
C. Treaty 8.......................................................................................................... 14  
III.  
PROCEDURAL HISTORY............................................................................ 16  
A. Pleadings ....................................................................................................... 16  
B. Injunction Applications ................................................................................... 18  
C. Application for Judicial Review....................................................................... 19  
D. Trial................................................................................................................ 19  
E. Central Arguments ......................................................................................... 22  
IV.  
STATEMENT OF ISSUES ............................................................................ 24  
LEGAL FRAMEWORK AND PRINCIPLES.................................................. 25  
A. Section 35(1) of the Constitution Act, 1982 and Reconciliation...................... 25  
B. Principles of Treaty Interpretation .................................................................. 26  
C. Honour of the Crown...................................................................................... 27  
D. Fiduciary Duty ................................................................................................ 29  
E. Infringement of Treaty Rights......................................................................... 30  
F. Justification of Infringement............................................................................ 31  
G. Evidentiary Principles..................................................................................... 31  
V.  
VI.  
WHAT ARE THE RIGHTS AND OBLIGATIONS IN TREATY 8?................. 33  
A. History of Treaty 8.......................................................................................... 35  
1
2
3
4
. 1871-1877: Treaties 1 to 7.......................................................................... 37  
. 1897-1899: The Lead up to Treaty 8 .......................................................... 37  
. June 21, 1899: The Signing of Treaty 8 at Lesser Slave Lake ................... 44  
. May 30, 1900: Adhesion to Treaty 8 at Fort St. John ................................. 54  
B. Does Treaty 8 Promise a Right to Continue a Way of Life Based on Hunting,  
Fishing and Trapping?........................................................................................... 56  
1
2
3
.
Parties’ Positions........................................................................................ 56  
. Conclusion on the Evidence ....................................................................... 59  
. Key Jurisprudence on Treaty 8 and the Promises Contained Therein........ 66  
C. The Concept of Way of Life............................................................................ 86  
. Brief History Since 1900 ............................................................................. 88  
1
Yahey v. British Columbia  
Page 4  
2
3
4
. Particulars of the Way of Life Based on Hunting, Fishing, and Trapping.... 89  
. Crown Knowledge of Way of Life at the Time of Treaty.............................. 92  
Blueberry’s Evidence and Perspective on its Way of Life........................... 94  
.
D. Conclusions Regarding Blueberry’s Way of Life .......................................... 127  
VII. HAVE BLUEBERRY’S TREATY RIGHTS BEEN INFRINGED?................ 130  
A. Introduction .................................................................................................. 130  
B. What is the Test for Infringement of Treaty Rights?..................................... 131  
1
2
. Jurisprudence........................................................................................... 132  
. Test for Infringement ................................................................................ 144  
C. Blueberry’s Traditional Territories ................................................................ 158  
1
2
3
.
Parties’ Positions...................................................................................... 159  
. Jurisprudence........................................................................................... 162  
. Analysis .................................................................................................... 166  
D. Status of Wildlife in the Blueberry Claim Area.............................................. 192  
1
2
3
4
5
6
7
8
9
. Lay Witness Evidence and Expert Opinion Evidence ............................... 192  
. Overview................................................................................................... 195  
. Causation and Standards of Proof............................................................ 196  
. Wildlife Management Units....................................................................... 197  
. Expert Witnesses...................................................................................... 198  
. Caribou..................................................................................................... 201  
. Moose....................................................................................................... 213  
. Marten and Fisher .................................................................................... 230  
. Conclusions on Wildlife............................................................................. 233  
E. Disturbance and Scale of Development in the Blueberry Claim Area .......... 234  
1
2
3
4
5
. Introduction............................................................................................... 234  
. Admissibility of and Weight to be Given to Certain Documents................ 236  
.
2016 Atlas and Dr. Klinkenberg’s Review................................................. 245  
. RSEA Disturbance Data and Disturbance Layer ...................................... 248  
. Analysis of Disturbance Data and Scale of Development in the Blueberry  
Claim Area....................................................................................................... 256  
F. Do the Disturbances Constitute Lands Taken Up? ...................................... 296  
1
2
.
Province’s Position ................................................................................... 296  
. Analysis and Conclusions......................................................................... 297  
G. Blueberry Members’ Ability to Exercise Treaty Rights.................................. 301  
Yahey v. British Columbia  
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1
2
3
. Introduction............................................................................................... 301  
Province’s Appendices 1 and 2 ................................................................ 303  
. Analysis and Conclusions......................................................................... 307  
.
H. Conclusions in Brief ..................................................................................... 313  
1
2
3
4
. Way of Life................................................................................................ 313  
. Disturbance .............................................................................................. 314  
. Wildlife...................................................................................................... 314  
. Infringement.............................................................................................. 315  
VIII. HAS THE PROVINCE DILIGENTLY IMPLEMENTED THE TREATY?...... 316  
A. Overview ...................................................................................................... 316  
1
2
3
. Review of Jurisprudence .......................................................................... 317  
. Blueberry’s Position.................................................................................. 325  
.
Province’s Position ................................................................................... 327  
B. Application of the Legal Principles ............................................................... 328  
. Management of Treaty Rights .................................................................. 328  
C. Regulatory Regime for Oil and Gas Development ....................................... 331  
1
1
2
3
4
5
6
7
8
. Overview................................................................................................... 331  
. Conclusions in Brief.................................................................................. 332  
. Oil and Gas Agreements between Blueberry and the Province................ 335  
. Tenures: The Ministry of Energy and Mines ............................................. 341  
. Permitting: The BC Oil and Gas Commission........................................... 348  
. Remediation and Reclamation at the Oil and Gas Commission ............... 357  
.
Issues with the Province’s Oil and Gas Regime ....................................... 359  
. Conclusions with Respect to Oil and Gas Regulation............................... 386  
D. Forestry Management.................................................................................. 389  
1
2
3
4
5
6
.
Parties’ Positions...................................................................................... 392  
. Allowable Annual Cut ............................................................................... 394  
. Fort St. John Land and Resource Management Plan............................... 406  
. Fort St. John Pilot Project......................................................................... 408  
. Stand Level Permits ................................................................................. 423  
.
Conclusions with respect to the Province’s Forestry Regime ................... 426  
E. Cumulative Effects Framework .................................................................... 431  
History of the Province’s Consideration of Cumulative Effects ................. 432  
1
.
Yahey v. British Columbia  
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2
. Work on Development of the Cumulative Effects Framework................... 434  
Conclusions with respect to the Province’s Cumulative Effects Framework  
39  
F. Wildlife Management.................................................................................... 442  
3
.
4
1
2
3
4
. Land Designations.................................................................................... 442  
. Stewardship Programs ............................................................................. 450  
. Hunting Regulations ................................................................................. 460  
. Conclusions on Wildlife Management....................................................... 462  
G. Conclusions on the Province’s Implementation of the Treaty....................... 463  
1
2
.
.
Parties’ Positions...................................................................................... 463  
Analysis of the Province’s Honourable and Fiduciary Obligations............ 465  
HAS THE PROVINCE JUSTIFIED THE INFRINGEMENT?....................... 490  
IX.  
A. Law .............................................................................................................. 490  
B. Province’s Position....................................................................................... 493  
C. Analysis and Conclusions ............................................................................ 496  
RELIEF ....................................................................................................... 503  
A. Sealing Order............................................................................................... 511  
X.  
I.  
OVERVIEW  
[
1]  
This is a claim brought by the Blueberry River First Nations (“Blueberry” or  
“Plaintiffs”), whose territory is located in northeastern British Columbia. Blueberry is  
a party to Treaty No. 8 (“Treaty 8” or “Treaty”), which was first signed in 1899 and to  
which Blueberry’s ancestors adhered in 1900. The claim is based on the rights and  
obligations contained in Treaty 8.  
[
2]  
In this claim, Blueberry alleges that Her Majesty the Queen in Right of the  
Province of British Columbia (“Province” or “Defendant”) has authorized industrial  
development without regard for Blueberry’s treaty rights. Blueberry alleges the  
cumulative effects of industrial development have had significant adverse impacts on  
the meaningful exercise of their treaty rights, breached the Treaty, and infringed their  
rights.  
 
Yahey v. British Columbia  
Page 7  
[
3]  
This case is novel and the judgment lengthy. For ease of reference, I set out  
below a very condensed overview of the facts of the claim, the parties’ positions and  
my essential conclusions on the issues raised.  
In 1899, Commissioners acting on behalf of Her Majesty the Queen (“Crown”)  
and the Chiefs and headmen of the Cree, Beaver and Chipewyan as well as  
other Indigenous people gathered at Lesser Slave Lake and entered into  
Treaty 8. In 1900, Blueberry’s ancestors adhered to the Treaty.  
Treaty 8 protects the Indigenous signatories’ and adherents’ rights to hunt,  
trap and fish in the Treaty area, subject to regulations made by the  
government, and except over areas the government may have “taken up” for  
settlement, mining, lumbering, trading or other purposes.  
At the time the Treaty was entered into, the Indigenous people were also  
promised that there would be no forced interference with their mode of life.  
They would be as free to hunt and fish after the Treaty, as they would be if  
they never entered into it.  
Much has changed over the last 120 years. This case raises questions about  
what was intended in 1899 and 1900, how much change was anticipated, and  
how promises made over one hundred years ago are to be honoured and  
upheld today.  
Over the last several decades, Blueberry has witnessed extensive industrial  
development in its territory. It alleges that it has become harder to exercise its  
rights to hunt, trap and fish and to maintain its way of life. It says provincially  
authorized industrial development has pushed its members to the margins of  
its territory to seek to exercise their constitutionally protected treaty rights. It  
says the effects of the industrial development are well beyond what was  
contemplated at the time of the Treaty.  
Yahey v. British Columbia  
Page 8  
Blueberry brings this claim alleging that the cumulative impacts from a range  
of provincially authorized industrial developments in its territory have breached  
the Treaty and infringed its rights.  
The Province denies that Blueberry’s rights have been infringed or that the  
Treaty has been breached. It relies on the taking up clause contained in the  
Treaty, which gives the government the power to take up lands within the  
Treaty territory for specific purposes. The Province frames the issue as to  
whether it has taken up so much land, in the territories over which Blueberry  
members traditionally hunted, fished and trapped and continue to do so today,  
that no meaningful rights remain.  
The Province also points to the provincial regulatory regimes for managing  
forestry, wildlife, oil and gas and to policies and processes for the  
consideration of cumulative effects, which it says, take into account  
Blueberry’s treaty rights. It says that it consults with Blueberry to avoid  
infringement of its rights and to mitigate potential effects of development.  
Aboriginal and treaty rights, and the infringement of these rights, have often  
been considered in the context of regulatory prosecutions, and the applicable  
tests have been developed in that setting. To date, the cases in which First  
Nations have alleged infringements of their Aboriginal and treaty rights have  
focussed on single authorizations or specific provisions in statutes and  
regulations.  
In this case, however, Blueberry alleges that it is not one single impact from  
one single regulation or project that has infringed its rights. Rather, it is the  
cumulative effects from a range of provincially authorized activities, projects  
and developments (associated with oil and gas, forestry, mining, hydroelectric  
infrastructure, agricultural clearing and other activities) within and adjacent to  
their traditional territory that has resulted in significant adverse impacts on the  
meaningful exercise of their treaty rights, and that amount to a breach of the  
Treaty.  
Yahey v. British Columbia  
Page 9  
This therefore is a case of first instance with constitutional implications.  
Conclusions  
Courts have noted that Treaty 8 is not a final blueprint. It established the  
beginning of an ongoing relationship. It was recognized that the relationship  
would be difficult to manage. The promises contained in Treaty 8 have  
become harder to keep as time has gone on, and the Court has been called  
upon to assist the parties in understanding their obligations under the Treaty.  
I find that Treaty 8 protects Blueberry’s way of life from forced interference,  
and protects their rights to hunt, trap and fish in their territory.  
I recognize that the Province has the power to take up lands. This power,  
however, is not infinite. The Province cannot take up so much land such that  
Blueberry can no longer meaningfully exercise its rights to hunt, trap and fish  
in a manner consistent with its way of life. The Province’s power to take up  
lands must be exercised in a way that upholds the promises and protections in  
the Treaty.  
I find that the Province’s conduct over a period of many years – by allowing  
industrial development in Blueberry’s territory at an extensive scale without  
assessing the cumulative impacts of this development and ensuring that  
Blueberry would be able to continue meaningfully exercising its treaty rights in  
its territory – has breached the Treaty.  
I conclude that the extent of the lands taken up by the Province for industrial  
development (including the associated disturbances, impacts on wildlife, and  
impacts on Blueberry’s way of life), means there are no longer sufficient and  
appropriate lands in Blueberry’s territory to allow for the meaningful exercise  
by Blueberry of its treaty rights. The cumulative effects of industrial  
development authorized by the Province have significantly diminished the  
ability of Blueberry members to exercise their rights to hunt, fish and trap in  
their territory as part of their way of life and therefore constitute an  
Yahey v. British Columbia  
Page 10  
infringement of their treaty rights. The Province has not justified this  
infringement.  
I find that, for at least a decade, the Province has had notice of Blueberry’s  
concerns about the cumulative effects of industrial development on the  
exercise of its treaty rights. Despite having notice of these legitimate concerns,  
the Province failed to respond in a manner that upholds the honour of the  
Crown and implements the promises contained in Treaty 8. The Province has  
also breached its fiduciary duty to Blueberry by causing and permitting the  
cumulative impacts of industrial development without protecting Blueberry’s  
treaty rights.  
The Province has not, to date, shown that it has an appropriate, enforceable  
way of taking into account Blueberry’s treaty rights or assessing the  
cumulative impacts of development on the meaningful exercise of these rights,  
or that it has developed ways to ensure that Blueberry can continue to  
exercise these rights in a manner consistent with its way of life. The Province’s  
discretionary decision-making processes do not adequately consider  
cumulative effects and the impact on treaty rights.  
The rights, obligations and promises made in Treaty 8 must be respected,  
upheld, and implemented today. Time is of the essence. Relief will follow.  
[
[
4]  
5]  
Prior to delving into the details of this case I will address two things.  
First, this case is extraordinary for the amount of data and detail it involves and  
the breadth of the topics it addresses including: history, ethnography, wildlife science,  
geology, geography, forestry, land use planning, and the functioning of various  
governmental regulatory regimes. The Court does not address and/or resolve all the  
differences in these details; nor is it necessary to do so.  
[
6]  
The Court has focused on determinative evidence and issues, and has dealt  
with these as necessary to resolve this matter. This has been a remarkably difficult,  
but necessary task to undertake in a timely manner due to allegations of the  
Yahey v. British Columbia  
Page 11  
continuing nature of the impacts alleged to occur on Blueberry territory. I thank  
counsel for marshalling and compiling the evidence in a logical manner, and for  
setting out in detail and cross-referencing the material they relied on in their thorough  
closing submissions.  
[
7]  
Second, it is important that these reasons be accessible. While lengthy, I will  
attempt not to use the acronyms that are typically used by the participants in the  
forestry, oil and gas and other natural resource industries, as well as in government.  
To shorten long names, I will paraphrase these names in an identifiable,  
understandable way.  
[
8]  
The persistent use of acronyms creates a closed community in which others  
cannot easily participate. It impedes understanding, and impacts on communication  
with others outside these communities. It is therefore important for the understanding  
and accessibility of all that acronyms not be persistently used in these reasons.  
[
9]  
I also note maps were used and are central to this case. Some of those are set  
out in the decision. Colour copies of most of the maps however, are reflected in the  
online version of this judgment.  
II.  
BACKGROUND  
A. Blueberry  
10] Blueberry is a community that is predominantly of Dane-zaa ancestry. Many  
[
Blueberry members, including some who testified at trial, have both Cree and Dane-  
zaa ancestry and identify as Dane-zaa. Dane-zaa people are also sometimes  
referred to in the written historical record as “Beaver Indians.” I will occasionally use  
that term when quoting from those materials.  
[
11] Blueberry’s territory is located in the upper Peace River region of northeastern  
British Columbia and is located in what is referred to as the Peace River Regional  
District. The main reserve community today is Indian Reserve 205 (“IR 205”), which is  
 
 
Yahey v. British Columbia  
Page 12  
located approximately 65 kilometres north of what is now the modern-day city of Fort  
St. John.  
[
12] Blueberry’s claimed territory extends, roughly, from the Alberta border in the  
east to the foothills of the Rocky Mountains in the west, south to and including the  
Peace River, and north and east to Pink Mountain, Sikanni Chief, Lily Lake and  
Tommy Lakes. The Alaska Highway, which was built in the 1940s, runs roughly from  
the south to the northwest through the territory.  
[
13] The territory lies right over the Montney gas basin (also referred to in these  
proceedings as the Montney play), which has become a location for significant oil and  
gas exploration and extraction.  
[
14] Blueberry delineates its traditional territory for the purpose of this claim at  
Schedule 1 to their Notice of Civil Claim. Blueberry has asserted its traditional  
territory in this action to be “some 38,000 square kilometres in the upper Peace River  
region.” I will refer to this area as the Blueberry Claim Area.  
Yahey v. British Columbia  
Page 13  
Schedule 1 of the Notice of Civil Claim. This area is referred to in these Reasons for Judgment  
as the “Blueberry Claim Area.”  
[
15] Blueberry’s description of the history of industrial development in its territory  
and what led them to file this action was succinctly summarized in its 2016  
application for an interim injunction, and referred to in my reasons in Yahey v. British  
Columbia, 2017 BCSC 899 [Yahey 2017] at para. 24:  
Since the construction of the Alaska Highway opened up the Upper Peace to  
industrial development, the Province of British Columbia has authorized a  
wide variety of Industrial developments in the traditional territory…  
Yahey v. British Columbia  
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…
[resulting] in a wide range of physical works and activities… Collectively,  
the Industrial Developments have transformed the physical landscape in the  
traditional territory.  
In recent years, the cumulative impact of the Industrial Developments in  
BRFN’s traditional territory has had a profound and negative effect on BRFN  
members’ ability to exercise their treaty rights.  
B.  
The Province  
[
16] The Defendant, the Province, is the emanation of the Crown that holds the  
beneficial interest in the land that is material to the issues in this proceeding (subject  
to any third-party rights).  
[
17] The Province has exclusive power to manage and regulate the lands, and the  
resources under those lands, pursuant to ss. 92(5), 92A and 109 of the Constitution  
Act, 1867 (U.K.), 30 & 31 Vict., c. 3.  
C.  
Treaty 8  
[
18] Treaty 8 is a treaty within the meaning of s. 35 of the Constitution Act, 1982,  
being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.  
[
19] As noted in the overview, Treaty 8 was made between the Crown and various  
Indigenous peoples in June 1899 at Lesser Slave Lake. Following the June 1899  
signing, Treaty Commissioners representing the Crown met with other Indigenous  
people living in the territory covered by Treaty 8 and sought their adhesion to the  
Treaty. Blueberry’s ancestors, the Dane-zaa at Fort St. John, adhered to Treaty 8 in  
1
900.  
20] Treaty 8 provides, in part, as follows:  
And Her Majesty the Queen HEREBY AGREES with the said Indians that  
[
…
they shall have right to pursue their usual vocations of hunting, trapping and  
fishing throughout the tract surrendered as heretofore described, subject to  
such regulations as may from time to time be made by the Government of the  
country, acting under the authority of Her Majesty, and saving and excepting  
such tracts as may be required or taken up from time to time for settlement,  
mining, lumbering, trading or other purposes.  
 
 
Yahey v. British Columbia  
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[
21] The promises made in Treaty 8 were promises of the Crown. The Province  
was not a signatory to Treaty 8 but, along with Canada, holds the duties and benefits  
of this treaty. Both levels of government are responsible for fulfilling these promises  
when acting within the division of powers under the Constitution Act, 1867. The  
issues in this case concern the responsibilities of the Province.  
[
22] A body of case law outlines judicial findings and commentary on Treaty 8.  
Three general points bear review.  
[
23] First, Treaty 8 covers a large area. The Treaty 8 area covers parts of  
northeastern British Columbia, northern Alberta, northwestern Saskatchewan, and a  
southern segment of the Northwest Territories. Its size “dwarfs France”: Mikisew Cree  
First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 [Mikisew] at  
para. 2. The region encompasses the traditional territories of many signatories and  
adherent First Nations. The lands over which signatory and adherent First Nations  
could pursue their “usual vocations” were not “from a practical point of view” the  
entire expanse of Treaty 8, but their respective traditional territories within the larger  
expanse (Mikisew at paras. 47 and 48):  
[
47] … While the Mikisew may have rights under Treaty 8 to hunt, fish and trap  
throughout the Treaty 8 area, it makes no sense from a practical point of  
view to tell the Mikisew hunters and trappers that, while their own hunting  
territory and traplines would now be compromised, they are entitled to invade  
the traditional territories of other First Nations distant from their home turf (a  
suggestion that would have been all the more impractical in 1899). The  
Chipewyan negotiators in 1899 were intensely practical people, as the Treaty  
8
Commissioners noted in their report (at p. 5):  
The Chipewyans confined themselves to asking questions and making  
brief arguments. They appeared to be more adept at cross-  
examination than at speech-making, and the Chief at Fort Chipewyan  
displayed considerable keenness of intellect and much practical sense  
in pressing the claims of his band.  
Badger recorded that a large element of the Treaty 8 negotiations were  
the assurances of continuity in traditional patterns of economic  
activity. Continuity respects traditional patterns of activity and  
occupation. The Crown promised that the Indians’ rights to hunt, fish  
and trap would continue “after the treaty as existed before it” (p.  
5). This promise is not honoured by dispatching the Mikisew to  
territories far from their traditional hunting grounds and traplines.  
Yahey v. British Columbia  
Page 16  
[
48] … The “meaningful right to hunt” is not ascertained on a treaty-wide basis  
(
all 840,000 square kilometres of it) but in relation to the territories over which  
a First Nation traditionally hunted, fished and trapped, and continues to do so  
today. If the time comes that in the case of a particular Treaty 8 First Nation  
“
no meaningful right to hunt” remains over its traditional territories, the  
significance of the oral promise that “the same means of earning a livelihood  
would continue after the treaty as existed before it” would clearly be in  
question, and a potential action for treaty infringement, including the demand  
for a Sparrow justification, would be a legitimate First Nation response.  
(
emphasis in original)  
[
24] While the Treaty covers a large area, the rights are exercised in the areas over  
which a First Nation traditionally hunted, fished and trapped, and continues to do so  
today. In this case, the focus is on the Blueberry Claim Area.  
[
25] Second, as noted in R. v. Badger, [1996] 1 S.C.R. 771 [Badger] at paras. 39  
and 55, the Indigenous signatories and later adherents to the Treaty had a strong  
interest in securing their traditional livelihood. The written terms of the Treaty referred  
to these traditional activities as “their usual vocations” of hunting, trapping and  
fishing. Oral promises made by the Crown supplemented the text of the Treaty: the  
Indigenous signatories and adherents “would be as free to hunt and fish after the  
treaty as they would be if they never entered into it.”  
[
26] Third, the Treaty foreshadowed change and provided a framework for  
managing relations and changes in land use (Mikisew at paras. 27, 31 and 63). The  
Crown sought to secure this land for settlement (Badger at para. 39) while expecting  
that the First Nations’ “means of earning a livelihood would continue after the treaty  
as existed before it” due to the lands’ overall unsuitability for agriculture (Mikisew at  
para. 30; Badger at para. 55).  
III.  
PROCEDURAL HISTORY  
A. Pleadings  
27] Blueberry filed its Notice of Civil Claim on March 3, 2015. In the Notice of Civil  
[
Claim Blueberry alleges that the cumulative effects of a variety of provincially  
authorized industrial developments within their traditional territory have damaged the  
 
 
Yahey v. British Columbia  
Page 17  
forests, lands, waters, fish and wildlife on which they rely, and which are integral to  
their mode of life (paras. 5, 30, 32). Blueberry says the cumulative effects of these  
industrial developments have had significant adverse impacts on the meaningful  
exercise of their treaty rights, and that the Province has breached the Treaty and  
infringed Blueberry’s treaty rights (paras. 27, 28, 35).  
[
28] Blueberry’s claim seeks various declarations relating to the Province’s alleged  
breaches of the Treaty, infringement of Blueberry’s treaty rights, continuing  
authorizations, and breach of fiduciary obligations.  
[
29] Specifically, in its Notice of Civil Claim at page 9, Blueberry seeks the following  
relief:  
1. A declaration that, in causing and/or permitting the cumulative impacts of  
the Industrial Developments on the Plaintiffs’ Treaty Rights in their Traditional  
Territory, the Defendant has breached its obligations to the Plaintiffs under the  
Treaty;  
2. A declaration that the Defendant has infringed upon some or all of the  
Plaintiffs’ Treaty Rights by causing and/or permitting the cumulative impacts of  
the Industrial Developments on the Plaintiffs’ Treaty Rights in their Traditional  
Territory;  
3. A declaration that the Defendant may not lawfully continue to authorize  
activities that breach the promises made by the Crown to the Plaintiffs in the  
Treaty or that infringe the Treaty Rights;  
4. A declaration that the Defendant has breached its fiduciary obligations to  
the Plaintiffs by undertaking, causing and/or permitting some or all of the  
Industrial Developments within and adjacent to the Plaintiffs’ Traditional  
Territory;  
…
[
30] In addition, at paras. 5 and 6 of the Relief Sought, Blueberry seeks interim and  
permanent injunctions restraining the Defendant from undertaking, causing and/or  
permitting activities that: (a) breach the Defendant’s obligations to the Plaintiffs under  
the Treaty; (b) infringe the Plaintiffs’ treaty rights, or (c) breach the Defendant’s  
fiduciary obligations to the Plaintiffs. It also seeks costs, and such further and other  
relief I may deem appropriate.  
Yahey v. British Columbia  
Page 18  
[
31] The Province filed its Response to Civil Claim on April 24, 2015. The Province  
admitted it has authorized some industrial development in Blueberry’s claimed  
traditional territory, but denied that Blueberry had almost no traditional territory within  
which to meaningfully pursue their cultural and economic activities, and denied that  
there has been any erosion of Blueberry’s treaty rights (paras. 13, 14). At para. 23 of  
its Response, the Province denied that it has breached its obligations to Blueberry  
under the Treaty or infringed Blueberry’s treaty rights. In the alternative, the Province  
said any such breaches or infringements were justified.  
B.  
Injunction Applications  
[
32] As part of its claim, Blueberry has twice sought to enjoin the Province from  
authorizing any activities that would infringe their treaty rights pending trial.  
[
33] In June 2015, Blueberry first sought a limited injunction to prevent the Province  
from auctioning several timber sale licences, which would have allowed logging of  
approximately 17 square kilometres of timber within their traditional territory (i.e., one-  
tenth of one percent of the Blueberry Claim Area). Blueberry argued that the planned  
logging would contribute to the existing cumulative effects from various industrial  
developments in their territory, which had or would soon make it impossible to  
meaningfully exercise their treaty rights.  
[
34] In July 2015, Justice Smith in Yahey v. British Columbia, 2015 BCSC 1302,  
concluded the balance of convenience did not support granting the injunction sought  
and dismissed the application. He reasoned at para. 64 that:  
[
64] BFRN may be able to persuade the court that a more general and wide  
ranging hold on industrial activity is needed to protect its treaty rights until trial.  
However, if the court is to consider such a far-reaching order, it should be on  
an application that frankly seeks that result and allows the court to fully  
appreciate the implications and effects of what it is being asked to do. The  
public interest will not be served by dealing with the matter on a piecemeal,  
project by-project basis.  
[
35] Blueberry filed a notice of appeal of Justice Smith’s decision but did not  
ultimately proceed with that appeal.  
 
Yahey v. British Columbia  
Page 19  
[
36] Instead, in August of 2016, Blueberry filed a second notice of application, this  
time seeking to enjoin the Province from allowing a broader array of further industrial  
development, including oil and gas development, processing, and transportation, as  
well as logging in segments of its territory. I heard that application in October and  
November of 2016.  
[
37] In May 2017, in Yahey 2017, I dismissed that broader injunction application,  
holding that while Blueberry had shown a serious issue to be tried and had  
established irreparable harm, the balance of convenience ultimately weighed in  
favour of the Province. The issues raised needed to be dealt with and tested at trial.  
Noting that it is preferable for such claims to be negotiated rather than litigated, I  
encouraged the parties to pursue a collaborative path pending trial.  
C.  
Application for Judicial Review  
[
38] Prior to making its second injunction application, Blueberry sought to judicially  
review the Province’s decision to enter into a long-term royalty agreement with  
Progress Energy, an oil and gas company, and four other companies focused on  
natural gas extraction in the North Montney area.  
[
39] In March 2017, Justice Skolrood dismissed that application. In so doing, he  
referenced the comprehensive nature of the claims advanced in this underlying action  
and concluded that the issues raised were not “separate and discrete and amenable  
to determination in a separate judicial review proceeding” (Blueberry River First  
Nations v. British Columbia (Natural Gas Development), 2017 BCSC 540 at para.  
8
3).  
D.  
Trial  
[
40] The trial of this action was originally set to begin in March 2018. It was  
adjourned in the spring of 2018 for approximately six months, and again in the fall of  
018, to allow the parties to pursue mediation and negotiations. Unfortunately, those  
efforts were not successful.  
2
 
 
Yahey v. British Columbia  
Page 20  
[
41] Ultimately, after a variety of pre-trial applications, on May 27, 2019, Blueberry  
opened its case. Blueberry’s opening remarks reflect that they were seeking to prove  
that the Province had failed to uphold and had breached Treaty 8. Blueberry alleged  
that the cumulative impact of provincially authorized industrial development in their  
traditional territory had resulted in an unjustified infringement of their treaty rights.  
Blueberry recognized it had the onus to prove any infringements, and it put the  
Province on notice that it would have the onus, in this trial, to justify any  
infringements.  
[
42] In its opening, the Province denied any breach of Treaty 8, or any  
infringements to Blueberry’s rights under the Treaty. While the Province indicated on  
the authorities that the justification analysis comes after a finding of infringement, it  
noted it would get to the justification test in the course of this case.  
[
43] The trial took place over 160 days between May 2019 and November 2020.  
Due to the COVID-19 pandemic, a portion of the trial from June to August 2020 took  
place remotely via Microsoft Teams.  
[
44] Over the course of the trial, Blueberry led evidence from six expert witnesses  
on a variety of topics including the history leading up to the entering of Treaty 8  
Gwynneth Jones); Dane-zaa way of life (Dr. Robin Ridington and Hugh Brody);  
(
spatial and geographic information system mapping and the soundness of the Atlas  
of Cumulative Landscape Disturbance in the Traditional Territory of Blueberry River  
Fist Nations, 2016 (Dr. Brian Klinkenberg); and forest and wildlife ecology, including  
the state of habitat and population trends for caribou, moose and fur-bearers in  
northeastern British Columbia (Dr. Christopher Johnson and Dr. Scott McNay).  
[
45] Seven Blueberry members testified about their exercise of treaty rights and the  
Dane-zaa way of life, the impacts they had witnessed to their traditional territory, and  
their ability to continue exercising their rights and pass on knowledge to future  
generations (Jerald Davis, Raymond Appaw, Wayne Yahey, Georgina Yahey, Norma  
Pyle, Sherry Dominic and Kayden Pyle).  
Yahey v. British Columbia  
Page 21  
[
46] In addition, Norma Pyle and Dr. Rachel Holt testified about the referral,  
consultation and engagement processes in which Blueberry has been involved with  
various provincial ministries and agencies. Ms. Pyle and Dr. Holt also testified about  
Blueberry’s efforts to develop a Framework for Land Use and to press the Province to  
take into account cumulative effects and impacts on treaty rights in all of its natural  
resource decisions. Dr. Holt’s evidence included her perspective on the Province’s  
development of frameworks and analyses for assessing cumulative effects. This  
evidence took approximately 55 days.  
[
47] The Province then led evidence from three expert witnesses on the following  
topics: the history leading up to the entering of Treaty 8 (Dr. Robert Irwin), the status  
of various wildlife species and habitat in northeastern British Columbia (Keith  
Simpson), and geographic information systems and the accuracy of Dr. Klinkenberg’s  
analysis (Ann Blyth). Representatives from five provincial ministries or agencies  
testified: Ministry of Forests, Lands, Natural Resources Operations and Rural  
Development (“Ministry of Forests”), Peace Natural Resource District (Mark Van  
Tassel and Greg Van Dolah), Ministry of Indigenous Relations and Reconciliation  
(Geoff Recknell), Ministry of Environment (Dr. Jennifer Psyllakis), Ministry of Energy,  
Mines and Petroleum Resources (Chris Pasztor), and the BC Oil and Gas  
Commission (Sean Curry and James O’Hanley). Some of these witnesses had been  
employed by several provincial ministries over the course of their careers.  
[
48] The Province also called two individuals representing industry: Peter Baird  
representing Canfor (a lumber, pulp and paper company), and Nicole Deyell  
representing Petronas (an oil and gas company).  
[
49] The Province read-in transcripts from the examinations for discovery of  
Blueberry Chief Marvin Yahey. All of this evidence took approximately 70 days.  
[
50] The evidentiary record is voluminous, and the written submissions are lengthy.  
Indeed some of that argument was set out in appendices and footnotes. Blueberry’s  
written submissions, with appendices, total nearly 700 pages. Their written reply is  
Yahey v. British Columbia  
Page 22  
over 130 pages. The Province’s written submissions, including its 12 appendices,  
total nearly 1,250 pages. There are 127 exhibits, but this number is misleading as  
most exhibits contain hundreds or even thousands of pages. For example, Exhibit 1,  
which has several tabs, consists of nearly 8,000 pages, and Exhibit 2 contains over  
2
,000 pages. The final oral argument took 25 days. It is not possible or necessary to  
refer to all of the evidence and argument. I have considered it all, but will only refer to  
the significant portions of the evidence and argument as part of my analysis.  
E.  
Central Arguments  
[
51] In its final oral and written submissions, Blueberry argued several related  
breaches of Treaty 8.  
[
52] First, it argues the Province has breached Treaty 8 in failing to uphold or  
implement the essential promise of the Treaty: that Blueberry would be able to  
continue its mode of life. In particular, it argues the Province has breached its  
honourable obligation to diligently implement the Treaty promise.  
[
53] Second, and relatedly, it says that in failing to diligently and honourably  
implement the essential promise of Treaty 8, the Province has significantly interfered  
with or undermined its mode of life, and thereby infringed its treaty rights.  
[
54] Third, it says the Province has not taken steps to manage its use and taking  
up of lands to ensure it remains within the bounds of the Treaty 8 bargain. Blueberry  
says the Province has breached its fiduciary obligations by encouraging extensive  
development of the Blueberry Claim Area, to Blueberry’s serious detriment.  
[
55] Blueberry essentially argues the Province has a positive duty to diligently  
implement the Treaty by taking proactive measures to institute land use planning and  
cumulative impact assessments to take into account and protect Blueberry’s treaty  
rights. As this has not occurred, despite Blueberry constantly raising these issues, the  
Province’s inactions and actions have resulted in an unjustified infringement of  
 
Yahey v. British Columbia  
Page 23  
Blueberry’s rights, breach of the Treaty, and breach of the honourable and fiduciary  
obligations associated with it.  
[
56] The Province’s final arguments emphasized that Treaty 8 includes not only  
rights for the Indigenous beneficiaries to pursue their usual vocations of hunting,  
trapping and fishing, but also rights for the Province to take up land from time to time  
for settlement, mining, lumbering, trading or other purposes, and thus reflects a  
balancing of interests.  
[
57] The Province emphasizes that the theme of balance runs through the  
jurisprudence dealing with the protection of treaty rights in s. 35 of the Constitution  
Act, 1982 and with consultation. The idea of balance, says the Province, is also  
reflected in the evidence. The Province points out Blueberry members testified about  
their efforts to find a balance between their work obligations and the ability to  
meaningfully hunt and gather, on weekends and evenings. Blueberry also, in the  
past, entered into agreements with the Province to share the revenues from certain  
industrial activities in a defined area.  
[
58] More fundamentally, the Province notes that the test for treaty infringement is  
whether so much land has been taken up in Blueberry’s traditional territory that its  
members can no longer meaningfully exercise their treaty rights to hunt, trap and fish.  
The Province says that Blueberry has not established on the evidence that the Treaty  
has been breached or that its rights have been infringed. The Province says  
Blueberry members maintain the ability to meaningfully exercise their rights within  
their traditional territory.  
[
59] The Province points to consultation and “collaborative reconciliation initiatives”  
as the way forward. It is through these processes, says the Province, that it can  
obtain specific information on the impacts of decisions on Blueberry and other  
affected First Nations, that it can balance conflicting claims, and that it can identify  
what is required to maintain the honour of the Crown and effect reconciliation. The  
Yahey v. British Columbia  
Page 24  
Province points out that Blueberry has not, in this case, sought to challenge the  
consultation associated with any particular project or statutory decision.  
[
60] While the Province has pleaded justification in the alternative, it did not in final  
submissions argue that the Province’s actions, inactions or regulatory regimes were  
justified, despite being alerted by Blueberry of this need. Blueberry says, as a result,  
if an infringement is found, the Province has effectively not justified its actions,  
conduct, or regulatory regimes and Blueberry’s remedies must be granted.  
IV.  
STATEMENT OF ISSUES  
[
[
[
61] This case raises four main issues.  
62] First: What are the rights and obligations in Treaty 8?  
63] Blueberry and the Crown are parties to Treaty 8. Blueberry relies upon the  
rights in Treaty 8, which it maintains includes a right to continue its mode of life free  
from interference. In ascertaining these rights and obligations, the Court must  
consider the historical context and the promises of the Treaty, including oral promises  
that accompany the written text. It must also consider Blueberry’s mode or way of life,  
and whether this was protected. The Court must consider the Crown’s rights to pass  
regulation and to take up lands for specific purposes, and how these rights interact  
with those of the Indigenous signatories and adherents. In addition, the Court must  
consider the change foreshadowed by the Treaty.  
[
[
64] Second: What is the test for finding an infringement of treaty rights?  
65] The parties fundamentally disagree on what is the applicable test for  
infringement of a treaty right. While they agree the Supreme Court of Canada’s  
decision in Mikisew is applicable, they dispute how that case, and in particular the  
reasoning at para. 48, should be interpreted and applied in these proceedings.  
Accordingly, the Court’s analysis of the infringement issue also considers what it  
means for a First Nation to have “no meaningful right…remain[ing] over its traditional  
territories.”  
 
Yahey v. British Columbia  
Page 25  
[
66] Third: Have Blueberry’s treaty rights have been infringed? As part of this, I  
must consider whether sufficient and appropriate land in Blueberry’s traditional  
territory exists to allow for the meaningful exercise by Blueberry of its treaty rights?  
[
67] Fourth: If the Plaintiffs can no longer meaningfully exercise their Treaty 8  
rights, has the Province breached the Treaty in failing to diligently implement the  
promises contained therein in accordance with the honour of the Crown? The Court  
will also consider whether the Province has breached its fiduciary obligations  
associated with the Treaty.  
[
68] To answer the third and fourth questions, findings of fact are required  
regarding: the state of the lands over which Blueberry seeks to exercise its rights; the  
Province’s “taking up” of lands; and, the Province’s management of wildlife and  
natural resources, as well as its efforts to develop processes and frameworks for  
taking into account cumulative effects and to consult with Blueberry.  
V.  
LEGAL FRAMEWORK AND PRINCIPLES  
[
69] The parties largely agree on the relevant principles and frameworks which I  
will now briefly set out. They differ, however, on the interpretation and application of  
these principles in this case. I will outline expand on this in the applicable sections of  
this judgment.  
A.  
70] I begin with s. 35(1) of the Constitution Act, 1982, which says:  
5(1) The existing aboriginal and treaty rights of the aboriginal peoples of  
Section 35(1) of the Constitution Act, 1982 and Reconciliation  
[
3
Canada are hereby recognized and affirmed.  
[
71] Section 35(1) of the Constitution Act, 1982 did not create rights. What s. 35(1)  
did was give Aboriginal and treaty rights – which it explicitly recognizes as already  
existing” – constitutional protection (R. v. Van der Peet, [1996] 2 S.C.R. 507 [Van der  
Peet] at paras. 28-29).  
“
 
 
Yahey v. British Columbia  
Page 26  
[
72] The Supreme Court of Canada has often recognized that s. 35(1) must be  
interpreted in a purposive way (R. v. Sparrow, [1990] 1 S.C.R. 1075 [Sparrow] at  
075; Van der Peet at paras. 21-22; Manitoba Metis Federation Inc. v. Canada  
Attorney General), 2013 SCC 14 [Manitoba Metis] at para. 76).  
1
(
[
73] In Van der Peet, the Supreme Court of Canada stated that s. 35(1) provides  
the constitutional framework through which to acknowledge the fact that when  
Europeans arrived in North America, Indigenous peoples were already living on the  
land in distinctive societies with their own cultures, and to reconcile this with the  
Crown’s assertion of sovereignty (at paras. 30-31).  
[
74] Much of the common law governing the relationship between the Crown and  
Indigenous people in Canada is aimed at reconciling the pre-existence of Indigenous  
societies with the assertion of Crown sovereignty. In Mikisew, the Supreme Court of  
Canada noted that the “fundamental objective” of the modern law of Aboriginal and  
treaty rights is reconciliation (at para. 1). Treaties were one way that reconciliation  
happened.  
[
75] The process of reconciliation did not end at the time treaties were entered into.  
It is ongoing. As noted below, treaties must be interpreted in a way that achieves their  
purposes and that promotes their reconciliatory function (Manitoba Metis at para. 71).  
B.  
Principles of Treaty Interpretation  
[
76] A treaty represents an exchange of solemn promises between the Crown and  
one or several Indigenous nations (Badger at para. 41). It is an agreement whose  
nature is sacred (Badger at para. 41).  
[
77] The goal of treaty interpretation is to uncover the parties’ common intention in  
entering into the treaty. This is done by considering the treaty in its unique historical  
and cultural context (R. v. Morris, 2006 SCC 59 [Morris] at para. 18).  
 
Yahey v. British Columbia  
Page 27  
[
78] In R. v. Marshall, [1999] 3 S.C.R. 456 [Marshall] at para. 78, Justice McLachlin  
(as she then was, and writing in dissent) summarized the legal principles governing  
treaty interpretation. They include the following:  
1. Aboriginal treaties constitute a unique type of agreement and attract special  
principles of interpretation.  
2. Treaties should be liberally construed and ambiguities or doubtful  
expressions should be resolved in favour of the Aboriginal signatories.  
3. The goal of treaty interpretation is to choose from among the various  
possible interpretations of common intention the one which best reconciles the  
interests of both parties at the time the treaty was signed.  
4. In searching for the common intention of the parties, the integrity and  
honour of the Crown is presumed.  
5. In determining the signatories’ respective understanding and intentions, the  
court must be sensitive to the unique cultural and linguistic differences  
between the parties.  
6. The words of the treaty must be given the sense which they would naturally  
have held for the parties at the time.  
7. A technical or contractual interpretation of treaty wording should be  
avoided.  
8. While construing the language generously, courts cannot alter the terms of  
the treaty by exceeding what “is possible on the language” or realistic.  
9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid  
way. They are not frozen at the date of signature. The interpreting court must  
update treaty rights to provide for their modern exercise. This involves  
determining what modern practices are reasonably incidental to the core treaty  
right in its modern context.  
(
citations omitted)  
[
[
79] These principles have been cited and relied on in subsequent cases.  
80] In Manitoba Metis, the Court stated that a purposive approach to treaty  
interpretation must give meaning and substance to the Crown’s promises (at para.  
6). It cannot be a legalistic interpretation that divorces the words from their purpose  
Manitoba Metis at para. 77).  
7
(
C.  
Honour of the Crown  
[
81] The honour of the Crown is a constitutional principle, enshrined in s. 35(1) of  
the Constitution Act, 1982, which recognizes and affirms existing Aboriginal and  
 
Yahey v. British Columbia  
Page 28  
treaty rights (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at para.  
4
2
2; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director),  
004 SCC 74 [Taku] at para. 24; Manitoba Metis at para. 69).  
[
82] The principle of the honour of the Crown arises from the Crown’s assertion of  
sovereignty in the face of pre-existing Indigenous sovereignty, occupation and control  
of those lands (Taku at para. 24; Haida Nation v. British Columbia (Minister of  
Forests), 2004 SCC 73 [Haida] at para. 32; Manitoba Metis at paras. 66-67). The  
underlying purpose of the honour of the Crown is to facilitate the reconciliation of  
those interests (Mikisew Cree First Nation v. Canada (Governor General in Council),  
2
018 SCC 40 [Mikisew 2018] at para. 22; Manitoba Metis at paras. 66-67).  
[
83] In all its dealings with Indigenous peoples, the Crown must act honourably, in  
accordance with its historical and future relationship with the Indigenous peoples in  
question (Taku at para. 24). The honour of the Crown is always at stake in such  
dealings (Sparrow, Badger).  
[
84] The honour of the Crown is a fundamental concept governing treaty  
interpretation and application (Mikisew at para. 51).  
[
85] Four years before Treaty 8 was entered into, Justice Gwynne of the Supreme  
Court of Canada noted that the honour of the Crown was pledged to the fulfilment of  
its treaty obligations to Indigenous peoples (Mikisew at para. 51 citing Gwynne J. in  
dissent in Province of Ontario v. Dominion of Ontario (1895), 25 S.C.R. 434). The  
honour of the Crown infuses every treaty and the performance of every treaty  
obligation (Mikisew at para. 57). The Crown’s honour cannot be interpreted narrowly or  
technically but must be given full effect in order to promote the process of reconciliation  
mandated by s. 35(1) (Taku at para. 24).  
[
86] In Manitoba Metis, the Supreme Court of Canada reviewed the concept of the  
honour of the Crown in detail and reasoned that when it comes to implementing  
constitutional obligations to Indigenous people, this principle requires the Crown: (1)  
Yahey v. British Columbia  
Page 29  
take a broad and purposive approach to the interpretation of the promise; and (2) act  
diligently to fulfill it (Manitoba Metis at para. 75).  
[
87] The law assumes the Crown intends to fulfill its solemn promises (Manitoba  
Metis at para. 79). Because the Crown’s honour is pledged to the fulfillment of its  
obligations, it must endeavour to ensure its obligations are fulfilled (Manitoba Metis at  
para. 79; see also Restoule v. Canada (Attorney General), 2018 ONSC 7701  
[
Restoule] at para. 3). The Crown is expected to carry out the work required with due  
diligence, as good governance requires decisions to be taken in a timely way  
Manitoba Metis at para. 79). Crown servants must seek to fulfill the obligation in a  
(
way that pursues the purpose behind the promise (Manitoba Metis at para. 80).  
Indigenous people must not be left “with an empty shell of a treaty promise”  
(Manitoba Metis at para. 80; Marshall at para. 52).  
[
88] Perfection is not required. Nor is there a guarantee that the purposes of the  
promise will be met. However, a persistent pattern of errors and indifference that  
substantially frustrates the purpose of the solemn promise may constitute a failure by  
the Crown to honourably fulfil its promise (Manitoba Metis at para. 82).  
D.  
Fiduciary Duty  
[
89] The honour of the Crown gives rise to a fiduciary duty when the Crown  
assumes discretionary control over a specific or cognizable Aboriginal interest  
Manitoba Metis at paras. 49, 51; Wewaykum Indian Band v. Canada, 2002 SCC 79  
Wewaykum] at paras. 79-83; Williams Lake Indian Band v. Canada (Aboriginal  
Affairs and Northern Development), 2018 SCC 4 [Williams Lake] at para. 44).  
(
[
[
90] Fiduciary duty, where it exists, is called into existence to facilitate the  
supervision of the high degree of discretionary control gradually assumed by the  
Crown over the lives of Indigenous peoples (Wewaykum at para. 79). The Crown’s  
fiduciary obligations are aimed at protecting the interests of Indigenous people,  
especially when the level of Crown discretion leaves these interests vulnerable to  
government ineptitude or misconduct.  
 
Yahey v. British Columbia  
Page 30  
[
91] The Supreme Court of Canada has recognized that the Crown’s fiduciary duty  
includes the protection of Indigenous peoples’ pre-existing, and still existing,  
Aboriginal and treaty rights within s. 35 of the Constitution Act, 1982 (Sparrow at  
108; Wewaykum at para. 78; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44  
1
[
Tsilhqot’in] at para. 13).  
[
92] The Crown as a fiduciary is, at a minimum, required to act with loyalty, good  
faith and ordinary prudence with a view to the best interest of its Indigenous  
beneficiaries.  
[
93] The Crown’s fiduciary duty (along with its duties arising from the honour of the  
Crown) should guide its actions when seeking to take up lands under a treaty (Grassy  
Narrows First Nation v. Ontario (Minister of Natural Resources), 2014 SCC 48  
[
Grassy Narrows] at paras. 50-51).  
E.  
Infringement of Treaty Rights  
[
94] In Sparrow, the Supreme Court of Canada set out the test for establishing an  
infringement of Aboriginal rights. In Badger, the Court confirmed that the test also  
applies to alleged infringements of treaty rights.  
[
95] The analysis focuses on whether the limitation on the right is unreasonable,  
whether the regulation or limitation imposes an undue hardship, and whether the  
regulation or limitation denies the holders of the right their preferred means of  
exercising their right. The First Nation has the onus to prove the infringement of its  
right.  
[
96] In Mikisew, the Supreme Court of Canada held that, within the context of a  
taking up of land under Treaty 8, before exercising this right, the Crown had an  
obligation to consult with the First Nation regarding the potential impacts and, if  
appropriate, accommodate their concerns (at paras. 34, 55, 56). The Court also  
noted, however, that if the time comes when, in the case of a particular Treaty 8 First  
 
Yahey v. British Columbia  
Page 31  
Nation no meaningful right to hunt, fish or trap remains in its territory, an action for  
treaty infringement would be a legitimate response (at para. 48).  
F.  
Justification of Infringement  
[
97] Once an infringement has been established, the onus shifts to the Crown to  
demonstrate that the infringement is justified.  
[
98] Sparrow lays out a two-stage analysis with respect to justification. This is also  
applicable to infringements of treaty rights (Badger, Mikisew). The infringement must  
be in furtherance of a legislative objective that is compelling and substantial, and it  
must be consistent with the special fiduciary relationship that exists between the  
Crown and Indigenous peoples.  
[
99] As previously noted, there is a difference between the parties as to whether  
justification is engaged in this trial and at this time.  
[
100] Finally, I note at the outset that much of the jurisprudence in these areas of  
Aboriginal law has been developed in the context of regulatory prosecutions and in  
some cases, applications for judicial review. As a result, some of the frameworks are  
not easily transferable to an action such as this where cumulative impacts of  
development are argued to have resulted in a breach of a treaty and infringement of  
rights. I may have to modify aspects of the analysis in the context of the present  
action, as will become evident.  
G.  
Evidentiary Principles  
[
101] As set out by Justice Garson, as she then was, in Ahousaht Indian Band and  
Nation v. Canada (Attorney General), 2009 BCSC 1494 [Ahousaht] at para. 55, the  
task facing courts in certain Aboriginal rights and title cases is usually reserved for  
“historians, anthropologists, archaeologists and ethnographers.” This may require  
proof of facts from long ago. While this is a treaty rights case, not an Aboriginal rights  
case, certain aspects of this case also raise difficult historical and ethnographic  
issues; in particular the questions of traditional territory, Treaty 8 promises, and mode  
 
 
Yahey v. British Columbia  
Page 32  
or way of life. As a result, the principles set out in foundational Aboriginal rights cases  
such as Van der Peet, R. v. Sappier; R. v. Gray, 2006 SCC 54 [Sappier] and Mitchell  
v. Minister of National Revenue, 2001 SCC 33 [Mitchell], and succinctly summarised  
in Ahousaht, are helpful to recall when dealing with this evidence.  
[
102] The Court in Ahousaht noted at paras. 58-60:  
58] In Van der Peet, at para. 62, Lamer C.J. acknowledged “the next to  
[
impossible task of producing conclusive evidence from pre-contact times  
about the practices, customs and traditions of their community.” He  
recognized that the burden of proof must not be applied in such a way as to  
conflict with the spirit and intention of s. 35(1) of the Constitution Act, 1982. At  
para. 68, he wrote:  
[
A] court should approach the rules of evidence, and interpret the  
evidence that exists, with a consciousness of the special nature of  
aboriginal claims, and of the evidentiary difficulties in proving a right  
which originates in times where there were no written records of the  
practices, customs and traditions engaged in.  
[
59] The Supreme Court of Canada has also held that owing to the difficulties  
in proving aboriginal rights, courts must be prepared to draw inferences from  
what evidence is available:  
Flexibility is important when engaging in the Van der Peet analysis  
because the object is to provide cultural security and continuity for the  
particular aboriginal society. This object gives context to the  
analysis. For this reason, courts must be prepared to draw necessary  
inferences about the existence and integrality of a practice when direct  
evidence is not available.  
Sappier, at para. 33  
[
60] This flexible approach to the evidence does not, however, negate the  
operation of general evidentiary principles. In Mitchell, McLachlin C.J. stated,  
at para. 38:  
…
it must be emphasized that a consciousness of the special nature of  
aboriginal claims does not negate the operation of general evidentiary  
principles. While evidence adduced in support of aboriginal claims  
must not be undervalued, neither should it be interpreted or weighed in  
a manner that fundamentally contravenes the principles of evidence  
law …  
[
103] At para. 62 of Ahousaht, the Court set out certain evidentiary principles  
applying to Aboriginal rights cases. Taking into account that the issue of continuity  
with a pre-contact activity is not an issue here, these principles are also broadly  
applicable in a treaty rights case such as this:  
Yahey v. British Columbia  
Page 33  
[
62] From the foregoing authorities, I draw the following evidentiary principles  
that have special application in cases involving claims to aboriginal rights and  
title:  
•
As in all civil cases, the burden of proof rests on the plaintiff. The  
material facts must be proven on a balance of probabilities, with  
due regard to the rules of evidence.  
•
While evidence must be sufficiently clear, convincing, and cogent  
to satisfy the balance of probabilities test, it may be necessary to  
draw inferences where appropriate, such as inferring from post-  
contact activity that the same activity took place before contact.  
•
•
Traditional rules of evidence regarding the admissibility, reliability  
and weight of evidence continue to apply. However, the Court must  
also recognize the evidentiary challenges inherent in proving  
events and circumstances that took place hundreds of years ago,  
and apply those rules flexibly in a manner that is consistent with the  
spirit and intent of s. 35(1) of the Constitution Act, 1982.  
Finally, the Court must be sensitive to not only the European  
perspective but also the aboriginal perspective when examining  
evidence about aboriginal peoples as recorded by Europeans.  
VI.  
WHAT ARE THE RIGHTS AND OBLIGATIONS IN TREATY 8?  
[
104] As noted above, the goal of treaty interpretation is to uncover the parties’  
common intention (Marshall at para. 78). This is done by considering not only the text  
of the treaty but also by taking into account the context in which the treaty was  
negotiated, concluded and committed to writing (Badger at para. 52; Marshall at  
paras. 78 and 81; see also West Moberly First Nations v. British Columbia, 2020  
BCCA 138 [West Moberly 2020] at para. 367). This includes considering its unique  
historical and cultural context (Marshall at para. 78; Morris at para. 18).  
[
105] Finding the common intention of the parties who entered into a treaty over 120  
years ago is not an easy or straightforward task. The negotiations of historical  
treaties, including Treaty 8, were marked by significant differences in the signatories’  
languages, concepts, cultures, modes of life, and world views (Quebec (Attorney  
General) v. Moses, 2010 SCC 17 at para. 108 (per LeBel and Deschamps JJ.,  
dissent); Restoule at para. 326). As Chief Justice Bauman has noted with respect to  
the interpretation of Treaty 8, “[a] twenty-first century court has no ability to question  
those individuals who were party to the Treaty’s signing in 1899” (West Moberly 2020  
 
Yahey v. British Columbia  
Page 34  
at para. 295). The Court must instead examine what records remain from before and  
after the Treaty was entered into.  
[
106] Representatives of the Crown drafted Treaty 8 in English. While interpreters  
were on hand for the negotiations in 1899, the text was not, at that time, translated in  
written form into the languages spoken by the Indigenous signatories who had a  
history of communicating only orally. Recognizing this reality, the Supreme Court of  
Canada has stated that the words in the Treaty are not to be interpreted in their strict  
technical sense, but rather in the way the Indigenous peoples would have naturally  
understood them at the time (Badger at para. 52).  
[
107] The promises contained in the Treaty are reflected not only in its written text  
but also in the oral assurances made by the Crown at the time the Treaty was  
entered into. Treaty 8, as a written document, recorded an agreement that had  
already been reached orally (see Badger at para. 52). As Justice Cory noted in  
Badger at para. 55: “The Indian people made their agreements orally and recorded  
their history orally. Thus, the verbal promises made on behalf of the federal  
government at the times the treaties were concluded are of great significance in their  
interpretation.”  
[
108] The Supreme Court of Canada has also repeatedly stated that the treaty rights  
of Indigenous peoples must not be interpreted in a static or rigid way. They are not  
frozen at the date of signature. The interpreting court must “update” treaty rights to  
provide for their modern exercise by considering the modern practices that are  
reasonably incidental to the exercise of the right (Marshall at para. 78; R. v.  
Sundown, [1999] 1 S.C.R. 393 at paras. 29-30). A right to hunt, for example, is not  
restricted to be exercised only in accordance with the tools and practices used in the  
late 1800s, it must be capable of being exercised today.  
[
109] The process of interpreting and understanding rights in their modern context  
ought not denude or disappear the rights (see Marshall at para. 40). Recognizing that  
rights are not frozen does not mean that rights can be whittled away or made  
Yahey v. British Columbia  
Page 35  
meaningless because of changes to the environment where they were once  
exercised. Indigenous peoples are not to be left with an empty shell of a treaty  
promise (Marshall at para. 52; Manitoba Metis at para. 80).  
[
110] The nature and scope of the rights protected and promises made in Treaty 8  
must be understood as Blueberry’s ancestors and the Crown’s treaty makers would  
have understood them when the Treaty was made and adhered to. That  
understanding is to be derived from the language used in the Treaty, informed by the  
report of the Commissioners, and the available oral history (West Moberly First  
Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 [West  
Moberly 2011] at para. 128).  
A.  
History of Treaty 8  
[
[
111] I now turn to the history of Treaty 8.  
112] The history leading to the signing of Treaty 8 is recorded in correspondence,  
reports, and books, most of which are written from the perspective of Crown officials  
or missionaries. Occasionally these reports include observations and recollections of  
what the Indigenous signatories said at the time the Treaty was entered into in 1899.  
The Indigenous signatories and adherents to Treaty 8 spoke Cree, Dane-zaa and  
Chipewyan and practiced a culture and way of life different from that of European  
settlers and missionaries. Missionaries and settlers referred to theirs as a “forest and  
river” way of life.  
[
113] There is a significant amount of jurisprudence interpreting Treaty 8. It is  
generally accepted in that jurisprudence that the intent of the original 1899  
signatories should guide the court in its review of the Indigenous intent in entering  
Treaty 8 (West Moberly 2020 at para. 399, see more broadly paras. 394-404). That  
original intent is ascertained by a careful review of the pertinent history.  
 
Yahey v. British Columbia  
Page 36  
[
114] Ms. Gwynneth Jones provided an expert report setting out an in-depth review  
of the historical record that forms the context of the negotiation and signing of Treaty  
and subsequent adhesions.  
8
[
115] Ms. Jones is a historian who has produced expert reports and testified as an  
expert witness in a number of prior proceedings dealing with issues regarding treaty  
interpretation, reserve lands, and Métis people, including: R v. Powley, [1999] 1  
C.N.L.R. 153; R v. Hirsekorn, 2010 ABPC 385; Daniels v. Canada, 2013 FC 6;  
Southwind v. Canada, 2017 FC 906; West Moberly First Nations v. British Columbia,  
2
017 BCSC 1700 [West Moberly 2017]; and Restoule. Ms. Jones was qualified in this  
proceeding as an expert historian with expertise with respect to interpretation of the  
documentary record of the interaction between the Canadian government and  
Aboriginal peoples.  
[
116] Dr. Robert Irwin produced an expert report on behalf of the Province setting  
out the history within which Treaty 8 was entered into. Dr. Irwin is a history professor  
at MacEwan University in Edmonton. He has published numerous papers and taught  
courses on various topics dealing with Canadian history and Indigenous and settler  
relations. He has produced expert reports and testified as an expert witness in prior  
proceedings dealing with treaty interpretation and treaty rights, including: Benoit v.  
Canada, 2002 FCT 243; and West Moberly 2017. Dr. Irwin was qualified in these  
proceedings as an expert on the history of western Canada and Indigenous peoples  
in that region. As discussed later, Ms. Jones also produced a reply report to Dr.  
Irwin’s report.  
[
117] Ms. Jones and Dr. Irwin agreed on the relevant historical facts leading to the  
signing of Treaty 8 in 1899 and later adhesion at Fort St. John in 1900. The  
differences between them are slight, and generally a matter of emphasis. The parties  
agree that these differences in emphasis have no significant bearing on the issues in  
this case. There is, however, a difference as to the extent of the promises in Treaty 8  
and the extent to which change was foreshadowed as part of these promises.  
Yahey v. British Columbia  
Page 37  
1
.
1871-1877: Treaties 1 to 7  
118] Dr. Irwin and Ms. Jones set out the history leading up to Treaty 8.  
119] Between 1871 and 1877 Canada entered into Treaties Nos. 1 to 7, covering  
[
[
the territory known as the “fertile belt” and to the area around Lake Winnipeg. While  
the text of these treaties and the circumstances of the negotiations differ, generally  
speaking, in entering into these treaties, the Crown sought to open up land for  
settlement and other activities by way of agreement with the Indigenous peoples who  
lived on those lands (Badger at para. 39; Grassy Narrows at para. 1).  
[
120] Dr. Irwin’s report noted in the twenty years following the signing of Treaty No.  
, treaty-making ground to a halt. With very little non-Indigenous settlement in the  
7
northwest of Canada, there was little motivation on the part of the government to  
enter into a treaty in that region.  
2
.
1897-1899: The Lead up to Treaty 8  
[
121] In 1897, the Klondike gold rush led to an influx of miners travelling through  
what is now northern Alberta and British Columbia en route to the goldfields. The  
Northwest Mounted Police (“Police”) was sent to the region. The Police had received  
several reports in 1897 that the Indigenous peoples of these areas were dissatisfied  
with the influx of non-Indigenous people into their territories, including the Police  
themselves. In a letter written on December 2, 1897, Police Commissioner L. W.  
Herchmer opined that the time had come for Canada to take “immediate” steps to  
enter into a treaty with the Indigenous peoples who lived in this area. He wrote:  
I have the honour to draw your attention to the advisability of the Government  
taking some immediate steps towards arranging with the Indians not under  
Treaty, occupying the proposed line of route from Edmonton to Pelly River.  
These Indians although few in number, are said to be very turbulent, and are  
liable to give very serious trouble when isolated parties of miners and travelers  
interfere with what they consider their vested rights.  
At the present time the Half-breeds of Lesser Slave Lake are dissatisfied with  
the presence of the Police in that District, and the numerous parties of  
Americans and others between that point and Peace River will not improve the  
situation. The Beaver Indians of Peace River and the Nelson are said to be  
 
 
Yahey v. British Columbia  
Page 38  
inclined to be troublesome at all times, and so also are the Sicannies and  
Nahanies, and the Half-breeds are sure to influence them…  
Rich mines are liable to be discovered at any time on the Peace, Nelson and  
Liard Rivers, when trouble would almost certainly arise.  
[
122] This letter was forwarded to Clifford Sifton, the federal Minister of the Interior  
and Superintendent General of Indian Affairs. The Department of Indian Affairs had  
limited information about the land in question, and the people who inhabited it. It  
sought further information from Indian Commissioner, A. E. Forget.  
[
123] The Klondike gold rush, in part, prompted the Crown to consider forming a  
treaty north of the area covered by Treaties 6 and 7. As Dr. Irwin noted, the  
government had a few motivations for entering into the Treaty: bringing the territory  
under the administration of the territorial government, ensuring peaceful exploitation  
of resources, and preparing for a transition from an economy based on fur trading to  
one based on agriculture.  
[
124] Writing on January 12, 1898, Indian Commissioner Forget said he was  
“convinced the time has now come” to pursue a treaty but acknowledged the  
“somewhat meagre information obtainable with regard to the condition of the tribes to  
be treated with.”  
125] Minister Sifton incorporated some of what Police Commissioner Herchmer and  
[
Indian Commissioner Forget had reported in a report to the Privy Council  
recommending negotiation of Treaty 8.  
[
126] On June 27, 1898, by Order in Council 1703, Canada authorized three  
Commissioners to conclude a new treaty. The Order in Council noted that the treaty  
could not be undertaken in 1898, but that steps had been taken to inform Indigenous  
and Métis people that a Treaty Commission would meet with them in the summer of  
1
899. The Order in Council also noted that, as the Department of Indian Affairs  
possessed “so limited knowledge of the conditions of the country, and of the nature  
and extent of the claims likely to be put forward by its Indian inhabitants,” the  
Yahey v. British Columbia  
Page 39  
Commissioners should be given discretionary power as to the annuities to be paid  
and the reservations of land to be set apart.  
[
127] Order in Council 1703 provided, in part, as follows:  
A] report was some time ago received from the Commissioner of the North  
[
West Mounted Police as to the advisability of steps being taken for the making  
of a treaty with the Indians occupying the proposed line of route from  
Edmonton to Pelly River. He intimated that these Indians – though few in  
number – were turbulent and liable to give trouble should isolated parties of  
miners or traders interfere with what they considered their vested rights…  
…
He expressed the conviction that the time had come when the Indian and  
Halfbreed population of the tract of territory North of that ceded to the Crown  
under Treaty No. 6 and partially occupied by whites either as miners or  
traders, and over which the Government exercised some measure of  
authority, should be treated with for the relinquishment of their claim to  
territorial ownership.  
…
The Department [of Indian Affairs], however, possesses so limited a  
knowledge of the conditions of the country, and of the nature and extent of the  
claims likely to be put forward by its Indian inhabitants that the undersigned  
considers that the Commissioners should be given discretionary power both  
as to the annuities to be paid to and the reservations of land to be set apart for  
the Indians, with the understanding that no greater obligations will, on the  
whole, be assumed in either respects than were incurred in securing the  
session of the territory covered by the treaties which were made with the  
Indians of the other portions of the North West.  
The Undersigned also considers that, as to the territory to be ceded, the  
Commissioners will likewise have to be given discretionary power, for its  
extent will depend upon the conditions which are found to exist as a  
consequence of the inroads of white population: but he is of opinion that the  
territory to be treated for may in a general way be restricted to the Provisional  
District of Athabasca, and such of the country adjacent thereto as the  
Commissioners may deem it expedient to include within the treaty.  
[
128] As Ms. Jones noted at page 10 of her report, immediately following the  
issuance of the Order in Council, there were reports of Indigenous peoples in  
northeastern BC demanding a treaty:  
The day after Order in Council no. 1703 was issued, on 28 June 1898, a  
report was received by Forget from Fort St. John that “five hundred  
Indians...camped at Fort St. John...refuse to let police and miners go further  
north until a treaty has been signed with them. They claim that some of their  
Yahey v. British Columbia  
Page 40  
horses have been taken by miners and are also afraid that the advent of so  
many men will drive away the fur.” On 6 July, J. A. J. McKenna, secretary to  
Clifford Sifton (and future Treaty Commissioner for the negotiation of Treaty  
Eight), wrote to Forget assuring him that “the Minister is quite convinced that it  
will be necessary to take immediate steps to ensure the Indians that the  
Government has no intention of ignoring their rights and has already arranged  
for the making of a treaty with them.”  
[
129] By late summer 1898, it was apparent that the rush to the Klondike was over,  
but this did not end Canada’s interest in entering into a treaty. Canada issued Order  
in Council No. 2749 notifying the Province of its intent to negotiate a treaty.  
[
130] Word of a potential treaty and the implications of this spread among the  
Indigenous people living in the area. What Dr. Irwin referred to as “rumours” about  
forcing Indigenous people to live on reserves, and curtailment of their hunting and  
fishing privileges were being circulated, and the government was struggling to answer  
those questions and address the concerns.  
[
131] In his report, Dr. Irwin set this out as follows at pages 12-13:  
The documentary record shows that many of the First Nations in the Peace  
River and Athabasca country were familiar with the treaty process and were in  
receipt of information about the government’s “Indian Policy.”…the  
documentary record shows an ongoing concern among First Nations that they  
would be confined to reserves (the pass system), that illegitimate children of  
fathers of Métis ancestry might be excluded from kinship groups…, and that  
their right to pursue a livelihood would be restricted (restrictions on commerce  
including those related to hunting, trapping and fishing designed to impose  
social and economic change). First Nations and Métis were informed of the  
government’s intention to make a treaty in 1898 and spent the winter of 1898-  
1899 discussing the treaty and seeking clarification of its implications – the  
notion that they would be confined to reserves and thus prevented from  
pursuing a livelihood appeared to be foremost among these issues. First  
Nations of the Athabasca and Peace River country consequently entered into  
the treaty recognizing that it would open their territory to white resource  
developers and prospectors. In consideration, they sought to retain their  
freedom from governmental interference in their lives, secure governmental  
assistance with regard to destitution and sickness, and secure promises with  
regard to their economic livelihood in the changing environment.  
[
132] In the fall of 1898, missionaries and others began writing to Ottawa expressing  
the concerns of the Indigenous people they knew or came into contact with about the  
Yahey v. British Columbia  
Page 41  
possibility of treaty. For example, the Indigenous people at Wapiscow Lake had  
questions about the enforcement of game and fishery laws and whether they would  
“be free after taking treaty money to roam about the country hunting or will they have  
a reserve allotted for them?”  
[
133] The response from Minister Sifton in January 1899 was that “there would be  
no general prohibition in consequence of the treaty of the freedom of the Indian in  
roaming and hunting over the country. Of course when settlement advances there will  
be the restriction which necessarily follows, and it is to meet such contingencies that  
reserves are set aside.”  
[
134] As Ms. Jones said:  
Missionaries, traders, and Mounted Policemen handed out the Treaty notices  
to Aboriginal people and tried to explain their meaning. At Fort Smith, Corporal  
Trotter [of the Police] reported to his superiors at the end of October 1898:  
The Indians in this locality are very jealous of whitemen,  
trappers and miners coming in their country and wanted them  
forbidden to do so. Another thing they are very much troubled  
about is that they should be compelled to take treaty and live  
on reserves. They do not seem to understand the nature of the  
treaty at all, and from what I can learn the Government will  
have a great deal of trouble before they will get them to accept  
of it. Whitemen and Halfbreed Traders are I believe importuning  
them not to do so, by telling them that they will be put on a  
reserve and kept there, and not be allowed to go off it, nor to  
hunt, and that if they have to depend on the amount of  
provisions that they get from the Government that they will die  
from hunger...I also informed them that they would not be  
compelled to take treaty, and that their freedom would in no  
wise [sic] be interfered with so long as they obeyed the laws. At  
the wind up of the meetings they thanked me for the  
information which I gave them, and they seem to be quite  
satisfied to accept of the Governments intentions with them on  
those conditions…  
[
135] As noted by Ms. Jones, by early February 1899, the Department of Indian  
Affairs knew that it had problems to address with a dissatisfied Indigenous and Métis  
populations in the proposed treaty area. On February 3, 1899, Chief Commissioner  
David Laird prepared an important circular (i.e., notice) that was intended to be widely  
Yahey v. British Columbia  
Page 42  
circulated and used by Police officers and Hudson’s Bay factors to explain the treaty  
to the Indigenous and Métis populations in the proposed treaty area, and to allay their  
concerns.  
[
136] Treaty Commissioner Laird wrote to Police Commissioner Herchmer from  
Winnipeg, thanking him for the Police’s efforts to reassure Indigenous people, and  
enclosing the circular the Police could use in explaining the idea of treaty. This  
notable document stated that under the treaty, Indigenous people would continue to  
be allowed to hunt and fish, subject to certain laws intended to protect fish and  
wildlife:  
You may explain to them that the Queen…while promising by her  
Commissioners to give them Reserves, which they can call their own…yet the  
Indians will be allowed to hunt and fish all over the country as they do now,  
subject to such laws as may be made for the protection of game and fish in  
the breeding season; and also so long as the Indians do not molest or  
interfere with settlers, miners or travellers…  
(
emphasis added)  
[
137] A few months later, on April 17, 1899, Treaty Commissioner James McKenna  
wrote a memorandum to Minister Sifton addressing some of the key issues that were  
arising with regard to the proposed treaty, including Indigenous fear or hesitancy  
about what a treaty would mean for them. He also wrote about what he had been  
able to learn of the Indigenous people living in the proposed treaty area:  
…
From information which has come to hand it would appear that the Indians  
who we are to meet fear that the making of a treaty will lead to their being  
grouped on reserves. Of course, grouping is not now contemplated, but there  
is the view that reserves for future use should be provided for in the treaty. I  
do not think this is necessary.  
From what I have been able to learn of the North country, it would appear that  
the Indians there act rather as individuals than as a nation, and that any tribal  
organization which may exist is very slight. They live by hunting, and by  
individual effort, very much as the halfbreeds in that country live. They are  
averse to living on reserves, and that country is not one that will ever be  
settled extensively for agricultural purposes it is questionable whether it would  
be good policy to even suggest grouping them in the future. The reserve idea  
is inconsistent with the life of a hunter, and is only applicable to an agricultural  
country. The most the Indians are likely to require in the way of reserves are  
Yahey v. British Columbia  
Page 43  
small fishing stations at certain points which they might desire to have secured  
to them…  
(
emphasis added)  
[
138] Treaty Commissioner McKenna went on to comment on the condition of the  
land to be acquired and potential impacts to the Indigenous peoples’ means of  
livelihood and mode of life:  
…
The former land [referring to land in Manitoba covered by Treaty 3] was  
admirably suited for agriculture. Its settlement was necessary for the real  
making of the Dominion. The building of the transcontinental railway made the  
wiping out of the Indian title urgent; and the changing condition interfered with  
the Indians means of livelihood and mode of life. There were, therefore, good  
reasons for giving them the maximum compensation. The latter land [referring  
to the area to be covered by Treaty 8] is not of appreciable value agriculturally.  
There is no urgent public need of its acquirement. There may be mineral  
development and some consequent settlement in spots; but this will not bring  
sudden or great changes likely to interfere to any marked degree with the  
Indian mode of life and means of livlihood [sic]. I think it would not be illiberal  
to answer the question by saying that half the amount which we agreed to pay  
under the former treaties would be ample compensation for the Indians who  
are to be parties to the proposed one. And as the making of the treaty will not  
be the forerunner of changes that will to any great extent alter existing  
conditions in the country, and as the Indians will continue to have the same  
means of livelihood as they have at present, it may fairly be laid down that the  
object of the Commissioners should simply be to secure the relinquishment of  
the Indian title at as small a cost as possible.  
(
emphasis added)  
[
139] I note Dr. Irwin interpreted this part of the memorandum to mean that  
Commissioner McKenna did not believe settlement would actually affect the  
Indigenous people very much and that their mode of life would not be changed  
significantly by this process. In cross-examination, Dr. Irwin also agreed that mode of  
life could mean more than just their means of livelihood.  
[
140] Commissioner McKenna closed his April 17, 1899 memorandum by noting the  
importance of protecting the forests and wildlife on which the Indigenous people  
relied:  
…
the Commissioners should, I think, be authorized to add that the  
Government will cause notice to be given to white men that the forests and  
Yahey v. British Columbia  
Page 44  
game are to be protected and will be ready should occasion call for such  
action to send Mounted Police to secure such protection.  
I am convinced that the forest fires caused by prospectors last year have so  
angered the Indians that some specific undertaking as to protection will have  
to be given. It may necessary to go further and say that the ear of the  
Government will always be open to well-grounded complaints from the  
Indians, and that when aid is asked and really required it will be forthcoming…  
(
emphasis added)  
[
141] In the spring of 1899, Treaty Commissioners David Laird, James Ross and  
James McKenna were formally appointed to negotiate a treaty with the Indigenous  
people in the district of Athabasca and adjoining country.  
[
142] In a May 1, 1899 letter, Commissioner Ross set out his views, including:  
They are very-small bands or families and can make a good livelihood by  
hunting and fishing for many years to come. The advent of population in that  
portion of the country would not decrease their facilities for making a  
livelihood. A very small portion of the country will be taken up for farming and  
the Indian will be disturbed very little in respect of his hunting and fishing.  
(
emphasis added)  
[
143] On May 12, 1899, Minister Sifton wrote to the Commissioners with  
instructions, advising that “the terms of the treaty were left to their discretion” with the  
stipulation that obligations to be assumed under it shall not be in excess of those  
assumed in the treaties covering the North West territories.  
3
.
June 21, 1899: The Signing of Treaty 8 at Lesser Slave Lake  
[
144] The discussions, negotiations and initial signing of Treaty 8 took place in the  
summer of 1899. The surviving written records of what occurred include the  
September 1899 Report of the Commissioners; Charles Mair’s 1908 book entitled  
Through the Mackenzie Basin: An Account of the Signing of Treaty No. 8 and the  
Scrip Commission, 1899; published accounts from Bishop Grouard (in 1899 and  
1
925) and Father Breynat (in 1945), and letters from other missionaries who  
witnessed the events; reports from the Police officers and Hudson’s Bay Company  
officials that accompanied the Treaty Commissioners; and newspaper reports.  
 
Yahey v. British Columbia  
Page 45  
[
145] Charles Mair was secretary to the Scrip Commission and an observer to the  
signing of Treaty 8 in June 1899. His book, Through the Mackenzie Basin: An  
Account of the Signing of Treaty No. 8 and the Scrip Commission, 1899, is a  
transcript of brief notes taken at the time. In a footnote to his book, Mair notes that his  
report is “necessarily much abridged.” Dr. Irwin recognized that Mair was a reliable  
personal observer of the events at Lesser Slave Lake. Mair’s work, setting out these  
observations, has been referred to and relied on in a number of cases dealing with  
Treaty 8, and I too rely on it here for his observations and recollections of the  
meetings in the summer of 1899.  
[
146] On June 20, 1899, the Treaty Commissioners met with Indigenous and Métis  
people assembled at Willow Point on Lesser Slave Lake. Dr. Irwin’s and Ms. Jones’  
reports, which draw on Mair’s account, paint a helpful picture of what took place over  
the course of this two-day meeting.  
[
147] Over one thousand people gathered at Willow Point to observe the Treaty  
proceedings. The Treaty table was arranged with Commissioners Laird, Ross and  
McKenna in the middle, Bishop Grouard and Father Lacombe on the left and  
Anglican missionaries on the right. Two Métis men, Albert Tate and Samuel  
Cunningham served as interpreters.  
[
148] Commissioner Laird rose and spoke for about an hour explaining previous  
treaties and the benefits they entailed. Mair noted Commissioner Laird’s speech was  
as follows:  
…
I have to say, on behalf of the Queen and the Government of Canada that  
we have come to make you an offer. We have made treaties in former years  
with all the Indians of the prairie, and from there to Lake Superior. As white  
people are coming into your country, we have thought it well to tell you what is  
required of you. The Queen wants all the whites, half-breeds and Indians to be  
at peace with one another, and to shake hands when they meet. The Queen’s  
laws must be obeyed all over the country, both by the whites and the  
Indians…  
We understand stories have been told you, that if you made a treaty with us  
you would become servants and slaves; but we wish you to understand that  
such is not the case, but that you will be just as free after signing a treaty as  
Yahey v. British Columbia  
Page 46  
you are now. The treaty is a free offer; take it or not, just as you please. If you  
refuse it there is no harm done; we will not be bad friends on that account.  
One thing Indians must understand, that if they do not make a treaty they must  
obey the laws of the land – that will be just the same whether you make a  
treaty or not; the laws must be obeyed…  
(
emphasis added)  
[
149] Commissioner Laird then described the terms of the treaty, including as noted  
by Ms. Jones:  
…
payments, gifts, and clothing for chiefs and headmen; the Indian Reserve  
entitlements in communal Reserves and severalty (emphasizing that “there  
will be no compulsion to force Indians to go into a reserve”); the choices  
offered in agricultural equipment, livestock, or ammunition and twine “if you do  
not wish to grow grain or raise cattle”; and the promises of schools and tools.  
…
Although Laird’s listeners were being offered a choice of Government  
supports for varying ways of life under the Treaty, and he also promised that  
everyone who took Treaty would be “free to hunt and fish” in addition to the  
other options for earning a livelihood. Laird was likely reflecting the views  
expressed during the preparations for the Treaty that only a limited portion of  
the territory being acquired was suitable for extensive settlement and  
agricultural development, and that hunting and fishing would continue to be  
the preferred, and the principal, means of support for many inhabitants of the  
country…  
[
150] In return for protecting their freedom to hunt and fish and ensuring they would  
be free from interference, Commissioner Lair told those assembled:  
…
the Government expects that the Indians will not interfere with or molest  
any minister, traveller or settler. We expect you to be good friends with  
everyone, and shake hands with all you meet. If any whites molest you in any  
way, shoot your dogs or horses, or do you any harm, you have only to report  
the matter to the police, and they will see that justice is done to you.  
…
These are the principal points in the offer we have to make to you. The  
Queen owns the country, but is willing to acknowledge the Indians’ claims, and  
offers them terms as an offset to all of them. We shall be glad to answer any  
questions, and make clear any points not understood.  
[
151] Chief Kinsoayo (also spelled Keenooshayoo) and Headman Moostoos had  
been appointed spokespersons for the Indigenous people who had gathered from the  
Lesser Slave Lake area. Mair’s account notes that following Commissioner Laird’s  
speech, Chief Kinsoayo spoke:  
Yahey v. British Columbia  
Page 47  
You say we are brothers. I cannot understand how we are so. I live differently  
from you. I can only understand that Indians will benefit in a very small degree  
from your offer…Do you not allow the Indians to make their own conditions, so  
that they may benefit as much as possible? Why I say this is that we to-day  
make arrangements that are to last as long as the sun shines and the water  
runs. Up to the present I have earned my own living and worked in my own  
way for the Queen. It is good. The Indian loves his way of living and his free  
life…  
(
emphasis added)  
[
152] In her testimony, Ms. Jones referred to what Bishop Faraud, another observer  
of the negotiations, had to say about Chief Kinsoayo’s speech:  
…
So this is after Kinsoayo’s speech where Kinsoayo had said the Indian loves  
his way of living and his free life. And Faraud’s observation at this point of the  
proceedings was that one could very much see that these poor people were  
holding themselves back, fearing that their liberty would not be safeguarded.  
So in other words, that they were reticent about signing the treaty because  
they were concerned that it wouldn’t protect their freedoms as they knew  
them, particularly the freedom to hunt and fish.  
[
153] After Chief Kinsoayo spoke, Headman Moostoos spoke:  
Often before now I have said I would carefully consider what you might say.  
You have called us brothers. Truly I am the younger, you the elder brother.  
Being the younger, if the younger ask the elder for something, he will grant his  
request the same as our mother the Queen. I am glad to hear what you have  
to say. Our country is being broken up. I see the white man coming in, and I  
want to be friends. I see what he does, but it is best that we should be  
friends…  
[
154] Commissioner Ross answered the questions. He is reported to have said:  
I will just answer a few questions that have been put. Keenooshayo has said  
that he cannot see how it will benefit you to take treaty. As all the rights you  
now have will not be interfered with, therefore anything you get in addition  
must be a clear gain. The white man is bound to come in and open up the  
country, and we come before him to explain the relations that must exist  
between you, and thus prevent any trouble. You say you have heard what the  
Commissioners have said, and how you wish to live. We believe that men who  
have lived without help heretofore can do it better when the country is opened  
up. Any fur they catch is worth more...We think that as the rivers and lakes of  
this country will be the principal highways, good boatmen, like yourselves,  
cannot fail to make a good living, and profit from the increase in traffic...  
You say that you consider that you have a right to say something about the  
terms we offer you. We offer you certain terms, but you are not forced to take  
them. You ask if Indians are not allowed to make a bargain. You must  
Yahey v. British Columbia  
Page 48  
understand there are always two to a bargain. We are glad you understand  
the treaty is forever. If the Indians do as they are asked we shall certainly keep  
all our promises. We are glad to know that you have got on without any one’s  
help, but you must know times are hard, and furs scarcer than they used to  
be. Indians are fond of a free life, and we do not wish to interfere with it. When  
reserves are offered there is no intention to make you live on them if you do  
not want to, but, in years to come, you may change your minds, and want  
these lands to live on…  
(
emphasis added)  
[
155] In cross-examination, Dr. Irwin explored the concept of “clear gain” relied on  
by Commissioner Ross:  
Q: Just to be clear on the clear gain. Nobody on the record suggests that the  
Indians prior to treaty don’t have a right to hunt and fish?  
A: Nobody.  
Q: So that’s not the gain. The gain is what  
̶ the additional things they would  
get, the clear gain?  
A: So I want to understand clear gain, because in my mind all the things get  
better, right. So if I understand what they’re arguing, is that you’ll get better  
money for your furs, for example. So some things you already do will be  
improved. You’ll get better money for your boating than you already do; some  
things you currently do will be improved. You’ll be able to continue to hunt and  
fish, and I would argue sell game to the post. That will – right? All things will  
actually improve. I believe it’s actually a very strong statement that the treaty  
will actually cause the improvement in the modes of life you currently have,  
the modes of living and the livelihoods that you currently have.  
Q: Yes. And that’s a good selling point for Ross –  
A: Yes.  
Q: – in trying to – in persuading the First Nations people that the treaty is a  
good idea.  
A: Yes.  
Q: But at the same time, he’s assuring them they’re going to be able to  
continue with the hunting up to what they did?  
A: Yes.  
Q: So if they may be able to sell more, fine, but they can still do what they did  
and where they did it.  
A: Absolutely.  
[
156] Following Commissioner Ross’ responses, Chief Kinsoayo stated:  
Yahey v. British Columbia  
Page 49  
Are the terms good forever? As long as the sun shines on us? Because there  
are orphans we must consider, so that there will be nothing to be thrown up to  
us by our people afterwards. We want a written treaty, one copy to be given to  
us, so we shall know what we sign for. Are you willing to give means to  
instruct children as long as the sun shines and water runs, so that our children  
will grow up ever increasing in knowledge?  
[
[
157] Commissioner Laird then replied:  
…
Treaties last forever, as signed, unless the Indians wish to make a change. I  
understand you all agree to the terms of the Treaty. Am I right? If so, I will  
have the Treaty drawn up, and to-morrow we will sign it. Speak, all those who  
do not agree!  
158] Father Lacombe who was assisting the Commission and was also noted as an  
“old friend” of the Indigenous people then spoke:  
Knowing you as I do, your manners, your customs and language, I have been  
officially attached to the Commission as an advisor. To-day is a great day for  
you, a day of long remembrance, and your children hereafter will learn from  
your lips the events of to-day. I consented to come here because I thought it  
was a good thing for you to take the Treaty. Were it not in your interest I would  
not take part in it….I urge you to accept the words of the Big Chief who comes  
here in the name of the Queen. I have known him for many years, and, I can  
assure you, he is just and sincere in all his statements, besides being vested  
with authority to deal with you. Your forest and river life will not be changed by  
the Treaty, and you will have your annuities, as well, year by year, as long as  
the sun shines and the earth remains…  
(
emphasis added)  
[
159] The meeting was adjourned to the next day. That evening, the Commissioners  
prepared the text of the treaty. It was at that time they decided that they would make  
a single treaty covering the entire territory of the Indigenous people they would meet,  
and take adhesions at the various locations still to be visited.  
[
160] The next afternoon, on June 21, 1899, the discussions resumed.  
Commissioner Laird made some preliminary remarks then read the text of the Treaty,  
a portion of which is reproduced below:  
…
AND WHEREAS, the said Indians have been notified and informed by Her  
Majesty’s said Commission that it is Her desire to open for settlement,  
immigration, trade, travel, mining, lumbering and such other purposes as to  
Her Majesty may seem meet, a tract of country bounded and described as  
Yahey v. British Columbia  
Page 50  
hereinafter mentioned, and to obtain the consent thereto of Her Indian  
subjects inhabiting the said tract, and to make a treaty, and arrange with them,  
so that there may be peace and good will between them and Her Majesty’s  
other subjects, and that Her Indian people may know and be assured of what  
allowances they are to count upon and receive from Her Majesty’s bounty and  
benevolence.  
…
AND WHEREAS, the said Commissioners have proceeded to negotiate a  
treaty with the Cree, Beaver, Chipewyan and other Indians, inhabiting the  
district hereinafter defined and described, and the same has been agreed  
upon and concluded by the respective bands at the dates mentioned  
hereunder, the said Indians DO HEREBY CEDE, RELEASE, SURRENDER  
AND YIELD UP to the Government of the Dominion of Canada, for Her  
Majesty the Queen and Her successors for ever, all their rights, titles and  
privileges whatsoever, to the lands included within the following limits…  
…
AND ALSO the said Indian rights, titles and privileges whatsoever to all other  
lands wherever situated in the Northwest Territories, British Columbia, or in  
any other portion of the Dominion of Canada.  
TO HAVE AND TO HOLD the same to Her Majesty the Queen and Her  
successors for ever.  
And Her Majesty the Queen HEREBY AGREES with the said Indians that they  
shall have right to pursue their usual vocations of hunting, trapping and fishing  
throughout the tract surrendered as heretofore described, subject to such  
regulations as may from time to time be made by the Government of the  
country, acting under the authority of Her Majesty, and saving and excepting  
such tracts as may be required or taken up from time to time for settlement,  
mining, lumbering, trading or other purposes.  
…
FURTHER, Her Majesty agrees that each Band that elects to take a reserve  
and cultivate the soil, shall, as soon as convenient after such reserve is set  
aside and settled upon, and the Band has signified its choice and is prepared  
to break up the soil, receive two hoes, one spade, one scythe and two hay  
forks for every family so settled, and for every three families one plough and  
one harrow, and to the Chief, for the use of his Band, two horses or a yoke of  
oxen, and for each Band potatoes, barley, oats and wheat (if such seed be  
suited to the locality of the reserve), to plant the land actually broken up, and  
provisions for one month in the spring for several years while planting such  
seeds; and to every family one cow, and every Chief one bull, and one  
mowing-machine and one reaper for the use of his Band when it is ready for  
them; for such families as prefer to raise stock instead of cultivating the soil,  
every family of five persons, two cows, and every Chief two bulls and two  
mowing-machines when ready for their use, and a like proportion for smaller  
or larger families. The aforesaid articles, machines and cattle to be given once  
for all for the encouragement of agriculture and stock raising; and for such  
Bands as prefer to continue hunting and fishing, as much ammunition and  
Yahey v. British Columbia  
Page 51  
twine for making nets annually as will amount in value to one dollar per head  
of the families so engaged in hunting and fishing.  
…
(
emphasis added)  
[
161] Mair noted that Chief Kinsoayo and Headman Moostoos both rose and made  
speeches assenting to the terms. Mair’s account does not include any specifics of  
what was said, but does note that at one point there appeared to be some dissent  
from the Indigenous people. After lengthy discussions, however, the details of which  
are not noted, the parties signed the Treaty.  
[
162] Mair put it this way at page 64: “This looked critical; but, after a somewhat  
lengthy discussion, everything was smoothed over, and the chief and head men  
entered the tent and signed the Treaty after the Commissioners, thus confirming, for  
this portion of the country, the great Treaty which is intended to cover the whole  
northern region up to the sixtieth parallel of north latitude.”  
[
163] Treaty 8 was signed on June 21, 1899, by Treaty Commissioners Laird,  
McKenna and Ross and by the Cree Chief and Headmen of Lesser Slave Lake and  
the adjacent territory by Chief Keenooshayoo, and headmen Moostoos, Felix Giroux,  
Wee Chee Way Sis, Charles Nee Sue Ta Sis, and Captain from the Sturgeon Lake.  
[
164] A significant portion of the historical evidence and the examinations of Dr.  
Irwin and Ms. Jones focussed on this meeting. The Indigenous people who signed  
the Treaty in the summer of 1899 were not the Indigenous people then living in the  
Blueberry Claim Area. Chief Kinsoayo and headman Moostoos were Cree from the  
Lesser Slave Lake area. As noted below, the Fort St. John adhesion to the Treaty did  
not occur until the following year as a result of Indigenous people in that area (i.e.,  
Blueberry’s ancestors) prioritizing hunting.  
[
165] The promises, however, made by the Treaty Commissioners to those  
assembled at Lesser Slave Lake, and the way they allayed concerns expressed by  
the Indigenous people gathered are relevant and constitute the oral promises  
Yahey v. British Columbia  
Page 52  
included within Treaty 8. They are solemn statements and promises made on behalf  
of the Crown. The same or similar assurances were made to other Indigenous  
signatories and adherents to Treaty 8.  
[
166] Following the signing of the Treaty at Lesser Slave Lake, the Commissioners  
were running late. They agreed to divide their party: Commissioners Ross and  
McKenna would go to Fort St. John and Dunvegan, and Commissioner Laird would  
continue on to Peace River Landing and Vermillion. The Treaty Commission had  
been scheduled to arrive in Fort St. John on June 21, 1899. A special messenger  
was sent to explain the delay, advise that the Commissioners were on their way to  
meet them, and request that the Indigenous people wait at the Fort.  
[
167] When Commissioner McKenna neared Fort St. John, however, he was notified  
that the Indigenous people had left for their regular hunt. In a letter of July 7, 1899,  
Commissioner McKenna explained to Minister Sifton:  
When we got to within seventy miles of St. John we met our special  
messenger returning with a letter from the H. B. Co’s officer there to the effect  
that the Indians had left on their annual hunt, that they were 150 miles off and  
that it was impossible to get word to them. To the Indians it meant failure to  
secure the year’s food supply to await the Commissioner even until the date  
first fixed, and they naturally decided to take the hunt in preference to the  
Treaty…  
[
168] The September 22, 1899 Report of the Commissioners for Treaty 8 that was  
sent to Minister Sifton provides a useful recount of the summer’s activities:  
…
We met the Indians on the 20th, and on the 21st the treaty was signed.  
As the discussions at the different points followed on much the same lines, we  
shall confine ourselves to a general statement of their import. … There was  
expressed at every point the fear that the making of the treaty would be  
followed by the curtailment of the hunting and fishing privileges, and many  
were impressed with the notion that the treaty would lead to taxation and  
enforced military service. They seemed desirous of securing educational  
advantages for their children, but stipulated that in the matter of schools there  
should be no interference with their religious beliefs.  
We pointed out that the Government could not undertake to maintain Indians  
in idleness; that the same means of earning a livelihood would continue after  
the treaty as existed before it, and that the Indians would be expected to make  
use of them. We told them that the Government was always ready to give  
Yahey v. British Columbia  
Page 53  
relief in cases of actual destitution, and that in seasons of distress they would  
without any special stipulation in the treaty receive such assistance as it was  
usual to give in order to prevent starvation among Indians in any part of  
Canada; and we stated that the attention of the Government would be called  
to the need of some special provision being made for assisting the old and  
indigent who were unable to work and dependent on charity for the means of  
sustaining life.  
…
Our chief difficulty was the apprehension that the hunting and fishing  
privileges were to be curtailed. The provision in the treaty under which  
ammunition and twine is to be furnished went far in the direction of quieting  
the fears of the Indians, for they admitted that it would be unreasonable to  
furnish the means of hunting and fishing if laws were to be enacted which  
would make hunting and fishing so restricted as to render it impossible to  
make a livelihood by such pursuits. But over and above the provision, we had  
to solemnly assure them that only such laws as to hunting and fishing as were  
in the interest of the Indians and were found necessary in order to protect the  
fish and fur-bearing animals would be made, and that they would be as free to  
hunt and fish after the treaty as they would be if they never entered into it.  
We assured them that the treaty would not lead to any forced interference with  
their mode of life, that it did not open the way to the imposition of any tax, and  
that there was no fear of enforced military service. We showed them that,  
whether treaty was made or not, they were subject to the law, bound to obey  
it, and liable to punishment for any infringements of it. We pointed out that the  
law was designed for the protection of all, and must be respected by all the  
inhabitants of the country, irrespective of colour or origin; and that, in requiring  
them to live at peace with white men who came into the country, and not to  
molest them in person or in property, it only required them to do what white  
men were required to do as to the Indians.  
…
In addition to the annuity, which we found it necessary to fix at the figures of  
Treaty Six, which covers adjacent territory, the treaty stipulates that assistance  
in the form of seed and implements and cattle will be given to those of the  
Indians who may take to farming, in the way of cattle and mowers to those  
who may devote themselves to cattle-raising, and that ammunition and twine  
will be given to those who continue to fish and hunt. The assistance in farming  
and ranching is only to be given when the Indians actually take to these  
pursuits, and it is not likely that for many years there will be a call for any  
considerable expenditure under these heads. The only Indians of the territory  
ceded who are likely to take to cattle-raising are those about Lesser Slave  
Lake and along the Peace River, where there is quite an extent of ranching  
country; and although there are stretches of cultivable land in those parts of  
the country, it is not probable that the Indians will, while present conditions  
obtain, engage in farming further than the raising of roots in a small way, as is  
now done to some extent. In the main the demand will be for ammunition and  
twine, as the great majority of the Indians will continue to hunt and fish for a  
livelihood. It does not appear likely that the conditions of the country on either  
Yahey v. British Columbia  
Page 54  
side of the Athabasca and Slave Rivers or about Athabasca Lake will be so  
changed as to affect hunting or trapping, and it is safe to say that so long as  
the fur-bearing animals remain, the great bulk of the Indians will continue to  
hunt and to trap.  
The Indians are given the option of taking reserves or land in severalty. As the  
extent of the country treated for made it impossible to define reserves or  
holdings, and as the Indians were not prepared to make selections, we  
confined ourselves to an undertaking to have reserves and holdings set apart  
in the future, and the Indians were satisfied with the promise that this would be  
done when required. There is no immediate necessity for the general laying  
out of reserves or the allotting of land. It will be quite time enough to do this as  
advancing settlement makes necessary the surveying of the land. Indeed, the  
Indians were generally averse to being placed on reserves. It would have  
been impossible to have made a treaty if we had not assured them that there  
was no intention of confining them to reserves. We had to very clearly explain  
to them that the provision for reserves and allotments of land were made for  
their protection, and to secure to them in perpetuity a fair portion of the land  
ceded, in the event of settlement advancing.  
(
emphasis added)  
May 30, 1900: Adhesion to Treaty 8 at Fort St. John  
169] On March 12, 1900, Privy Council Order 460 was issued, appointing James  
4
.
[
Macrae the new (and sole) Treaty Commissioner for the purpose of taking adhesions  
at Fort St. John, Fort Resolution, and elsewhere that year.  
[
170] Commissioner Macrae arrived in Fort St. John in late May 1900 and secured  
the Treaty adhesion of a portion of the Beaver Indians of the Upper Peace River on  
May 30, 1900. The record is very slim as to what transpired during the adhesion at  
Fort St. John.  
[
171] The adhesion notes the following:  
The Beaver Indians of the Upper Peace River and the country thereabouts,  
having met at Fort St. John, on this thirtieth day of May, in this present year  
1900, Her Majesty’s Commissioner, James Ansdell Macrae, Esquire, and  
having had explained to them the terms of the treaty unto which the Chief and  
Headmen of the Indians of Lesser Slave Lake and adjacent country set their  
hands on the twenty-first day of June, in the year 1899, do join in the cession  
made by the said treaty, and agree to adhere to the terms thereof, in  
consideration of the undertakings made therein.  
 
Yahey v. British Columbia  
Page 55  
The adhesion was signed on behalf of the Beaver Indians at Fort St. John by:  
Muckithay, Aginaa, Dislisici, Tachea, Appan, Attachie, Allalie, Yatsoose.  
[
172] In the Report of the Treaty Commissioner for the year 1900, submitted to the  
Superintendent General of Indian Affairs on December 11, 1900, Commissioner  
Macrae described his work that summer. As pointed out by Blueberry, Commissioner  
Macrae commented that it was “not unwise” for the Indigenous peoples in that locale  
to be hunters rather than farmers:  
…
there is little disposition on the part of most of the northern Indians to settle  
down upon land or to ask to have reserves set apart…  
It appears that this disinclination to adopt agriculture as a means of livelihood  
is not unwisely entertained; for the most congenial occupations of hunting and  
fishing are still open, and agriculture is not only arduous to those untrained to  
it, but in many districts it as yet remains untried. A consequent of this  
preference of old pursuits is that the Government will not be called upon for  
years to make those expenditures which are entailed by the treaty when the  
Indians take to the soil for subsistence.  
The health of the Indians in the treaty seems to vary with time. When game is  
plentiful it is good, when scarce, it is bad. The want of rabbits along the Peace  
and Hay Rivers caused suffering to the Beavers and Slaves in part of the  
western portion of the territory last winter…  
At nearly all the important points the chiefs and more intelligent men who were  
present at the making of treaty last year, asked for extended explanations of  
its terms, in order that those of their bands who had failed to grasp its true  
meaning might be enlightened, and that those who were coming into treaty for  
the first time might fully understand what they were doing. In the course of the  
councils held for this purpose, it was possible to eradicate any little  
misunderstanding that had arisen in the minds of the more intelligent, and  
great pains were taken to give such explanations as seemed most likely to  
prevent any possibility of misunderstandings in future.  
(
emphasis added)  
[
173] Commissioner Macrae’s report reflects an understanding that the Indigenous  
people of the northern Peace River area were engaged in hunting and fishing and  
this was how they sustained themselves, as such they were not interested in settling  
on reserves.  
Yahey v. British Columbia  
Page 56  
B.  
Does Treaty 8 Promise a Right to Continue a Way of Life Based on  
Hunting, Fishing and Trapping?  
[
174] I will now consider whether, as Blueberry argues, the Treaty includes a  
promise that the Indigenous signatories and adherents shall have a right to continue  
their mode of life based on hunting, fishing and trapping throughout their territory. I  
will refer interchangeably to “mode of life” and “way of life” as Blueberry does, and as  
is reflected in some of the jurisprudence.  
[
175] On this point, I conclude for the reasons set out below that, based on the text  
of the Treaty and the history of the interactions leading to the signing of Treaty 8 in  
899 and the adhesions that followed, Treaty 8 guarantees the Indigenous  
1
signatories and adherents the right to continue a way of life based on hunting, fishing  
and trapping, and promises that this way of life will not be forcibly interfered with.  
Inherent in the promise that there will be no forced interference with this way of life is  
that the Crown will not significantly affect or destroy the basic elements or features  
needed for that way of life to continue.  
[
176] I will first set out my conclusions on the evidence and then review the  
jurisprudence on Treaty 8, which I have concluded, supports this determination. I  
begin by briefly reviewing the parties’ arguments on this issue.  
1
.
Parties’ Positions  
[
177] Blueberry’s central argument is that the fundamental promise, or essential  
element, of Treaty 8 is that the Indigenous peoples who signed and adhered to the  
treaty would be able to continue their way of life based on hunting, trapping and  
fishing.  
[
178] Blueberry says the Indigenous peoples were assured that while there would be  
settlement from time to time, this would not lead to forced interference with their way  
of life. Blueberry points out that the assurance of continuity of a way of life based on  
hunting, trapping and fishing has been called the “essential promise” of Treaty 8 by  
the Supreme Court Canada. Had this assurance not been given, the treaty  
 
 
Yahey v. British Columbia  
Page 57  
negotiations may not have been successful, and later adhesions may not have  
occurred.  
[
179] Blueberry says its way of life is “a connection to the land that remains core to  
their identity.” It is “what they have learned and lived, and it is who they are.” This  
way of life based on hunting, trapping and fishing is not a way of life from a time long  
gone; but one that continues today.  
[
180] Blueberry acknowledges that the mode of life is amorphous and urges the  
Court to consider the features of its mode of life in anthropological terms, with  
reference to the evidence provided by Dr. Ridington and Mr. Brody. Blueberry says  
the features of its mode of life include: using a multiplicity of areas within its territory;  
having access to a broad availability of landscapes and habitats; being able to  
schedule use of resources and practice seasonality; and having an environment that  
was predictable and knowable. Blueberry submits that at the time the treaty was  
made, the Crown knew the way of life of the Indigenous peoples with whom it was  
treating was intricately woven into the landscape, and tied to the ability to roam, hunt,  
and live freely throughout their territory.  
[
181] Furthermore, Blueberry says the Crown was aware of the concerns expressed  
by Indigenous peoples that the Treaty would lead to the curtailment of their way of life  
and the prospect of being confined to reserves. Some settlement was anticipated, but  
the fundamental understanding was that it would happen in a way that would not  
threaten or displace a mode of life centred on the land.  
[
182] Blueberry says the extent of development and displacement in its territory  
today is fundamentally not what either party contemplated in entering into Treaty 8.  
The Treaty was premised on little settlement and disruption; the Crown was to  
protect, not displace, their mode of life.  
[
183] Moreover, argues Blueberry, the Crown reassured the Indigenous people that  
they would benefit from increased traffic and commerce – there would be a clear gain  
Yahey v. British Columbia  
Page 58  
from entering into Treaty 8. They were not trading a free life for displacement with  
increased activity.  
[
184] Blueberry says the taking up clause contained in Treaty 8 through which the  
Crown can take up land from time to time for settlement, mining, lumbering, trading  
and other purposes did not and does not modify, diminish or abrogate from the  
essential promise of protecting its way of life. The taking up clause is subject to the  
fundamental promise made to the Indigenous peoples that they would be able to  
continue their way of life based on hunting, trapping, and fishing.  
[
185] In contrast, the Province says that the Treaty does not protect the mode of life  
that existed at the time the Treaty was made. Rather, it was designed for the  
fundamental purpose of opening up land for settlement and development and the  
taking up of lands by the Crown from “time to time” could not be clearer in  
foreshadowing change. The Province says the Treaty was centred on an  
understanding that settlers were coming, and that this would have a profound effect.  
Relying on Mikisew, the Province says Treaty 8 did not promise “continuity” of  
nineteenth century pattern of land use but, rather, signalled the dawn of a period of  
transition – Treaty 8 foreshadowed change.  
[
186] The Province recognizes that the Treaty promises Indigenous signatories  
rights to continue to hunt, trap and fish and that this promise was essential. However,  
the Province says these rights are not absolute, and are limited by the government’s  
right to take up lands, and pass regulations for conservation purposes. The Province  
says the Indigenous signatories to the Treaty understood they would not be able to  
hunt, trap and fish on land that was taken up or was being used for incompatible  
purposes, and that those rights would be subject to certain government regulations.  
[
187] In addition, the Province says that Blueberry has failed to define the content of  
the mode of life protected by Treaty 8. The Province notes that Blueberry’s mode of  
life or means of livelihood, even at 1900, was based on a mixed economy. Through  
the mid 1900s to today, Blueberry members have relied on and embraced a mixed  
Yahey v. British Columbia  
Page 59  
and modern economy – participating in hunting and gathering while also engaging in  
opportunities in the forestry and oil and gas industries. While hunting, fishing and  
trapping were the primary means of livelihood at the time of Treaty 8 in 1900, they  
were not the sole ones.  
[
188] Furthermore, the Province says that Blueberry’s argument ignores the  
balance” established by the Treaty, and the fact that there were always “obstacles”  
to its mode of life.  
“
2
.
Conclusion on the Evidence  
[
189] As noted, the Province maintains that the evidence reflected in the historical  
documents demonstrates the overriding purpose of Treaty 8 was to open up lands  
and facilitate settlement. The Province relies on the historical documents including  
comments made by Mair that there was an expected “incoming tide of settlement”  
and hope for “millions of settlers.” It refers to other comments in Mair’s book to say  
the Indigenous signatories and adherents understood this would interfere with their  
freedom to move, as they referred to a “broken up” and fragmented country. The “free  
life” referred to, the Province says, was a free commercial life as Indigenous people  
did not want the pass system used in Treaty 6, which restricted their ability to  
undertake commercial operations.  
[
190] In addition, the Province relied on a number of post–Treaty events, including a  
post–Treaty letter, the origin of which is unclear, apparently from Chief Kinsoayo and  
Councillors of the Lesser Slave Lake Band, requesting assistance as to how “best to  
go to work...” and saying “[t]he reason we accepted Treaty was that we saw we had  
to change our way of living, that furs were getting scarce and also moose, and that if  
we had cattle and had [po]tatoes & barley to eat we would be better off.”  
[
191] Dealing with this latter document first, I note as Dr. Irwin candidly said “we  
don’t know who the scribe is.” This letter was sent to the Superintendent General of  
Indian Affairs in 1900 (the year after the Treaty was entered into) and very little is  
otherwise known about it. The letter appears to be associated with a request for  
 
Yahey v. British Columbia  
Page 60  
reserve lands. In cross-examination, Dr. Irwin agreed that the language used in the  
letter did not sound like the phrases Chief Kinsoayo would have used. Dr. Irwin also  
agreed the scribe could have been a missionary who possibly added this rationale as  
to why a reserve should be granted on a more rapid basis. As a result, very little  
weight can be placed on this document.  
[
192] As for the Province’s reliance on Mair’s views of incoming settlement, while the  
Crown may have wished to open the land to settlement, it is not accurate to say, as  
the Province argues, that a “tide of settlement” was expected. Numerous comments  
were made in letters, reports and records of the Treaty negotiations that significant  
settlement was not expected. While there are references to mining in a January 25,  
1
899 letter from Minister Sifton to the Commissioners, imminent settlement was not  
contemplated at that time.  
[
193] Furthermore, Mair’s comments regarding “millions of settlers” referred to and  
relied on by the Province are remarks included in the preface to his book. These  
comments are considered Mair’s own surmising and editorializing and were not  
consistent with the many other written records. They were also not a record of what  
was said at the Treaty meeting in June of 1899. This has been accepted as reliable  
as Mair was an observer reporting on the event.  
[
194] As Ms. Jones noted in cross – examination, comments about the “millions” or  
a “tide of settlement” were likely made “to make it exciting for his readers…it was a  
pretty common way for people to talk about unexplored territory at the time.” As is  
evident, millions of people are not in the territory even 120 years later.  
[
195] Further, the promises of the Treaty cannot be viewed through only one lens  
i.e., that of the Crown). Each of the parties’ understandings must be considered  
(
when ascertaining the promises and obligations of the Treaty. The Court must  
therefore view the matter through the lens of each party. Given the numerous  
references to Indigenous people fearing changes to their way of life on the land, the  
Yahey v. British Columbia  
Page 61  
reference to the promise of retaining a “free life” by both the Indigenous people and  
the Commissioners cannot be confined to a “free” commercial context.  
[
196] The Province also relies on certain documents that it maintains point to the  
foreshadowing of change” in the Treaty negotiations. While some change was no  
“
doubt expected to occur, it is difficult to reconcile the Province’s ultimate position with  
the many clear assurances made with respect to the continuation of hunting, trapping  
and fishing rights as is evident throughout the documented record of government  
communications. The documents relied upon by the Province are not consistent with  
these clear assurances made by the Crown in order to secure the Treaty.  
[
197] These documents (including in the Commissioners’ report) made clear that  
without assurances that hunting and fishing rights would not be curtailed and the  
Indigenous peoples would not be confined to reserves, it was doubtful a treaty would  
have been concluded.  
[
198] The change foreshadowed by the Treaty cannot be understood as  
eviscerating the fundamental promise that Indigenous peoples’ way of life would not  
be interfered with. To put this into perspective, the evidence has established that  
Indigenous peoples have lived on this land for thousands of years. It is not  
reasonable to conclude that the Dene – zaa agreed that their way of life would be  
“fundamentally altered” or eradicated by a Treaty that is now a little over 120 years  
old. They did not agree to adopt a settler’s way of life. This conclusion would not be  
consistent with viewing the matter through the lens of both parties.  
[
199] The Indigenous people specifically confirmed that the Treaty would be forever.  
The Treaty was made to preserve and protect certain rights in the face of change; not  
to see those rights erased by a tide of change. While change was foreshadowed,  
these cannot be empty promises.  
[
200] Although the text of Treaty 8 does not refer to “mode of life,” the  
Commissioners’ report makes clear that the Commissioners assured Indigenous  
people that their mode of life would not be interfered with.  
Yahey v. British Columbia  
Page 62  
[
201] I accept the points that Ms. Jones emphasized in her reports and testimony to  
support the conclusion that Treaty 8 promised the Indigenous peoples that their way  
of life would not be interfered with. I will set those points out here.  
[
202] First, the area covered by Treaty 8 was in large part not considered suitable  
for farming, and it was anticipated that Indigenous people would continue with their  
traditional pursuits of hunting, fishing and trapping. This is in contrast to other treaties  
–
in particular the earlier treaties covering the prairies – which sought to open up the  
prairies or “fertile land” to extensive settlement and farming.  
[
203] Second, while treaties generally promised an opening up of the land for  
settlement, Treaty 8 set out a number of options in terms of pursuits, which Ms.  
Jones indicated was unlike previous treaties. As part of the negotiations, the  
Indigenous people were provided with three choices: farming, ranching, or continuing  
hunting and fishing, and were to be provided with necessary implements or supports  
consistent with their choice. Ms. Jones noted that, by offering Indigenous people  
these choices, Commissioner Laird was likely reflecting the views expressed during  
the negotiations of the Treaty that only a limited portion of the territory was suitable  
for extensive settlement and agricultural land development. Hunting and fishing would  
continue to be preferred and the principal means of support for many inhabitants of  
the country.  
[
204] Third, throughout their discussions, the Indigenous people consistently voiced  
their concern about the Treaty interfering with their rights to hunt and fish. The Crown  
consistently reassured the Indigenous people that their way of life would be free from  
interference.  
[
205] Fourth, the correspondence and reporting surrounding the negotiations of  
Treaty 8 consistently disclosed the view that limited reserve land would be needed  
as, by and large, Indigenous people in this area were more likely to hunt and fish  
rather than cultivate the land.  
Yahey v. British Columbia  
Page 63  
[
206] Fifth, the text of Treaty 8 referred to the Indigenous people as having the “right  
to pursue their usual vocations of hunting, trapping and fishing throughout the tracts  
of land surrendered…subject to such regulations as may from time to time be made  
by the government of the country… and saving and excepting such tracts as may be  
required to be taken up from time to time for settlement, mining, lumbering, trading or  
other purposes…” Ms. Jones pointed out that previous treaties had referred to  
hunting, trapping and fishing as avocations, which is a hobby or minor occupation.  
Treaty 8 referred to these activities as vocations, which requires dedication (per The  
Oxford English Dictionary, 2nd ed., sub verbo “vocation”).  
[
207] Sixth, Ms. Jones noted in her report the importance of the circular prepared by  
Commissioner Laird to be distributed by the Police and Hudson’s Bay Company  
explaining the concept of the Treaty. As is noted above, this circular explicitly  
reassured the Indigenous people that they “will be allowed to hunt and fish all over  
the country as they do now, subject to such laws as may be made for the protection  
of game and fish in the breeding season.” Her report also noted the reassurances  
provided by Commissioner Laird in June 1899 that Indigenous people had the choice  
to take the Treaty or not, and that if they did take the Treaty they would be just as  
free to hunt and fish after the Treaty as before. Ms. Jones also emphasized Chief  
Kinsoayo’s response to this reassurance, reminding the Commissioners that the  
Indigenous people were “fond of a free life, and do not wish to interfere with it.”  
[
208] As noted earlier, Ms. Jones filed a reply report to Dr. Irwin’s report. This report  
dealt with, among other things, the nature of the change contemplated in the Treaty.  
Ms. Jones indicated the essential difference between the two experts as to the  
significance of the changes associated with the Treaty was in the emphasis of some  
of the assumptions regarding changes to the economy and Indigenous way of life.  
[
209] Dr. Irwin noted the choices Indigenous people were offered (such as  
agricultural implements) suggested their way of life in hunting and fishing was to be  
superseded by agriculture or stock raising. Ms. Jones said she did not see the  
support for this proposition.  
Yahey v. British Columbia  
Page 64  
[
210] In her reply report Ms. Jones put it this way:  
Dr. Irwin and I disagree in our interpretation of the historical documents that  
address the understanding and statements of Crown representatives as to the  
anticipated changes to the economy and the Indigenous way of life in the area  
to be covered by Treaty Eight, particularly on the question of whether other  
ways of life would replace or supersede a way of life based on harvesting fish,  
furs, wild meat and other products.  
…
Dr. Irwin quotes from several documents in his report at pages 91 through 97.  
As he states, Indigenous peoples prior to Treaty were concerned about the  
possibility of major changes to their way of life following the signing of a  
Treaty, especially about restrictions on their mobility and their ability to support  
themselves by harvesting meat, furs and fish. He characterizes the expression  
of these concerns as an understanding among Indigenous peoples that their  
way of life was about to change. However, the passages he cites should be  
placed in their original context. Prior to the Treaty negotiations, the Treaty  
Commissioners and other Government representatives, such as the North  
West Mounted Police, repeatedly gave these peoples assurances that their  
way of life would not be interfered with as a result of the Treaty. During the  
Treaty negotiations, the Treaty Commissioners explicitly addressed the  
concerns of the Indigenous peoples regarding economic changes by assuring  
them that their harvesting economy and their way of life would continue, and  
that whatever they obtained under a Treaty would be a “clear gain”, not a  
replacement, for that way of life. The Treaty Commissioners emphasized that  
without this promise, they would not have been able to obtain Indigenous  
consent to Treaty and scrip.  
In their preparations for Treaty, the Treaty Commissioners and other Indian  
Department officials expressed the view that development in the future Treaty  
Eight area was likely to be different in character and scale than the rapid and  
massive conversion of Prairie Treaty lands to agricultural settlement and  
resource exploitation…  
(
emphasis added)  
[
211] Dr. Irwin characterized the expressions of these concerns as an understanding  
among Indigenous peoples that their way of life was about to change. Ms. Jones  
pointed out, and I agree, it is clear these were expressions of concern and fear about  
potential change rather than an understanding, acknowledgment or acceptance of  
change, especially a change as fundamental as one observes to date. Concerns  
were expressed and consistent statements were made by the Commissioners and  
other government representatives, assuring Indigenous people that their way of life  
would not be interfered with as a result of the Treaty.  
Yahey v. British Columbia  
Page 65  
[
212] This has been reflected many times in the historical record referred to earlier.  
This is most evident in the September 22, 1899 Report of the Commissioners for  
Treaty 8 which refers to “fear,” and the chief difficulty being the apprehension that  
hunting and fishing privileges were to be curtailed. The report does not support the  
conclusion that Indigenous people accepted and understood great change was to  
come. Rather it reflects their fundamental desire to protect themselves from great  
change; without those assurances the signing of Treaty 8 would very likely not have  
occurred.  
[
213] The Province emphasizes that the promises in the Treaty were made for  
continuing hunting, trapping and fishing as an economic livelihood, not as a promise  
to protect a way of life. Ultimately this reflects a view that the Indigenous people were  
essentially agreeing to convert to a settler’s way of life.  
[
214] Even if “livelihood” was considered the sole basis of the promise (which I do  
not accept), the evidence in this case demonstrated that other activities underpinned  
the culture and enabled the opportunity to derive a livelihood from hunting, trapping  
and fishing. These activities included harvesting plants, skinning or cleaning fish and  
animals, smoking or drying the meat and hides, and preparing them for use or  
consumption. These aspects of the Indigenous peoples’ modes of life were in large  
part undertaken by women. Hunting, trapping and fishing were easily identifiable  
signposts or indicators of a mode of life supported by other cultural practices, which  
may not have been overtly visible to the government’s treaty negotiators. As a result,  
even if the Province says the Treaty promised only protection for “livelihood,” that  
“livelihood” was built upon and survived by virtue of the Indigenous way of life,  
including the work of all peoples who were part of that society.  
[
215] Way of life is about means of survival, as well as socialization methods, legal  
systems, trading patterns, cultural and spiritual beliefs and practices, patterns of land  
use, and ways of generating and passing on knowledge. To the Indigenous people  
who entered into Treaty 8, the meaningful exercise of these rights reflects how they  
live their lives, in their way, on their lands. These rights must be considered in a  
Yahey v. British Columbia  
Page 66  
broader, more contextual way. Based on the evidence in this case, they are rights  
that are exercised at particular places, at particular times, in relation to particular  
species, and that are connected to a larger way of life. For the exercise of these  
rights to be meaningful, protection must also include recognition that the rights to  
hunt, fish and trap are, in essence, rights to maintain a culture and identity.  
[
216] Ultimately, as noted earlier, the Province’s fundamental argument leads to the  
view that the Indigenous people who entered into Treaty 8 essentially agreed to move  
to or convert to what is in effect a settler’s way of life. The Treaty did not require the  
Indigenous peoples to agree to a settler’s way of life. This is simply not consistent  
with the documentary and expert evidence in this case. While the Treaty  
foreshadowed change, in order to achieve the Treaty, the Crown provided protection  
to the Indigenous peoples’ ability to hunt, fish and trap as part of their way of life.  
[
217] I have reached these findings on the promise of Treaty 8 on the basis of the  
evidence presented in this case. The jurisprudence, however, also supports this  
understanding that the rights protected in the Treaty are part of a way of life. I turn to  
that now.  
3
.
Key Jurisprudence on Treaty 8 and the Promises Contained  
Therein  
[
218] Treaty 8, and the promises contained therein, has been the subject of much  
judicial writing in this Court, the Court of Appeal, and the Supreme Court of Canada.  
A brief review of the Supreme Court of Canada’s decisions in R. v. Horseman, [1990]  
1
S.C.R. 901 [Horseman], Badger and Mikisew, and the British Columbia Court of  
Appeal’s decisions in Halfway River First Nation v. British Columbia (Ministry of  
Forests), 1999 BCCA 470 [Halfway] and West Moberly 2011 helps to situate the  
arguments made in this case, and specifically those relating to the promises reflected  
in Treaty 8, in their jurisprudential context.  
[
219] It is important to note that none of the cases reviewed below were actions  
alleging a breach of the Treaty and infringement of treaty rights. Rather, they were  
 
Yahey v. British Columbia  
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either regulatory prosecutions where Treaty 8 beneficiaries were seeking to exercise  
their rights and were charged for violating provincial statutes, or were applications for  
judicial review brought by First Nations alleging government was making decisions  
that infringed their rights.  
a)  
R. v. Horseman, [1990] 1 S.C.R. 901  
[
220] The terms of Treaty 8 were first considered by the Supreme Court of Canada  
in Horseman. In that case, Mr. Horseman, a beneficiary of Treaty 8 living in Alberta,  
killed a grizzly bear in self – defence while hunting moose for food. At the time, he did  
not have a licence under the Alberta Wildlife Act to hunt grizzly bears or sell their  
hide. A year later, in need of money to support his family, he purchased a grizzly bear  
hunting licence and sold the hide. He was charged under s. 42 of the Wildlife Act with  
unlawful trafficking in wildlife. The issue before the Supreme Court of Canada was  
whether the hunting rights included in Treaty 8 included the right to hunt for  
commercial purposes, and whether the Alberta Natural Resources Transfer  
Agreement [NRTA] of 1930 (which does not apply in this case) modified Treaty 8,  
limiting the right to hunt for food only.  
[
221] Justice Cory, writing for the majority, held that the hunting rights included in  
Treaty 8 originally included rights to hunt for food and for commercial purposes, but  
these rights were subject to governmental regulation and had been modified and  
limited by the NRTA to a right to hunt for food only. The Supreme Court of Canada  
held that the courts below had correctly found that the sale of the bear hide was an  
act of commerce and not part of hunting for food. Because of the NRTA’s limitation to  
the Treaty, the act of selling the bear hide was therefore no longer a right protected  
by Treaty 8. In the result, the majority held that the Wildlife Act applied, and Mr.  
Horseman had breached s. 42 of that Act in selling the bear hide.  
[
222] The reasons of Justice Wilson (in dissent) at pages 908 to 911 provide a  
careful examination of the context within which Treaty 8 was entered into. While  
Justice Wilson (writing for herself, Chief Justice Dickson, and Justice L’Heureux–  
Yahey v. British Columbia  
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Dubé) dissented on the interpretation and impact of the NRTA and on the application  
of the Wildlife Act, her examination of the history and context of Treaty 8 was not  
contentious. This portion of her reasons is also referred to by the majority of the Court  
of Appeal in West Moberly 2020 at para. 482.  
[
223] Justice Wilson’s reasons begin by referring to Nowegijick v. The Queen, [1983]  
S.C.R. 29 and Simon v. The Queen, [1985] 2 S.C.R. 387 [Simon] and the proper  
1
approach to the interpretation of treaties: construing them as they would have been  
understood by the Indigenous people; giving them a fair, large and liberal  
construction; and being sensitive to the broader historical context in which such  
treaties were negotiated.  
[
224] In her discussion of Treaty 8 and the hunting rights protected therein, Justice  
Wilson referred to the work of Professor Arthur Ray who had noted that Indigenous  
peoples in the Treaty 8 area had developed a way of life that centred on wildlife  
resources. They hunted beaver, moose, caribou and wood buffalo with a view to  
consuming some portions of their catch and exchanging other portions. She then  
referred to other commentary and analysis on the history of the negotiations leading  
up to Treaty 8, in particular that by Richard Daniel in “The Spirit and Terms of Treaty  
Eight” in The Spirit of the Alberta Indian Treaties (Richard Price, ed., Montreal:  
Institute for Research on Public Policy, 1979), and René Fumoleau in As Long as this  
Land Shall Last: A History of Treaty 8 and Treaty 11, 1870-1939 (1973), and the  
report of the Treaty Commissioners:  
Mr. Daniel’s study of these negotiations reveals that the Indians were  
especially concerned that the most important aspect of their way of life, their  
ability to hunt and fish, not be interfered with. He points out that the  
Commissioners repeatedly sought to assure the Indians that they would  
continue to be free to pursue these activities as they always had. In the course  
of treaty negotiations at Lesser Slave Lake in June 1899 (negotiations that set  
the pattern for subsequent agreements with other Indian groups near Fort St.  
John, Fort Chipewyan, Fond du Lac, Fort Resolution and Wabasca),  
Commissioner Laird told the assembled Indians that “Indians have been told  
that if they make a treaty they will not be allowed to hunt and fish as they do  
now. This is not true. Indians who take treaty will be just as free to hunt and  
fish all over as they now are.” (See: Daniel, op. cit., at p. 76). Similarly, Mr.  
Fumoleau has observed that “[o]nly when the Treaty Commissioners promised  
Yahey v. British Columbia  
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them that they would be free to hunt and trap and fish for a living, and that  
their rights would be protected against the abuses of white hunters and  
trappers, did the Indians at each trading post of the Treaty 8 area consent to  
sign the treaty” (Fumoleau, op. cit., at p. 65).  
The official report of the Commissioners who negotiated Treaty No. 8  
(
presented to the Minister of the Interior on September 22, 1899) confirms  
both that hunting and fishing rights were of particular concern to the Indians  
and that the Commissioners were at pains to make clear that the government  
of Canada did not wish to interfere with their traditional way of life. The  
Commissioners reported (at p. 6):  
Our chief difficulty was the apprehension that the hunting and fishing  
privileges were to be curtailed. The provision in the treaty under which  
ammunition and twine is to be furnished went far in the direction of  
quieting the fears of the Indians, for they admitted that it would be  
unreasonable to furnish the means of hunting and fishing if laws were  
to be enacted which would make hunting and fishing so restricted as to  
render it impossible to make a livelihood by such pursuits. But over  
and above the provision, we had to solemnly assure them that only  
such laws as to hunting as were in the interest of the Indians and were  
found necessary in order to protect the fish and fur-bearing animals  
would be made, and that they would be free to hunt and fish after the  
treaty as they would be if they never entered into it.  
(
underline added by Wilson J.)  
[
225] Justice Wilson noted that interviews done with elders of the Lesser Slave Lake  
area confirmed the critical role played by the promise with respect to hunting and  
fishing rights.  
[
226] From her review of these studies and evidence, Justice Wilson concluded that  
the Crown’s promise that hunting, fishing and trapping rights would be protected  
forever was the “sine qua non” for obtaining the agreement of the Indigenous people  
to enter into Treaty 8 (at 911). She noted that: “hunting, fishing and trapping lay at the  
centre of their way of life” (at 911). As to the government’s power to pass regulations  
with respect to hunting, trapping and fishing, Justice Wilson reasoned that such  
regulations would need to be designed “so as to ensure that the Indians’ way of life  
would continue to be respected” (at 912). She goes on at 913:  
In other words, while the treaty was obviously intended to enable the  
government of Canada to pass regulations with respect to hunting, fishing and  
trapping, it becomes clear when one places the treaty in its historical context  
that the government of Canada committed itself to regulate hunting in a  
Yahey v. British Columbia  
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manner that would respect the lifestyle of the Indians and the way in which  
they had traditionally pursued their livelihood. Because any regulations  
concerning hunting and fishing were to be “in the interest” of the Indians, and  
because the Indians were promised that they would be as free to hunt, fish  
and trap “after the treaty as they would be if they never entered into it”, such  
regulations had to be designed to preserve an environment in which the  
Indians could continue to hunt, fish and trap as they had always done.  
[
227] The majority’s reasons briefly review the historical background to the  
negotiations of Treaty 8, with a focus on whether the rights contained in the treaty  
included a right to hunt for commercial purposes. The majority’s reasons, like those of  
Justice Wilson, refer to Professor Ray’s work and the difficulty in differentiating  
domestic hunting from commercial hunting, and to the report of the Treaty  
Commissioners. Justice Cory noted that in entering into Treaty 8, the Indigenous  
people sought to protect their pre-existing hunting rights and to continue their “usual  
vocations of hunting, trapping and fishing,” and that Canada sought to protect “the  
native economy” which was based on those hunting rights (at 928). Justice Cory  
recognized that at the time the Treaty was entered into, for the Indigenous  
population, hunting and fishing for commercial purposes was “an integral part of their  
way of life” (at 928).  
b)  
R. v. Badger, [1996] 1 S.C.R. 771  
[
228] The nature of the promises contained in Treaty 8 was also a central issue in  
Badger. The purpose of reviewing Badger at this point in these reasons is to consider  
how the Court, building on Horseman, characterizes the promises and protections  
contained in Treaty 8.  
[
229] In Badger, three Cree beneficiaries of Treaty 8 were each hunting moose for  
food on privately owned lands within the area covered by Treaty 8 within Alberta. Mr.  
Badger was hunting on scrub land near a run-down but occupied house. Mr.  
Kiyawasew was hunting on a posted, snow covered field. And Mr. Ominayak was  
hunting on uncleared muskeg where there were no fences, signs or buildings. Each  
was charged under the Alberta Wildlife Act for hunting without a licence and outside  
Yahey v. British Columbia  
Page 71  
the established hunting season. They challenged the constitutionality of the Wildlife  
Act, in so far as it affected their Treaty 8 rights.  
[
230] Justice Cory, again writing for the majority, discussed the context and history of  
Treaty 8 beginning at para. 39 of his reasons. He described the continuation of the  
Indigenous peoples’ rights to hunt, fish and trap as “the essential element” that led to  
their signing the treaty:  
[
39] Treaty No. 8 is one of eleven numbered treaties concluded between the  
federal government and various Indian bands between 1871 and 1923. Their  
objective was to facilitate the settlement of the West. Treaty No. 8, made on  
June 21, 1899, involved the surrender of vast tracts of land in what is now  
northern Alberta, northeastern British Columbia, northwestern Saskatchewan  
and part of the Northwest Territories. In exchange for the land, the Crown  
made a number of commitments, for example, to provide the bands with  
reserves, education, annuities, farm equipment, ammunition, and relief in  
times of famine or pestilence. However, it is clear that for the Indians the  
guarantee that hunting, fishing and trapping rights would continue was the  
essential element which led to their signing the treaties. The report of the  
Commissioners who negotiated Treaty No. 8 on behalf of the government  
underscored the importance to the Indians of the right to hunt, fish and trap…  
[
231] Justice Cory emphasized certain aspects of the Treaty Commissioners’ 1899  
report showing how the federal government responded to the concerns raised by  
Indigenous people about the impact on their hunting and fishing rights from entering  
into the Treaty. The reasons, at para. 39, cite the following sections of the report, with  
emphasis:  
There was expressed at every point the fear that the making of the treaty  
would be followed by the curtailment of the hunting and fishing privileges…  
We pointed out…that the same means of earning a livelihood would continue  
after the treaty as existed before it, and that the Indians would be expected to  
make use of them…  
Our chief difficulty was the apprehension that the hunting and fishing  
privileges were to be curtailed. The provision in the treaty under which  
ammunition and twine is to be furnished went far in the direction of quieting  
the fears of the Indians, for they admitted that it would be unreasonable to  
furnish the means of hunting and fishing if laws were to be enacted which  
would make hunting and fishing so restricted as to render it impossible to  
make a livelihood by such pursuits. But over and above the provision, we had  
to solemnly assure them that only such laws as to hunting and fishing as were  
in the interest of the Indians and were found necessary in order to protect the  
Yahey v. British Columbia  
Page 72  
fish and fur-bearing animals would be made, and that they would be as free to  
hunt and fish after the treaty as they would be if they never entered into it.  
(
underline added by Cory J.)  
[
232] Justice Cory then considered the text of Treaty 8. He noted that Treaty 8  
guaranteed that Indigenous people “shall have the right to pursue their usual  
vocations of hunting, trapping and fishing” subject to two limitations (at para. 40). The  
first is a geographic limitation; the right to hunt could be exercised “throughout the  
tract surrendered…saving and excepting such tracts as may be required or taken up  
from time to time for settlement, mining lumbering, trading or other purposes.” The  
second provided that the right to hunt could be limited by government regulations  
passed for conservation purposes.  
[
233] At paras. 53 and 54, Cory J. considered how the Indigenous people would  
have understood the taking up provision of the Treaty. He concluded that the  
geographical limitation on the right to hunt should be based upon a concept of visible,  
incompatible land use (at paras. 54 and 58). Whether or not land has been taken up  
is a question of fact to be assessed on a case-by-case basis (at para. 58).  
[
234] In considering the negotiation of Treaty 8, Justice Cory noted that the Crown’s  
verbal promises were of great significance and refers again to the work of René  
Fumoleau and Richard Daniel (earlier cited in Horseman) (at para. 55). He  
emphasized again that the “primary fear” expressed by Indigenous people was that  
the treaty would curtail their ability to pursue their livelihood as hunters, trappers and  
fishers (at para. 55). The Commissioners offered reassurances that they would be  
just as free to hunt and fish after the Treaty as before, and anticipated little impacts  
from settlement or mining. Justice Cory included a portion of Mr. Daniel’s work citing  
reassurances made by the Commissioners and providing insight into the kind of  
change anticipated in 1899:  
[
55] … The Indians’ primary fear was that the treaty would curtail their ability to  
pursue their livelihood as hunters, trappers and fishers. Commissioner David  
Laird, as cited in Daniel, “The Spirit and Terms of Treaty Eight”, at p. 76, told  
the Lesser Slave Lake Indians in 1899:  
Yahey v. British Columbia  
Page 73  
Indians have been told that if they make a treaty they will not be  
allowed to hunt and fish as they do now. This is not true. Indians who  
take treaty will be just as free to hunt and fish all over as they now are.  
In return for this the Government expects that the Indians will not  
interfere with or molest any miner, traveller or settler. [Emphasis  
added]  
Since the Treaty No. 8 lands were not well suited to agriculture, the  
government expected little settlement in the area. The Commissioners, cited in  
Daniel, at p. 81, indicated that “it is safe to say that so long as the fur-bearing  
animals remain, the great bulk of the Indians will continue to hunt and to trap”.  
The promise that this livelihood would not be affected was repeated to all the  
bands who signed the Treaty. Although it was expected that some white  
prospectors might stake claims in the north, this was not expected to have an  
impact on the Indians’ hunting rights. For example, one commissioner, cited in  
René Fumoleau, O.M.I., As Long as this Land Shall Last, at p. 90, stated:  
We are just making peace between Whites and Indians – for them to  
treat each other well. And we do not want to change your hunting. If  
Whites should prospect, stake claims, that will not harm anyone.  
[
235] Just as the Commissioners did not expect that settlement or mining would  
have an impact on the rights protected in Treaty 8, neither did the Indigenous people.  
Referring to the oral history of Treaty 8, Justice Cory noted at para. 57, that “[t]he  
Indians understood that land would be taken up for homesteads, farming, prospecting  
and mining and that they would not be able to hunt in these areas or to shoot at the  
settlers’ farm animals or buildings. No doubt the Indians believed that most of the Treaty  
No. 8 land would remain unoccupied and so would be available to them for hunting,  
fishing and trapping.”  
[
236] Justice Cory interpreted the understanding regarding the rights to hunt, fish  
and trap as protecting Indigenous peoples’ ability to pursue their livelihood. As will be  
discussed further, in the Court’s view, the hunting, fishing and trapping rights in the  
Treaty protect a way of life based on hunting, fishing, and trapping rights. This is  
more than a livelihood if that concept is understood as solely physical and economic  
survival.  
Yahey v. British Columbia  
Page 74  
c)  
Halfway River First Nation v. British Columbia  
(Ministry of Forests), 1999 BCCA 470  
[
237] The context within which Treaty 8 was entered into at Fort St John in 1900  
was discussed by the Court of Appeal in Halfway. In this case, the First Nation  
commenced a judicial review, seeking to quash the issuance of a logging permit on  
the basis that it infringed their hunting right under Treaty 8.  
[
238] The chambers judge took a contextual approach to understanding the right to  
hunt protected by Treaty 8. In applying the Sparrow test for determining whether  
there is an infringement of an Aboriginal or treaty right, the chambers judge noted  
that Halfway River’s preferred means of exercising its treaty rights to hunt, trap and  
fish was to do so in an unspoiled wilderness in close proximity to its reserve lands.  
After considering Justice Cory’s statements in Badger, she determined that any  
interference with the rights to hunt, fish or trap constitutes a prima facie infringement  
of Treaty 8 rights. Accordingly, she quashed the decision approving the logging  
permit. The Province and forestry company appealed.  
[
239] In his reasons at para. 15, Justice Finch considered how Halfway River’s  
ancestors lived at the time they adhered to Treaty 8 (at para. 9). As to the area  
occupied by Halfway River and its ancestors, Justice Finch noted as follows:  
[
1
15] The lands to the south and west of the Halfway River reserve were, in  
900 and 1914, unsettled and undeveloped wilderness. The Halfway River  
Nation referred to this area as the Tusdzuh. It is an area that the petitioners  
and their ancestors have used for hunting, fishing, trapping and the gathering  
of food and medicinal plants. The area was plentiful with game, and  
conveniently located for the purposes of the Halfway Nation. The petitioners or  
their forebears built cabins, corrals and meat drying racks in the area for use  
in conjunction with their hunting activities. The time of building, and the precise  
location of these structures, is not disclosed in the evidence.  
[
240] At para. 21, Justice Finch described the Tusdzuh as “vast areas in which, until  
fairly recent times, there has been limited industrial use or development.”  
[
241] The Province argued on appeal that it had an “independent” right under the  
Treaty to take up lands. Justice Finch rejected this argument, reasoning the  
Yahey v. British Columbia  
Page 75  
Indigenous peoples’ rights to hunt, fish and trap and the Crown’s right to take up  
lands and to regulate were “competing, or conflicting rights” that had to be balanced  
(at paras.134, 137). Justice Finch noted that, just as the right to hunt is subject to the  
geographical limitation (as set out in Badger), the Crown’s right to take up land is also  
subject to limitations: “…the Crown’s right to take up land cannot be read as absolute  
or unrestricted for to do so (as even the Crown concedes) would render the right to  
hunt meaningless” (at para. 134). He reasoned that the Crown’s right “qualifies the  
Indians’ rights and cannot therefore be exercised without affecting those rights” (at  
para. 136).  
[
242] As to how to understand Halfway River’s rights under Treaty 8, Justice Finch  
rejected the chambers judge’s approach as being an overstatement. In his view,  
Halfway River was not entitled to exercise their “preferred means of hunting” in an  
“
unspoiled wilderness.” The area was not unspoiled, even in 1982 when treaty rights  
received constitutional protection (at para. 140). In obiter, Justice Finch observed that  
preferred means” should be understood as referring to the methods or modes of  
“
hunting or fishing, and not to a preferred area or the nature of the area, where the  
rights might be exercised (at para. 141).  
[
243] Ultimately Justice Finch held that the chambers judge did not err in concluding  
that the approval of the logging permit constituted a prima facie infringement of the  
Treaty 8 right to hunt; the logging would limit or impair in some degree the exercise of  
that right (at para. 142). He agreed with her that any interference with the right to hunt  
is a prima facie infringement (at para. 144). He also upheld her finding that the  
infringement was not justified as the Crown denied the First Nation reasonable  
opportunities to consult (at paras. 165-167) and he dismissed the appeal.  
[
244] Justice Huddart, concurring in the result, departed from Justice Finch on the  
application of the Sparrow test for infringement and justification to this case. For her,  
the District Manager’s failure to consult adequately was, in and of itself, a breach of  
the Crown’s fiduciary obligations, making application of the Sparrow analysis  
premature (at para. 179). Justice Huddart’s reasons emphasized that it is the First  
Yahey v. British Columbia  
Page 76  
Nation who will have information about the scope of their use of the land, and the  
importance of the use of the land to their culture and identity (at para. 180).  
[
245] Justice Huddart disagreed with the chambers judge’s approach to “any  
interference” (at para. 186). In her view, the infringement analysis necessarily imports  
a judgment as to the degree and significance of the interference. On the issue of  
preferred means, Justice Huddart, in obiter, took a different view on the significance  
of particular land to Indigenous culture and identity:  
[
187] Incidentally, as an aside, given the significance of particular land to  
aboriginal culture and identity, I would not preclude “preferred means” from  
being extended to include a preferred tract of land. Proof may be available that  
use of a particular tract of land is fundamental to a first nation’s collective  
identity, as it is to many indigenous cultures. While it may be that “preferred  
area” for hunting is not relevant, “preferred area” for religious and spiritual  
purposes is likely to be. Such rights do not appear to have been included in  
the treaty-making one way or the other.  
[
246] The scope of the rights contained in Treaty 8, and how connected they are to  
particular places or species was discussed again in West Moberly 2011.  
d)  
Mikisew Cree First Nation v. Canada (Minister of  
Canadian Heritage), 2005 SCC 69  
[
247] The Supreme Court of Canada’s decision in Mikisew is of undoubted  
importance to this case. While now over 15 years old, it is the Supreme Court of  
Canada’s most recent case dealing with the substantive content of Treaty 8. Justice  
Binnie, writing for the Court, reviewed and summarized the principles of treaty  
interpretation, interpreted the terms of the Treaty and how they interact with each  
other, and set out the Crown’s obligations when it is exercising its rights to take up  
land under the Treaty. Although Justice Binnie considered what might constitute an  
infringement of a treaty right, the case was not decided on the basis of the  
infringement analysis. Instead, the Court applied the duty to consult to treaty  
situations.  
[
248] The facts underlying the Mikisew decision are as follows. The Mikisew Cree  
are signatories to Treaty 8 and their reserve is located in Wood Buffalo National Park  
Yahey v. British Columbia  
Page 77  
in Alberta. In 2000, the federal government approved a 118-kilometre long winter  
road, which was to run through Mikisew’s reserve, without consulting them. The total  
road corridor would take up approximately 23 square kilometres.  
[
249] Mikisew applied for judicial review arguing that their treaty rights to hunt and  
trap would be impacted by the construction of the road, and that the decision to  
approve the road was made without adequate consultation. Mikisew also argued the  
road would result in, among other things, fragmentation of habitat, loss of vegetation,  
erosion, poaching and increased wildlife mortality. The Federal Court, Trial Division  
held that the Minister’s decision to approve the road constituted an infringement of  
the Mikisew’s rights to hunt and trap, and that the infringement was not justified.  
Canada appealed.  
[
250] Justice Rothstein (as he then was, writing for the majority of the Federal Court  
of Appeal) held that the approval of the winter road constituted a taking up within the  
meaning of Treaty 8. As such, Mikisew had no continued right to hunt on these lands,  
there was no violation of s. 35 of the Constitution Act, 1982, and therefore no need to  
apply the Sparrow analysis. He reasoned that Canada, as a matter of “good practice”  
ought to have consulted more extensively with Mikisew before approving the road,  
but was not constitutionally obliged to do so.  
[
251] By the time the case came before the Supreme Court of Canada, the issue  
was essentially whether, in taking up the land for the road, Canada had an obligation  
to consult. However, the context of this issue was whether the taking up of land for  
the road amounted to an infringement that triggers the need for a Sparrow  
justification, or whether Canada was just taking up lands as entitled to within the  
bounds of the Treaty. It is in this context that Justice Binnie discussed the content of  
Treaty 8.  
[
252] Justice Binnie began by noting that Treaty 8 is “one of the most important of  
the post-Confederation treaties” and covers 840,000 square kilometres (at para. 2). It  
recognizes that in exchange for the surrender of these lands, Indigenous people were  
Yahey v. British Columbia  
Page 78  
promised reserves and other benefits including “most importantly to them” the rights  
of hunting, trapping and fishing (para. 2).  
[
253] Justice Binnie framed the right to hunt, trap and fish within the overall context  
of the numbered treaties, and within the context of Treaty 8. He viewed the guarantee  
of such rights and the limitations on them as reflecting an “uneasy tension” that would  
need to be managed as part of an “ongoing relationship” that would transition and  
evolve into the future. At paras. 24-27, he stated:  
[
24] The post-Confederation numbered treaties were designed to open up the  
Canadian west and northwest to settlement and development. Treaty 8 itself  
recites that “the said Indians have been notified and informed by Her Majesty’s  
said Commission that it is Her desire to open for settlement, immigration,  
trade, travel, mining, lumbering and such other purposes as to Her Majesty  
may seem meet”. This stated purpose is reflected in a corresponding limitation  
on the Treaty 8 hunting, fishing and trapping rights to exclude such “tracts as  
may be required or taken up from time to time for settlement, mining,  
lumbering, trading or other purposes”. The “other purposes” would be at least  
as broad as the purposes listed in the recital, mentioned above, including  
“
travel”.  
[
25] There was thus from the outset an uneasy tension between the First  
Nations’ essential demand that they continue to be as free to live off the land  
after the treaty as before and the Crown’s expectation of increasing numbers  
of non-aboriginal people moving into the surrendered territory. It was seen  
from the beginning as an ongoing relationship that would be difficult to  
manage, as the Commissioners acknowledged at an early Treaty 8  
negotiation at Lesser Slave Lake in June 1899:  
The white man is bound to come in and open up the country, and we  
come before him to explain the relations that must exist between you,  
and thus prevent any trouble.  
(
C. Mair, Through the Mackenzie Basin: A Narrative of the Athabasca  
and Peace River Treaty Expedition of 1899, at p. 61)  
As Cory J. explained in Badger, at para. 57 “[t]he Indians understood that land  
would be taken up for homesteads, farming, prospecting and mining and that  
they would not be able to hunt in these areas or to shoot at the settlers’ farm  
animals or buildings”.  
[
26] The hunting, fishing and trapping rights were not solely for the benefit of  
First Nations people. It was in the Crown’s interest to keep the aboriginal  
people living off the land, as the Commissioners themselves acknowledged in  
their Report on Treaty 8 dated September 22, 1899:  
We pointed out that the Government could not undertake to maintain  
Indians in idleness; that the same means of earning a livelihood would  
Yahey v. British Columbia  
Page 79  
continue after the treaty as existed before it, and that the Indians would  
be expected to make use of them. [p. 5]  
[
27] Thus none of the parties in 1899 expected that Treaty 8 constituted a  
finished land use blueprint. Treaty 8 signalled the advancing dawn of a period  
of transition. The key, as the Commissioners pointed out, was to “explain the  
relations” that would govern future interaction “and thus prevent any trouble”  
(
Mair, at p. 61).  
[
254] Justice Binnie’s focus in Mikisew was largely on interpreting the taking up  
provision. He considered what it means for the Crown to have the right to take up  
land “from time to time” and the kinds of uses to which these taken up lands could  
then be put. As noted in the quote above, Justice Binnie contextualized the power to  
take up land within the changing relationship (i.e., settlers coming in) and anticipated  
the relationship would be difficult to manage. Accordingly, he reasoned that the treaty  
“could not be clearer in foreshadowing change” (at para. 31). However, as set out  
earlier, Mair’s account of the negotiations of Treaty 8 is more nuanced and detailed  
than just describing it as being about the Crown informing Indigenous people about  
how to behave in the face of increasing settlement.  
[
255] Justice Binnie agreed with the Federal Court of Appeal that not every taking up  
of land will constitute an infringement of the Treaty (at para. 31). He distinguished  
Halfway and reasoned that “to the extent the Mikisew interpret Halfway River as fixing  
in 1899 the geographic boundaries of the Treaty 8 hunting right, and holding that any  
post-1899 encroachment on these geographic limits requires a Sparrow-type  
justification, I cannot agree” (at para. 32). He found that Treaty 8 does not promise  
continuity of nineteenth century patterns of land use, but foreshadowed a period of  
transition.  
[
256] At the same time, the Court in Mikisew recognized that a First Nation’s rights  
to hunt, fish and trap arise and are exercised in a specific place, namely its traditional  
territories. At para. 47, Justice Binnie noted that “for aboriginal people, as for non-  
aboriginal people, location is important.” While 23 square kilometres of land taken up  
for road purposes may not be significant when considered within the context of all  
8
40,000 square kilometres of land encompassed by Treaty 8, it is significant if  
Yahey v. British Columbia  
Page 80  
included within those 23 square kilometres are the Mikisew’s hunting grounds or  
trapline areas. Referring to Badger, Justice Binnie noted that “a large element” of the  
negotiations of Treaty 8 were the “assurances of continuity in traditional patterns of  
economic activity” (at para. 47). Continuity, noted Justice Binnie, “respects traditional  
patterns of activity and occupation” (at para. 47). Accordingly, the Crown’s promise  
that the same means of earning a livelihood would continue after the Treaty as before  
could not be honoured by dispatching the Mikisew to territories far from their  
traditional hunting grounds and traplines to exercise their rights.  
[
257] Justice Binnie went on to consider the “meaningful right to hunt.” He wrote at  
para. 48 that “the ‘meaningful right to hunt’ is not ascertained on a treaty-wide  
basis…but in relation to the territories over which a First Nation traditionally hunted,  
fished and trapped, and continues to do so today.”  
[
258] This passage can be understood as needing to respect the traditional  
territories of each signatory First Nation and not suggesting one nation is “entitled to  
invade” the territory of another. This passage is also capable of another  
interpretation, and one that aligns more closely with Indigenous peoples’ sense of  
place. Here Justice Binnie was acknowledging that rights must be ascertained (that is  
understood, found out, discovered with certainty) with regard to the places in which  
they are exercised. Learning about the places where rights are exercised is more  
than a mapping exercise; it reveals the conditions that make the exercise of the rights  
possible and meaningful. For example, a right to hunt may be exercised in particular  
habitats that support specific kinds of wildlife.  
e)  
West Moberly First Nations v. British Columbia (Chief  
Inspector of Mines), 2011 BCCA 247  
[
259] The issue of the specificity of the rights contained in Treaty 8 was discussed in  
West Moberly First Nations v British Columbia, 2011 BCCA 247. In this case, the  
West Moberly First Nation brought a judicial review of the provincial government’s  
decision to allow a mining company to engage in a bulk coal sampling and advanced  
exploration program. The First Nation argued the Province’s decision was made  
Yahey v. British Columbia  
Page 81  
without proper consideration of their right to hunt caribou in the area as part of their  
traditional seasonal round. The chambers judge allowed the judicial review, finding  
the Province failed to adequately and meaningfully consult.  
[
260] The Province appealed. Its main argument was that the chambers judge erred  
in interpreting the First Nation’s Treaty 8 right to hunt as a “species specific right” and  
in holding the right could only be accommodated in one way. The mining company  
supported the Province’s appeal, arguing the chambers judge also erred in holding  
that the scope of the Crown’s duty to consult included consideration of the cumulative  
effect of past wrongs, and potential future developments, rather than focussing on the  
potential impact of the challenged permits. The majority of the Court of Appeal  
dismissed the appeal (Chief Justice Finch and Justice Hinkson, as he then was,  
concurring but writing separate reasons; Justice Garson dissenting), upholding the  
chambers judge’s finding that the consultation provided was not meaningful.  
[
261] At paras. 22 to 25 of his reasons for judgment, Chief Justice Finch described  
West Moberly and its ancestors, and he contextualized the rights the First Nation was  
seeking to protect by describing their way of life, including details about the species  
hunted, when and where hunting would occur, how the animals were used, and the  
spiritual and cultural significance of these places, animals and practices:  
[
22]Historically, the Mountain Dunne-Za were hunters who followed game’s  
seasonal migrations and redistributions based on their knowledge and  
understanding of animal behaviour. In their seasonal round, the Dunne-Za  
hunted ungulate species, including moose, deer, elk and caribou, in addition to  
birds and fish. Moose appears to have been the most important food source,  
but caribou hunting was important, especially in the spring. The animals were  
taken in large numbers when available, and the meat was preserved by  
drying. Dry meat was an important food source for the Mountain Dunne-Za  
year round.  
[
23] The Mountain Dunne-Za utilized all parts of the caribou, including the  
hide, internal organs, and bones. They used these materials to make clothing,  
bags, and a variety of tools and utensils.  
…
[
25] The Mountain Dunne-Za valued the existence of all species, including  
caribou, and treated them and their habitat with respect. They knew where the  
caribou’s calving grounds were, and where the winter and summer feeding  
Yahey v. British Columbia  
Page 82  
grounds were located. The people felt and feel a deep connection to the land  
and all its resources, a connection they describe as spiritual. They regard the  
depopulation of the species they hunt as a serious threat to their culture, their  
identity and their way of life.  
[
262] Chief Justice Finch also considered the text of Treaty 8 in context. At para. 54,  
he cited from the Treaty Commissioners’ 1899 report to understand the nature of the  
rights protected in Treaty 8:  
There was expressed [by the Indians] at every point the fear that the making  
of the treaty would be followed by the curtailment of the hunting and fishing  
privileges ...  
We pointed out that the Government could not undertake to maintain Indians  
in idleness; that the same means of earning a livelihood would continue after  
the treaty as existed before it, and that the Indians would be expected to make  
use of them ...  
Our chief difficulty was the apprehension that the hunting and fishing  
privileges were to be curtailed. The provision in the treaty under which  
ammunition and twine is to be furnished went far in the direction of quieting  
the fears of the Indians, for they admitted that it would be unreasonable to  
furnish the means of hunting and fishing if laws were to be enacted which  
would make the hunting and fishing so restricted as to render it impossible to  
make a livelihood by such pursuits. But over and above the provision, we had  
to solemnly assure them that only such laws as to hunting and fishing as were  
in the interest of the Indians and were found necessary in order to protect the  
fish and fur-bearing animals would be made, and that they would be as free to  
hunt and fish after the treaty as they would be if they never entered into it.  
We assured them that the treaty would not lead to any forced interference with  
their mode of life.  
(
emphasis added by C.J.B.C. Finch)  
[
263] Most of these aspects of the Commissioner’s 1899 report had been cited and  
discussed in earlier jurisprudence including Horseman and Badger. Here, however,  
the Court of Appeal emphasized an aspect of the report that had otherwise been  
overlooked in the jurisprudence – the assurance that the Treaty would not lead to  
forced interference with the Indigenous peoples’ mode(s) of life.  
[
264] In examining the nature and scope of the right to hunt at issue, Chief Justice  
Finch noted that this was an existing right, not an asserted but yet unproven one  
para. 129). Consultation must begin from the premise that the First Nation is entitled  
(
Yahey v. British Columbia  
Page 83  
to what has been granted in the Treaty. Chief Justice Finch described the scope of  
the right as follows at para. 130:  
[
130] The Treaty 8 right to hunt is not merely a right to hunt for food. The  
Crown’s promises included representations that:  
(
a) the same means of earning a livelihood would continue after the Treaty as  
existed before it, and that the Indians would be expected to continue to make  
use of them;  
(
b) they would be as free to hunt and fish after the Treaty as they would be if  
they never entered into it; and  
(
c) the Treaty would not lead to “forced interference with their mode of life”  
see R. v. Badger, [1996] 1 S.C.R. 771 at para. 39)  
(
[
265] Chief Justice Finch noted that just as the right to hunt must be understood as  
the Treaty makers would have understood it, so too must the taking up provision and  
its reference to mining (at para. 134). Referring to Badger at para. 55, Chief Justice  
Finch noted that “although it was expected that some white prospectors might stake  
claims in the north, this was not expected to have an impact on the Indians’ hunting  
rights.” These prospectors would have been using pack animals and working with  
hand tools; these mining efforts would not have involved road building, excavations,  
tunnelling, and the use of large vehicles, equipment and structures (at para. 135).  
[
266] Chief Justice Finch then considered what the assurance of continuity (referred  
to in Mikisew at paras. 47-48), meant. He reasoned as follows:  
[
137] It is clear from the above passages that, while specific species and  
locations of hunting are not enumerated in Treaty 8, it guarantees a “continuity  
in traditional patterns of economic activity” and respect for “traditional patterns  
of activity and occupation”. The focus of the analysis then is those traditional  
patterns.  
[
267] Chief Justice Finch noted that the result in Mikisew – that the Crown has a  
duty to consult with a First Nation when it seeks to take up land pursuant to Treaty 8,  
and to inform itself about the impact its project will have on the exercise of the First  
Nation’s treaty rights to hunt, fish and trap – “is instructive on this point” (at para.  
1
38). Consultation requires understanding a First Nation’s traditional patterns of  
activity and occupation in order to consider potential impacts to their rights. The draft  
Yahey v. British Columbia  
Page 84  
environmental assessment report in Mikisew implicitly considered those patterns, as  
it acknowledged the road could diminish the quantity and quality of the wildlife  
harvested by Mikisew (including fisher, muskrat, marten, wolverine and lynx). It also  
acknowledged other potential impacts including: fragmentation of wildlife habitat,  
disruption of migration patterns, loss of vegetation, increased poaching because of  
easier motor vehicle access to the area, and increased wildlife mortality.  
[
268] In terms of whether the proposed mining activity would adversely affect West  
Moberly’s rights, the evidence before the chambers judge was that the First Nation  
had historically hunted caribou in the area, had banned hunting in the 1970s to  
protect the species, and hoped to resume hunting caribou in the future. The evidence  
was that the proposed mining programs would have an adverse impact on caribou in  
the area. Chief Justice Finch concluded that the chambers judge did not err in  
considering the specific location and species when analysing the right to hunt at issue  
(at para. 140).  
f)  
Observations Regarding the Jurisprudence  
[
269] This review of the jurisprudence shows that the Supreme Court of Canada has  
recognized that the guarantee that hunting, fishing and trapping would continue was  
the “essential element” that led Indigenous people to sign the treaty (Badger, at  
paras. 39, 82). For the Indigenous people, this was the most important of the  
promises made in Treaty 8 (Mikisew, at para. 2).  
[
270] The British Columbia Court of Appeal has also recognized that Treaty 8 is not  
merely about rights to hunt, fish or trap for food; the Crown’s promises also included  
that: the same means of earning a livelihood would continue after the Treaty as  
existed before it; Indigenous people would be as free to hunt and fish after the Treaty  
as they had been before it; and the Treaty would not lead to forced interference with  
their mode of life (West Moberly 2011 at para. 130).  
[
271] This recognition of the essential element of the Treaty reflects the common  
intentions of the parties, and best reconciles their interests at the time the Treaty was  
Yahey v. British Columbia  
Page 85  
entered into. The Indigenous peoples were interested in continuing their way of life  
based on hunting, fishing and trapping, free from interference, as they had lived prior  
to Treaty; and the Crown was interested in securing a surrender of land, opening the  
area up for settlement, and ensuring the Indigenous people continued to live off the  
land and that the Crown would not be responsible for their support (i.e., “not  
undertake to maintain Indians in idleness” (Mikisew, para. 26 referring to the  
Commissioners’ 1899 report)).  
[
272] While the Supreme Court of Canada in Mikisew indicated that Treaty 8 did not  
promise continuity of nineteenth century patterns of land use, this did not mean that  
both foundational and incidental elements of that way of life, including the continued  
existence of healthy environments used for hunting, trapping and fishing and the  
continuation of other cultural and spiritual practices connected with those activities  
were not also promised and protected. Indeed the Commissioners pointed to an  
ability to regulate for conservation purposes, which supports this conclusion. The  
rights to hunt, fish and trap presupposes those elements, as will become evident later  
in my analysis.  
[
273] As noted, Treaty 8 also sets out the government’s power to make regulations  
and to take up land for certain purposes. The jurisprudence is clear that to interpret  
the regulation making and taking up provisions of the Treaty, the Court must look at  
what the parties would have understood and contemplated at the time the treaty was  
signed.  
[
274] As to the lands that would be “required or taken up from time to time,” as set  
out in Badger, the government of the day recognized that the lands covered by Treaty  
were not well suited to agriculture and expected little settlement in the area (at  
8
para. 55). In addition, there was anticipation that some prospectors might stake  
claims, but it was not expected this would have an impact on or harm Indigenous  
peoples’ hunting, fishing and trapping rights (at para. 55). This point is reinforced by  
Chief Justice Finch in West Moberly 2011 at paras.134-135, where he noted that  
those prospectors would have been using pack animals and working with hand tools  
Yahey v. British Columbia  
Page 86  
–
activities that bear no resemblance to today’s mining and oil and gas efforts. From  
the perspective of the Indigenous people, they anticipated that most of the area  
covered by the Treaty would remain unoccupied and be available for hunting, fishing  
and trapping.  
[
275] The courts have also clarified that the right to take up land is not an  
independent” right, but rather one that exists in relation to or that is competing or  
conflicting with the protection of hunting, trapping and fishing rights (Halfway, at para.  
36). In Mikisew, the Supreme Court of Canada referred to the “uneasy tension”  
“
1
presented by these opposing rights, and noted that this will need to be managed as  
part of an ongoing relationship (at para. 25). It is also clear that the right to take up  
lands is not absolute or unrestricted, and that it cannot be used to make the  
constitutional protection of Indigenous hunting, trapping and fishing rights  
meaningless. The Crown’s power to take up lands must be exercised in a way that  
still honours the essential guarantee and promise to the Indigenous people.  
[
276] Similarly, in terms of the kinds of regulations the parties’ anticipated the Crown  
would pass, these were intended to be laws that were “in the interests” of Indigenous  
people and were necessary to protect and conserve the wildlife on which they relied  
(Badger, at para. 39). Such regulations ought to ensure that the Indigenous way of  
life based on hunting, trapping and fishing is respected (Horseman).  
C.  
The Concept of Way of Life  
[
[
277] I move now to consider Blueberry’s way of life.  
278] The concept of “way of life” – like that of culture – is a difficult one. In Mitchell,  
Chief Justice McLachlin, citing Russel Lawrence Barsh and James Youngblood  
Henderson, noted that “[c]ultural identity is a subjective matter and not easily  
discerned” (at para. 32). In Sappier, Justice Bastarache noted “[w]hat is meant by  
‘culture’ is really an inquiry into the pre-contact way of life of a particular aboriginal  
community, including their means of survival, their socialization methods, their legal  
systems, and, potentially, their trading habits” (at para. 45).  
 
Yahey v. British Columbia  
Page 87  
[
279] In terms of the specific way of life that was protected by Treaty 8, I accept the  
definition put forward by Dr. Ridington that mode of life involves looking at how a  
people make a living, group organization and the relationship between culture and  
ecology (as discussed below).  
[
280] Providing specificity to what is meant by guaranteeing the continuation of a  
way of life based on hunting, fishing and trapping requires a consideration of the  
evidence presented by Blueberry members themselves about their way of life and by  
the anthropologists on whose opinions the Plaintiffs have relied. This evidence is to  
be considered for what it reveals of the “traditional patterns of activity and occupation”  
and “traditional patterns of economic activity” (Mikisew, para. 47); that is, the  
conditions existing at the time the Crown promised Indigenous people they would be  
just as free to hunt, fish and trap after the treaty as before and that there would be no  
forced interference with their way of life.  
[
281] In looking at the traditional patterns, I am mindful that way of life, like culture,  
should not be about a fixed inventory of traits or characteristics. It is not about looking  
for a “traditional” way of life frozen in the late nineteenth or early twentieth century.  
[
282] These “traditional patterns” reflected in their way of life necessarily evolve. As  
Mr. Brody noted: “[h]uman social and economic systems are never static; curiosity,  
invention and adaptability are always at work… the idea of a fixed ‘tradition’ that is  
compromised or fractured by the ‘modern’ is misleading.” Nor did Treaty 8 promise  
unaltered or “fix[ed]” continuity of nineteenth century patterns of land use (Mikisew, at  
para. 32).  
[
283] Before moving on to discuss the particulars of Blueberry’s way of life, it is  
necessary to include some of the Nation’s history following its adhesion to Treaty 8. It  
should be noted that the history of the last 120 years since Blueberry’s ancestors  
entered into Treaty 8 cannot be recounted in a few paragraphs. That said, certain  
aspects of this history must be summarized to provide context for the evidence  
provided by Dr. Ridington, Mr. Brody and Blueberry members.  
Yahey v. British Columbia  
Page 88  
1
.
Brief History Since 1900  
[
284] In 1914, the Fort St. John Beaver Band (composed of what is now Blueberry  
River and Doig River First Nations) selected a reserve. The reserve was set aside for  
the Band in 1916. That reserve (referred to as Indian Reserve (“IR”) 172, the  
Montney Reserve, and Suu Na chii K’chi ge in Dane-zaa) is known as the place  
where happiness dwells and was a very important place both ecologically and  
culturally to Blueberry’s ancestors and to its members today.  
[
285] In the 1940s, IR 172 was surrendered to the Crown, and in the following years  
the land was distributed to veterans for settlement. Blueberry and Doig River were  
provided with replacement reserves, including Blueberry’s main reserve, IR 205.  
Blueberry elders interviewed by Dr. Ridington in the 1960s and 1970s spoke about  
not understanding the transaction involving IR 172 and why this was no longer their  
land.  
[
286] In the late 1940s oil companies began exploring for oil and gas under the  
lands that were formerly IR 172. Oil and gas were discovered in 1976. Aspects of this  
history are discussed in Blueberry River Indian Band v. Canada (Department of  
Indian Affairs and Northern Development), [1995] 4 S.C.R. 344 and Doig River First  
Nation and Blueberry River First Nation v. Her Majesty the Queen in Right of Canada,  
2
015 SCTC 6 and 2018 SCTC 5.  
[
287] In the late 1970s, a sour gas leak forced the evacuation of the Blueberry  
community from IR 205. The community was moved from beside the Blueberry River  
to a different location on IR 205. Community members who testified at trial referred to  
these locations as the “old reserve” and the “new reserve.”  
[
288] Two other changes in the first half of the twentieth century affected Blueberry’s  
land use: trapline registration and highway construction. In the mid-1920s, with non-  
Indigenous trappers moving into northern British Columbia, the provincial government  
first introduced a trapline registration system. As Mr. Brody noted, the introduction of  
the trapline system was an attempt to bring Indigenous practices in line with colonial  
 
Yahey v. British Columbia  
Page 89  
ideas of ownership and exclusivity, and represented a “direct attack upon and  
restriction of Indian life.” Government officials, however, urged Indigenous people in  
northern BC to register traplines, and thus secure their right to harvest the furs of  
animals in those mapped and licenced areas. Elders informed Mr. Brody they did so  
believing this would secure their Treaty 8 rights. For Blueberry, eight traplines were  
registered. These traplines are understood to be group or extended family traplines.  
[
289] In the 1940s, the United States military completed construction of the Alaska  
Highway, running northwest from Fort St. John, providing overland access to Alaska.  
The highway opened up the Blueberry Claim Area to vehicles and settlement.  
2
.
Particulars of the Way of Life Based on Hunting, Fishing,  
and Trapping  
[
290] As reviewed, in the lead up to the Treaty and at the time the Treaty was  
signed, the Crown assured the Indigenous people that they would be able to continue  
their mode of life free from forced interference. The specifics of what that mode of life  
entailed, however, were not discussed or set out in depth, and the parties today bring  
different interpretations to what mode of life means and what it was.  
[
291] The Province argues that Blueberry has failed to define the content of the  
mode of life. This argument, however, fails to take into account Blueberry’s detailed  
June 9, 2017 responses to the Province’s demand for particulars; the evidence  
Blueberry led from Dr. Ridington, Mr. Brody and community members; as well as its  
final arguments that shed further light on how it understands the concept of mode of  
life.  
[
292] On February 10, 2017, the Province issued Blueberry a demand for  
particulars. The demand and Blueberry’s response were included in the Trial Record.  
The Province sought particulars on, among other things:  
a) the specific cultural and economic activities Blueberry alleges could no longer  
be meaningfully pursued;  
 
Yahey v. British Columbia  
Page 90  
b) the specific locations where those cultural and economic activities were  
previously pursued; and,  
c) Blueberry’s preferred means of exercising their claimed treaty rights.  
[
293] On June 9, 2017, Blueberry responded. In answer to question 1(a) about the  
cultural and economic activities Blueberry alleges can no longer be meaningfully  
pursued, Blueberry wrote as follows:  
The primary cultural and economic activity that the Plaintiffs can no longer  
meaningfully pursue is the carrying on of a mode of life based on a  
fundamental reliance on lands and waters within the Territory and traditional  
patterns of land use while engaging in the meaningful pursuit of traditional  
activities including hunting, trapping, fishing, gathering plants and berries,  
camping, processing that which was harvested, spiritual practices, and  
family/educational practices, including the teaching and passing on of  
knowledge to younger generations of plaintiff members as to how this mode of  
life is or may be properly conducted and continued. The plaintiffs say that the  
holistic pursuit of this mode of life is a single cultural and economic activity,  
protected by Treaty 8 (the “Treaty”), that can no longer be meaningfully  
pursued.  
For additional particulars on this mode of life, please see the answer to  
question 26 below concerning the plaintiffs’ preferred means of exercising  
their right.  
Further and in the alternative, other or included cultural and economic  
activities that can no longer be meaningfully pursued are hunting, trapping,  
fishing, gathering plants and berries, camping, processing what which was  
harvested, spiritual practices and family/educational practices.  
[
294] In answer to question 1 about the specific areas within the territory where  
Blueberry alleges it can no longer meaningfully pursue its cultural and economic  
activities, Blueberry listed the following places within the Blueberry Claim Area:  
Lower Beatton River watershed;  
Lower Halfway River watershed;  
Upper Beatton River watershed;  
Upper Halfway River, Upper Sikanni Chief River and Upper Prophet  
River watersheds;  
Lower Sikanni Chief, Kiskatinaw River and Milligan Creek watersheds;  
Upper Peace River and Peace Arm watersheds; and  
Yahey v. British Columbia  
Page 91  
Upper Peace River, Lower Peace River, Kiskatinaw and Pine River  
watersheds.  
[
295] At 1(b), Blueberry added:  
The cultural and economic activities were pursued throughout the Territory  
in the watersheds set out above, at times and places determined by  
personal or family preferences, personal or family knowledge of the  
Territory, the time of year, the seasonal availability of resources, the  
behaviour of wildlife, accessibility of specific regions within the Territory,  
the effort of pursuing these economic activities in a particular area versus  
the expected return or benefit of that effort, and the need to leave areas to  
fallow for rejuvenation.  
[
296] In answer to question 26, which sought particulars of Blueberry’s preferred  
means of exercising treaty rights, Blueberry wrote as follows:  
The plaintiffs’ preferred means of exercising their treaty rights, including those  
cultural and economic activities identified in response to question 1(a) above,  
are:  
the freedom and ability to travel through the Territory for the purpose of  
going to and using places that the plaintiffs were taught by their  
families and ancestors to hunt, trap, fish, gather, camp, process that  
which was harvested, engage in spiritual practices, and  
family/educational practices, including the teaching and passing on of  
knowledge to younger generations of plaintiff members as to how this  
mode of life may be properly conducted and continued;; [sic]  
the ability to return in the future to those places because of the  
inherent value in those places including the value established by  
proximity to the plaintiffs’ home community, unobstructed travel ways  
(
including rivers and trails), fresh clean water, mineral licks, and natural  
continuity in mature forest cover and edge habitat;  
the ability to find those places in a sufficient state of ecological health  
that they can support the human and wildlife movement and habitation  
required for the uses described in response to question 1(a) above;  
the ability to leave places undisturbed for a period of time to allow them  
to fallow and rejuvenate and move to other places to pursue the  
cultural and economic activities;  
the ability to pursue this same pattern of land use in different places  
throughout the Territory so as not to exhaust the resources of a  
particular place;  
the ability for different plaintiff members or families to pursue this mode  
of life in different areas of the Territory, such that the entire plaintiff  
collectivity is not focussed on or confined to a specific area at any one  
time; and  
Yahey v. British Columbia  
Page 92  
the ability to undertake these activities with the reasonable expectation  
that, with the reasonable exercise of skill and knowledge, the plaintiffs  
would be able to harvest wildlife and plants of a quantity and quality  
that the effort and expense of undertaking the activities was  
reasonably warranted.  
[
297] These responses identified specifics of a mode of life that was then testified to  
by Blueberry members, and their experts.  
3
.
Crown Knowledge of Way of Life at the Time of Treaty  
[
298] The Treaty Commissioners did not have an in-depth understanding of the lives  
of the Indigenous people who lived in the area to be covered by Treaty 8. Theirs was  
not akin to the knowledge and understanding of the people themselves, who  
understand their culture innately, who could describe its elements, and who could say  
what that culture or mode of life means to them.  
[
299] The Commissioners did, however, understand the Indigenous people who  
lived in the area that would be covered by Treaty 8 “lived a free life.” Their freedom  
was important to them and they spoke about it regularly. They were concerned that  
entering into the Treaty would lead to being confined to reserves, and unable to  
access the territory on which they depended. They were also concerned that the  
Treaty may result in enslavement. The Commissioners understood that the  
Indigenous people wanted to be free to “roam” over their territory as part of their use  
of the territory.  
[
300] The Commissioners also understood that the Indigenous people were hunters,  
fishers and trappers, and that these activities provided for their subsistence. Theirs  
was a “forest and river” life and they depended on the various environments found  
within the territory to be covered by the Treaty. They recognized that “they live by  
hunting,” that these activities constituted their “vocations,” and they reassured  
Indigenous people that they “would be as free to hunt and fish after the treaty as they  
would be if they never entered into it.”  
 
Yahey v. British Columbia  
Page 93  
[
301] The Commissioners referred to protecting both the Indigenous peoples’ “mode  
of life” and their “means of livelihood” (see, for example, the Commissioners’ 1899  
Report cited earlier in these reasons where both terms are used, and where  
reference to the Treaty not leading to any “forced interference with their mode of life”  
follows the discussion of being “free” to hunt and fish.) This suggests that the  
Commissioners recognized that mode of life and means of livelihood were related but  
distinct concepts. Part of the Indigenous peoples’ mode of life was about how they  
made a living, but there was more to the idea of mode of life than economic and  
physical survival.  
[
302] In preparation for the Treaty, the Commissioners suggested advising settlers  
that the forests and game were to be protected (see, for example, McKenna’s April  
7, 1899 memorandum referred to earlier). They told the Indigenous people that they  
1
would be making laws and regulations to protect and conserve wildlife, and that the  
Indigenous people too would be subject to these laws. The government knew, from  
reports received from fur traders and the Police, that the Indigenous people living in  
and around Fort St. John were hunting people who relied on moose, deer, caribou,  
mountain sheep, and a variety of other resources including bear, rabbits and beaver.  
They knew that some years – particularly in the late 1880s and early 1890s – when  
game was not plentiful, starvation was not uncommon. In other years, such as 1899,  
hunting near Fort. St John along the Peace River was particularly good. Indeed, that  
year the Indigenous people who traded at Fort St. John decided to go hunting rather  
than wait for the Treaty Commissioners to visit. Fundamentally, the Commissioners  
understood that hunting and fishing was critical and was a key element of their mode  
of life.  
[
303] They also knew enough about their way of life to understand that it required  
freedom of movement throughout the land, a healthy environment, and ample wildlife  
upon which they could depend. It entailed all of the components that were well  
evident to the Treaty Commissioners who went out and who even sent word ahead to  
try and appease the First Nations and address their concerns about their way of life  
Yahey v. British Columbia  
Page 94  
being curtailed. They didn’t have any question about what this way of life was that  
they were promising would not be encroached upon or curtailed.  
[
304] There is no doubt that the documentary evidence and the expert testimony  
surveyed above supports the conclusion that the emphasis of the June 20, 1899  
meeting at Lesser Slave Lake was on reassuring the Indigenous peoples that their  
freedom to carry on their mode of life as in the past, including through hunting, fishing  
and trapping, would be intact.  
[
305] While the Province has consistently maintained the Treaty foreshadows  
change and is about balance, this does not preclude a finding that the Treaty protects  
a way of life based on hunting, fishing and trapping. The Province’s emphasis both  
that change was foreshadowed and that it is trying to achieve a balance must  
recognize and uphold that fundamental promise.  
[
306] This conclusion, as set out earlier, is also supported by the key jurisprudence  
on Treaty 8.  
4
.
Blueberry’s Evidence and Perspective on its Way of Life  
[
307] Seven Blueberry community members provided evidence in these  
proceedings. Some of that evidence related to their way of life, and some related to  
the difficulties they have experienced in exercising their treaty rights and the changes  
they have observed on the ground. As noted earlier, two anthropologists, Dr. Robin  
Ridington and Mr. Hugh Brody also testified. This section begins with the evidence  
provided by Dr. Ridington and Mr. Brody.  
[
308] I note at the outset that Blueberry is composed of descendants from both the  
Cree and Dane-zaa peoples. Many Blueberry members, including some who testified  
at trial, have both Cree and Dane-zaa ancestry, and identify as Dane-zaa. I accept  
Mr. Brody’s evidence that, by and large, there is no difference in the way that  
Blueberry families with Cree ancestry or Dane-zaa ancestry use the land, or their  
 
Yahey v. British Columbia  
Page 95  
patterns of seasonal movements. As the experts and witnesses referred to  
Blueberry’s culture being a Dane-zaa culture, the Court will use similar terminology.  
a) Dr. Robin Ridington  
[
309] Dr. Ridington was qualified as an anthropologist and ethnographer having  
particular expertise respecting the Dane-zaa people of northeastern BC. In 1964-  
966, he spent 15 months living with the Dane-zaa communities of the Fort St. John  
1
Band (now Blueberry and Doig River First Nations), doing ethnographic research  
known as “participant observation.” This work was the basis for his 1968 PhD thesis  
entitled “The Environmental Context of Beaver Indian Behaviour” which describes  
Dane-zaa hunting strategies, seasonal rounds, group formation, social organization  
and oral tradition.  
[
310] Dr. Ridington was a compelling witness who provided evidence, which I  
accept, based both on his studies and his direct experience.  
[
311] Dr. Ridington has maintained a connection with the Dane-zaa ever since his  
work in the mid 1960s. He has regularly participated in Blueberry and Doig First  
Nations culture camps. Dr. Ridington has had the opportunity to interview and record  
numerous Dane-zaa elders including Ray Acko (who was also known as Aku and  
who lived from 1879 to 1973), Charlie Yahey (who was Blueberry’s last known  
prophet or dreamer, who lived from 1887 to 1976, and from whom many of the  
Blueberry witnesses who testified in this proceeding are descended), Mary Pouce  
Coupe (who lived from 1890 to 1977), Augustine Jumbie (who lived from 1895 to  
1
988), Marguerite Yahey Davis (who lived from 1924 to 2003), Tommy Attachie (who  
lived from 1943 to 2017), Billy Attachie, and William Davis.  
[
312] He has also written several books and articles about the Dane-zaa people  
including: Trail to Heaven: Knowledge and Narrative in Northern Native Community  
1992) and Where Happiness Dwells: A History of the Dane-zaa First Nations (2013,  
with Jillian Ridington). He has been qualified as an expert anthropologist and  
(
Yahey v. British Columbia  
Page 96  
ethnographer specializing in the Dane-zaa people in the BC Supreme Court in West  
Moberly 2017 and in the Specific Claims Tribunal.  
[
313] Dr. Ridington’s opinion on the Dane-zaa way of life in the 1900s was based on  
0 years of fieldwork.  
5
[
314] Dr. Ridington described the concept of mode of life as dealing with the  
relationship between culture and the natural ecology, and being about how culture  
enables a people to make a living. He testified as follows:  
Q: … What is the mode of life? What do you take to be the mode of life?  
A: It’s the economy that is how they make a living, being hunting and  
gathering people, and trapping as well. It’s band organization, how groups  
come together and disburse. It’s kinship. It’s culture. But pretty much under  
the category of what I would call – an anthropologist would call cultural  
ecology, mode of life is the relation between culture and the natural ecology.  
So how people adapt to the limitations and opportunities provided by hunting  
and gathering economy. So mode of life is fundamentally how you make a  
living but also how your culture enables you to do that.  
[
315] In his report, Dr. Ridington noted that anthropologists who look at how humans  
interact with their natural environments do so through the perspective of “cultural  
ecology,” and that this perspective views culture in relation to the limitations and  
opportunities provided by the natural environment.  
Q: And then you refer to cultural ecology…Dane-zaa cultural ecology. Could  
you explain what you mean by cultural –-  
A: Yeah, I cite Julian Steward here who coined the term. And cultural ecology  
is really how culture enables people to adapt to an environment. It is  
particularly applicable to hunting and gathering cultures…  
[
316] Dr. Ridington explained that one of the central themes of his work is the  
relationship between the culture of a hunting and gathering people and the  
environment on which they depend. He looks at how a people’s world view (or  
religion or spiritual traditions) help them relate to their environment and are part of  
their adaptive strategy.  
[
317] Dr. Ridington noted that the Dane-zaa and their ancestors have lived in the  
upper Peace River area for over 10,000 years, and that the upper Peace River  
Yahey v. British Columbia  
Page 97  
environment has been remarkably stable during that time. Dr. Ridington referred to  
the Dane-zaa as Arctic Drainage peoples who did not “claim” certain resource places,  
but rather shared them. He described the Dane-zaa as a linguistic group within which  
there are kinship relationships and cultural connections. These kinship relationships  
are distinct and not necessarily based on blood relationships. He described the  
flexibility of group organization historically among Dane-zaa. Group organization was  
responsive to and adapted to resource abundance and use. Dr. Ridington noted that  
the Dane-zaa people travelled and made contact across a wide area, though had  
lesser kinship the further away they were from the areas they habitually used.  
[
318] Dr. Ridington noted that central to understanding how the Dane-zaa lived at  
the time they signed Treaty 8 in 1900 were the concepts of: seasonality, scheduling  
of resources, and adaptation to edge zone environments.  
[
319] Practicing seasonality means moving to areas where resources are found in  
particular seasons, and taking advantage of resources that are available in one  
season, but not necessarily in another. Scheduling of resources requires planning  
seasonal rounds to ensure a steady supply of fish, game and plant resources.  
Adapting to edge zone environments means using resources from a variety of  
adjacent ecological zones (such as prairies, mountains, lakes and muskeg  
environments). Tying these concepts together, Dr. Ridington wrote: “[a]n important  
part of an edge zone strategy is the scheduling of resources to be harvested during a  
well-planned regime of seasonal rounds.”  
[
320] Central to these concepts is movement. The Dane-zaa people were constantly  
moving throughout the territory to access a wide diversity of resources from different  
environments. They would move from one ecological zone to another selectively  
harvesting game, fish and plants in a way that both maintained and maximized the  
potential availability of resources for current and future subsistence needs.  
[
321] Dr. Ridington’s evidence is that scheduling of resources was and continues to  
be integral to the way Dane-zaa think about their relationship to the environment.  
Yahey v. British Columbia  
Page 98  
Hunters and elders maintain an awareness of an area’s resource potential and are  
careful not to overhunt, so as to maintain healthy breeding populations.  
[
322] Much of Dr. Ridington’s report focussed on what he had learned from the  
many elders he had interviewed over the years who shared their “wise stories” with  
him. He noted they eloquently described a way of life based entirely on hunting,  
fishing, gathering and trapping.  
[
323] In his report, Dr. Ridington included a lengthy transcript of an interview with  
Ray Acko (also known as Aku) who was a member of the Fort St. John Band and  
was living on the Doig River reserve in the 1960s. Aku, who was born in 1879, was a  
young adult at the time of the Treaty. He spoke about the Dane-zaa way of life at that  
time. Aku’s story provides a rich description of a way of life governed by the seasons.  
(For ease of reading, I have inserted paragraph breaks, though these are not  
included in the transcript included in Dr. Ridington’s report):  
Early spring, when the leaves start growing and the sap is on the poplar trees,  
when the leaves are full grown and the sap is full, people all get together and  
move to Charlie Lake, where the creek joins the lake. Where the town is now.  
Just a little ways up the creek, that’s where they used to camp. People all get  
together, all the older people, they all get together. Lots of old ladies, lots of  
young boys. Lots of Dane-zaa there. Lots of people. …  
…
In Charlie Lake, when the leaves are small, people used to camp there for  
the fish. They killed lots of fish there and then they fixed it up. They make fish  
drymeat. …  
When women make drymeat, they do the same thing with fish. They keep on  
making it and making it. When, after they make lots of fish drymeat, after the  
leaves are big, people all move up to wherever they are camping. There were  
no groceries. That time, no flour, the groceries you buy from the store now.  
There was nothing that time. With no groceries, what are the people going to  
eat. They just live on the fish drymeat. Fish and meat were our groceries.  
Then they moved way back in the bush. After they killed lots of moose and  
made lots of drymeat when the berries were all ripe, they went back to Dane-  
zaa nanéʔ, Su Na chii kʼchige [The Place Where Happiness Dwells, also the  
name for the Montney Reserve, former IR 172]. They picked berries on all  
those hills (east of the reserve). They crossed towards where there are lots of  
lakes, (Megawontlonde) towards Cecil Lake. All the women picked berries. All  
the days they just kept doing that and the men hunted bear. There were no  
white people that time. Some of the people hunted bears. There were lots of  
bears on the hills. Some of them were fat already. After the berries were over,  
then they made bear grease and drymeat.  
Yahey v. British Columbia  
Page 99  
Summertime when they moved camp, they brought all the drymeat and grease  
to where they would spend the winter. It was already winter.  
In the wintertime they made log tipis for themselves, where they were going to  
stay in the winter. They had lots of grease and drymeat. The berries, too, they  
dried them and made them like flour. Sometimes they lay the berries on a tarp  
and they dry them like that. They boiled the berries and then dried them flat.  
Where it was cracked, they patched it with berry juice.…They used birch bark  
to make panniers and baskets and they filled these up with berries. They fixed  
berries two different ways. One was dry and the other flat, like pemmican.  
Those berries and meat they put it in a cache where they are going to spend  
the winter. They are always doing these things and that’s why they lived well  
in the wintertime. And they made pemmican too with the drymeat. Those  
women made the pemmican. Good pemmican. Drymeat pemmican. They  
made it with grease and dried berries mixed… Even a small piece of  
pemmican, you carry it when you go hunt. There were no groceries in the  
wintertime.  
That is how the people used to live. If a person doesn’t do that, then he’s  
hungry. Then we’d have to move out to the mountains to make drymeat.  
That’s where we made drymeat. We’d eat the fish drymeat when we were  
traveling and then we got moose far away, the other side of Grande Prairie at  
Tlʼokʼih Saahgii river. The women picked berries and dried them for winter. We  
mixed it with bear grease. There were lots of bears in the saskatoon berries. It  
was around August time. We killed lots of bears and cached the berries and  
drymeat and we made log tipis for the wintertime.  
[
324] From Dane-zaa elders Dr. Ridington learned how access to fish, game and  
plant resources was important not only for subsistence, but also for cultural and  
spiritual reasons. Dr. Ridington referenced an interview with Charlie Yahey,  
Blueberry’s last prophet or dreamer, making the connection between hunting and  
communal activities of singing and dancing. He said, in part, “…just like white people  
feed chickens, that’s how God [Yagesatiin – Sky Keeper] feeds us moose. That’s why  
we have to keep singing and dancing, so he will give us moose. If we don’t, it will be  
hard to get moose. You will miss them, or they will run away, or it will be hard to see  
any.”  
[
325] Dr. Ridington also noted the relationship between hunters and the spirits of the  
animals they hunt is an important part of Dane-zaa identity. Before going on a hunt,  
the hunter dreams of contact with the spirit of the animal – where their two trails  
meet. In order to succeed on a hunt, the hunter negotiates a relationship with the  
spirit of the animal to be encountered. Animals willingly give themselves to hunters  
Yahey v. British Columbia  
Page 100  
who have treated the animals they have killed with respect and been generous in  
distributing meat.  
[
326] An important part of the Dane-zaa’s cultural way of life included the summer  
gatherings where Dane-zaa people come together to camp, share stories, dance,  
drum and sing led by songkeepers or Dreamers.  
[
327] Dreamers are an important part of the culture. Charles Yahey was the last  
known Dreamer. As Dr. Ridington explained, these gatherings were and are of  
fundamental importance to maintaining Dane-zaa social and cultural identity. It was  
here that they developed, maintained and shared the language, culture, spiritual and  
other values that identified them as a people.  
[
328] He described how in the 1960s, Dane-zaa people held summer hunting camps  
which they would travel to by horseback, since few, if any, had drivers’ licences. He  
noted that these camps were maintained today, but access was now by vehicle,  
rather than horse. He also noted how in winter, families maintained winter trapping  
areas and trapping cabins at various locations in the boreal forest.  
[
329] Dr. Ridington provided evidence about important Dane-zaa hunting, fishing  
and gathering locations. He referred to the Peace River, Beatton River (earlier called  
the Pine River) and tributaries such as the Doig and Blueberry rivers, Charlie Lake,  
Stoddard Creek (where there are weirs), Fish Creek (where there are weirs), the  
Many Lakes area (in the Beaver language, Megawontlonde), Cecil Lake and  
Boundary Lake as being important fishing areas. He noted that the Upper Beatton  
watershed, in particular, was an area used for hunting and trapping.  
[
330] As for species harvested, Dr. Ridington noted that in the mid to late 1960s and  
early 1970s, moose, deer, caribou, beaver, rabbits, and grouse were all regular parts  
of the Dane-zaa diet, along with berries picked in season. At this time, he estimated  
that more than half their food came from game (or “country food”), making it a  
substantial part of food supply and culturally important beyond its calories. By the  
1
960s and 1970s, farmers had begun to clear the land, but sufficient habitat  
Yahey v. British Columbia  
Page 101  
remained within a day’s travel from the reserve to sustain a regular supply of moose,  
fish, grouse, beavers, and rabbits. Dr. Ridington’s report also sets out some of the  
plant species gathered by Dane-zaa, such as the inner bark of poplar trees (k’anih or  
kinne), cow parsnip (tsuntle), and a variety of berries (Saskatoon, blueberries).  
b)  
Mr. Hugh Brody  
[
331] Mr. Brody was qualified as having expertise in anthropology with particular  
experience of observing and recording aspects of Dane-zaa First Nations in the North  
Peace of British Columbia.  
[
332] Like Dr. Ridington, Mr. Brody engaged in participant observation. In particular,  
Mr. Brody’s experience with the Dane-zaa dates back to 1978, when he spent three  
years living and working in northeastern BC coordinating land use occupancy  
mapping for certain Treaty 8 communities, including Blueberry.  
[
333] Mr. Brody’s work in Indigenous communities in northeastern BC arose in the  
aftermath of the Berger Report into the proposed Mackenzie Valley Pipeline, for  
which he had been a consultant.  
[
334] In particular, in the mid 1970s, consideration was being given to routing an  
energy corridor along the Alaska Highway, through the territory covered by Treaty 8  
in northeastern BC. At the time, there was very little anthropological literature about  
the Indigenous peoples of that area. The Union of BC Indian Chiefs advocated for  
gathering baseline data about the Indigenous communities who stood to be affected  
by such a large-scale development. Mr. Brody was hired to research this and conduct  
a study, and funding was provided by the federal department of Indian and Northern  
Affairs.  
[
335] He produced a report on his research for the Vancouver office of the  
Department of Indian and Northern Affairs in 1980. This research also formed the  
basis for his book, Maps and Dreams: Indians and the British Columbia Frontier  
(Vancouver: Douglas & McIntyre, 1981). Mr. Brody noted that at the time of his study  
Yahey v. British Columbia  
Page 102  
both governments and anthropologists were aware that northern hunting  
communities’ connections with and reliance on their land and resources was hard to  
represent. Unlike farmers who seek to transform and control the landscape,  
Indigenous hunting people are committed to keeping everything the same and  
predictable. In addition, hunting people leave very little indication of having been on  
the land, and Mr. Brody’s challenge with in the study was to make the invisible visible.  
The report and maps produced during the 1978-1981 time period sought to reveal the  
extent and nature of the Dane-zaa land based economy; and to “represent their  
relationship to their lands in some way that was visible.”  
[
336] Mr. Brody lived with a family on the Halfway River reserve, and made visits to  
other communities, such as Blueberry where he also observed and participated in  
community life. As part of this work, Mr. Brody also conducted a household economic  
analysis to provide a profile of economic life within Treaty 8 families and  
communities.  
[
337] Mr. Brody provided direct evidence on a number of facts that are set out in his  
980 report and in Maps and Dreams. Mr. Brody’s expert report filed in these  
1
proceedings provides his opinion on “the carrying on of the mode of life referenced in  
the terms of Treaty 8” and includes several of the maps included in Maps and  
Dreams.  
[
338] Mr. Brody also provided testimony from his studies and direct experience. He  
was a thoughtful and measured witness, whose testimony was helpful to this court.  
[
339] Mr. Brody’s evidence countered the notion, expressed in some of the historical  
record, that the Indigenous people living in the territory covered by Treaty 8 “roamed”  
over the lands. Instead, according to Mr. Brody, the Dane-zaa seasonal round shows  
a planned and patterned movement on their territory, with certain activities occurring  
at certain places at certain times every year.  
[
340] In his report, Mr. Brody noted that the seasonal round is the starting point for  
understanding Dane-zaa’s mixed economy. He testified as follows:  
Yahey v. British Columbia  
Page 103  
…
I think I should begin by saying that one of the ways in which hunting  
peoples have often been misunderstood, and certainly you can see the Dane-  
zaa being misunderstood in the correspondence that we referred to earlier, in  
1925 to ‘33, a misunderstanding that centres on the idea that they roam freely  
over a huge territory without – in a fully nomadic manner, and that they just go  
here or there where the spirit or mood takes them.  
In fact, their movements in their territories are very patterned and there’s a set  
of areas that they like to go to at particular times of year. And if you look at the  
times of year, you can see a seasonal round with a dry meat hunting camp –  
set of camps, dry meat being the central activity in the autumn. So there are  
camps and areas of land use that pertain to that activity at that time of year.  
And then we move into winter, the tendency to shift to trapping for fine furs  
and hunting areas that are good in winter, the second phase of the year, in the  
middle of which there would usually be trading.  
And then a spring hunt centred on beaver, the third phase of the year. And  
again there will be ideal locations, and that’s cabins that pertain to the spring  
hunt.  
And then a summer area which tends to be relatively slow in activity and often  
includes areas where people gather to meet in larger numbers on the  
gathering grounds.  
So you can understand this as a seasonal round and a typical pattern of  
activities in which different parts of the territory are being used at different  
times…  
[
341] What Mr. Brody’s research revealed with regard to the seasonal round, and  
what is depicted on the maps and diagrams produced as part of his research, was  
the growing importance of the reserve, over time. In particular, in the 1960s and  
1
970s, the Dane-zaa people spent more time away from the reserve engaging in  
different land-based activities. In the late 1970s, while the Dane-zaa still engaged in  
the land based activities, they returned to the reserve in between activities in higher  
frequency.  
[
342] Mr. Brody noted that Dane-zaa considered the land to be abundant and the  
wildlife plentiful and they practiced selective harvesting. In the 1970s and 1980s, the  
Dane-zaa hunted moose, deer and rabbits, and trapped primarily beaver, but also  
lynx, marten and otter. Mr. Brody was aware of the Dane-zaa also hunting caribou,  
but he did not participate in any such hunts.  
Yahey v. British Columbia  
Page 104  
[
343] Mr. Brody’s evidence on harvesting and abundance was:  
…
That was very much part of a pattern of harvesting. People decided how  
much they wanted to take, how much they needed, how much they could  
process and that’s what they would take. Opportunities to kill when they met  
that need were passed up on….  
And I think what’s striking when I think back to these – to this experience I had  
of the Dane-zaa system were that they thought of themselves as living in a  
land that was pretty abundant of a – wild life was plentiful, the game they  
wanted to hunt was plentiful, and that when they needed to, they could go and  
get what they needed. And if they needed a lot, they could do that, and if they  
didn’t need a lot, they wouldn’t take a lot, they’d leave it.  
[
344] As to knowing where to hunt, Mr. Brody noted this depended on a whole range  
of information about where people have been hunting, and where they’ve been  
successful and unsuccessful in the last days, weeks and months. It also depended on  
information about where the animals tend to be at any time of year, looking at much  
longer time depth. All of this kind of information was shared through stories and  
would build a picture of information that would guide decision-making as to where to  
hunt and set up camps.  
[
345] Mr. Brody emphasized the importance of stability and “ecological  
conservatism” to hunting people, such as Blueberry. He noted their conservatism is  
because their knowledge of their environment depends on that environment being  
relatively stable:  
…
Hunting societies are able to succeed because they know their territory. So  
the Dane-zaa have in their minds a whole web of information about where  
animals can be found, where fish might be lying at different times of year,  
where berries might be appearing. For this system to work, this body of  
information has to be predictable, so they have to be able to predict to some  
extent where the animals are, where the fish are. And for it to be predictable, it  
has to stay the same.  
So they need an ecology. They need an environment that is, broadly  
speaking, stable so that when they go out into the land, they go into  
somewhere they know. So their knowledge system works, their trails are still  
there, the fish is where they should be, the moose are using the areas that  
they’ve always used. That means that they have a profound commitment to  
the environment staying the same. That’s what I mean by the term “ecological  
conservatism.”  
Yahey v. British Columbia  
Page 105  
…
it’s helpful to understand it by looking at the contrast of agriculture and  
farming. Farmers prosper by transforming the land. They come to a  
landscape, clear the trees, drain the marshes and the fields. They also bring  
with them the animals and crop that they’re going to depend on. The farmer is  
ecologically radical and will only succeed through this radicalism by  
transforming the land. Hunter gatherers, and the Dane-zaa are a very good  
example of this, are committed to the land not being transformed. Now, they  
can accommodate some degree of transformation by others, as we saw when  
I was working in northeast BC. There were parts of the territory that had been  
transformed. And the people might express unhappiness about some of that,  
but there was enough of their territory that was not transformed; there was  
enough of their territory where their knowledge system worked for them to be  
able to continue to rely on the resources that they regarded as in the heart of  
their well-being. So to that extent the ecological conservatism of the Dane-zaa  
was very striking in 1978 to ‘81.  
(
emphasis added)  
[
346] While Mr. Brody emphasized the importance of a stable environment for  
Blueberry’s knowledge to have relevance, he also noted that evolution and  
adaptation to new circumstances was constantly occurring. He testified about the  
concept of a “traditional” mode of life, if used to suggest a fixed or unchanging way of  
life, misrepresenting the nature of human life. No human societies are unchanging –  
they are in a constant state of evolution to cope with the changes they are facing:  
In the case of the Dane-zaa, this is particularly relevant because there was a  
tendency when I first was working there for people to characterize the Dane-  
zaa as having been traditional in 1900 at the time of the treaty and by  
comparison with that they are now modern. And in fact the literature shows  
and people themselves told me, that at the time of the treaty in 1900 and  
indeed long before that, they were already making use of many changes that  
Euro-Canadian society had brought. They had guns; they had metal knives;  
they were involved in the fur trade certainly from the 1820s onwards. So  
people are trading, which means that they are exchanging furs for European  
goods which means they are incorporating European and Canadian material  
into their society. And that would include, as I’ve said, guns and knives but  
also things like sugar and tea, tobacco, fabric for making clothes, and in due  
course, certainly by 1900, debt or cash.  
So the so-called traditional economy as often characterized wasn’t an Indian  
economy outside the influences of Euro-Canadian life. It didn’t exist apart from  
or in some kind of defiance of Euro-Canadian culture, but rather was  
incorporating many elements of it. So the Dane-zaa in 1900 already had a  
mixed economy with a profound reliance on their territories, the resources  
from their territories, but also a profound reliance on trading, on trade goods,  
and the earning of money.  
Yahey v. British Columbia  
Page 106  
(
emphasis added)  
[
[
347] In this way, change was incorporated into the Dane-zaa way of life.  
348] Mr. Brody described the household economic analysis study that he  
completed. He indicated the Dane-zaa land-based economy was to some extent  
invisible, and previously misunderstood. Stereotypes and partial realities held by  
white observers at the time tended to view the Indigenous people living in  
northeastern BC as poor and unemployed. This was not the reality he found. The  
communities were busily employed on their land in their seasonal rounds. It was just  
that their economic life had long been either concealed or disregarded. The study  
therefore provided an analysis of monetary value of the harvests from the land.  
[
349] This research on Dane-zaa social and economic life from the late 1970s and  
early 1980s revealed that Blueberry members earned nearly three times as much  
income from land-based activities (i.e., guiding, hunting, and selling furs and  
handicrafts) as they did from wages and transfer payments from government  
sources. Mr. Brody estimated that at this time period, hunting and trapping provided  
Blueberry with approximately 1.5 pounds of high quality meat per person per day.  
[
350] Mr. Brody noted a profound connection between land based activities and  
wellness among the Dane-zaa. Dane-zaa elders referred to being on the land as  
good medicine.” In his report, Brody noted that “[e]veryone thought that to be on the  
“
land was to be healthy, have the greatest chance of happiness and, in the end, to be  
themselves.” In his view based on what he observed in the 1970s and early 1980s,  
engaging in a life based on the land and going on hunting trips contributed to  
community health and wellness.  
c)  
Blueberry Members  
[
351] As noted, several Blueberry members testified at trial. At the time of their  
testimony, these witnesses ranged in age from 15 to 74. The evidence from these  
community members provided a description of Blueberry’s way of life over the last 60  
Yahey v. British Columbia  
Page 107  
plus years. They spoke about the places they hunted, fished and trapped, and where  
their parents and grandparents had done so before them. They also provided their  
observations of changes to the landscape and the wildlife in the area. They voiced  
concerns about what these changes would mean for future generations and whether  
they would continue to be able to sustain themselves from the land, hunt for game,  
and participate in the activities their grandparents had done.  
[
352] In setting out some of this evidence, I have quoted directly from the testimony,  
which more directly and eloquently describes the tenets of the Blueberry members’  
way of life. I found each of these witnesses compelling and sincere in their testimony.  
i.  
Jerald Davis  
[
353] Jerald (Jerry) Davis was born in 1945 at Aitken Creek (Mile 26 on the Beatton  
River Road). He is the son of Margaret and Pete Davis, and the grandson of Charlie  
Yahey, the last of the Blueberry Dreamers. He is married to Alvina Davis with five  
children, and he is an elder in the community. He has worked as a guide outfitter, a  
farmhand, and a trapper. He is one of the people in the community who teaches the  
younger generation how to hunt and trap today.  
[
354] Mr. Davis provided evidence about hunting moose, buffalo and caribou,  
trapping lynx and other animals in the vicinity of the Yahey trapline and the Davis and  
Wolfe trapline, and about camping in the bush. He shot his first moose near the  
Blueberry reserve when he was 10 years old.  
[
355] Mr. Davis testified about how he grew up living off the land. He referred to this  
time as “wagon days,” before many Blueberry members had cars. He recalled how  
they would saddle up the horses, and gather a team of horses for the wagon and  
head to Charlie Lake or other places in the territory to camp, picking different spots  
year to year.  
[
356] His testimony painted a picture of summers spent camping, hunting moose,  
and drying the meat for the winter. And he described how encroaching development,  
Yahey v. British Columbia  
Page 108  
in particular oil and gas development and logging, has impacted that lifestyle. He  
noted the many busy radio-controlled roads built to service the development in the  
area. His testimony about the changes he has observed to the landscape and how  
this has affected the ability of Blueberry members to hunt and gather on the land,  
provided a sense of Blueberry’s mode of life prior to such developments, and of the  
loss they feel.  
[
357] Mr. Davis testified about hunting for moose, drying moose meat, and the  
changes he has observed in moose populations over time:  
…
People camp for the summer to make dry meat for the winter. After they  
make the dry meat they keep the dry meat. If they go travelling for a day they  
have to have that dry meat. But while on a site they kill moose, they keep  
killing moose to for fresh meat like all the time. That’s why this – and those  
days are easy, easy to hunt. Moose, they don’t scare the horses. And there’s  
a lot of them.  
…
nowadays it’s a little tough getting moose. The traffic, and moose have  
disappeared, of all the noise and all the clear cuts. They – the forestry cleared  
an area where no animals will stay. If there’s a timber in there, that’s where  
they stay in the wintertime to be warm in the timber. After they clear the timber  
they can’t stay in the open. They have to move somewhere elsewhere it’s –  
where they can stay in the winter.  
[
358] Mr. Davis testified that, in his view, Blueberry’s territory has been “destroyed,”  
leaving little to sustain the younger generation:  
…
But in this area, northeastern Peace River. That’s why this – that’s why this  
whole land itself is so important to us. Until today it’s destroyed. What right  
now I have to say is it’s destroyed. It’s just like we have nothing left. I don’t  
know what’s – the next generation, I don’t know what they are going to live on.  
They have to move – not move, but they have to go farther out to get  
something to eat. And after all the oil company stop drilling or – he shut  
everything down, everything went quiet, I don’t know whether the animal is  
going to come back. How long it takes, nobody know.  
Right now as I’m speaking I have to say it’s just like we are just living by the  
day or by the – not by the year, but by the day how our country is destroyed.  
They polluted our country so bad we cannot go out there by the creek and  
make tea. We cannot drink water anywhere in northeastern Peace River. We  
have to buy our own water from Fort St. John. So that’s what we’re – what’s  
happening right now with our – in where we live. …  
Yahey v. British Columbia  
Page 109  
[
359] He also testified about how certain parts of Blueberry’s territory, especially  
mineral licks and berry patches are no longer accessible because of the pollution  
from oil and gas development:  
…
Moose comes in there, everything come to the lick. That’s where close by  
we kill moose. We call that our fridge.  
So and today I cannot ride around anywhere. If I want to ride around I got to  
take horses up close to the mountain to go ride around down there because of  
the oil company. They have gates which say poison gas, do not enter. When  
you ride around by horse they only go 3 or 4 miles an hour. They walk. You  
can smell that poison gas steady until you go to another one. Keep smelling.  
And right now we do drive – we drive through those but no, we don’t smell.  
And we cannot camp anywhere because of the polluted the area, there’s no  
water.  
And another important thing is too the berries have all disappeared. There’s  
no berries around. The Blueberry River, they call it Blueberry River because of  
blueberries. So today there’s nothing.  
[
360] He went on to describe the hurt of remembering how things were in the past,  
and seeing the current reality:  
It is very sad for me to say this now. What will – that’s why my kids, I have  
taught them how to hunt and trap, but what will they trap? What would they  
hunt for the future? Until oil and gas, what will they do? They cannot regrow  
nothing. Maybe they will but I don’t know how. Nothing will be the same like  
years back.  
I – sometimes I drive around. Some places I can’t remember because it’s all  
flat, no trees. What happens if it’s all clear cut? I was just hoping if our  
grandparents sees this today, they wouldn’t be happy. Just like me today. I’m  
not happy what have happened to my country where we live for years. Even  
before me, my parents and their parents, they have chosen this place  
northeastern Peace River to survive, the Beaver Indian have picked this place  
to live…  
[
361] Mr. Davis also described the importance of the Dancing Grounds:  
A: Dancing Grounds is the place where all the dreamers meet at one time.  
And from in there Halfway, from Halfway too a bunch of people went in. From  
Prophet River a bunch of people went in there. From Doig. They all have a big  
gathering one time for the summer. That’s why they have it. They call it  
Dancing Grounds. When they are singing, people dance. They – just from  
dancing they dug the ground that deep just from dancing. That’s why they call  
it Dancing Ground. And it’s – it’s very important for us to save that place. I  
don’t know how far around oil company is not supposed to go near. The chief  
probably know how far the oil company not supposed to go in there. It’s  
Yahey v. British Columbia  
Page 110  
important that we have to save that. Even if we go in there we have to be like  
I don’t know how to explain it, but it’s like you go in court you got to be quiet,  
–
you know, it’s how it is to us.  
Q: Is that a place where Charlie Yahey, the dreamer, had been?  
A: Yeah. I mean all the dreamers. They gather. My Grandpa Charlie Yahey,  
him and all those dreamers. But the last time he put up that he was the last  
one… (Day 20, p. 45-46)  
[
362] Despite the changes to the land, Mr. Davis continues to teach younger  
generations how to hunt and trap and camp in the bush.  
ii. Raymond Appaw  
363] Raymond Appaw was born in 1960 and grew up at Blueberry’s old reserve. He  
[
has spent time hunting on the land every year since he was young. He was taught  
how to live on the land, how to hunt, and where to look for game by his elders,  
Charlie Yahey, John Yahey, Tom Appaw and Angus Davis.  
[
364] As a young child, Mr. Appaw grew up speaking the Dane-zaa language, but  
when he went to Indian day school speaking his language was forbidden. At the age  
of five he spoke little English but was beaten for speaking his own language. He was  
deeply affected by this experience. Mr. Appaw worked as a hunting guide for many  
years, starting in the mid-1970s, and in the mid-1990s was awarded a prize for his  
guiding skills. He has also worked in the oil and gas industry.  
[
365] Mr. Appaw described Blueberry’s way of life as one where members supplied  
food for their families by hunting moose, and could do so by horseback from close  
proximity to the reserve. Mr. Appaw testified about how Blueberry members depend  
on the land – not only for what they can harvest from it, but also for the opportunity to  
teach younger generations:  
That land is how we raise our kids. What the elders taught us you cannot take  
that away from us, what we were taught. We depend on wildlife. We depend  
on everything. That’s even the plants. Then if that land is destroyed where do  
we go? How are we going to teach our young, our generation, our youngest  
one? How do we teach our grandchildren? Where do you take them? There’s  
clear cut, there’s road all over the place.  
Yahey v. British Columbia  
Page 111  
[
366] Mr. Appaw, like several other witnesses, described Blueberry’s hunting areas  
as their grocery store. He referred, in particular, to hunting on the Beatton River. He  
testified that moose meat is Blueberry’s “main diet” and emphasized that they use all  
parts of the animal: flesh for eating, hide for making clothing, and bones for scraping.  
He testified about the abundance of moose in the 1960s and 70s and how scarce  
they are today. In the 1960s and 1970s, he said, a large family with 15 kids would go  
through 10 moose a year. These days, he said, large families have to make do with  
two moose.  
[
367] Mr. Appaw testified that in 2017, 2018 and 2019 he went out hunting at several  
different locations, but did not get a single moose. He described a decline in moose  
populations starting in the mid-1990s. He expressed concerns about the loss of  
moose habitat. He opined that the animals were ingesting chemicals from oil and gas  
development and pesticides from forestry and that this was making them sick.  
[
368] Mr. Appaw also noted how caribou had once been a main source of food and  
was one of the first animals they would hunt during the year since they were the first  
to gain weight in the spring. He testified that when he was young, they would hunt  
caribou around Pink Mountain.  
[
369] Mr. Appaw testified about how, in the past, he would go hunting on day trips  
from the reserve. He could also hunt two or three kilometres from the reserve, which  
is no longer possible. It’s now more difficult and expensive to go hunting, as one must  
travel by car further from the reserve to get to hunting areas.  
iii.  
Sherry Dominic  
[
370] Sherry Dominic was born in 1970 and at the time she testified was one of  
Blueberry’s elected councillors. Her mother is Louise Cardinal and her father is  
Tommy Dominic. Her maternal grandparents are Margaret and Pete Davis, and  
Charlie Yahey is her great-grandfather. Jerald Davis is her uncle. She has two sons,  
Austin and Kayden Pyle.  
Yahey v. British Columbia  
Page 112  
[
371] Ms. Dominic testified about the various places she went with her family and  
later with her former partner (Stanley Pyle) to hunt and fish throughout the territory.  
[
372] Ms. Dominic testified that when she was younger she went out on the land on  
a daily basis, mostly with her maternal grandparents. She spoke about going to Mile  
8 in the Upper Beatton area to camp, hunt moose and pick berries with her family,  
3
and about spending summers in the vicinity of the Wolfe/Davis trapline, near  
Prespatou. She also spoke about spending time on the land near the reserve and  
near Wonowon. She testified that these areas are now very different from how they  
were 30 to 40 years ago. There are now more roads, forestry, oil and gas  
development, and work camps.  
[
373] From 1985 onwards, she and Stan Pyle would hunt north of the Beatton River  
around Mile 43. She described this area as a good place for moose hunting. Like  
many other places in the territory, there are now more clearcuts near Mile 43. She  
said the last time they got a moose there was 10 years ago. She also testified about  
hunting in the Tommy Lakes Road area, but noted she was last there about 10 years  
ago. She doesn’t hunt in that area now because there are too many roads and  
vehicles, and with that much traffic she doesn’t expect to find game.  
[
374] She also testified how, in the last few years, she has been hunting and fishing  
at locations further away from the Beatton watershed, at places such as Pink  
Mountain, Halfway River, Robb Lake, Butler Ridge, and Dunlevy Inlet.  
[
375] Ms. Dominic spoke of the changes she has seen in the territory from the 1970s  
and 80s to today. She noted: more well sites, pipelines, compressor plants, clearcuts,  
and borrow pits.  
[
376] Ms. Dominic recalled how moose was the main meat growing up, and they  
would have one to three per year. Twenty years ago they would usually get two  
moose a year (one to freeze and one to dry). Over the last ten years that changed to  
one moose every second year.  
Yahey v. British Columbia  
Page 113  
[
377] Ms. Dominic testified about how she would bring her sons with her to hunt,  
camp and prepare the meat. They would learn by being present, watching, and  
helping:  
…
we show them – like, when we kill moose they would be right in there, they  
would be skinning, helping. They know what to do now. Because that’s just  
something we passed down from generation to generations, which is  
important for my kids. So that way when they have kids they can be able to  
pass that knowledge down to their children. Just like I was brought up knowing  
that. And so it is important for my kids to be able to know how to do that as  
well.  
[
378] She also spoke about how it’s getting harder to teach those skills to the next  
generation:  
Q:…And is it something that you hope he can continue to do in the future?  
A: I’m hoping when he [Kayden] has children his children will be able to go out  
there and hunt – hunt and whatever they need to do, you know, in order to  
carry on our tradition way of life.  
And that’s my hope that his kids can be able to do that because like it’s been  
passed on to me and then so I’m passing it on to my child, and then I’m  
hoping my child can be able to pass it on to his children and so forth going  
forward.  
Because we’re always going to be here. I mean, the First Nations we’ve  
always been here and it’s something that has always been passed on to us  
from the generations from my great grandparents.  
Q: And is it as easy to teach those things today as it was when you were  
younger?  
A: No, it’s not because it’s less moose.  
Q: And are there as many places to go as when you were younger?  
A: No, there’s not.  
iv.  
Georgina Yahey  
[
379] Georgina Yahey was born in 1971 and has always lived on the Blueberry  
reserve, first at the old site, then relocating to the new site in the mid-1970s. Her  
parents are Mary Yahey and Harry Chipesia. She has four siblings, including Wayne  
Yahey. She is the great-granddaughter of Charlie Yahey, and had the opportunity to  
spend time with him as well as with other grandparents, her own parents, and aunts  
Yahey v. British Columbia  
Page 114  
and uncles when she was young. She recalled her grandparents using a wagon and  
building a teepee whenever they went hunting.  
[
380] The evidence provided by Ms. Yahey described her early childhood in the  
970s and Blueberry’s way of life at that time as a “good life” where community  
1
members were fed and sustained by the land. She was taught to respect the land,  
and described the connection to the land as fundamental to Blueberry’s identity.  
[
381] Ms. Yahey said they used rivers and creeks for water and the woods for heat  
and were connected to the land and the wildlife. They picked berries and hunted and  
it was a natural life.  
[
382] Ms. Yahey described how when she was growing up in the 1970s and 1980s  
in the summer, hunting parties consisting of several families would head out by horse  
to hunt, fish, harvest and camp at different locations throughout the territory, including  
at spots along the Blueberry River, Upper Beatton River, and Aitken Creek. The  
hunting parties moved around, camping at different locations throughout the territory  
from year to year. They moved to allow wildlife to repopulate in an area, and because  
not everything they harvested would grow in one spot. Whole families were involved  
in these camps, each with duties: hunting, fishing, smoking and drying the meat, and  
berry picking. At night, they would tell stories of their people and there would be  
drumming and singing.  
[
383] Blueberry members hunted primarily moose, and selected camping places  
with access to water, forest cover, and mineral licks which would attract moose.  
moose was the main source of meat, and Blueberry members used moose hide to  
make clothing and crafts.  
[
384] Ms. Yahey identified and described a moose hide frame and the process for  
drying and using all parts of the moose. She also described the use of horses for  
hunting and berry picking. Ms. Yahey said she regularly went off reserve after school  
to pick berries and dig for roots. In the winter the family would use dog sleds to check  
the traps “all over the place.”  
Yahey v. British Columbia  
Page 115  
[
385] Blueberry members fished in the lakes and rivers that are found in and flow  
through their territory, including Charlie Lake, Inga Lakes, Blueberry River, and the  
Beatton River. Ms. Yahey testified that, since the late 1980s no one fishes in Charlie  
Lake as the water quality is too poor. In addition, people no longer fish at Inga Lake  
as it is surrounded by too much development.  
[
386] Ms. Yahey testified that Blueberry members have cabins near Aitken Creek,  
which they used when trapping lynx, marten, wolverine, wolves and mink. She noted  
that Blueberry members no longer trap near Aitken Creek because of the oil and gas  
development in the area.  
[
387] Ms. Yahey testified about culture camps the Dane-zaa communities of  
Blueberry and Doig River have been holding at Pink Mountain since 2000, where  
community members gather to drum, tell stories, relay oral history, and talk about  
their hunting experiences. She testified that the communities hold culture camps: “to  
remind others too that we need to preserve our culture and our traditions, our way of  
life.” This included the process of drying and using all parts of the moose.  
[
388] She also testified about the importance of the Dancing Grounds. This was a  
place that Dane-zaa communities, their Prophets and Dreamers would gather as one,  
to have pow-wows, trade, and do their planning. She recalled as a child listening to  
Charlie Yahey sing, drum and tell stories. She testified that the Dancing Grounds are  
now private land, and cannot be accessed.  
[
389] Ms. Yahey’s evidence was that over the last 10 to 15 years, the land on which  
Blueberry relies has been heavily impacted by development. Forests are being  
logged, water quality is poor or water sources are drying up, lakes are polluted, there  
are fewer mineral licks, and they are finding increased developments. She noted that  
it has become harder to find berries and traditional medicines, and that the moose  
have moved on from certain places.  
Yahey v. British Columbia  
Page 116  
[
390] She said that she would not hunt near pipelines or gas wells as the air quality  
is poor and it is dangerous to do so, since a stray bullet could hit critical oil and gas  
infrastructure, such as compressor stations.  
[
391] She commented that there was increased heavy industrial traffic on roads,  
requiring members to have two-way radios to ensure their safety. Not all members  
can afford to purchase such radios. She noted it was dangerous as huge logging or  
other trucks have the potential to run drivers off the road if not aware.  
[
392] She gave an example of a Blueberry hunting party meeting early in the  
morning to plan and head out on a hunt, but it taking several hours to determine  
where they could go, since there was uncertainty as to what areas would be  
accessible, or were now under development, or, in her words “wiped out.”  
v.  
Norma Pyle  
[
393] Norma Pyle was born in 1972, and grew up at Buick Creek, where she lived  
until she was 14. Her mother, Alice Pyle, was born at Horse Track on the Sikanni  
River, and her father, Amos Pyle, was born in Castor, Alberta, but his family moved to  
the Buick Creek area in the 1930s. Her maternal grandmother, Julian Oldman was  
Dane-zaa from Halfway River, and her maternal grandfather, Daniel Apsassin, was  
Cree from Grouard, Alberta, but was raised by a Dane-zaa woman in the North  
Peace area. Ms. Pyle is one of 11 children. Stanley (Guy) Pyle is her older brother,  
and Kayden Pyle is her nephew.  
[
394] Ms. Pyle moved away from Blueberry’s territory for a period to finish high  
school and work in the forest industry in Alberta. In 2006, she completed a degree in  
forestry at Lakehead University in Thunder Bay. She received her designation as a  
registered professional forester two years later. Over the years Ms. Pyle returned to  
the North Peace area to visit family and to take summer contracting positions. She  
returned to the Blueberry area permanently in 2006.  
Yahey v. British Columbia  
Page 117  
[
395] Between 2007 and 2018, Ms. Pyle has worked in various capacities including,  
as Blueberry’s Lands Manager (2007 to 2010, and January 2016 to December 2018),  
for Canfor (from 2010 to 2013), and as a Blueberry councilor with responsibility for  
the Lands Portfolio (December 2013 to December 2015, and January 2018 to  
October 2018). At the time she testified in the summer of 2019, she was employed  
with Triple J Pipelines as Indigenous and local community relations coordinator.  
[
396] Much of Ms. Pyle’s evidence focused on her work as Blueberry’s Lands  
Manager and as an elected councilor. This section focuses on her evidence relating  
to the way of life she experienced when growing up at Buick Creek in the 1970s and  
8
0s, and her experience of “relearning” how to hunt and prepare meat in the mid-  
2
000s with her brother Stanley Pyle.  
[
397] Ms. Pyle recalled her father and brothers hunting moose a short horse ride  
away from her childhood home. That is no longer possible as farmers’ fences prevent  
much of the access. She recalled how the children in her family starting learning  
around 5- or 6-years-old to hunt “chickens” (this is a reference to hunting certain  
birds) with a single-shot .22 rifle and to snare rabbits, weasles and martens. By the  
time the boys were 11- or 12-years-old they joined their father and grandfather on  
one or two day hunts for moose. They would head out northwest of Buick Creek by  
horseback. These were “purpose-driven” trips, as the family needed meat to survive.  
[
398] Ms. Pyle grew up eating moose, and, if times were tough, deer. The children  
all helped her mother to make dry meat. Her mother would also flesh the moose hide  
and make moccasins from it.  
[
399] Ms. Pyle testified that her family hunted up the Beatton River Road near Miles  
1, 28 and 43. She noted “it used to be a prime hunting area for many families, not  
2
just ours.” She noted that there was an old burn through Mile 43 during the late 1970s  
or early 1980s and that after the burn there was lots of moose that would come to the  
area for the new fresh browse, which made for good hunting. The area around Mile  
Yahey v. British Columbia  
Page 118  
2
1 was a “go-to area” for families to camp, but cannot be accessed today, as it’s  
private agricultural lands.  
[
400] She referred to another major moose hunting area being the Umbach Creek  
area due north of their family farm: “that area was very, very good moose country in  
there. There was – the habitat was prime. So hunting was relatively easy at that  
time.” She described prime habitat as having creeks, mineral licks, and intact old  
growth forest which provided thermal cover or protection for the animals during the  
winter. Much of this area has also since been clearcut.  
[
401] Ms. Pyle noted that her family would also trap lynx and set snares for wolves  
in these same areas. In addition, Ms. Pyle also picked cranberries and Saskatoon  
berries with her family, and her mother would can them.  
[
402] Ms. Pyle described her experience being away from the territory, and then  
coming back for visits, and the changes she noticed:  
…
I left kind of as a young teenager and coming back as an adult, the  
changes in that country was very, very stark. Very – like really harsh to me.  
I just remember kind of maybe ‘96 or 7, somewhere around there, I came back  
and my brother and I went out and he said let’s go hunting. I said okay. So we  
headed up the Beatton Airport Road, and he said well, let’s go down Mile 31. I  
said okay. So I’m driving and I ended up, I drove right past the road. And he  
said what is a matter with you, you drove past the road. And I said oh really.  
But the problem was for me was that there were so many new roads and clear  
cuts along that area and pipelines I couldn’t recognize Mile 31 road, because it  
had changed too. Back in my day it was just a small like one-land road. Now it  
could accommodate two logging trucks passing each other. It was a very  
different road. And was hard for me to recognize. It was – there were so many  
roads, it’s just they were not recognizable. The whole country was just  
changed.  
[
403] In the mid 2000s, having returned to the territory, Ms. Pyle got into hunting  
again and sought to relearn the skills. She described hunting in that time period as  
not being hard: “if we wanted to go get a moose we could go get a moose.” They  
would either go into the “really hard country” to get a “clean animal” that had not been  
around industrial development, or they would go to the mineral licks around Mile 31  
or 43 or 81 and could get a moose there.  
Yahey v. British Columbia  
Page 119  
[
404] Ms. Pyle testified that starting in approximately 2006, she and her brother  
started paying closer attention to the availability of moose. She testified that into the  
010-2012 period there was a noticeable decline in the availability of moose. In  
2
particular, she saw fewer signs of moose. Their trails were not being used anymore  
and it was harder to find moose browses. In search for moose, they started heading  
further north to Pink Mountain, the Sikanni River, and the Tommy Lakes area to hunt.  
Still, they saw very few moose, or signs of moose.  
[
405] In cross-examination, she testified about how much of the “core” of Blueberry’s  
territory has been destroyed and how members cannot use their “preferred areas” for  
hunting and trapping as they used to. Instead, in search of wildlife, she testified that  
members are seeking out opportunities further and further from the core of their  
territory.  
[
406] Ms. Pyle testified with much sadness about finding mineral licks in the territory,  
and particularly the one near Addick Creek, destroyed by people driving through it.  
She also expressed concern and anger when she recalled visiting the Blueberry  
River, downstream from the reserve, in 2017 only to find the water had stopped  
flowing. Ms. Pyle testified that no one in the Blueberry community was aware of that  
having ever occurred. She said she later learned the water was being piped to a  
water storage facility associated with oil and gas development several miles away.  
[
407] Ms. Pyle testified about the 2-day culture camp Blueberry holds at Pink  
Mountain every year. She described it as an opportunity for young children to be  
exposed to some of the important cultural traditions such as singing, drumming and  
tea dances. But she noted that attending a culture camp is not the same as learning  
culture as part of an everyday life based on growing up on the land. Looking at a  
photo of four elders drumming, Ms. Pyle said:  
So these individuals were able to learn the skill, these songs, the meanings of  
them, I guess the rights of them, they were able to learn those because it was  
part of their life. It wasn’t a thing that happened twice a year or two days of a  
year at a culture camp. It is something that was their everyday life. It was part  
of them.  
Yahey v. British Columbia  
Page 120  
And they were taught those on this land in the places that they grew up on the  
land. And they were taught all the teachings that go along with living on the  
land. It was their life.  
Today it’s very different. It’s very complicated. The opportunities to go out to  
the land are very limited. The places to go to the land is very limited. The  
timings, you’re really constricted to a very small window of opportunity.  
And now, I mean, today, this day and age, for me to go and take my daughter  
out to go and live on the land for even five days is a challenge. Number one,  
where are we going to go. Number two, what activity is going to be there to  
influence my activities and the whole point of being there to hunt.  
So these opportunities are very different from when these individuals were  
young to today. Those teachings were – I mean, it wasn’t just something that  
you, okay, we’re going to go to culture camp and learn to drum. These were  
part of their life. They lived it. That’s the difference.  
[
408] Ms. Pyle contrasted the culture camp experience with the teaching and  
learning that happens naturally when families camp and hunt together; learning that  
happens while choosing a place to camp, or when getting water, or making wood, or  
scouting.  
vi.  
Wayne Yahey  
[
409] Wayne Yahey was born 1976 and grew up on the Blueberry reserve. At the  
time he testified he was one of Blueberry’s elected councillors. He is Georgina  
Yahey’s brother and shares her lineage. Mr. Yahey described growing up in the  
1
970s and 1980s living what he called “a really traditional lifestyle.” This involved  
hunting by horseback to provide meat to the community.  
[
410] Mr. Yahey comes from a long line of hunters, and is teaching his children to  
hunt as well. He testified as follows:  
…
I come from a long line of successful hunters. My blood, that’s my  
bloodline. And I inherited that so my children inherited that. So that’s just the  
way of life. That’s just something I do. It’s a lifestyle. It’s something that I’m  
really passionate about, so my kids live that lifestyle too.  
Q: So you’ve been working to teach them how to hunt?  
A: I pass on the knowledge that’s been taught to me from a lot of skilled  
bushmen over the years, like my father, my uncles, my grandpa. So a  
combination of all their skills I inherited, so I teach that to my kids.  
Yahey v. British Columbia  
Page 121  
Q: And in doing that why do you take them to areas that you don’t hunt  
anymore? Some of the areas that we’ve been talking about this morning?  
A: Well, I want them to understand and have knowledge of where I went or  
where I used to frequent. So, I mean, they could – they could have a sense  
when they’re older this is where their dad took them, and this is where it used  
to be a good hunting area but now it ain’t. So I want them to have that, I guess  
to have that knowledge. They got to know.  
[
411] Mr. Yahey stated that certain areas in Blueberry’s territory have been  
“devastated,” leading to changes in the lives of the Dane-zaa people, including:  
needing to go further west (and by vehicle) to hunt, which takes more time and  
money; needing to find new hunting areas and not having access to the “prime  
habitat” (or what his grandfather called his “freezer”); and losing access to trails  
Dane-zaa people have used for generations because of more privatization of  
property.  
[
412] Mr. Yahey referred to some of the traditional ecological knowledge he had  
received from his elders, including knowing when to hunt moose based on the  
presence of a certain leaf that grows and blossoms in mid-July.  
[
413] He testified about the importance of sharing moose meat, providing moose  
meat for elders, and of ensuring the meat is “clean.” He spoke about the changes he  
observed in the health of the moose he has hunted and how he needs to hunt in  
areas further west, but that there is no guarantee of success:  
Around our areas – a few years back I was successful at a moose, but inside  
the moose the lungs and the liver there were spots; there were block spots  
and white spots. So I asked my mother, but she said no, we can’t – you can’t  
take that meat.  
So now every time I hunt for the elders they told me you got to go in the  
mountains, that’s only where they have clean water. That’s where they’re  
clean. So that’s the direction I’ve been given. So around the – close by,  
because of that very reason, the elders tell me I got to go farther west. So to  
go further west where there’s no access by vehicle, by anything, you got to  
use horses. So you got to go further back in.  
Today, and I’m not successful at a moose too, there is no guarantee the  
further west you go. You see, moose have a lot of challenges today. They  
have – they have predators. Predators are one of the biggest I guess  
contributors to their – to their decline in moose. Grizzly bear. Wolf. And then  
Yahey v. British Columbia  
Page 122  
you have – on top of that you have resident hunters. They go back there with  
horses. So you got – they got a lot of challenges for their existence just to live.  
So going back there, I don’t – back in the day there were a lot of moose.  
[
414] Mr. Yahey spoke about the importance of particular places, and how it’s not  
always possible to simply take up hunting, trapping or gathering in another area if the  
one previously used is disturbed by development:  
…
[indicating a homestead referred to by Mr. Yahey… where he used to camp  
in the summer as a child] used to be, like what I mentioned earlier, a prime  
habitat for the pine marten. Today no more.  
I asked my uncle is there another area that you think they moved to. He told  
me, you know, before how long did it take our ancestors to find that area. He  
said it’s going to – it’s going to take just as long for us to find another area to  
find a pine marten. Because he mentioned to me about a marten. He said  
when they are clearcutting that area, marten, their safety net is climb a tree.  
He said when that feller buncher grabs that tree the marten climbs it, what do  
you think is going to happen to that marten. So that’s – that’s his way of  
explaining to me about – because I told him could you just find another area.  
He kind of – he told me no. And he explained to me about that assessment,  
his – about his history, what his dad told him.  
So this area in particular when – it used to be a prime area where we get our  
necessities, food. It provided – we call it midnitsu. It’s a certain wood that we  
gather for tanning a moose hide. Only – it only exists in big timber. Where my  
mother used to learn from her mother to harvest this wood, it’s all logged.  
Nothing. I asked my mother let’s go back to that place and she said no, it’s  
logged. And I asked her could we find another place? She told me well, you  
know, I’m getting old. I can’t walk. She said when I was a little girl my grandma  
showed me that place.  
So the thing that people outside our culture don’t understand, they say okay,  
why don’t you just look somewhere else. That’s what I asked my mother.  
That’s what I asked my uncle. It’s not like that. It’s not the case what we do.  
Because it’s a simple answer. I say well, can’t you just look somewhere else. It  
took 100 years in evolution just for us to find it, and then another place, it’s – it  
wouldn’t happen. Not going to happen.  
So just to give you a sense of how they explain it to me, how they conveyed  
their teachings to me, and when I asked them those questions could we just  
find another place, it’s not as easy as it sound. All these areas have a  
significant value. Buick Creek, not far from our community there’s a lake,  
there’s a lake that produces certain – it’s a certain plant, an herb. Throughout  
our whole territory there’s the only lake in the northeast that produces that  
herb, and that herb is for cancer. It’s for high blood pressure. It’s our herb for  
everything we use. And that’s only one lake. And it’s what they – what  
happened in the last ten years they logged around it so that lake is going  
smaller. It’s drying out. So that’s the only – that’s the only place in this whole  
northeast that grow that plant, and that’s what we use as a medicine plant to  
Yahey v. British Columbia  
Page 123  
cure our sickness. So that’s – when I explain to these areas that’s what I’m  
talking about. There’s no other place. They say okay, go find another lake.  
(
emphasis added)  
[
415] Mr. Yahey added that the question of selecting another location to hunt or  
gather is not as straightforward as looking at a map and choosing another place. The  
important places within Blueberry’s territory are ones that have been located over  
generations:  
…
Just like I said, when I always tell my father, my grandpa, is there another  
place we could look at. It’s just not like that. Within my culture it’s not an easy  
answer. It’s something I can’t really give you answer. Okay, well, we’ll go over  
here and pick a place on the map and we’ll go over here, that look good. It’s  
not like that. Over years – over the years when there were no settlers, when  
there were no people involved, these were the areas that were found. And I  
inherited that. And there’s – I just can’t go tomorrow go look for a new place.  
Say oh, okay, well, this is where they – this is a new place. I’m going to start a  
new – a new area. It doesn’t work that way within my culture. I have – it’s  
generations after generations. It’s a place that is shown from me – I don’t  
know how old is that area; probably since we’re – God created us.  
[
416] Mr. Yahey spoke about the importance of trails, such as the one from the  
Dancing Grounds (at Mile 115) back to the reserve. These trails have been used and  
maintained by Dane-zaa people for hundreds of years and were the “gateway” to the  
hunting, trapping and harvesting areas. Mr. Yahey described these trails as being  
imbued with history and being the gateways to “all facets of the Dane-zaa life.” But  
increasingly access is being blocked. Mr Yahey said:  
Q: And Blueberry River itself, if you follow it from here, does it lead to the  
Dancing Grounds and other areas?  
A: The Blueberry River, where it comes down at the Dancing Grounds, right  
up the river there’s a main patch or a horse trail or wagon trail, dog team trail,  
and the Blueberry River is the main river. From there all the creeks that come  
in north Aitken, Aitken, that’s where – that’s where all the trails lead to.  
Q: Is that a trail that you still use today?  
A: I went there this fall because every couple of years – every couple of years  
I recut that trail from Blueberry to this area and from this area further up. I  
could go from 115, there’s a trail that goes all the way down on Blueberry  
River past the Dancing Grounds. But now it’s blocked off because of  
landowners buying land and no more trespassing, so I can’t really go by there  
Yahey v. British Columbia  
Page 124  
unless I ask for permission but a lot of times they don’t want anybody on their  
land.  
Q: And could you turn, please, to tab Exhibit 58, tab C11. This is the 2016  
image of the area. Does this reflect what the area looked like at least in the  
last few years?  
A: Yes, it sure does.  
Q: Is the pack trail – is it visible on the map?  
A: No, you can’t see a pack trail on a map.  
Q: Too small?  
A: No.  
Q: Is it on the north side of the river or the south side of the river?  
A: It’s on the north side. As you can see, it hits some fields and those are the  
fields that you can’t cross. You can’t cross because of landowners and they  
fence it off.  
Q: Now, looking at the image it looks like there were some fields there in the  
mid-80s as well?  
A: They are further up. In the mid-80s all that trail was open. We used to – I  
mean in the 90s we used to ride horses from 115 from the Dancing Grounds  
all the way down to Blueberry. We used to always make that pack trip.  
Because we always – there’s a lot of history involved in there, that pack trail,  
because it’s really important to my family. It’s, I don’t know, hundreds of years  
old. And my uncles always – they always maintain it.They always have –  
there’s always a connection to it.  
And he’s always – he’s always expressing to us, he said we always got to  
have that trail open. And in his view he said one day you might have to use it.  
So we always have to maintain that trail but you can’t really maintain it when  
people are blocking you. So ... it’s really – I mean it’s important for us. It’s a lot  
of history to it. I mean generations before me, they use that trail. They set foot  
on that trail. They made that trail. Then again for my existence, that’s how –  
that’s how I’m here standing here today is that trail.  
Q: What do you mean by that?  
A: That trail has a lot of history. It’s before even settlers here, before – my dad  
–
my father said that trail is a gateway to all the areas we trap, where we hunt,  
where we gather berries, where we – at all facets of the Dane-zaa life, that’s  
that trail is. It goes all over. That’s how he explained it to me. Just like the  
horse, when I talk about horse, how important horse is to my nation, to my – to  
my tribe. When I talked to him he explained to me about how important a  
horse is to us. He said if it wasn’t for a horse he said you won’t be around. I  
won’t be around. He said that’s how important the horse is to us. Horses do all  
the work. That’s our mode of transportation. That’s how we get from A to B. Or  
else everything would be by walk. So a horse, I mean, that’s how he explained  
to me – that’s how he explained to me in terms of that trail.  
Yahey v. British Columbia  
Page 125  
Q: And does the horse remain important today now that you use vehicles as  
well?  
A: It’s the only way I – it’s the only way I go to areas where people can go is  
by horseback. I go where – remote areas where I don’t see nobody.  
Nonetheless, somebody else is with horseback in that area too. So, you know,  
it’s – when it’s – when the hunting season open then you will see a lot of – a  
lot of people with horses in the back country. So.  
Q: Where do you mean by the back country?  
A: Back country I mean by past Pink Mountain.  
Q: Further west?  
A: Further west in remote areas. It’s only – you know, it’s only area that’s  
accessible by horseback or by plane.  
Q: Do you ever any more use your horse in the Yahey family trapline?  
A: We go for rides and I show my children where important places. And I take  
them up the river, I take them up the trail, and I tell them this is the trail, like,  
what I’m talking about, up that Blueberry trail. The horseback trail. It’s a wagon  
trail. It’s a dog team trail. It’s a trail that leads to hunting grounds. To sacred  
areas.  
That trail was kind of like the Alaska Highway to us. Where it’s the Alaska  
Highway to somebody that’s living in the Yukon, that’s a main trail. It’s sort of  
like that if you wanted to do comparison. So that’s a really important trail.  
[
417] He described the Dancing Grounds as a spiritual spot where, for ten days and  
nights Dane-zaa people would gather, and the Prophets would drum, and the people  
would dance. He testified as follows: “A prophet means a dreamer. A dreamer is  
someone that has the ability to tell the future, someone that’s connected with the  
creator. And it’s not anybody is a prophet. It’s the creator choses who is the prophet.  
And he tells the future for his nation, the Dane-zaa people.” Dane-zaa people lead  
their lives based on the principles and guidance provided by their prophets. Following  
the Prophets is part of Blueberry’s heritage and culture, and is “how we live our life.”  
[
418] Mr. Yahey described the Dancing Grounds as a place Dane-zaa people gather  
to pray to the Creator. He noted it is a place identified by the Creator and  
communicated to the Dreamers. He recalled how his father had described the  
Dancing Grounds of his youth: “as far as your eye could see was teepees and there  
was smoke coming out of those teepees down that Blueberry River valley.”  
Yahey v. British Columbia  
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[
419] Mr. Yahey also referred to hunting Caribou when “there was lots.” He said  
“there’s something unique about their hide. They make the best drum for the singers,  
the traditional singers we have... [t]hey will make a different sound. So that’s – they  
will use the hide for the drums.”  
vii.  
Kayden Pyle  
[
420] Kayden Pyle was born in 2003, and was the youngest of the Blueberry  
members who testified. His parents are Sherry Dominic and Stanley Pyle. Mr. Pyle  
testified about how he learned to hunt and fish from his father who, along with his  
mother and other relatives, has been taking him camping and fishing since he was a  
baby.  
[
421] While growing up, Mr. Pyle spent most weekends moose hunting with his dad  
and he grew up relying on and eating wild game meat. He shot his first moose at a  
young age between IR 204 and IR 205. He spoke about some of the places he has  
hunted and been taught to hunt since he was young, including Pink Mountain,  
Beatton Airport Road, Aitken Creek, Graham River (past the Halfway Reserve),  
Blueberry River, Mile 98 Road, Mile 86 Road, and Gundy Road.  
[
422] Mr. Pyle testified that he feels grateful to get to learn how to hunt, fish, trap  
and skin animals, and generally to learn how to live off the land. He said:  
…
every time I go out with my father I always learn something new. He’s  
taught me how to navigate from the trees, he showed me how to live off the  
land. What to eat, what not to eat. How to live off the land. And where to sleep,  
what to sleep with if I’m ever stuck in there, where to go. And just those things  
I have always learned and carried on with me ever since, he’s taught me. And  
every time I always go out with him, we go hunting, I always learn something  
new.  
[
423] Mr. Pyle now attends school in Fort St. John, but on weekends he returns to  
Blueberry and he goes out on his quad early in the mornings to do his “loop” through  
the territory, scouting for animals, looking for tracks, and hunting. He said he does  
this to ensure the animals are still alive as there is no one to protect the animals.  
Yahey v. British Columbia  
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[
424] Mr. Pyle spoke of feeling free and feeling himself when he’s out on the land:  
Well, it gets me out of the house and I love just being outside. When I am  
outside I feel like I don’t have anything stopping me. Like I have no limits. Like  
there’s no one or anything to say of what I can and cannot do or who I have to  
be. I can be me. And it’s all about the land, because when you’re out there is  
nothing and no one to judge you or like – I don’t know how to word this.  
[
425] In answer to why hunting is important to him and why he hopes to continue  
hunting, he stated:  
Because hunting is a very sacred thing to me. It’s been in my family  
generation throughout years and it’s something that I will always carry with me  
and it will always be a part of me. It’s me, who I am. And it’s just a way that  
I’ve been taught of how to make a living of how to live. So it’s just the way that  
I’m always going to carry on with me.  
[
426] Mr. Pyle noted that he has had less success hunting moose over the last two  
years (2019 and 2018) than before, which he attributed to there being a very low  
moose count. This was the case even though he estimated spending over 50 hours  
hunting in 2018. He compared going hunting five to ten years ago with how it is now,  
and noted there are more large trucks hauling condensate on the roads now and  
noted this was the case at Gundy Road, north of Wonowon and at the Beatton Airport  
road.  
[
427] He spoke about some of the limitations he faces to hunting now. In particular,  
he worries about encounters with farmers and avoids shooting on private land. He  
also avoids hunting near oil and gas wells, as one wrong shot could wreck the lands  
and cause millions of dollars in damage. He also described how it was  
“heartbreaking” to go out on the land to places he used to hunt, only to find it turned  
into a cutblock.  
D.  
Conclusions Regarding Blueberry’s Way of Life  
[
428] The evidence provided by Dr. Ridington and Mr. Brody and the Blueberry  
community members who testified in this case establishes that Blueberry’s ancestors  
are the Dane-zaa who have lived in the Upper Peace River area for 10,000 years.  
 
Yahey v. British Columbia  
Page 128  
[
429] As was discussed earlier, the features of Blueberry’s Dane-zaa way of life  
include: travelling as family groups throughout their territory to access resources from  
a variety of environments; practicing seasonality and scheduling their resource use  
(such as by not returning to the same places every year, but letting areas rejuvenate);  
hunting, trapping and fishing for the wildlife species that have sustained them for  
generations; passing down knowledge generation to generation while on the land  
engaged in various activities; and engaging in spiritual practices that reflect the  
connection to the land and wildlife.  
[
430] The evidence was that for thousands of years, this way of life has involved  
moving throughout their territory to take advantage of the resources available in each  
season. They planned and scheduled where within the various ecological zones of  
their territory (the prairies, lakes, mountains and muskeg regions) they would go to  
ensure a steady supply of fish, game and plant resources.  
[
431] This way of life requires intimate knowledge of the areas within the territory  
and of their resource potential, so that care can be taken not to overharvest. This  
learning used to happen while out camping or hunting so that they could learn the  
essential knowledge (such as where to camp or get water and scout for animals) as  
part of everyday living on the land. These days, culture camps often take the place of  
everyday transmission of culture.  
[
432] For generations, Blueberry members have hunted moose, deer and, until the  
960s or 1970s, caribou, as well as beaver, rabbits and grouse. moose, in particular,  
1
is their primary diet. They hunt selectively, based on how much is needed and how  
much harvesting wildlife populations can sustain. They also trap beavers, martens,  
otters, wolves, wolverines and lynx. They fish suckers. They harvest berries and  
traditional medicines at various locations within their territory. Hunting traditionally  
took place at locations within close proximity to their homes. They use all parts of the  
animals, drying or freezing the meat, using the hides and furs for clothing and crafts,  
and bones for scraping.  
Yahey v. British Columbia  
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[
433] I accept that Blueberry’s knowledge and its ability to successfully hunt, trap,  
fish and gather depends on the health and relative stability of the environment. If  
forests are cuts, or critical habitat destroyed, it is not as simple as finding another  
place to hunt. The Dane-zaa have located these places over generations.  
[
434] Elders spoke of the bush being their store, and the wildlife their groceries. But  
the connection between Blueberry and the animals they harvest runs deeper than  
sustenance. One of the most important aspects of Dane-zaa identity is the  
maintenance of a relationship between hunters and the spirits of the animals they  
hunt. Hunters “dream” their prey, and animals willingly give themselves to hunters  
who uphold their responsibilities.  
[
435] The Dane-zaa communities gather in the summer to sing, drum, dance, share  
stories and do their planning. In years gone by, their Prophets or Dreamers would tell  
of the future of the nation and provide guidance to live by.  
[
436] Theirs is a way of life that is connected to, dependent on, and respectful of the  
land and wildlife. It is seen as a “good life,” embodying a sense of freedom, health  
and wellness. Hunting, fishing and trapping is not a hobby, interest or pastime. It is a  
core aspect of Blueberry’s identity and impairing it significantly harms their well-being.  
[
437] While some changes may occur, this way of life is dependent on the existence  
of healthy mature forests, wildlife habitats (such as mineral licks), fresh clean water,  
and access to these places. There must be healthy populations of moose and other  
wildlife so that Blueberry members have a chance of being successful on their hunts,  
and do not need to travel far from or outside of their territory to find game. In addition,  
this way of life depends on a relatively stable environment, so that the knowledge  
held by Blueberry members about the places to hunt, fish and trap is relevant and  
applicable.  
[
438] Now that I have concluded the Treaty promise included protecting Blueberry’s  
way of life from interference and have set out the elements of that way of life, I turn to  
whether Blueberry’s treaty rights have been infringed. While change was  
Yahey v. British Columbia  
Page 130  
foreshadowed, this was only to the extent it did not interfere with Blueberry’s ability to  
maintain this mode of life and meaningfully exercise rights protected by the Treaty.  
[
439] I must now resolve the question of the test to determine an infringement of  
treaty rights.  
VII. HAVE BLUEBERRY’S TREATY RIGHTS BEEN INFRINGED?  
A.  
Introduction  
[
440] In support of its claim that its treaty rights have been infringed and that it  
cannot meaningfully exercise rights in its territory, Blueberry has appended to its  
Notice of Civil Claim, a map of its traditional territory, which I have referred to here as  
the Blueberry Claim Area. I will review the evidence of the area relied on by Blueberry  
for the exercise of its rights historically and today, and will deal with the Province’s  
position that the Court does not need to determine the location or extent of  
Blueberry’s traditional territory in this case.  
[
441] I will then review the question of whether the Blueberry Claim Area is, as  
argued by Blueberry, disturbed by extensive industrial development such that  
Blueberry’s members are unable to meaningfully exercise their treaty rights in their  
traditional territory. This will be a two-part process because, as the Province points  
out, even if disturbance is established, Blueberry members may still be able to  
exercise their treaty rights within a disturbed area. First, I must assess the level of  
disturbances in the Blueberry Claim Area and the status of wildlife, and then I must  
examine the claim that Blueberry members can no longer meaningfully exercise their  
treaty rights in the Blueberry Claim Area. This involves a conclusion as to whether  
there are sufficient and appropriate lands in Blueberry’s traditional territories to permit  
the meaningful exercise of their Treaty 8 rights.  
[
442] The Province defends itself in this case largely on this latter issue. It says not  
all disturbances have equal effect and, on a factual basis, Blueberry has not  
established that its members cannot exercise their treaty rights. Rather, the Province  
says the facts, including Blueberry members’ own evidence, establish otherwise.  
 
 
Yahey v. British Columbia  
Page 131  
[
443] As I noted in the overview and will expand on below, I do not accept that  
proposition. I will therefore then turn to whether the Province’s actions, largely  
relating to authorizing activities that create these disturbances, have contributed to  
this situation. As part of this, I will examine the Province’s various regulatory regimes  
at issue in this case, and will ultimately decide whether the Crown has diligently and  
honourably implemented the Treaty.  
[
444] I will then deal with whether the Province has justified the infringement of  
Blueberry’s treaty rights, and set out the relief.  
B.  
What is the Test for Infringement of Treaty Rights?  
[
445] The parties fundamentally disagree as to what is the applicable test for  
considering alleged infringements of treaty rights.  
446] Blueberry maintains the framework for considering an alleged infringement of  
[
treaty rights remains that set out by the Supreme Court of Canada in Sparrow. The  
Province says that in Mikisew, at para. 48, the Supreme Court of Canada moved  
away from and modified the Sparrow test when it comes to the infringement of treaty  
rights, and the test is now whether “no meaningful right” to hunt, fish or trap remains.  
[
447] While the parties agree that Mikisew applies and that Blueberry has the onus  
of proving infringement, the dispute is how the test of infringement is interpreted and  
applied in this case. As I understand their arguments, Blueberry’s application of the  
test focuses on the meaningfulness of the exercise of rights, and the Province’s  
application focuses on whether rights remain. While the Province says its position is  
not that “no meaningful right” to hunt, fish or trap must be established to find an  
infringement, the effect of its argument will be examined as part of the Court’s  
analysis.  
[
448] This fundamental difference first warrants a review of the evolution of  
jurisprudence in this area. The Supreme Court of Canada has sought to set out a  
framework for infringement, and the jurisprudence has evolved based on the facts of  
the cases that have come before the courts.  
 
Yahey v. British Columbia  
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1
.
Jurisprudence  
[
449] In the section below, I review key cases discussing infringements of Aboriginal  
and treaty rights. Some of these authorities, including Badger, Marshall, Halfway and  
Mikisew and have already been discussed in the context of the approach to treaty  
interpretation, generally, and the interpretation of the rights contained in Treaty 8,  
specifically. The emphasis below is on the aspects of these decisions and others that  
discuss infringement.  
[
450] The infringement test was first developed in Sparrow. There, the Supreme  
Court of Canada considered the recognition and affirmation of Aboriginal and treaty  
rights contained in s. 35(1) of the Constitution Act, 1982. It reasoned that s. 35(1) –  
and the recognition and protection of rights therein – reflected a solemn commitment  
that must be given meaningful content.  
[
451] Aboriginal and treaty rights protected by s. 35(1) are, however, not absolute.  
While the Constitution Act, 1982 protects against the infringement of Aboriginal and  
treaty rights, such rights may be infringed in certain circumstances, when justified.  
[
452] Sparrow dealt with the question of whether the net length restriction contained  
in Musqueam’s food fishing license infringed their Aboriginal rights to fish for food,  
social and ceremonial purposes. To determine if Musqueam’s Aboriginal rights had  
been interfered with such as to constitute a prima facie infringement of s. 35(1), Chief  
Justice Dickson at 1112 posed three questions:  
First, is the limitation unreasonable? Second, does the regulation impose  
undue hardship? Third, does the regulation deny to the holders of the right  
their preferred means of exercising that right?  
[
453] Chief Justice Dickson went on to note that the test, in the context of the  
Sparrow case, involved asking: whether either the purpose or effect of the restriction  
on net length unnecessarily infringed the interests protected by the fishing right;  
whether Musqueam members had to spend undue time and money per fish caught;  
and whether the net length restriction resulted in a hardship to Musqueam in catching  
fish (at 1112-1113). If so, this would constitute a prima facie infringement.  
 
Yahey v. British Columbia  
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[
454] The onus to prove the infringement is on the party alleging the infringement. If  
a prima facie interference is found, the analysis moves to the issue of justification,  
where the onus is on the Crown to justify the infringing measures or actions.  
[
455] The Supreme Court of Canada in Badger confirmed that the Sparrow test for  
prima facie infringement also applied in the context of alleged infringements of treaty  
rights. Justice Cory noted that both Aboriginal rights and treaty rights are sui generis  
and both engage the honour of the Crown. The wording of s. 35(1) supports taking a  
common approach to infringements of Aboriginal and treaty rights (at para. 79).  
Justice Cory at para. 82 noted it was “equally if not more important to justify prima  
facie infringements of treaty rights.”  
[
456] The alleged infringement in Badger arose from the licensing provisions  
contained in s. 26(1) of the Alberta Wildlife Act. Justice Cory noted that, at first blush,  
it appeared that the provisions were directed to questions of conservation, which  
would be within the government’s regulatory powers and consistent with Treaty 8 (at  
para. 71). He went on to note, however, that “the routine imposition upon Indians…  
may not be permissible if they erode an important aspect of the Indian hunting rights”  
(at para. 90). Justice Cory observed that there can be no limitation on the method,  
timing and extent of Indian hunting under a treaty (at para. 90).  
[
457] Justice Cory considered whether the provisions were “clearly unreasonable” in  
their application to Aboriginal people (at para. 91), looking closely at the impact of the  
licensing scheme on beneficiaries of Treaty 8 seeking to exercise their rights to hunt  
for food (i.e., the treaty right modified by the NRTA):  
Prima Facie Infringement of the Treaty Right to hunt as modified by the NRTA  
…
[
92] Under the present licensing scheme, an Indian who has successfully  
passed the approved gun safety and hunting competency courses would not  
be able to exercise the right to hunt without being in breach of the  
conservation restrictions imposed with respect to the hunting method, the kind  
and numbers of game, the season and the permissible hunting area, all of  
which appear on the face of the licence. Moreover, while the Minister may  
determine how many licences will be made available and what class of licence  
these will be, no provisions currently exist for “hunting for food” licences.  
Yahey v. British Columbia  
Page 134  
[
93] At present, only sport and commercial hunting are licensed. It is true that  
the regulations do provide for a subsistence hunting licence…However, its  
provisions are so minimal and so restricted that it could never be considered a  
licence to hunt for food as that term is used in Treaty No. 8 and as it is  
understood by the Indians. Accordingly, there is no provision for a licence  
which does not contain the facial restrictions set out earlier. Finally, there is no  
provision which would guarantee to Indians preferential access to the limited  
number of licences, nor is there a provision that would exempt them from the  
licence fee. As a result, Indians, like all other Albertans, would have to apply  
for a hunting licence from the same limited pool of licences. Further, if they  
were fortunate enough to be issued a licence, they would have to pay a  
licensing fee, effectively paying for the privilege of exercising a treaty right.  
This is clearly in conflict with both the Treaty and NRTA provisions.  
[
458] Justice Cory concluded that since the licensing system denied holders of  
treaty rights the very means of exercising those rights, s. 26(1) of the Wildlife Act  
conflicted with the hunting right set out in Treaty 8, as modified by the NRTA (at para.  
9
4). Accordingly, Mr. Ominayak had established the existence of a prima facie breach  
of his treaty right, and it fell to the Crown to justify the infringement (at para. 95).  
[
459] In R. v. Gladstone, [1996] 2 S.C.R. 723 [Gladstone] (a case dealing with  
Aboriginal rights to fish for commercial purposes), Chief Justice Lamer “clarif[ied]” the  
Sparrow framework so that it could apply to the different circumstances of that case  
(para. 21).  
[
460] In Gladstone, while the appellants were challenging s. 20(3) of the Pacific  
Herring Fishery Regulations, the Supreme Court of Canada recognized that the  
scope of the challenge was much broader, and effectively impugned the entire  
approach taken by the federal government to the management of the herring spawn  
on kelp fishery (at para. 40).  
[
461] Chief Justice Lamer noted that the questions suggested in Sparrow must be  
applied not only to s. 20(3) of the regulation, but also to other aspects of the  
regulatory scheme of which s. 20(3) was a part. Chief Justice Lamer also noted that  
the questions set out in Sparrow are just “factors” that may indicate if an infringement  
has taken place. While the questions assist in the analysis, there is no requirement  
Yahey v. British Columbia  
Page 135  
that they all be answered affirmatively to make out an infringement. At para. 43 Chief  
Justice Lamer said:  
[
43] The Sparrow test for infringement might seem at first glance, to be  
internally contradictory. On the one hand, the test states that the appellants  
need simply show that there has been a prima facie interference with their  
rights in order to demonstrate that those rights have been infringed,  
suggesting thereby that any meaningful diminution of the appellants’ rights will  
constitute an infringement for the purpose of this analysis. On the other hand,  
the questions the test directs courts to answer in determining whether an  
infringement has taken place incorporate ideas such as unreasonableness  
and “undue” hardship, ideas which suggest that something more than  
meaningful diminution is required to demonstrate infringement. This internal  
contradiction is, however, more apparent than real. The questions asked by  
the Court in Sparrow do not define the concept of prima facie infringement;  
they only point to factors which will indicate that such an infringement has  
taken place. Simply because one of those questions is answered in the  
negative will not prohibit a finding by a court that a prima facie infringement  
has taken place; it will just be one factor for a court to consider in its  
determination of whether there has been a prima facie infringement.  
[
462] Chief Justice Lamer reasoned at paras. 51 and 52 that the various parts of the  
government’s scheme for regulating the herring spawn on kelp fishery (determining  
the amount of herring stock to be harvested in a given year; allotting the stock to the  
different herring fisheries including roe, spawn on kelp and other herring fisheries;  
allotting the herring spawn on kelp fishery to various user groups; and allotting the  
commercial herring spawn on kelp fishery) could be considered as a whole for the  
purposes of the infringement analysis. The reason for this was that: “at the  
infringement stage it is the cumulative effect on the appellants’ rights from the  
operation of the regulatory scheme that the court is concerned with.” Here, the  
cumulative effect of the regulatory scheme was that the total amount of herring  
spawn on kelp the Heiltsuk could harvest for commercial purposes was limited.  
[
463] Chief Justice Lamer found the Heiltsuk had discharged their burden of  
demonstrating a prima facie interference with their Aboriginal rights. Prior to the  
arrival of Europeans, they could harvest to the extent they desired; once Canada  
started regulating the fishery, the Heiltsuk could only harvest herring spawn on kelp  
for commercial purposes to the limited extent allowed by the government (at para.  
Yahey v. British Columbia  
Page 136  
5
3). The rest of the decision turned on whether Canada had justified its infringing  
actions, again using the test set out in Sparrow, with modifications given that the right  
at issue was a commercial one, not subject to “an inherent limitation” (at para. 57).  
[
464] The Sparrow/Badger approach to the infringement and justification of treaty  
rights was applied in Marshall at paras. 64 and 65. In this case, the Supreme Court of  
Canada considered whether certain prohibitions in the federal fishery regulations  
infringed Mr. Marshall’s treaty rights in the peace and friendship treaties entered into  
between the Crown and the Mi’kmaq in 1760 and 1761. Justice Binnie, writing for the  
majority, concluded that the treaties protected the right to sell fish to secure  
“necessaries” (the modern equivalent of a moderate livelihood) and that Mr. Marshall  
was engaged in this activity when he was charged with three offences: selling eels  
without a licence, fishing without a licence, and fishing during the close season with  
illegal nets.  
[
465] At paras. 62-65, Justice Binnie analyzed the discretionary licencing regime at  
issue to consider whether it represented a prima facie infringement of the treaty right.  
Justice Binnie referred to the test for infringement set out in Sparrow, and to how the  
test had been applied to licensing schemes in R. v. Adams, [1996] 3 S.C.R. 101  
[
Adams]. In Adams, Chief Justice Lamer had reasoned that, in light of the Crown’s  
unique fiduciary obligations towards Indigenous people, Parliament could not simply  
adopt an unstructured discretionary administrative regime which risked infringing  
Aboriginal rights. Instead, the statute or regulations had to provide specific guidance  
regarding the exercise of discretion which sought to accommodate the existence of  
the rights. The various fishery regulations at issue in that case placed the issuance of  
licences within the absolute discretion of the Minister, and there was nothing in the  
regulations which gave directions to government officials to explain how to exercise  
this discretionary authority in a manner that would respect treaty rights (at para. 64).  
[
466] In Marshall, Justice Binnie, applying Adams, held that the regulatory  
prohibitions at issue infringed Mr. Marshall’s treaty rights (at para. 64). In addition,  
referring to Badger, Justice Binnie noted that there can be no limitation on the  
Yahey v. British Columbia  
Page 137  
method, timing and extent of Indian hunting under a treaty, apart from a treaty  
limitation to that effect (at para. 65).  
[
467] In the absence of any justification by Canada of the regulatory prohibitions, Mr.  
Marshall was entitled to an acquittal.  
[
468] In a subsequent decision (R. v. Marshall, [1999] 3 S.C.R. 533 [Marshall #2]),  
the Court noted that it is always open to the Minister to seek to justify the limitation on  
a treaty right because of the need to conserve the resources in question or for other  
compelling and substantial public objectives (at para. 19).  
[
469] In Halfway, as previously discussed earlier in these reasons, one of the issues  
before the British Columbia Court of Appeal was what constitutes an infringement of  
Treaty 8 rights. The First Nation argued, among other things, that the decision to  
allow logging in a particular area infringed its hunting rights under Treaty 8. While  
Halfway is discussed quite extensively earlier, given its complexity, its discussion and  
application of Sparrow, and the fact it is commented on in Mikisew I will discuss it  
further here.  
[
470] The chambers judge in Halfway applied the test in Sparrow and reasoned that  
any interference with the right to hunt, fish or trap constitutes a prima facie  
“
infringement of Treaty 8 rights.” Accordingly, she found that the cutting permit  
constituted an infringement of Halfway’s treaty rights, and that this infringement had  
not been justified.  
[
471] The Province and the logging company appealed. They argued that issuing  
the cutting permit was a permissible exercise of the Crown’s right to take up land  
under the Treaty and that there was no infringement. The majority of the Court of  
Appeal (per Finch J.A., and Huddart J.A. concurring) dismissed the appeal.  
[
472] Justice Finch held that the chambers judge did not err in holding that any  
interference with the right to hunt was a prima facie infringement of the petitioners’  
Treaty 8 right to hunt (at paras. 138-144).  
Yahey v. British Columbia  
Page 138  
[
473] Justice Huddart issued concurring reasons dismissing the appeal but parted  
company with Justice Finch on the application of Sparrow. Justice Huddart held that  
consideration of whether consultation was adequate must precede any infringement  
or justification analysis under Sparrow (at paras. 180, 191-193). She noted, however,  
that common sense suggested the effects of the logging might be sufficiently  
meaningful to require the government to justify its decision, depending on the nature  
of the hunting right. Had the District Manager understood the extent of his obligation  
to consult, he might have concluded the logging activities would result in a  
meaningful diminution of the Treaty 8 right to hunt. At para. 186, Justice Huddart  
reasoned as follows:  
[
186] My difference with the reasoning of Mr. Justice Finch flows from my view  
that the chambers judge was wrong when she found that “any interference”  
with the right to hunt constituted an “infringement” of the treaty right requiring  
justification. I cannot read either Sparrow or Badger to support that view. As  
my colleague notes at para. 124, in Sparrow the court stated the question as  
“
whether either the purpose or effect of the statutory regulation unnecessarily  
infringes the aboriginal interest.” In Badger, at 818, in his discussion as to  
whether conservation regulations infringed the treaty right to hunt, Cory J.  
indicated the impugned provisions might not be permissible “if they erode an  
important aspect of the Indian hunting rights.” In Gladstone, supra, Lamer  
C.J.C. indicated that a “meaningful diminution” of an aboriginal right would be  
required to constitute an infringement. Each of these expressions of the test  
for an “infringement” imports a judgment as to the degree and significance of  
the interference. To make that judgment requires information from which the  
scope of the existing treaty or aboriginal right can be determined, as well as  
information about the precise nature of the interference.  
(
emphasis in original)  
[
474] Justice Southin, dissenting, would have allowed the appeal on the basis that  
the case ought to have been dealt with in an action supported by proper evidence,  
not a petition for judicial review. On the application of Sparrow, Justice Southin  
reasoned as follows at paras. 224-225:  
[
224] In my opinion the issue is not whether there is an infringement and  
justification within the Sparrow test, but whether the Crown has so conducted  
itself since 1900 as to be in breach of the Treaty…  
[
225] The question in such an action would be whether what the Crown has  
done throughout the Halfway River First Nation’s traditional lands by taking up  
land for oil and gas production, forestry, and other activities has so affected  
Yahey v. British Columbia  
Page 139  
the population of game animals as to make the right of hunting illusory. “To  
make the right of hunting illusory” may be the wrong test. Perhaps the right  
test is “to impair substantially the right of hunting” or some other formulation of  
words.  
[
475] As noted, this case ultimately was commented upon in Mikisew, in the  
decisions of the Federal Court, Federal Court of Appeal, and Supreme Court of  
Canada.  
[
476] In Canada (Canadian Heritage) v. Mikisew Cree First Nation, 2004 FCA 66,  
Rothstein J.A. (as he then was, and for the majority of the Federal Court of Appeal)  
allowed Canada’s appeal. The majority held that the approval of the winter road  
through Mikisew’s reserve constituted a taking up within the meaning of Treaty 8 and,  
as Mikisew did not have rights to hunt on lands that had been taken up, there was no  
violation of s. 35 and no need to apply Sparrow (at para. 2).  
[
477] Justice Rothstein noted that in order to determine whether there had been a  
prima facie infringement of a constitutionally protected treaty right, it was necessary  
to determine the scope of the treaty right (at para. 14). He then reasoned as follows  
at para. 18:  
[
18] With the exceptions of cases where the Crown has taken up land in bad  
faith or has taken up so much land that no meaningful right to hunt remains,  
taking up land for a purpose express or necessarily implied in the treaty itself  
cannot be considered an infringement of the treaty right to hunt. Neither of  
these exceptions apply here. This is not a case where the Minister has acted  
in bad faith; nor, as the land required for the road corridor comprises  
approximately 23 square kilometres out of the 44,807 square kilometres of  
Wood Buffalo National Park or the approximately 840,000 square kilometres  
encompassed by Treaty 8, is this a case where no meaningful right to hunt  
remain.  
[
478] At paras. 21-23, Justice Rothstein reasoned that whether or not there was an  
infringement would fall to be determined on the basis of the limitations provided in the  
Treaty:  
[
21] Where a limitation expressly provided for by a treaty applies, there is no  
infringement of the Treaty and thus no infringement of section 35. This is to be  
contrasted with the case where the limitations provided by the Treaty do not  
apply but the government nevertheless seeks to limit the Treaty right. In such  
Yahey v. British Columbia  
Page 140  
a case, the Sparrow test must be satisfied in order for the infringement to be  
constitutionally permissible.  
[
22] Sharlow J.A. relies on the reasons of Finch J.A. in Halfway River First  
Nation v. British Columbia (Ministry of Forests) (1999), 64 B.C.L.R. (3d)  
06, 1999 BCCA 470 as support for the proposition that a “taking up” could  
2
itself be a prima facie infringement of the Mikisew’s treaty rights. However, I  
find that I am bound by the analysis of Cory J. in Badger which is directly  
applicable to the facts of this case.  
[
23] As the approval of the road constituted a taking up within the meaning of  
Treaty 8, the Mikisew’s treaty right to hunt on the road corridor is suspended  
for as long as it is being used for a purpose visibly incompatible with hunting.  
There therefore has been no infringement of Treaty 8, as constitutionalized by  
section 35, that requires the application of the Sparrow test.  
[
[
479] Mikisew appealed.  
480] By the time the case came before the Supreme Court of Canada, the issue  
was essentially whether, in taking up the land for the road, Canada had an obligation  
to consult. That obligation had been established by Haida, which was issued after the  
decision of the Federal Court of Appeal. However, the context of this issue was, as  
noted above, whether the taking up of land for the road amounted to an infringement  
that triggered the need for a Sparrow justification, or whether Canada was just taking  
up lands as entitled to under the Treaty.  
[
481] Justice Binnie considered the taking up clause in Treaty 8 and the relevance of  
the infringement and justification tests set out in Sparrow. He reasoned as follows at  
paras. 30-32:  
[
30] In the case of Treaty 8, it was contemplated by all parties that “from time  
to time” portions of the surrendered land would be “taken up” and transferred  
from the inventory of lands over which the First Nations had treaty rights to  
hunt, fish and trap, and placed in the inventory of lands where they did not.  
Treaty 8 lands lie to the north of Canada and are largely unsuitable for  
agriculture. The Commissioners who negotiated Treaty 8 could therefore  
express confidence to the First Nations that, as previously mentioned, “the  
same means of earning a livelihood would continue after the treaty as existed  
before it” (p. 5).  
[
31] I agree with Rothstein J.A. that not every subsequent “taking up” by the  
Crown constituted an infringement of Treaty 8 that must be justified according  
to the test set out in Sparrow. In Sparrow, it will be remembered, the federal  
government’s fisheries regulations infringed the aboriginal fishing right, and  
Yahey v. British Columbia  
Page 141  
had to be strictly justified. This is not the same situation as we have here,  
where the aboriginal rights have been surrendered and extinguished, and the  
Treaty 8 rights are expressly limited to lands not “required or taken up from  
time to time for settlement, mining, lumbering, trading or other purposes”  
(
emphasis added). The language of the Treaty could not be clearer in  
foreshadowing change. Nevertheless the Crown was and is expected to  
manage the change honourably.  
[
32] It follows that I do not accept the Sparrow-oriented approach adopted in  
this case by the trial judge, who relied in this respect on Halfway River First  
Nation v. British Columbia (Ministry of Forests)(1999), 178 D.L.R. (4th) 666,  
1999 BCCA 470. In that case, a majority of the British Columbia Court of  
Appeal held that the government’s right to take up land was “by its very nature  
limited” (para. 138) and “that any interference with the right to hunt is a prima  
facie infringement of the Indians’ treaty right as protected by s. 35 of the  
Constitution Act, 1982” (para. 144 (emphasis in original)) which must be  
justified under the Sparrow test. The Mikisew strongly support the Halfway  
River First Nation test but, with respect, to the extent the Mikisew interpret  
Halfway River as fixing in 1899 the geographic boundaries of the Treaty 8  
hunting right, and holding that any post-1899 encroachment on these  
geographic limits requires a Sparrow-type justification, I cannot agree. The  
Mikisew argument presupposes that Treaty 8 promised continuity of  
nineteenth century patterns of land use. It did not, as is made clear both by the  
historical context in which Treaty 8 was concluded and the period of transition  
it foreshadowed.  
(
emphasis added)  
[
482] Justice Binnie went on to discuss the content of Treaty 8 and, specifically,  
where the hunting, trapping and fishing rights were to be exercised. In the appeal, the  
federal Minister was arguing that the test for infringement of treaty rights ought to be  
“
whether, after the taking up, it still remains reasonably practicable, within the  
Province as a whole, for the Indians to hunt, fish and trap for food [to] the extent that  
they choose to do so” (emphasis in original). The Attorney General for Alberta, an  
intervenor, suggested adding a de minimums element, arguing that the winter road  
would take up only 23 square kilometres out of the 840,000 square kilometres  
encompassed by Treaty 8. Binnie J. firmly rejected these territory-wide approaches to  
understanding the exercise of treaty rights. At paras. 47-48:  
[
47] The arguments of the federal and Alberta Crowns simply ignore the  
significance and practicalities of a First Nation’s traditional territory. Alberta’s  
3 square kilometre argument flies in the face of the injurious affection of  
2
surrounding lands as found by the trial judge. More significantly for aboriginal  
people, as for non-aboriginal people, location is important. Twenty-three  
Yahey v. British Columbia  
Page 142  
square kilometres alone is serious if it includes the claimants’ hunting ground  
or trapline. While the Mikisew may have rights under Treaty 8 to hunt, fish and  
trap throughout the Treaty 8 area, it makes no sense from a practical point of  
view to tell the Mikisew hunters and trappers that, while their own hunting  
territory and traplines would now be compromised, they are entitled to invade  
the traditional territories of other First Nations distant from their home turf (a  
suggestion that would have been all the more impractical in 1899)…  
…
Badger recorded that a large element of the Treaty 8 negotiations were the  
assurances of continuity in traditional patterns of economic activity. Continuity  
respects traditional patterns of activity and occupation. The Crown promised  
that the Indians’ rights to hunt, fish and trap would continue “after the treaty as  
existed before it” (p. 5). This promise is not honoured by dispatching the  
Mikisew to territories far from their traditional hunting grounds and traplines.  
[
48] What Rothstein J.A. actually said at para. 18 is as follows:  
With the exceptions of cases where the Crown has taken up  
land in bad faith or has taken up so much land that no  
meaningful right to hunt remains, taking up land for a purpose  
express or necessarily implied in the treaty itself cannot be  
considered an infringement of the treaty right to hunt.  
[
Emphasis added.]  
The “meaningful right to hunt” is not ascertained on a treaty-wide basis (all  
40,000 square kilometres of it) but in relation to the territories over which a  
8
First Nation traditionally hunted, fished and trapped, and continues to do so  
today. If the time comes that in the case of a particular Treaty 8 First Nation  
“
no meaningful right to hunt” remains over its traditional territories, the  
significance of the oral promise that “the same means of earning a livelihood  
would continue after the treaty as existed before it” would clearly be in  
question, and a potential action for treaty infringement, including the demand  
for a Sparrow justification, would be a legitimate First Nation response.  
(
emphasis in original)  
[
483] The Supreme Court of Canada’s decision in Mikisew was that while the Crown  
had a right under the Treaty to take up lands, the government must nevertheless  
engage in a meaningful process of consultation and accommodation when a  
proposed taking up may adversely affect the exercise of a First Nation’s treaty right.  
[
484] Where a proposed taking up is challenged, the Court should consider the  
process by which the taking up is planned to go ahead, and ought not to move  
directly to a Sparrow infringement analysis (at para. 59). The Supreme Court of  
Canada upheld the trial judge’s findings of fact that the Crown failed to show any  
Yahey v. British Columbia  
Page 143  
intention of substantially addressing Mikisew’s concerns (at paras. 67-68). The  
consultation process never got off the ground (at para. 65). In the result, the Supreme  
Court of Canada allowed Mikisew’s appeal, quashed the Minister’s approval order,  
and remitted the winter road project to the Minister to be dealt with in accordance with  
its reasons.  
[
485] In Morris, the Supreme Court of Canada considered the meaning of the  
concept of prima facie infringement in the context of s. 88 of the Indian Act, R.S.C.  
985, c. I-5. The majority of the Supreme Court of Canada reasoned at para. 53 that  
1
a prima facie infringement requires a “meaningful diminution” of a treaty right, which  
includes “anything but an insignificant interference with that right.” The other aspects  
of the Court’s decision in Morris are not relevant to this case.  
[
486] In Grassy Narrows the issues were whether Ontario could, under Treaty 3,  
take up lands in the Keewatin area so as to limit the harvesting rights under that  
treaty, and whether it needed federal authorization to do so.  
[
487] On the issue of the Crown’s power to take up lands, Chief Justice McLachlin  
applied Mikisew and held that the Crown’s right to take up lands under Treaty 3 was  
subject to its duty to consult and, if appropriate, accommodate First Nations’ interests  
beforehand. On the question of infringement, Chief Justice McLachlin stated as  
follows at para. 52:  
[
52]…Not every taking up will constitute an infringement of the harvesting  
rights set out in Treaty 3. This said, if the taking up leaves the Ojibway with no  
meaningful right to hunt, fish or trap in relation to the territories over which  
they traditionally hunted, fished, and trapped, a potential action for Treaty  
infringement will arise (Mikisew, at para. 48).  
[
488] As is evident from the foregoing, the Sparrow framework for infringement can  
and has been modified to fit the circumstances of given cases. It has been broadened  
to consider the effects caused by a regulatory regime (Gladstone, see also  
Ahousaht), as opposed to a specific provision. The regulatory and legislative context  
is relevant to understanding how the infringement arises. Context can also be  
Yahey v. British Columbia  
Page 144  
relevant to understanding the effect and significance on the exercise of Aboriginal or  
treaty rights of a specific regulatory regime or proposed development. While the  
Province argues that challenges to specific aspects of a regulatory regime can and  
should have been addressed by way of judicial review and not in a trial, the Supreme  
Court of Canada has indicated that a treaty infringement claim should be dealt with in  
an action.  
[
489] I turn now to a brief summary of the parties’ positions on the test for  
infringement of treaty rights.  
2
.
Test for Infringement  
a) Parties’ Positions  
490] Blueberry maintains that the Sparrow/Badger test for infringement applies, and  
[
that Mikisew must be considered in its jurisprudential context, with an eye to the  
purpose of the protection of Aboriginal and treaty rights in s. 35 and to the nature of  
the promise contained in the Treaty.  
[
491] It says the way to interpret and apply the Court’s statement at para. 48 of  
Mikisew that a potential action for treaty infringement arises if “no meaningful right”  
remains, is to focus on whether there is no meaningful right left, not on whether the  
rights can be exercised at all.  
[
492] To be meaningful, Blueberry says, its members must be able to exercise their  
rights as part of a mode of life that has not been significantly diminished. Focussing  
on whether its mode of life has been significantly diminished, says Blueberry, is  
important in a case such as this, where the allegation of infringement isn’t made with  
respect to one specific interference with the right to hunt, fish or trap, but rather with  
the cumulative effects of hundreds or thousands of interferences with Blueberry’s  
exercise of rights.  
[
493] The Province says the identification of the proper test for the infringement of  
treaty rights is a key part of this case. It maintains the legal test for a claim of  
 
Yahey v. British Columbia  
Page 145  
infringement of Treaty 8 rights is now expressly set out by the Supreme Court of  
Canada in Mikisew, and takes into account the Province’s right to take up lands from  
time to time.  
[
494] The test, says the Province, is not to look for “anything more than an  
insignificant infringement” or a “prima facie infringement” with rights as argued by  
Blueberry. Rather, the Province says that the Supreme Court of Canada in Mikisew  
modified and rejected the Sparrow approach, and that the test for infringement is:  
whether the Crown has taken up so much land that “no meaningful right” to hunt, fish  
or trap remains.  
[
495] In other words, the Province says an alleged infringement of treaty rights must  
be measured against lands taken up, i.e., transferred from the inventory of lands over  
which rights to hunt, fish and trap are retained, into the inventory of lands over which  
no rights exist. It is only when so much land has been taken up that no meaningful  
right to hunt, fish or trap remains within a First Nation’s traditional territory that an  
infringement will be made out.  
[
496] Blueberry is critical of the Province’s approach to infringement and submitted  
in oral argument that the Province is essentially starting at nothing (i.e., no rights) and  
is “counting up from nothing” to find specific instances of Blueberry members  
exercising their treaty rights, thereby confirming the Province’s position that rights  
remain. Blueberry argues the Court should start from the premise that their way of life  
was not to be interfered with and that their rights were to be protected by the Treaty  
and, weighing the evidence of loss and conducting a qualitative assessment,  
determine whether there has been a significant diminution or significant diminishment  
in Blueberry’s way of life.  
[
497] The Province points out, as noted in Prophet River First Nation v. Canada  
Attorney General), 2017 FCA 15 [Prophet River (FCA)] at para. 34, that the Supreme  
(
Court of Canada has moved away from the Sparrow-based infringement approach  
and imposed on the Crown a duty to consult and accommodate prior to taking up  
Yahey v. British Columbia  
Page 146  
lands. The duty to consult is triggered at a low threshold, where a taking has the  
potential to impact the exercise of rights. The obligation to consult is imposed as a  
serious and substantive restraint on Crown action, and was developed and applied to  
avoid infringements.  
[
498] The Province adds that Sparrow recognized that context was important and  
that modifications of the infringement test would occur, depending on the context.  
b)  
No Rights Remaining is Not the Test  
[
499] I agree with the Province that an important reason for triggering the duty to  
consult and accommodate at a low threshold is to avoid infringement situations. As  
noted by Justice Greckol of the Alberta Court of Appeal in concurring reasons in Fort  
McKay First Nation v. Prosper Petroleum Ltd, 2020 ABCA 163 [Fort McKay] at para.  
8
1:  
[
81] …the Crown’s obligation to ensure the meaningful right to hunt under  
Treaty 8 is an ongoing one. Proper land use management remains a perennial  
concern for the Crown, as “none of the parties in 1899 expected that Treaty 8  
constituted a finished land use blueprint”: Mikisew 2005 as [sic] para. 27.  
Reconciling this “inevitable tension” (para 33) between Aboriginal rights and  
development in Treaty 8 territory has, first and foremost, been a matter of the  
Crown adhering to its duty to consult on individual projects, as mandated in  
Mikisew 2005. Acting honourably in this fashion has promoted reconciliation,  
in part, by “encouraging negotiation and just settlements as an alternative to  
the cost, delay and acrimony of litigating s. 35 infringement claims” (Mikisew  
2018 at para 26), much as Haida Nation had counselled with respect of  
unproven Aboriginal rights claims. And yet, as this record itself attests, the  
long-term protection of Aboriginal treaty rights, including the right to hunt  
under Treaty 8, is increasingly thought to require negotiation and just  
settlement of disputes outside the context of individual projects in order to  
address the cumulative effects of land development on First Nation treaty  
rights.  
(
emphasis in original)  
[
500] The Province’s reliance on the duty to consult to prevent an infringement here,  
however, presupposes both the ability of those consultation processes to consider  
and address concerns about cumulative effects as opposed to simply single projects  
or authorizations, as well as the success of those consultations.  
Yahey v. British Columbia  
Page 147  
[
501] As myriad cases have shown, consultation is often marred by both procedural  
and substantive defects. While the obligation to consult is important, it does not erase  
the right of a First Nation to bring an infringement claim when it believes the promises  
made in Treaty 8 are now in question and that it is reaching the point where it can no  
longer meaningfully exercise rights in its territory. It cannot be that the consultation  
duty outlined in Mikisew precludes a First Nation from bringing an infringement claim  
in appropriate circumstances, or that it has to wait until it has no ability to exercise  
rights to do so.  
[
502] The Province’s reliance on the duty to consult, and its insistence that an action  
for infringement requires proof of no meaningful right to hunt, fish or trap, does not  
address circumstances where impacts are at a “‘tipping point’ beyond which the right  
to meaningfully exercise treaty rights is lost” (Smith J. in Yahey v. British Columbia,  
2
015 BCSC 1302 at para. 59, and Yahey 2017 at paras. 114 and 122).  
[
503] While the Province says it does not take the position that the Treaty is not  
infringed until “no” meaningful right to hunt, fish or trap remains, the effect of its  
argument and reliance on the phrase noted, easily leads to that conclusion.  
[
504] While Mikisew is of undoubted importance to this case, it is difficult to rely on it  
as a guide to the infringement analysis, since it was not decided on that point.  
Mikisew did not apply the Sparrow infringement and justification tests, as was done in  
Badger, Marshall and Halfway (which are treaty rights cases) or modify these tests,  
as was done in Gladstone (with respect to justifying the infringement of Aboriginal  
rights that are not subject to internal limitations). While there was evidence that, if  
executed, the road would have impacts on Mikisew’s exercise of hunting and trapping  
rights (at paras. 44 and 55), the Court specifically did not decide whether this road if  
constructed would have breached Mikisew’s substantive rights and constituted an  
infringement (at paras. 57 and 59).  
[
505] Mikisew was decided on the basis of the Crown’s procedural obligations. The  
Court concluded that even where a treaty gives the Crown the right to take up land,  
Yahey v. British Columbia  
Page 148  
the Crown has a duty to consult prior to taking up lands where the taking could  
adversely affect the exercise of rights. As this had not been done, the Crown failed to  
discharge its obligation.  
[
506] The Province says Mikisew expressly rejected the Sparrow test at para. 32  
where Justice Binnie said he did not accept the Sparrow-oriented approach adopted  
by the chambers judge who relied on Halfway. Justice Binnie, citing the reasons of  
Justice Finch, referred to the holding of the majority of the Court of Appeal as finding  
“‘that any interference with the right to hunt is a prima facie infringement of the  
Indians’ treaty right as protected by s. 35 of the Constitution Act, 1982’…which must  
be justified under the Sparrow test.” In rejecting this, Justice Binnie noted to the  
extent this interpretation presupposes the promised continuity of nineteenth century  
patterns of land use, he could not agree. It therefore seems that Justice Binnie was  
being mindful that Treaty 8 allows for the taking up of land by the Crown, and was  
recognizing that viewing “any interference” with a First Nation’s treaty right as a prima  
facie infringement would not work in that context, given the limitation in the treaty.  
[
507] Justice Binnie made a similar comment at para. 65 of Marshall where he  
added his own gloss to Justice Cory’s reasoning in Badger:  
[
65] …as noted by Cory J. in Badger, supra, at para. 90: “This Court has held  
on numerous occasions that there can be no limitation on the method, timing  
and extent of Indian hunting under a Treaty”, apart, I would add, from a treaty  
limitation to that effect.  
(
emphasis added)  
[
508] In my view, in paras. 32 and 48 of Mikisew Justice Binnie was not ruling that  
because the “any interference” test was inappropriate, the test for infringement of  
treaty rights would shift to the other end of the spectrum, namely proof that no rights  
remain. Had that been the intended result, the Supreme Court of Canada would have  
been explicit that neither the infringement test nor the justification test developed in  
Sparrow and applied in Badger applied. I find that Mikisew left the door open for  
holders of treaty rights to bring actions alleging their rights have been infringed, but  
Yahey v. British Columbia  
Page 149  
did not set the threshold for such infringement claims as requiring proof that no rights  
remain.  
[
509] To a great extent, the Province’s argument on the test for infringement isolates  
portions of Mikisew from the body of case law developed by the Supreme Court of  
Canada on s. 35, the principles of treaty interpretation, and the honour of the Crown.  
These principles matter in this case, and must be woven into and guide the answer to  
the question of what constitutes the proper test for considering alleged infringements  
of treaty rights resulting from cumulative impacts.  
[
510] The jurisprudence on Treaty 8 which was developed over the years has  
recognized that this treaty provides an essential promise to its First Nation signatories  
and adherents – a promise that their way of life based on hunting, fishing and  
trapping would not be interfered with.  
[
511] The Province puts forward an approach to infringement that essentially relies  
on an unfettered taking up clause and disregards the essential element of Treaty 8. I  
agree that, unchecked, this interpretation could leave Blueberry with no ability to  
meaningfully exercise treaty rights in their traditional territory. Such an interpretation  
would not uphold the promise of Treaty 8 or the honour of the Crown.  
[
512] An interpretation that accepts ‘no rights remaining’ as the sole standard to  
establish an infringement of treaty rights, runs afoul of numerous principles  
established in the jurisprudence on treaty rights, including the protection afforded in s.  
3
5, the requirement for strict proof of fact of extinguishment and a clear and plain  
intention on the part of government to extinguish rights, and condemnation of  
approaches or interpretations that result in a “disappearing treaty right” or an “empty  
shell of a treaty promise” (Badger at para. 41; Marshall at paras. 40 and 52).  
[
513] Furthermore, while Mikisew notes a difference between treaty rights and  
Aboriginal rights, the effect of the Province’s argument is to establish a fundamental  
difference between the treatment of these two kinds of rights. Using the standard of  
no rights remaining would be inconsistent with the standard for infringement that  
Yahey v. British Columbia  
Page 150  
applies to Aboriginal rights cases. This is not supported by the jurisprudence and is  
not consistent with s. 35 and the principles of reconciliation. As noted by Justice Cory  
in Badger, the wording of s. 35 supports a common approach to infringement of  
Aboriginal and treaty rights, and it is equally if not more important to justify prima  
facie infringements of treaty rights.  
[
514] If I were to accept that the test for infringement of Treaty 8 requires proof that  
no meaningful rights remain (i.e., that rights have effectively been extinguished), this  
would upend the terms of the Treaty and prioritize the Crown’s right to take up lands  
over the promise made to Indigenous people that their rights to hunt, fish and trap  
would continue. This could not have been the intent or effect of Mikisew. It is illogical  
and, ultimately, dishonourable to conclude that the Treaty is only infringed if the right  
to hunt, fish and trap in a meaningful way no longer exists. Courts should not be  
limited to adjudicating treaty right infringement claims once a First Nation has already  
lost its ability to exercise its rights and carry on its way of life. If such was the case,  
the courts would have limited ability to issue an effective remedy.  
[
515] Accordingly, I do not accept that to make out an infringement, Blueberry would  
need to show that it has no ability to exercise its treaty rights. A more nuanced and  
contextual understanding of what the Supreme Court of Canada meant when it said  
the search was to see if “no meaningful right …remains” is appropriate.  
c)  
Cumulative Effects and Infringements  
[
516] The Supreme Court of Canada in Mikisew said two things which, together,  
suggest that courts should consider the context within which an infringement claim is  
made and should take into account the cumulative effects of previous developments.  
First, Justice Binnie noted that not every taking up will constitute an infringement (at  
para. 31); and second, he recognized that “if the time comes” when a First Nation can  
no longer meaningfully exercise its rights, a potential action for infringement would be  
a legitimate response (at para. 48).  
Yahey v. British Columbia  
Page 151  
[
517] The reference to “if the time comes” suggests the existence of a tipping point  
after which the exercise of treaty rights either becomes less meaningful or  
impossible. It also suggests that the promise made to Indigenous signatories and  
adherents over 120 years ago that they would be just as free to hunt, trap and fish  
after the Treaty as before will be more difficult to honour as time goes on. These  
points have been recognized by the Alberta Court of Appeal in litigation involving the  
Fort McKay First Nation.  
[
518] In Fort McKay First Nation v. Prosper Petroleum Ltd., 2019 ABCA 14 (a  
decision on application for permission to appeal) Justice Khullar commented on the  
test for infringement of treaty rights, and reasoned that the adjudicator is implicitly  
required to take into account the cumulative effects of previous developments and  
assess if a certain threshold is met or exceeded:  
[
56] Mikisew considered, at para. 48, when a particular “taking up” of Treaty 8  
land would infringe a particular Treaty 8 right. It held that there will be an  
infringement if the “taking up” deprives the First Nation of “meaningful” rights  
to hunt, trap and fish over its traditional territories. This test of  
infringement implicitly requires the adjudicator to take into account the  
cumulative effect of previous development on the traditional territories of  
Treaty 8 First Nations. The test sets a threshold (are meaningful rights left?)  
and asks whether a current “taking up” or use will exceed that threshold (no  
meaningful rights left). That inevitably requires an adjudicator to take into  
account previous development activity. But it still requires the adjudicator to  
ask whether a current project will have the effect of leaving no meaningful  
opportunities for exercise of treaty rights over traditional territory.  
(
underline in original, italics added)  
[
519] In Fort McKay – the appeal decision – Justice Greckol (in concurring reasons)  
noted that individual takings will rarely constitute infringements, but that the  
extinguishment” of rights will be brought about through cumulative effects:  
“
[
79] As later clarified in Mikisew 2005, however, not every “taking up” by the  
Crown constitutes an infringement of Treaty 8: para. 31. Instead, an action for  
Treaty infringement will only arise once, as a result of the Crown’s power to  
take up land, “no meaningful right to hunt” remains over the Aboriginal group’s  
traditional territories: Mikisew 2005 at para. 48; Grassy Narrows First Nation v  
Ontario (Natural Resources), 2014 SCC 48 at para 52, [2014] 2 SCR 447.  
This raises the prospect that the effects of any one “taking up” of land will  
rarely, if ever, itself violate an Aboriginal group’s Treaty 8 right to hunt;  
Yahey v. British Columbia  
Page 152  
instead, the extinguishment of the right will be brought about through  
the cumulative effects of numerous developments over time. In other words,  
no one project on FMFN’s territory may prevent it from the meaningful right to  
hunt – however, if too much development is allowed to proceed, then, taken  
together, the effect will be to preclude FMFN from being able to exercise their  
treaty rights.  
[
(
80] The right to hunt (in a meaningful way) in Treaty 8 is a “solemn promise”  
Badger at para. 41) made by the Crown, just as the promise of  
land in Manitoba Metis was a solemn constitutional obligation. And yet it is  
clear that, given the nature of the respective rights, their implementation will  
necessarily look very different. The obligation in Manitoba Metis was met at  
the point in which the Crown distributed the 1.4 million acres of land to Metis  
children (and would have accorded with the honour of the Crown had it been  
done diligently). Conversely, the “promise” of hunting – given the reality of  
large-scale oil and gas developments in Treaty 8 territory, which is  
incompatible with Aboriginal hunting – is not fulfilled definitively. Rather, the  
promise is easy to fulfill initially but difficult to keep as time goes on and  
development increases.  
(
italics in original)  
[
520] I agree with the reasoning of the Alberta Court of Appeal that Mikisew implicitly  
requires that the Court take into account the effects of past development on the  
exercise of a First Nation’s rights. This context is critical. I also agree that with more  
and more takings and development it becomes harder and harder for the Crown to  
fulfill its promise to Indigenous people that their modes of life would not be interfered  
with. However, I do not agree that the Court, when considering a claim for  
infringement, is searching to see if the First Nation is “preclude[d]” from being able to  
exercise its rights, or is considering whether “extinguishment” has been brought  
about. (Nor do I think that is the thrust of Greckol J.A.’s judgment.)  
[
521] In addition, it is clear from the jurisprudence that infringement can be brought  
about from the whole of a regulatory regime (Gladstone and Ahousaht). In Ahousaht,  
an Aboriginal rights case) which dealt with the federal fisheries regime on the west  
(
coast as it applied to Indigenous food, social and ceremonial fisheries as well as  
commercial fisheries, it was the “cumulative effect of the scheme” on the exercise of  
rights that was significant for the purposes of the infringement analysis (at paras. 518  
and 689). In other words, when looking at infringement, the governmental scheme  
Yahey v. British Columbia  
Page 153  
can be considered as a whole, as can the history of development on the lands and  
the historical use and allocation of the resources and the impacts this has caused.  
d)  
The Degree of Interference Necessary to Establish  
Infringement  
[
522] The Supreme Court of Canada in Mikisew did not precisely define the degree  
of interference that would amount to an infringement of a treaty right within the  
Sparrow framework. Although some direction can be taken from the words and  
passages referenced therein, these cannot be characterized as a clear standard.  
Rather these words were commentary in the context of the Supreme Court of Canada  
further refining the development of the duty to consult a year after the release of  
Haida.  
[
523] While having “no meaningful right” left would no doubt constitute a prima facie  
infringement of treaty rights, the question is what level of interference less than  
extinguishment would constitute an infringement. The concept of a spectrum within  
the Sparrow framework may be helpful as a way to conceive of degrees of  
infringement, from prima facie interference, to significant interference, to no rights  
remaining.  
[
524] Having reviewed much of the jurisprudence that has considered the Sparrow  
infringement test as applied to both Aboriginal and treaty rights situations, the Court  
makes the following observations.  
[
525] The idea of rights being subject to potential infringements arises from the  
reality that rights, even rights recognized by the Constitution Act, 1982, are not  
absolute (Sparrow). The power of governments to infringe rights, however, is  
reconciled with their duty to prove that any infringement is justified.  
[
526] The concept of infringement exists in the middle ground between no  
interference with an Aboriginal or treaty right and extinguishment of the right. At the  
lower end of the infringement spectrum lies the idea that “any interference”  
constitutes a prima facie infringement or prima facie interference (both phrases are  
Yahey v. British Columbia  
Page 154  
used in Sparrow) of Aboriginal or treaty rights. This was the standard applied by the  
chambers judge and accepted by Justice Finch in Halfway. Given the Crown’s power  
to take up lands under Treaty 8 (i.e., a “limitation” in the Treaty), Justice Binnie in  
Mikisew held that the “any interference” standard was inappropriate.  
[
527] At the upper end of the infringement spectrum lies the idea expressed in  
Mikisew and repeated in Grassy Narrows that treaty rights are infringed when “no  
meaningful right” – be it to hunt, fish or trap – remains within a First Nation’s  
traditional territories.  
[
528] In the middle ground between these two poles lie various articulations of the  
degree and significance that may be required to find an infringement, including: a  
meaningful diminution” of the right (Gladstone, Morris, and Justice Huddart in  
Halfway), “more than an insignificant interference” with the right (Morris), an  
unnecessar[y] infringement” of the interests protected by the right (Sparrow, and  
Justice Huddart in Halfway), a “detrimental effect” on the exercise of a right  
Ahousaht), a “limitation on the method, timing and extent” of a right under a treaty  
except to the extent the treaty has limited that right (Badger modified in Marshall), an  
ero[sion] [of] an important aspect of” the right (Badger), a “substantial” impairment of  
the right (Justice Southin in Halfway River), or even (potentially) making the rights  
illusory” (Justice Southin in Halfway River). Although these cases precede Mikisew,  
“
“
(
“
“
notably, these articulations of the standard for finding infringement arise in cases  
where courts have had to apply the law and determine whether there is an  
infringement, which did not occur in Mikisew.  
[
529] While different language is used to describe this ‘middle ground,’ in my view all  
of the phrases above are trying to get at the idea of rights being diminished in a  
meaningful or significant way. I find it appropriate to consider whether there has been  
an infringement of Blueberry’s treaty rights by considering if there has been a  
significant or meaningful diminishment of the rights. I will say more on this below.  
Yahey v. British Columbia  
Page 155  
e)  
Looking at Meaningfulness in Context  
[
530] Sparrow and Gladstone anticipated that the contours of the standards for  
infringement and justification would be defined in the “specific factual context of each  
case.” This is the first case to look at infringements from cumulative effects arising  
from a variety of provincially authorized projects, developments and decisions as well  
as the regulatory regimes themselves, as opposed to an infringement resulting from a  
specific restriction contained in legislation or regulations or from one specific project  
or authorization.  
[
531] This is also a case that must consider infringement in the context of Treaty 8  
which, as noted, contains rights for the Indigenous signatories and adherents that  
might be in conflict with the rights and powers of governments to take up lands and  
pass regulation. Blueberry’s rights under the Treaty are not absolute, and neither are  
the Crown’s. There is, as Justice Binnie observed in Mikisew, an “uneasy tension” (at  
para. 25).  
[
532] It cannot be that the Crown’s right to take up lands can eclipse Blueberry’s  
meaningful rights to hunt, fish and trap as part of its way of life. As Chief Justice  
Finch recognized in West Moberly 2011, the rights of Indigenous people under Treaty  
8
are not “subject to, or inferior to” the Crown’s right to take up land (at para. 150).  
[
533] No case has yet had to determine on evidence of cumulative impacts, where  
the limit on the Crown’s power to take up land under Treaty 8 falls in relation to its  
encroachment on Indigenous peoples’ ways of life. The test for infringement must  
take this context into account. Unless this is done, the development of the  
jurisprudence in a singular context may result in an artificial construct that does not fit  
with the reality of cumulative impacts resulting from industrial or other types of  
development today.  
[
534] I agree with the Province that the Treaty reflects some balance. However, I do  
not agree that the balance is struck by allowing the Province, in essence, an infinite  
power to take up lands, since (as the Province argues) the intention of the Treaty was  
Yahey v. British Columbia  
Page 156  
that the area be “thrown open to development.” As I have already concluded, that is  
not an accurate reflection of the intent of the Treaty. An assessment of infringement  
that seeks to ensure Blueberry’s exercise of rights remains meaningful in the face of  
the Province’s ability to take up lands, is the way of striking the balance. This ensures  
Blueberry is not left with “an empty shell of a treaty promise.”  
[
535] The focus of infringement analyses to date has been on the reasonableness  
or unreasonableness) of various aspects of the Crown’s regulatory regimes. Indeed,  
(
many of the questions, factors or criteria articulated in Sparrow and the cases that  
have followed are, in essence, ways to look at the reasonableness of a government  
regime in light of the significance of its impact on Indigenous people. For example: Is  
the First Nation facing undue hardship, or being denied the very means (or preferred  
means) of exercising its right? Other factors focus on the level of guidance provided  
within the regime to decision-makers in exercising their discretion. For example: Is  
there a direction to guide how to exercise discretionary authority in a manner that  
would respect treaty rights? In my view, considering the significance of the alleged  
infringement requires greater emphasis on the Indigenous perspective, especially as  
it relates to understanding what it means to still have a “meaningful” right.  
[
536] The Province points out that the Oxford English Dictionary defines meaningful  
as “having a recognizable purpose or function.” Using this definition, the Province  
argues that the purpose of the exercise of treaty rights to hunt has changed over  
time. In the 1960s and 1970s, hunting was a serious pursuit, purpose-driven and  
necessary for survival. Today, argues the Province, treaty rights are exercised for  
cultural survival, not physical survival, and only as time permits.  
[
537] In pointing out these differences, the Province seems to be suggesting that it  
may be more acceptable to infringe a right that is being exercised for cultural, as  
opposed to physical, survival. This way of looking at rights appears to be formulated  
from the perspective of one party (i.e., the Crown). It fails to take into account, as  
Blueberry’s witnesses and expert anthropologists testified, that these rights are  
exercised as part of a way of life.  
Yahey v. British Columbia  
Page 157  
[
538] The dictionary definition of meaningful, which refers to the purpose or function  
of an activity, suggests looking at the infringement of rights in a broader way – not  
just at whether and how specific rights may have been limited or diminished, but at  
how this has affected their purpose or function within a culture.  
[
539] Blueberry notes that its rights are exercised as part of and “in service of a way  
of life.” For the exercise of rights to be meaningful, Blueberry says, its members must  
be able to exercise their rights “as part of a mode of life that has not been significantly  
diminished.”  
[
540] As I noted earlier, I agree with Blueberry that, in this case, the focus of the  
infringement analysis – and consideration of whether “no meaningful right remains” –  
should be on whether the treaty rights can be meaningfully exercised, not on whether  
the rights can be exercised at all. I also agree that the Court should consider the  
question of infringement by looking not only at the impacts on the exercise of rights to  
hunt, trap and fish, but also at impacts on the way of life, since these activities are  
grounded in a way of life.  
[
541] I conclude that the appropriate standard through which to consider the  
question of infringement in this case is: whether Blueberry’s treaty rights (in particular  
their ability to hunt, fish and trap within their territories) have been significantly or  
meaningfully diminished when viewed within the way of life from which they arise and  
are grounded. In other words, can Blueberry members hunt, fish and trap as part of a  
way of life that has not been meaningfully diminished? This is consistent with how  
infringement was viewed in Badger, where the Court looked and whether an  
important element of the right had been eroded.  
[
542] As noted earlier, Blueberry alleges that it is the Province’s express actions as  
well as its nonfeasance that has caused this infringement. Specifically, Blueberry  
says it is the cumulative impact of forestry, oil and gas, hydro-electric infrastructure  
and agricultural development authorized (and at times promoted) by the Province,  
Yahey v. British Columbia  
Page 158  
while failing to prioritize or respect treaty rights, that Blueberry says has caused the  
infringement.  
[
543] In the context of this claim, the infringement analysis also requires inquiries  
into:  
a) whether the provincial regimes for managing natural resources and taking  
up lands in northeastern BC, and in particular in the Blueberry Claim Area,  
give decision-makers unstructured discretion that risks significantly or  
meaningfully diminishing and therefore infringing treaty rights;  
b) whether the regulatory regimes operate in such a way that they significantly  
diminishes the Plaintiffs’ treaty rights. As noted in Ahousaht at para. 757,  
this question incorporates the three Sparrow questions: is the limitation  
unreasonable; does it impose undue hardship; and does it deny the holders  
their preferred means of exercising their rights;  
c) whether existing policies and decision-making frameworks for managing  
natural resources and taking up lands in the Blueberry Claim Area  
recognize and seek to implement the rights contained in Treaty 8 and guide  
the exercise of discretion; and,  
d) whether the regulatory regimes for managing natural resources and taking  
up lands in the Blueberry Claim Area, have mechanisms to assess  
cumulative impacts, take into account cumulative impacts on the exercise  
of Treaty 8 rights, and manage in a way to avoid infringements resulting  
from cumulative impacts that could significantly diminish rights to hunt, trap  
and fish within a way of life protected by Treaty 8.  
C.  
Blueberry’s Traditional Territories  
[
544] Treaty rights are not ascertained on a treaty-wide basis, but in relation to the  
territories over which a First Nation traditionally hunted, fished and trapped, and  
continues to do so today (Mikisew at paras. 47-48). To assess whether Blueberry can  
meaningfully exercise treaty rights as this Court has been called on to do, the Court  
 
Yahey v. British Columbia  
Page 159  
must delineate Blueberry’s traditional territory and the areas that it continues to use  
today.  
[
545] Attached as Schedule 1 to Blueberry’s Notice of Civil Claim is a map of its  
Traditional Territory.” The term “Traditional Territory” is defined as (and the map at  
“
Schedule 1 shows) a “portion” of the area in which Blueberry traditionally hunted,  
trapped, fished and gathered. Paragraph 24 of the Notice of Civil Claim states:  
24. The portion of their traditional territory within which the Plaintiffs  
traditionally exercised their Treaty Rights, including the rights to hunt, trap, fish  
and gather, is outlined on the map attached as Schedule 1 to this claim. This  
area is hereinafter referred to as the “Traditional Territory”.  
[
546] As previously noted, I am referring in these reasons to the area outlined on  
Schedule 1 of the Notice of Civil Claim as the “Blueberry Claim Area.” The Blueberry  
Claim Area constitutes approximately 38,000 square kilometres (i.e., 3.8 million  
hectares) (For reference, a map of the Blueberry Claim Area is included in the  
“Background” section of these reasons.)  
[
547] At para. 35 of the Notice of Civil Claim, Blueberry alleges that the cumulative  
effects of industrial development have, inter alia, significantly curtailed their ability to  
exercise their treaty rights, such that they have been left with “no meaningful right to  
exercise some or all of their Treaty Rights within their Traditional Territory” (i.e., within  
the Blueberry Claim Area).  
1
.
Parties’ Positions  
a) Blueberry  
548] Blueberry makes a number of points with regard to the area that can be  
[
considered its traditional territory or traditional territories. First, it is candid that the  
Blueberry Claim Area does not represent the entire area its ancestors traditionally  
used or where its members exercise their treaty rights today. Blueberry relies on and  
uses a larger area, and has sought to be consulted about potential impacts to areas  
that extend beyond the Blueberry Claim Area. Blueberry says that as development  
 
Yahey v. British Columbia  
Page 160  
encroaches on key hunting, trapping, fishing and gathering areas, families have been  
forced to go further and further from their homes to exercise their rights, and now try  
to exercise their rights in other areas beyond the Blueberry Claim Area.  
[
549] Second, Blueberry says that the evidence, and in particular that from Dr.  
Ridington and Mr. Brody, supports the notion that the Blueberry Claim Area reflects  
Blueberry’s traditional patterns of land use. Those patterns of land use, says  
Blueberry, reflect a shift from a semi-nomadic way of life to in effect a semi-settled  
one.  
[
550] Blueberry uses what it refers to as the “core” of its traditional territory north of  
the Peace River, with seasonal activities (hunting, trapping, fishing and gathering)  
radiating out from that core. What, exactly, constitutes the “core” is not set out with  
precision. At times Blueberry refers to the Blueberry Landscape Unit as constituting  
the core of its territory and including the areas used by community members today  
and by their ancestors in times before. That Landscape Unit, Blueberry says has  
been subject to intensive development, both forestry and oil and gas. Blueberry has  
also referred to the Fort St. John Land and Resource Management Plan as zoning  
the “core” of its territory as an “enhanced resource development” zone available for  
high intensity development. The enhanced resource development zone covers much,  
but not all of the Blueberry Landscape Unit, as well as the southern portion of the  
Tommy Lakes Landscape Unit, and the northern portion of the Kobes Landscape  
Unit.  
[
551] Blueberry’s experts and witnesses have also referred to the “core” of the  
territory. As discussed below, Dr. Ridington expressed a view that the core of the  
territory used by Blueberry’s ancestors at the time of the Treaty and thereafter was  
north of the Peace, and centred around Charlie Lake and the Beatton River  
watershed. This characterization roughly accords with the Blueberry, Kobes and  
Tommy Lakes Landscape Units. Norma Pyle also testified about the core of the  
territory, at times aligning it with what the Province has demarcated as consultation  
Yahey v. British Columbia  
Page 161  
Area A, and at times situating it more generally, as the area in the middle of the  
Blueberry Claim Area, and within close proximity to where members live.  
[
552] Blueberry emphasizes that their way of life is focused on their core territory.  
The fact that they have been pushed out of the areas of most concentrated use and  
cultural importance, to the margins of the areas they traditionally used in order to find  
areas that remain relatively intact, Blueberry says, represents a meaningful  
diminution of their way of life and a breach of the Treaty promise that they would be  
“just as free to hunt and fish all over as they are now.” Blueberry says it ought to be  
able to rely on areas outside the Blueberry Claim Area, but should not be relegated to  
those areas.  
[
553] Third, Blueberry notes that the Blueberry Claim Area is largely consistent with  
the Province’s consultation Area A, which the Province has accepted demonstrates  
the strongest evidence of historical use by Blueberry’s ancestors based on traditional  
patterns of activity. I will discuss this in some detail below. Blueberry says it is  
hypocritical for the Province, for the purposes of consultation, to only recognize Area  
A as the area over which Blueberry traditionally exercised treaty rights and then, in  
this case, say that Blueberry exercises its rights over a larger territory, in order to  
argue that an infringement has not been made out. The portion of the Blueberry  
Claim Area outside consultation Area A is also an area of use as established by the  
evidence.  
b)  
Province  
[
554] The Province’s primary position is that the Court does not need to determine  
the location and extent of Blueberry’s traditional territory, because it says Blueberry  
members still have a meaningful ability to exercise their rights in the Blueberry Claim  
Area.  
[
555] Alternatively, the Province argues that even if Blueberry members can no  
longer exercise their treaty rights within the Blueberry Claim Area, they maintain the  
ability to meaningful exercise treaty rights in a broader asserted traditional territory.  
Yahey v. British Columbia  
Page 162  
[
556] The Province points out that the Blueberry Claim Area is approximately 38,000  
square kilometres, and it notes that the traditional territory of the Beaver Indians at  
the time Treaty 8 was entered into was approximately 194,000 square kilometres.  
This, in addition to the evidence that establishes Blueberry members hunt outside the  
Blueberry Claim Area, the Province says, would establish there are sufficient lands  
within Blueberry’s “traditional territory” for members to meaningfully exercise their  
treaty rights.  
[
557] The Province says the precise extent of Blueberry’s traditional territory is not  
clear on the evidence, and that over the years Blueberry has shifted its territorial  
boundaries. The Province notes the Blueberry Claim Area is smaller than the area  
Blueberry has asserted is its traditional territory at other times and in other settings.  
The Province says that, at best, the Blueberry Claim Area is an “arbitrarily defined  
portion of a larger historic traditional territory.” It says the Blueberry Claim Area is  
more akin to Blueberry’s “core or preferred areas,” and that this is not what was  
contemplated in Mikisew.  
2
.
Jurisprudence  
[
558] The text of Treaty 8 provides that the Indigenous people with whom the Crown  
treated “shall have right to pursue their usual vocations of hunting, trapping and  
fishing throughout the tract surrendered as heretofore described…”  
[
559] The issue of Treaty 8 and where the “usual vocations” are to be pursued came  
up in Mikisew. As previously noted, in that case, the governments of Canada and  
Alberta were arguing that Mikisew’s rights were not infringed as the road at issue took  
up only a small area of land, and the Mikisew could still exercise their rights at other  
places within the larger Treaty 8 territory. Justice Binnie considered these arguments  
and, as noted earlier, at para. 48 stated:  
[
(
48]…The “meaningful right to hunt” is not ascertained on a treaty-wide basis  
all 840,000 square kilometres of it) but in relation to the territories over which  
a First Nation traditionally hunted, fished and trapped, and continues to do so  
today…  
 
Yahey v. British Columbia  
Page 163  
[
560] Justice Binnie’s reasoning in Mikisew has recognized, on the one hand, that  
signatories and adherents “may have rights under Treaty 8 to hunt, fish and trap  
throughout the Treaty 8 area” (at para. 47). On the other hand, it shows an  
appreciation that, from a practical point of view, location, “home turf” or traditional  
territory matters. In essence, Justice Binnie has reasoned that understanding the  
locations and territories traditionally used by an Indigenous group, and those that  
continue to be used today, matters when courts are considering whether the rights  
protected by Treaty 8 have been infringed.  
[
561] Knowing the areas used for the exercise of rights is also important in a  
consultation setting, since the Crown’s right to take up lands under Treaty 8 is subject  
to its duty to consult and, if appropriate, accommodate. The Crown must consult  
before reducing the area over which a First Nation’s members may continue to  
pursue their hunting, trapping and fishing rights (Mikisew at para. 56). This  
consultation is premised on knowing the area used.  
[
562] Several cases have discussed how one part of advancing an infringement  
claim is determining the nature and extent of the First Nation’s traditional territory. In  
Prophet River v. British Columbia (Environment), 2015 BCSC 1682, the Prophet  
River and West Moberly First Nations brought a petition for judicial review challenging  
the Province’s issuance of an environmental assessment certificate to allow for the  
construction of the Site C dam.  
[
563] One of the issues raised was whether the provincial ministers were obligated  
to determine whether the dam project infringed Treaty 8 rights. Justice Sewell held  
that the ministers’ responsibility in considering an application for an environmental  
assessment certificate were set out in s. 10 of the Environmental Assessment Act,  
S.B.C. 2002, c. 43, and did not include the power to determine rights. The question of  
infringement would require, inter alia, a determination of the extent of each nation’s  
traditional territory and a “rights-based resolution.” The Court reasoned as follows at  
paras. 130-131:  
Yahey v. British Columbia  
Page 164  
[
130]  
…The [Environmental Assessment Act] EAA does not provide the  
Ministers with the powers necessary to determine the rights of the parties  
interested in the project under consideration. The Ministers have no power to  
compel testimony, hear legal submissions from the parties or require  
production of documents. The procedures set out in in the EAA are simply  
inadequate to permit determination of the issues framed by the petitioners in  
this proceeding. In addition, it is obvious that the Ministers have no particular  
expertise with respect to those issues.  
[
131] The infringement issue as raised by the petitioners requires the  
resolution of the proper construction of Treaty 8, a determination of the nature  
and extent of each petitioner’s traditional territory and a decision as to the  
effect of the jurisprudence to date on these issues. It is in every respect a  
rights-based issue and requires a rights-based resolution.  
[
564] The First Nations also argued that the Court could decide the question of  
infringement in the context of the judicial review. The Court disagreed, reasoning the  
proper route for the determination of the infringement issue was to file a notice of civil  
claim and hold a trial to resolve the factually complex issues. At para. 143, Justice  
Sewell added:  
[
143] …The petitioners’ claims of infringement would involve the petitioners  
establishing the boundaries of their traditional territory, the extent to which  
specific species were exploited within their traditional territory and the relative  
impact of the Project on the traditional rights of the petitioners. These matters  
would have to be proven by admissible evidence accepted by the court. They  
cannot appropriately be resolved on a summary hearing pursuant to  
the Judicial Review Procedure Act.  
[
565] The Court of Appeal in Prophet River First Nation v. British Columbia  
(Environment), 2017 BCCA 58, upheld this decision.  
[
566] The Prophet River First Nation and West Moberly First Nation also launched  
an application for judicial review in the Federal Court regarding the decision of the  
Governor in Council that the adverse environmental effects that would likely result  
from the construction of the Site C dam were justified in the circumstances. One of  
the issues was whether the Governor in Council had the jurisdiction under the  
Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 to decide  
whether the project would infringe Treaty 8 rights. The Federal Court held that judicial  
review was not the appropriate course of action to determine whether treaty rights  
Yahey v. British Columbia  
Page 165  
had been infringed (Prophet River First Nation v. Canada (Attorney General), 2015  
FC 1030 at paras. 49-52).  
[
567] The Federal Court of Appeal in Prophet River (FCA) dismissed the Treaty 8  
First Nations’ appeal. On the issue of the territorial scope of the rights guaranteed by  
Treaty 8, the Federal Court of Appeal noted at para. 36 that “[a]lthough treaty rights  
can be defined as established rights as opposed to claimed rights, and Aboriginal  
groups are entitled to what was confirmed in Treaty 8…, the scope of their use on  
Aboriginal peoples’ traditional territories still needs to be delineated (Mikisew at para.  
3
2).”  
[
568] At paras. 50-51, the Federal Court of Appeal added that when a First Nation  
alleges a project will infringe their treaty rights, as part of the consultation process the  
First Nation must provide specificity regarding where the rights were historically  
exercised and where they are exercised today:  
[
50] Although it is uncontested that the appellants, as signatories of Treaty 8,  
have treaty rights in the area covered by Treaty 8, there is no evidence that  
their rights cover the entire area of 840,000 square kilometres, an area that  
exceeds the size of the province of Manitoba (Mikisew at paras. 2 and  
48). Unless a treaty enumerates specific locations for hunting, treaty rights  
ascertained on a treaty wide-basis have to be specified as part of the  
consultation process. As such, it is insufficient for the appellants to assert  
treaty rights by merely alleging preferred areas without any specification with  
respect to the traditional land use area in which the rights were historically and  
are currently exercised.  
[
51] As part of the consultation process, the appellants therefore not only had  
the opportunity but the obligation to carry their end of the consultation process  
and provide information in support of their allegation that the Site C Project  
would infringe their specified treaty rights. Particularly, the appellants had the  
duty to provide information for the determination of their traditional territories  
and the scope of their treaty rights in order to demonstrate that the potential  
impact of the Site C Project was so severe so as to constitute infringement  
(
Haida Nation at para. 48). …  
[
569] The question of the territorial scope of treaty rights also arose, but was not  
decided, in West Moberly 2020. In that case, a number of First Nations who had  
adhered to Treaty 8 brought an action seeking a declaration that the western  
boundary of the tract of land covered by Treaty 8 was the height of land along the  
Yahey v. British Columbia  
Page 166  
continental divide between the Arctic and Pacific watersheds. The First Nation  
plaintiffs were successful, the declaration was granted, and the Province appealed.  
[
570] In the appeal, the Treaty 8 First Nations argued that the trial judge’s  
declaration allowed their members to “step outside and know with certainty where  
they can exercise their Treaty rights” (at paras. 76 and 95). Both Chief Justice  
Bauman (for the majority) and Justice Smith (dissenting) dismissed the idea that by  
virtue of the declaration of the western boundary there was clarity on the geographic  
scope of the rights.  
[
571] Justice Smith noted, at paras. 86-87, that there had been “no judicial finding as  
to the relationship between the tract boundary and the substantive rights under the  
Treaty” and that it was not clear from the record whether the rights were intended to  
be exercised on all the land encompassed by the metes and bounds clause.  
[
572] Considering the language of Treaty 8 and the confirmation of First Nations’  
rights to pursue their usual vocations throughout the tract surrendered, Chief Justice  
Bauman reasoned as follows at paras. 422-423:  
[
422] The question begged is whether this purports to grant a particular  
adhering nation harvesting rights throughout the entire area covered by  
Treaty 8. It raises the spectre of the Cree of Vermilion asserting rights over the  
Sekani’s traditional lands in British Columbia.  
[
423]On the contrary, in future proceedings the Treaty may be interpreted as  
only affirming a particular adhering nation’s rights that its members  
traditionally enjoyed within their traditional lands, their “usual vocations”  
throughout “the tract hereinbefore described” that is the tract that that nation  
surrendered…  
(
emphasis in original)  
3
.
Analysis  
[
573] The location and extent of Blueberry’s traditional territories is important both  
for purposes of consultation and for purposes of adjudication. While the Province  
says Blueberry can still exercise its rights and continues to do so today, the Court  
must know the areas used by Blueberry for the exercise of its rights for the purposes  
“of the infringement analysis in this case, namely:” Have the Plaintiffs established a  
 
Yahey v. British Columbia  
Page 167  
treaty infringement in that they are no longer able to ‘meaningfully exercise’ their  
Treaty 8 rights in their ‘traditional territories,’ having regard to the extent of industrial  
development?” (which is how the issue is framed in the parties’ trial briefs).  
[
574] In determining traditional territories, the court must consider the nature of a  
First Nation’s society. Delineating the traditional territories of a semi-nomadic society  
and assessing whether treaty rights have been infringed may well require different  
considerations than for non-nomadic groups. Looking at patterns of use may be more  
important than focussing on boundaries. That rights can no longer be meaningfully  
exercised within specified areas of a First Nation’s traditional territories (for example,  
in areas of particular ecological, cultural or spiritual significance to the First Nation  
historically and today) might also be sufficient for finding an infringement. The areas  
may be insufficient in area and character to provide for the meaningful exercise of  
Treaty rights.  
a)  
Consultation Areas, Traditional Territories and the  
Problem with Boundaries  
[
575] Before reviewing the evidence regarding the territories used by Blueberry  
historically and today, I will discuss “consultation areas,” and review the  
correspondence between the parties regarding Blueberry’s traditional territories and  
the area that should be used for consultation purposes. As part of this, I will consider  
the problem with demarcating boundaries.  
[
576] The Province’s Ministry of Indigenous Relations and Reconciliation (previously  
known as the Ministry of Aboriginal Relations and Reconciliation) develops  
procedures, guidelines and tools to assist government officials and industry  
proponents in meeting consultation obligations with First Nations. One such tool is  
the Consultative Areas Database which geographically identifies consultation areas  
for each First Nation based on information provided to the Province by the First  
Nation about the areas over which it has or asserts treaty or Aboriginal rights or title,  
or based on an area set out in an agreement.  
Yahey v. British Columbia  
Page 168  
[
577] Geoff Recknell, the Ministry of Indigenous Relations and Reconciliation’s  
Regional Director for the North Region from 2010 to 2019 testified at trial and  
described the idea behind consultation areas as follows:  
Q: …What is meant by a “consultation area”?  
A: Yeah, consultation area is an area – a geographic area, so a map area, in  
which it is understood that a First Nation has Aboriginal rights or interests or  
treaty rights depending on the circumstance of the situation, and the  
consultation area is the area within which the Province’s duty to consult is  
triggered.  
Q: You described the consultation area database earlier in your evidence.  
Who determines what consultation areas get placed in the consultation area  
database?  
A: There are a number of different ways that information may be brought  
forward into the consultation areas database…The consultative areas may be  
provided by the First Nation to the Province. In some instances the  
consultation areas are the outcome from a negotiation such as the  
consultative areas that were described earlier and included with each of the  
resource management agreements that we went through.  
So the processes may be different and they are changed – the maps may  
change over time as new information comes forward. The First Nation or BC  
may conclude or undertake ethnohistoric research or studies to establish or  
refine where the traditional territories which determine a consultative area lie,  
and that information from time to time is used to update the information in the  
consultative areas database.  
[
578] On October 17, 2012, Blueberry wrote to the Province regarding its traditional  
territory and the area to be used for consultation purposes. Blueberry attached a  
map, which it said more accurately reflected its documented historical land use and  
occupancy, and which it said was generated as a result of a study prepared by Dr.  
Dorothy Kennedy and Randy Bouchard (“Kennedy and Bouchard Report”), which it  
also enclosed. The map attached to this letter (which I will refer to as the “2012 Map”)  
showed Blueberry’s traditional territory outlined in blue. Blueberry asked that the  
2
012 Map be recognized as the area where the Province is required to consult with  
Blueberry.  
[
579] On May 26, 2014, Mr. Recknell responded to Blueberry’s October 17, 2012  
letter. He noted the Province would implement a three-zoned consultation area  
approach that was based on Blueberry’s asserted traditional territory shown on the  
Yahey v. British Columbia  
Page 169  
2
012 Map, and that its approach would divide the consultation area into “Area A,”  
“Area B” and “Area C.”  
Exhibit 103, Tab 8: May 26, 2014 letter from Geoff Recknell to Chief Marvin Yahey with enclosed  
map titled “Blueberry River First Nations Consultation Areas.”  
[
580] He noted the Province had reviewed and considered the Kennedy and  
Bouchard Report, and that the Province agreed it provided “a credible analysis of  
known historical sources.” He noted that consultation Area A “largely corresponds  
with the boundary in the Report delineating the approximate overall area that was  
Yahey v. British Columbia  
Page 170  
reported to have been used by the ancestral family groups associated with the  
contemporary BRFN peoples.” Mr. Recknell noted: “The Province agrees with the  
Report findings that the sources of historical documented use by BRFN are strong in  
some areas and weaker in others, and is of the view that Area A represents the area  
historically used by BRFN ancestors, as described in the Report.”  
[
581] I note that Area A covers much, but not all, of the area that would come to be  
represented on Schedule 1 of the Notice of Civil Claim, and which I have referred to  
here as the Blueberry Claim Area. In particular, Area A includes the Beatton River  
Watershed, Pink Mountain, and Tommy Lakes areas, but excludes the area around  
the lower Halfway River, Farrell Creek and Butler Ridge.  
[
582] The Province noted that the scope of consultation in Area A will vary according  
to the proposed activity and the assessed nature and scope of the treaty rights that  
may be impacted. It noted it would consider information regarding traditional patterns  
of activity within Area A (i.e., where Blueberry’s ancestors undertook their hunting,  
fishing, and trapping around the time of entering into Treaty 8) as relevant to  
considering the appropriate scope of consultation. Information about current use,  
including frequency of use, and whether there are any unique or special  
characteristics of the area, would also inform the Province’s scope of the duty to  
consult in Area A.  
[
583] The Province went on to note that historical and current use of Areas B and C  
was not substantiated by the Kennedy and Bouchard Report or by any other  
information it has been provided, and it would therefore consult with Blueberry on a  
notification basis for those areas, pending the provision of further information.  
[
584] On March 3, 2015, Blueberry filed its Notice of Civil Claim, which attached  
Schedule 1 showing the Blueberry Claim Area, representing a “portion” of its  
traditional territory.  
[
585] On November 19, 2015, the Province wrote to Blueberry noting the territory  
asserted in the Notice of Civil Claim was reduced in scope compared to the territory  
Yahey v. British Columbia  
Page 171  
asserted in the October 17, 2012 letter and 2012 Map. The Province proposed  
implementing a new consultation area based on the Blueberry Claim Area reflected in  
the pleadings filed in court.  
[
586] On December 18, 2015, Blueberry responded to the Province objecting to its  
proposal to reduce the consultation area. In a follow up letter on March 21, 2016,  
referring to its pleadings, Blueberry noted that the Blueberry Claim Area was not its  
“entire traditional territory,” but rather the portion of its territory within which Blueberry  
traditionally exercised their treaty rights. Blueberry noted that due to ongoing  
development in its territory, members had been forced to travel further from parts of  
the territory they traditionally used to try to exercise their rights in other areas.  
[
587] On May 2, 2016, the Province confirmed it would not amend the existing  
consultation area map boundaries, and would continue to follow the three-zoned  
approach outlined in Mr. Recknell’s May 26, 2014 letter. The Province noted it  
remained interested in receiving additional information regarding the areas Blueberry  
members traditionally or currently practiced their treaty rights.  
[
588] Consultation between the Province and Blueberry has generally proceeded on  
the basis of the May 26, 2014 letter. The Province has in correspondence to Chief  
Yahey admitted that Area A is the area Blueberry’s ancestors historically used.  
[
589] In these proceedings, Blueberry has focused its attention on the Blueberry  
Claim Area, which, as noted earlier, outlines a portion or specific parts of the territory  
their ancestors used and relied on. The map of the Blueberry Claim Area (i.e.,  
Schedule 1) is appended to the Notice of Civil Claim because at the time the claim is  
filed, the parties and the court need a clear outline of the claim.  
[
590] While the Treaty 8 jurisprudence notes the importance of having reference to a  
particular nation’s traditional territories (i.e., “its traditional territories”) when  
considering whether an action for treaty infringement has been made out, there is  
little guidance on how to approach the task of identifying and delineating a nation’s  
traditional territories in the treaty context, as opposed to the Aboriginal title context.  
Yahey v. British Columbia  
Page 172  
What is clear is that the court is to consider the nation’s “traditional patterns of activity  
and occupation,” and when looking at lands taken up and considering the question of  
infringement, is to consider whether the nation can meaningfully exercise its rights in  
relation to the “territories over which [it] traditionally hunted, fished and trapped, and  
continues to do so today” (Mikisew, paras. 47-48).  
[
591] Mikisew does not set the scale at which an infringement claim can be pursued.  
I do not interpret Mikisew and the cases that have followed as requiring a First  
Nation, when bringing an infringement claim, to do so in relation to the whole of the  
territories it traditionally used and continues to use today. A First Nation may be  
entitled to bring a claim in relation to one or more significant portions (whether  
culturally, spiritually or ecologically) of its traditional territories, including its “core”  
areas.  
[
592] It may be that an area within its traditional territory (for example a particular  
watershed) is an important location for the exercise of certain rights, and that  
development activities planned for that location risk infringing those rights. The First  
Nation would be entitled to bring an infringement claim, in relation to that portion of its  
traditional territories. Nothing in para. 48 of Mikisew precludes a First Nation from  
bringing a claim in relation to a specific area within the territories over which it  
traditionally hunted, fished and trapped, and continues to do so today. Moreover, in  
my view, this approach gives meaning to the Supreme Court of Canada’s insistence  
that patterns of activity and occupation matter, as it recognizes the importance to  
First Nations of specific locations.  
[
593] In this case, the Court heard specifically how particular locations are important.  
Wayne Yahey testified about how certain places where Blueberry members exercise  
their rights to harvest are not easily replaced.  
I asked my uncle is there another area that you think they [pine marten]  
moved to. He told me, you know, before, how long did it take our ancestors to  
find that area. He said it’s going to – it’s going to take just as long for us to find  
another area to find a pine marten… He said when they are clearcutting that  
area, marten, their safety net is climb a tree. He said when that feller buncher  
Yahey v. British Columbia  
Page 173  
grabs that tree the marten climbs it, what do you think is going to happen to  
that marten.  
So that’s – that’s his way of explaining to me about – because I told him could  
you just find another area. He kind of – he told me no. And he explained to me  
about that assessment, his – about his history, what his dad told him.  
So this area in particular when – it used to be a prime area where we get our  
necessities, food. It provided – we call it midnitsu. It’s a certain wood that we  
gather for tanning a moose hide. Only – it only exists in big timber. Where my  
mother used to learn from her mother to harvest this wood, it’s all logged.  
Nothing. I asked my mother let’s go back to that place and she said no, it’s  
logged.  
And I asked her could we find another place? She told me well, you know, I’m  
getting old. I can’t walk. She said when I was a little girl my grandma showed  
me that place.  
So the thing that people outside our culture don’t understand, they say okay,  
why don’t you just look somewhere else. That’s what I asked my mother.  
That’s what I asked my uncle. It’s not like that. It’s not the case what we do.  
Because it’s a simple answer. I say well, can’t you just look somewhere else. It  
took 100 years in evolution just for us to find it, and then another place, it’s – it  
wouldn’t happen. Not going to happen.  
So just to give you a sense of how they explain it to me, how they conveyed  
their teachings to me, and when I asked them those questions, could we just  
find another place, it’s not as easy as it sound. All these areas have a  
significant value.  
[
594] I therefore do not accept the Province’s argument that, in accordance with  
Mikisew, a First Nation cannot bring a claim to a core or preferred area of its territory.  
Specific areas have significant value.  
[
595] When faced with allegations that important or core areas within a nation’s  
traditional territory are being impacted or destroyed, it is no answer to say: go  
elsewhere, you have a large territory. The Supreme Court of Canada recognized this,  
noting it did not make sense from a practical point of view to suggest to the Mikisew  
that while their own hunting and trapping territories were compromised, they could  
effectively move into or invade the territories of other distant First Nations.  
[
596] The same reasoning applies when considering infringement claims involving  
specific areas of a First Nation’s territory. It is no answer to Blueberry to recognize  
that its core territory in and around the Beatton River is being compromised, but to  
Yahey v. British Columbia  
Page 174  
deny any infringement because members can still exercise their rights in other  
outlying areas, which may or may not be shared with other First Nations, and which  
may or may not hold the same cultural, ecological or spiritual values. This approach  
disregards the nation’s attachment to specific places, its patterns of use and  
occupation, its way of life, and the Indigenous laws and protocols that govern use of  
shared or neighbouring areas.  
[
597] Nor do I accept that the Blueberry Claim Area is an “arbitrary” portion of  
Blueberry’s larger traditional territory. As is discussed in greater detail below, I find  
that the Blueberry Claim Area generally accords with the area Blueberry used at the  
time its ancestors adhered to the Treaty, and that members continue to use today.  
For greater clarity, I find that the area delineated as Area A is the area Blueberry  
historically used at the time of the Treaty. The Province accepted this in its  
correspondence to Blueberry. In so finding, I also recognize there is evidence that  
Blueberry’s ancestors knew and travelled through a larger area extending from the  
Rocky Mountains into Alberta. The remaining Blueberry Claim Area (consisting of an  
area just north of the Peace River and west of Halfway River), as will become  
evident, is part of Area B and consistent with evidence of use given by Blueberry  
members at trial.  
[
598] In so ruling, the Court is mindful that the process of delineating boundaries on  
a map can be fraught. It must be recognized, especially in the case of nomadic and  
semi-nomadic societies, that boundaries may be difficult to draw. I note, as Justice  
Vickers said in Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700 (a case  
dealing with Aboriginal title, not treaty rights), territorial boundaries can be artificial –  
members do not stop their harvesting activities based on lines on a map, and there  
may be a difference of opinion about such boundaries even amongst the people who  
live in the territory (at paras. 641 and 642).  
[
599] Yet there is a societal (and in this case legal) demand for boundaries, or at  
least for a way of knowing the locations of territories. The Province must know where  
Blueberry exercises its rights in order to consult in a meaningful way, and the Court  
Yahey v. British Columbia  
Page 175  
must know where Blueberry exercises its rights in order to ascertain whether they can  
still be meaningfully exercised within their traditional territories in the context of its  
infringement claim.  
[
600] Although I have used the term boundaries, I recognize this idea could be  
considered inconsistent with the way in which Blueberry knows and uses its  
territories. The Court heard evidence from Mr. Brody about how in the 1970s and  
1
980s when resources were still abundant, Blueberry members were not overly  
concerned about precise boundaries between the territory of one group of Dane-zaa  
people and another, and there was an openness towards the members of other  
nations using parts of the territory. At the same time, however, the members of one  
nation did not tend to go “deep” into the territories of other nations to harvest. Mr.  
Brody suspected this was because at the time of his research in the late 1970s to  
early 1980s, there was considerable abundance of resources, and individuals did not  
need to travel large distances from their homes to harvest.  
[
601] Norma Pyle’s testimony on this point is especially instructive. At several points  
during cross-examination Ms. Pyle emphasized that, for Blueberry, there were no  
boundaries, and that boundaries were made at the insistence of government. On  
August 30, 2019 she testified as follows:  
…
I mean, boundaries – you know, boundaries are only as a result of  
government. There were no boundaries. I mean, even, you know, when my  
mom and her family are travelling back and forth from Horse Track to Halfway  
there are no boundaries. The travel is free.  
By the time the Alaska Highway come, Beatton Airport River Road, provincial  
government getting involved, then there’s boundaries. As soon as provincial  
government determine there’s resources, lucrative resource in the area, then  
they start putting these boundaries.  
[
602] Again on September 3, 2019 she testified:  
…
There were no boundaries, even, you know, in the 70s. That’s not that long  
ago. Boundaries happened because of your clients [the Province] put  
boundaries on us. Make us have boundaries. That’s where the boundaries  
come from.  
…
Yahey v. British Columbia  
Page 176  
So talk about a boundary. We never used to have a boundary. This boundary  
business is by your clients, both your oil and gas clients and your government  
client. That’s who makes boundary. And they play one nation against the other  
because now there’s a boundary.  
[
603] Other witnesses, including Sherri Dominic, Wayne Yahey and Jerry Davis,  
referred to certain areas on what I will call the edges of the Blueberry Claim Area as  
being the areas or territories of other First Nations, and of the need to show respect  
when using those areas. For example, Doig River First Nation’s territory is at the east  
side of the Blueberry Claim Area, and Halfway River First Nation’s is on the west  
side.  
[
604] Ms. Dominic testified that Blueberry members “respect other First Nations and  
their areas. And if we are given permission or if we go with some of the members  
then we actually go to those areas and go hunt, but it’s just being respectful of other  
First Nations, their areas.” As to boundaries, she testified as follows:  
Q: So is there something of a boundary on here that you would think of as – to  
the east of it as Doig and Doig territory?  
A: No boundary.  
Q: No. Just this general area?  
A: Just a general area.  
[
605] Mr. Yahey testified that Blueberry elders had told him there is no “line” that  
separates Blueberry from the Halfway River First Nation. Part of their culture, practice  
and tradition is to await an invitation to hunt in a neighbouring nation’s “backyard.”  
[
606] Maps of the asserted traditional territories of other Treaty 8 First Nations, as  
reflected in the Province’s Consultative Areas Database, have been entered into  
evidence in these proceedings. It is clear that the Blueberry Claim Area overlaps, to  
varying degrees, with the information the Province has about the asserted territories  
of several other First Nations, including Doig River (who together with Blueberry were  
once the Fort St. John Indian Band), Halfway River, Prophet River, West Moberly and  
Saulteau First Nations, and the McLeod Lake Indian Band.  
Yahey v. British Columbia  
Page 177  
[
607] These First Nations were not parties to these proceedings, and they did not  
speak to those maps. Nor is there evidence about the Indigenous laws and protocols  
in place to deal with issues of shared or overlapping territories, though as noted  
above some witnesses spoke of the importance of respecting the territories of other  
First Nations and obtaining their invitation or permission before hunting or fishing in  
those areas.  
[
608] The Court’s findings set out below deal with the territories traditionally used by  
Blueberry’s ancestors and currently used by members today, and are made in the  
context of this claim that alleges breach of the Treaty and infringement of Blueberry’s  
treaty rights. It is evident there is overlapping use by First Nations in some of these  
areas. The Court makes no findings as to whether those territories were exclusively  
used by Blueberry, or whether other Indigenous people also used and accessed  
these lands and what laws and customs governed such use.  
[
609] In addition, it must be recalled that Blueberry is not, in this action, seeking to  
prove Aboriginal title to its traditional territories. It need not meet the test for proof of  
title set out in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 [Delgamuukw]  
and Tsilhqot’in, based on occupation prior to the assertion of European sovereignty,  
nor need it show sufficiency, continuity and exclusivity of occupation over the whole  
of its territory. Its task here is to bring forward evidence of the areas its ancestors  
traditionally used, including information about the specific activities undertaken and  
relevant patterns of use, for the purpose of their infringement claim.  
[
610] Some of the approaches used in the Aboriginal title context, however, have  
some relevance here. In the Aboriginal title context, the Supreme Court of Canada  
has stated that the concept of occupation must be approached from both the  
common law perspective and the Aboriginal perspective (Delgamuukw at para. 147  
and Tsilhqot’in at para. 34). The Aboriginal perspective focuses on the laws,  
practices, customs and traditions of the specific Indigenous group, and the court must  
take into account the group’s size, manner of life, material resources, technological  
abilities, and the character of the lands claimed (Tsilhqot’in at para. 35). It is a  
Yahey v. British Columbia  
Page 178  
context-specific inquiry, and the nature of the use of the land (including intensity and  
frequency of use) will vary based on the characteristics of the Indigenous group  
asserting title and the character of the lands (Tsilhqot’in at para. 37). The approach is  
to be “culturally sensitive” (Tsilhqot’in at para. 42). In Tsilhqot’in, the Supreme Court  
of Canada confirmed that nomadic and semi-nomadic groups can establish  
Aboriginal title to lands (at para. 44). The Court noted that regular use of territories for  
hunting, fishing, trapping and harvesting is sufficient use to ground title (at para. 42).  
[
611] The idea of approaching the question of territory from both the common law  
and Indigenous perspective is reminiscent of one of the principles of treaty  
interpretation, which aims to find the interpretation that reconciles the interests of  
both parties at the time the treaty was signed. Looking at what areas of the territory  
were used for hunting, fishing, trapping and gathering necessarily requires greater  
emphasis on the Indigenous perspective. It is the members of the nation themselves  
who know the places they rely on and that are important to them.  
[
612] The evidence showed that at the time the Treaty was entered into, the Crown  
did not have any special knowledge of the territories Blueberry’s ancestors used and  
relied on. The Treaty Commissioners did not survey the traditional territories of each  
signatory and adhering nation, setting out the proper metes and bounds before  
making the solemn promises reflected in the Treaty. Nor did they seek further  
information from the Indigenous people regarding how their mode of life was  
practiced within those territories. Similarly, in the modern context, when the Province  
is seeking to consult with Blueberry about certain decisions or projects that have the  
potential to impact the exercise of their treaty rights, it turns to the nation itself to  
provide information about the specific areas where they hunt, fish, trap and gather  
and that are important to them.  
[
613] Specificity is needed and can only come from the Indigenous people. They can  
tell the Province and the courts which are their preferred or core areas and why. They  
can provide insight into the important features that allow for the meaningful exercise  
of rights in these locations. They can explain the values the lands and waters contain.  
Yahey v. British Columbia  
Page 179  
Here, in bringing a claim focused on the Blueberry Claim Area, as opposed to the  
area on the 2012 Map or some other larger asserted area, I take this to represent the  
significant portions of Blueberry’s traditional territories for the exercise of their rights.  
b)  
Findings Regarding Traditional Territories  
[
614] The evidence in this case regarding the territories Blueberry used in the past  
for hunting, fishing, trapping and gathering purposes can be grouped into three time  
periods: (1) prior to and at the time Blueberry’s ancestors entered into Treaty 8 in  
1
900; (2) early 1900s to early 1970s; and (3) 1970s to 1980s. Evidence regarding  
areas of current use came from Blueberry members who testified at trial. As noted by  
Blueberry, the names members use in talking about areas they know and rely on  
derive from various sources: mile markers, roads or highways, streams and rivers,  
and Dane-zaa names. The Court will also refer the locations referred to in the  
evidence using the terms used by the witnesses.  
i.  
Territories Used Prior to and at the Time of the  
Treaty  
[
615] The evidence about the territories used by Blueberry’s ancestors from the time  
of contact in the late 1700s through to the 1930s is included in the Kennedy and  
Bouchard Report). The Kennedy and Bouchard Report is dense. It is based on a  
review and analysis of the known and available ethnographic, ethnohistoric and  
linguistic materials. The authors refer to a voluminous amount of historical records,  
including trading post, fur traders’ and explorers’ journals; the work of anthropologists  
and ethnographers (including Dr. Ridington and Mr. Brody), as well as historians and  
scholars. The Kennedy and Bouchard Report is based exclusively on archival and  
library research and does not include contemporary Blueberry oral history.  
[
616] Both parties referenced the Kennedy and Bouchard Report as part of their  
respective arguments. The report is one of only a few pieces of evidence in these  
proceedings that provides insight into the territories used by Blueberry’s ancestors  
prior to entering into treaty.  
Yahey v. British Columbia  
Page 180  
[
617] The Kennedy and Bouchard Report shows that, with regard to the period from  
contact to 1870, there is a wide range of views about which Indigenous peoples used  
and occupied the lands in and around the Peace River towards the Rocky Mountains,  
and the relationships between them.  
[
618] There is more agreement regarding the territory used by Blueberry’s ancestors  
from 1870 onward. The historical evidence from the late 1800s and early 1900s  
reviewed in the Kennedy and Bouchard report shows that family groups who  
comprised Blueberry’s ancestors often hunted in and around the Peace River and the  
Beatton River, northwest to the Sikanni Chief River, as well as west to the foothills of  
the Rocky Mountains, east into Clear Hills, Alberta, and southeast to Grand Prairie.  
[
619] For example, journals kept at Fort St. John in the late 1800s and early 1900s  
provide evidence of Blueberry’s ancestors living in the Fort St. John region,  
particularly the Beatton River area, and hunting and trapping over an expansive area  
both north and south of the Peace River and east into Alberta (p. 15). The journals  
also provide information about the composition of hunting groups and the range of  
territories they were reported to have used prior to and after Treaty 8. The Kennedy  
and Bouchard Report notes at 57: “[i]t is obvious from the journals that the Beatton  
River watershed was highly significant to the Dane-zaa people of the late 19th  
century.” The area on, around and across from the Beatton River was noted as being  
a favoured hunting ground of the Dane-zaa or Beaver Indians.  
[
620] Dr. Ridington also identified many of the hunting groups as members or  
ancestors of the Beaton (North Pine) River Band, later the Fort St. John Band, and  
later still the Blueberry River and Doig River First Nations. The journals record these  
groups, while not being fixed territorial or political units, travelling farther in range than  
the studies of the 1960s and 1970s show.  
[
621] These journals refer to Blueberry’s ancestors hunting and camping in and  
around Montney Prairie, Blueberry River, Aitken Creek, Halfway River, Nig Creek,  
and Charlie Lake, north and south of the Peace River including as far south as the  
Yahey v. British Columbia  
Page 181  
Kiskatinaw River, and as far east as Clear Hills, Grand Prairie and Clearwater River  
in Alberta.  
[
622] Similarly, in his expert report, Dr. Ridington noted there were relationships  
between people living over territories that extended from the Rocky Mountains to east  
of the Alberta border, and from the Prophet River area to south of the Peace River.  
Dr. Ridington concluded at pages 11-12: “At the time of treaty, people identified as  
the Fort St. John Band knew and used this extensive territorial range through their  
seasonal rounds and the scheduling of resources.”  
[
623] At page 14 of his report, Dr. Ridington provided more specificity regarding  
what he called the “core territories” used and relied on by Blueberry’s ancestors in  
and around 1900. He stated:  
The Dane-zaa fished in rivers including the Peace, Beatton (earlier called the  
Pine) and various tributaries like the Doig and Blueberry, as well as a variety  
of lakes. Charlie Lake together with Stoddart Creek and Fish Creek which flow  
in and out flow Fish Creek [sic] provided large numbers of suckers during their  
spring spawning run. East of the Beatton is an area of small lakes known in  
the Beaver language as Megawontlonde, Many Lakes. A little farther to the  
east are the Beatton River, Cecil Lake, and Boundary Lake. The upper  
Beatton watershed including the Blueberry River provided important hunting  
and trapping opportunities. The Dane-zaa name for the people whose core  
territories were Charlie Lake and northern areas to the east as well as west  
into the foothills of the mountains, is Lhuuge Lęa (Tluge La or sucker fish there  
people). They shared these territories with relatives known as Tsʼibii Danéʔ  
(
Tsipidanne, Muskeg People). These names are still used to identify the  
Blueberry River and Doig River First Nations respectively. Hunting and  
trapping were important within the taiga zone beyond the edge zone habitats  
of their core territories, but could not sustain larger gatherings of people.  
[
624] The Kennedy and Bouchard Report includes a map that delineates the  
approximate area used by Blueberry’s ancestral family groups from the 1850s to the  
930s, based on the documentary sources reviewed. The dotted line indicating the  
1
area used spans from Clear Hills, Alberta in the east, to Grand Prairie, Alberta in the  
southeast, roughly follows the Halfway River to Pink Mountain in the northwest, and  
stretches nearly as far north as Prophet River. At the centre of the territory is the  
Beatton River watershed. This dotted line is placed over a larger shaded territory that  
Dr. Ridington had described in the section entitled “Beaver” included in the Handbook  
Yahey v. British Columbia  
Page 182  
of North American Indians, Vol. 6, Subarctic (Washington D.C.: Smithsonian  
Institution, 1981) at 351.  
Exhibit 103, Tab 4: October 12, 2012 Letter from Chief Joe Apsassin to Minister Ida Chong,  
enclosing Bouchard and Kennedy Report dated August 31, 2011. This map is found on the last  
page of the Bouchard and Kennedy Report.  
[
625] While recognizing that Blueberry’s ancestors had relationships with people  
living across an expansive area from the Rocky Mountains into Alberta, and that  
Blueberry’s ancestors likely knew and used this wide area, the Court finds that the  
territory most consistently used and relied upon by Blueberry’s ancestors around the  
time they adhered to Treaty 8 in 1900 roughly accords with the area demarked by  
the dotted line on the map attached to the Kennedy and Bouchard Report.  
[
626] As noted earlier, the Province accepted this information contained in the  
Kennedy and Bouchard Report, as reflected in Mr. Recknell’s May 26, 2014 letter to  
Chief Yahey. In that letter, Mr. Recknell noted: “The Province agrees that the Report  
provides a credible analysis of known historical sources….”  
ii.  
Territories Used from 1900s to Early 1970s  
[
627] Evidence of the territories used and relied on by Blueberry from the early  
900s through to the early 1970s was provided, primarily, by Dr. Ridington. He  
1
described their mode of life using the concepts of seasonality, scheduling of  
resources, and adaptation to edge zone environments. These concepts were  
discussed earlier in these reasons.  
[
628] Dr. Ridington noted that during the time he lived with various Dane-zaa  
communities in the 1960s and early 1970s, few people had drivers’ licences or  
vehicles; as such, hunting and trapping was done by foot or on horseback within  
close proximity to their home reserve community or summer camp. He noted there  
was sufficient habitat within a day’s travel from the community to sustain a regular  
supply of moose, fish, grouse, beaver, rabbits, and suckers. In particular, he  
described the lands and waters adjacent to Charlie Lake and in the lower Beatton  
River watershed as being a “base” for Blueberry’s hunting, trapping and gathering  
activities.  
[
629] In a few places in his report and in his testimony, Dr. Ridington also referred  
to the “core” territory or territories used by Blueberry. He identified the core of the  
territories used by Blueberry’s ancestors at the time of the Treaty and thereafter as  
Yahey v. British Columbia  
Page 184  
being north of the Peace, and centred around Charlie Lake and the Beatton River  
watershed.  
[
630] Dr. Ridington referred to the Montney area, known to Blueberry as Suu Na  
chii K’chi ge (which translates to The Place Where Happiness Dwells) as being  
where the Dane-zaa historically held their summer gatherings. After these  
gatherings, the Dane-zaa people would disperse into smaller groups to hunt and trap  
over an extensive area within the boreal forest taiga biome. While Dr. Ridington  
referred to these “extensive territories” he did not, in his report, provide further  
details on specific locations used through to the early 1970s.  
th  
[
631] The Court finds that in the mid 20 century, Blueberry’s patterns of use and  
occupation shifted somewhat, such that they were using and relying on territories  
closer to where they were then living, which centred in an area stretching roughly  
from Charlie Lake to the Beatton River. This became their “base” or “core” area. This  
shift has been referred to as a transition from a semi-nomadic way of life to a semi-  
sedentary one. They did, however, continue to hunt and trap in the boreal forests  
beyond this area.  
iii.  
Territories Used from 1970s to 1980s  
[
632] Mr. Brody also described Blueberry’s activities in the 1970s to early 1980s as  
radiating out from a core area, and following a seasonal round. The maps and  
figures included in and appended to his expert report in particular those showing  
Blueberry’s berry picking areas (Map 2), trapping areas (Map 4), and hunting areas  
Map 5), as well as the Dane-zaa year, some of which were also included in his book  
Maps and Dreams, which is also an exhibit in these proceedings illustrate this  
̶
(
̶
radiating notion. These maps were compiled by asking as many individuals as  
possible to make a map to show where they had hunted, trapped, fished, and picked  
berries. Mr. Brody and his research team then combined these individual maps to  
show a community’s collective use of the land, and reliance on different resources  
on the land. Maps were created for each of the seven Dane-zaa communities, as  
Yahey v. British Columbia  
Page 185  
well as a combined map showing the overall Dane-zaa hunting, trapping, fishing and  
gathering areas.  
[
633] The lines on Blueberry’s hunting areas map are concentrated in and around  
the Beatton area, with the majority of the lines extending from approximately  
Montney in the south, to the Beatton River on the east and north, and to Wonowon  
on the west. Some lines extend north beyond the Beatton River to Black Creek and  
the southern part of Conroy Creek, west to Pink Mountain, and east towards the  
Alberta border.  
[
634] The lines on the trapping areas map are also concentrated in and around the  
Beatton area, and a bit further east in the vicinity of the Doig reserve. While this map  
does not show the traplines in and around the Tommy Lakes area, the evidence  
provided by Blueberry members confirms that trapping north of the Beatton River  
and into the Tommy Lakes area (in the northern part of the Blueberry Claim Area)  
was part of the pattern of activity in the 1970s and 1980s.  
[
635] Mr. Brody described the mapped areas as representing Blueberry’s  
heartlands,” noting these were the areas interviewees identified as the places they  
“
relied on. The maps do not necessarily reflect boundaries, and individuals may have  
travelled, hunted, trapped and gathered beyond those areas:  
Q: When you say “extent,” does it also mean that that was the outer limit of  
where people went? Could any members of any of the communities [have]  
gone beyond the lines that are drawn on those maps?  
A: Those were the lines they drew for me. And when I was hunting with  
people – I should say drew for us – when I went hunting with people, I didn’t  
go beyond those lines.  
And so my evidence is that’s where they went, that’s where they were going  
at that time. Those were the areas they established as their heartlands, as  
the places they relied on, and the extent of the area they relied on. I wouldn’t  
–
it’s quite possible people did go beyond there but they didn’t tell me  
[
636] Mr. Brody also testified that Blueberry’s seasonal round showed a planned  
and patterned movement on their territory. He testified as follows:  
Yahey v. British Columbia  
Page 186  
…
I think I should begin by saying that one of the ways in which hunting  
peoples have often been misunderstood, and certainly you can see the Dane-  
zaa being misunderstood in the correspondence that we referred to earlier, in  
1925 to ‘33, a misunderstanding that centres on the idea that they roam freely  
over a huge territory without – in a fully nomadic manner, and that they just  
go here or there where the spirit or mood takes them.  
In fact, their movements in their territories are very patterned and there’s a  
set of areas that they like to go to at particular times of year. And if you look  
at the times of year, you can see a seasonal round with a dry meat hunting  
camp – set of camps, dry meat being the central activity in the autumn. So  
there are camps and areas of land use that pertain to that activity at that time  
of year.  
And then we move into winter, the tendency to shift to trapping for fine furs  
and hunting areas that are good in winter, the second phase of the year, in  
the middle of which there would usually be trading.  
And then a spring hunt centred on beaver, the third phase of the year. And  
again there will be ideal locations, and that’s cabins that pertain to the spring  
hunt.  
And then a summer area which tends to be relatively slow in activity and  
often includes areas where people gather to meet in larger numbers on the  
gathering grounds.  
So you can understand this as a seasonal round and a typical pattern of  
activities in which different parts of the territory are being used at different  
times.  
[
637] Mr. Brody’s research regarding the Dane-zaa seasonal round shows the  
growing importance of the reserve, over time. In particular, in the 1960s and 1970s,  
the Dane-zaa people spent more time away from the reserve engaging in different  
land-based activities. In the late 1970s, while the Dane-zaa still engaged in land-  
based activities, they returned to the reserve in between activities in higher  
frequency.  
[
638] I accept this evidence regarding Blueberry’s patterns of use in the 1970s and  
early 1980s. During this time period, Blueberry was using and relying on territories  
north of the Peace River in the vicinity of the Beatton River with the most frequency  
and intensity, with some hunting and trapping activities extending northwest towards  
Pink Mountain and north to the Tommy Lakes area.  
Yahey v. British Columbia  
Page 187  
iv.  
Territories Used from 1980s to Present  
[
639] Seven Blueberry members, ranging in age from teenage to mid-70s, provided  
evidence about the territories Blueberry currently uses, and areas used within the  
last approximately 40 years. Most of this evidence was focussed on the time period  
from the 1980s through to the time they testified in 2019, but some of it, especially  
from elders Raymond Appaw and Jerry Davis, went back to the 1960s and 1970s  
and also included recollections of the areas used by older generations.  
[
640] These witnesses recalled the period from the 1960s through to the 1980s  
being a time when members hunted, trapped and gathered berries and other  
resources close to the reserve community of IR 205, or within a day’s trip from the  
reserve.  
[
641] Many of these witnesses referred to important places up and down the  
Beatton River, along the Blueberry River, and around Aitken Creek where they  
camped, hunted for moose, and trapped. Additional harvesting places in this general  
area that were frequently mentioned by these witnesses include: Beatton River  
Road, Beatton Airport Road, Mile 43, Buick, Mile 27, Attick Creek, Snyder Creek,  
Prespatou, Mile 98, Wonowon, Mile 38, Mile 132, Mile 115, Mile 34, Mile 28, Mile 21,  
and the Dancing Grounds. These locations are all in the central or core part of the  
Blueberry Claim Area.  
[
642] Witnesses noted a theme of movement – that families would move around  
and not always camp or harvest in the same spots, so as to allow for regeneration  
and regrowth.  
[
643] The Court heard repeatedly how areas within this core, including Mile 98 and  
Aitken Creek in particular where members had cabins and trapping areas, are now  
logged, access is restricted, and hunting is prohibited.  
[
644] Witnesses also spoke of longer trips to the west and north to Pink Mountain,  
Lily Lake, Sikanni Chief River, and the Tommy Lakes area. Witnesses referred to  
Yahey v. British Columbia  
Page 188  
Pink Mountain and the surrounding area (in the northwest part of the Blueberry  
Claim Area), as being an important place and where many members hunted for  
moose, and in the past for caribou. Witnesses spoke about elders encouraging them  
to travel to Pink Mountain and areas further west into the mountains to find “clean”  
water and therefore “clean” moose. In or around 1999, Blueberry purchased land at  
Pink Mountain and it has since become the location of their annual summer culture  
camp.  
[
645] Witnesses also referred to other locations further from the core, including  
fishing places along the Halfway River and Cypress Creek. Mr. Appaw noted that the  
area in and around Fort St. John (in the southern part of the Blueberry Claim Area)  
had been an important area for previous generations, but that due to development  
that was less true for his generation. In particular, witnesses referred to Charlie Lake  
and Inga Lake – places that older generations had fished for suckers – but noted  
these places were now surrounded by too much development and were too polluted  
to be suitable fishing places.  
[
646] Blueberry members spoke about the Dancing Grounds near Mile 115 Road,  
and its cultural significance as the place where Dane-zaa would camp and gather in  
the summer, share stories, sing, dance and hear from their prophets or dreamers.  
They also noted that access to the Dancing Grounds was impeded, and that it is  
now surrounded by private land and clearing.  
[
647] While the Province said evidence other than that of Ms. Pyle makes clear this  
is not so, I do not agree. The reality is that access to the Dancing Grounds is difficult  
as reflected by the testimony of Ms. Pyle, Wayne Yahey and others who referred to  
following the river and regularly re-cutting the trail in order to access this important  
place. While not all members may have specifically noted it was now surrounded by  
private land and clearing, they were not asked whether that was the case.  
[
648] A predominant theme from the evidence given by the seven Blueberry  
members was that many of the places within the core of their territory centred on the  
Yahey v. British Columbia  
Page 189  
Beatton River are now developed to such a degree that hunting, trapping and  
camping is difficult. Instead, members are moving further and further to get game  
and practice their cultural and sustenance activities. Wayne Yahey noted this shift  
had been “life-changing” and that many of the more remote locations his father had  
shown him in his youth were gaining importance now.  
[
649] There was some evidence of Blueberry members, over the last approximately  
five to ten years, using the area around Hudson’s Hope, Farrell Creek and Butler  
Ridge and even further south to Chetwynd. For example, Mr. Davis and his nephew  
hunted with members of Halfway River First Nation in and around Butler Ridge; and  
Wayne Yahey and Sherri Dominic fished up and down the Peace River around  
Hudson’s Hope. These places were referred to with less frequency and were most  
often mentioned in the context of studies done over the last several years in relation  
to projects south of the Peace River or passing through the southern portion of the  
Blueberry Claim Area. In addition, Blueberry members noted the need to show  
respect and obtain permission from the neighbouring First Nations in some of these  
areas.  
v.  
Summary Regarding Territories Used  
[
650] The way that Blueberry used its territories historically and today is for families  
to travel to different areas for hunting, trapping, fishing and gathering purposes on a  
seasonal basis, moving throughout the territories so as to access a variety of  
environments (prairies, mountains, muskeg, boreal forests) and to allow habitat and  
wildlife to rejuvenate and replenish.  
[
651] Several witnesses and experts spoke about how, especially in the second half  
th  
of the 20 century, activities radiated out from the core of the territory. In particular,  
when resources were abundant, Blueberry members could hunt in and around the  
Beatton watershed, within a day’s trip from their homes. However, as development  
increased in the Beatton area, Blueberry members found themselves needing to  
travel further from their core area to places they had traditionally visited on a less  
Yahey v. British Columbia  
Page 190  
frequent basis. One such place, is the Butler Ridge and Farrell Creek area. The  
Court heard little evidence about Blueberry using this area in the early to mid part of  
th  
the 20 century; however, several Blueberry members spoke about hunting and  
fishing in this area within the last ten years or so.  
[
652] I find that from the time they entered into Treaty 8 in 1900 to today, there has  
been a shift in the pattern of Blueberry’s use of its territories. At the time they  
entered into Treaty 8, Blueberry’s ancestors consistently used and relied on an area  
that stretched east to Alberta, south to the Kiskatinaw River, roughly followed the  
Halfway River northwest to Pink Mountain, and stretched nearly as far north as  
Prophet River. This area roughly accords with the area demarcated by the dotted  
line on the map attached to the Kennedy and Bouchard report and with the  
Province’s consultation Area A. At the centre of this territory is the Beatton River  
watershed – which was a favoured hunting ground. In so finding, I am mindful that  
Blueberry’s ancestors knew and travelled throughout a more expansive area.  
th  
[
653] During the second half of the 20 century, there was a growing importance on  
the reserve. During this time hunting and gathering activities, in particular, tended to  
be undertaken within closer proximity to where Blueberry members were living. This  
meant that Blueberry began to rely more on its “core” territory north of the Peace  
River, in and around the Beatton River, with the most frequency and intensity,  
though members still made longer trips to hunt and trap at areas in the west and  
north such as Pink Mountain, Lily Lake and the Tommy Lakes areas.  
[
654] Based on the evidence provided by the Blueberry members who testified in  
these proceedings, I find there has been yet another shift in frequency in Blueberry’s  
pattern of use of its territories. As development has encroached on the core of  
Blueberry’s territory – fragmenting and affecting wildlife habitat, and impeding  
access – Blueberry members are travelling more often to areas beyond the core, to  
places like Pink Mountain and further north and west, which have now gained  
greater importance. While previously used by Blueberry members, the area around  
Pink Mountain is seen by community members as a place to find peace and  
Yahey v. British Columbia  
Page 191  
tranquility, and with that, healthy and clean animals. Other places, in the southwest  
portion of the Blueberry Claim Area are now being accessed with greater frequency.  
Areas such as Butler Ridge and Farrell Creek were referred to by several witnesses  
as places they are now going to exercise their rights.  
[
655] The Province, relying in part on Blueberry’s 2014 “Knowledge and Use Study  
Final Report for the Coastal GasLink Pipeline Project,” has pointed to the areas  
around Chetwynd and the Sukunka River Valley as reflecting areas where Blueberry  
members continue to maintain the ability to meaningfully exercise their treaty rights  
outside the Blueberry Claim Area. The Province also notes that these areas are in  
relatively close proximity to the Blueberry Reserve. It is clear, however, as noted at  
page iii of that study that “this is an area they now prefer to use due to disturbance  
and contamination caused by industry closer to the Blueberry River reserve.”  
[
656] As noted earlier, Blueberry has been candid that the Blueberry Claim Area  
does not represent all the territories its ancestors traditionally used or all the places  
its members exercise their treaty rights today. There are areas outside the Blueberry  
Claim Area where Blueberry members are exercising rights, such as in the Sukunka  
area. However, in my view, even if Blueberry members are exercising their rights in  
these limited areas, this does not mean they can still meaningfully exercise their  
treaty rights. This will become evident further in my analysis.  
[
657] In conclusion, on this point, the Court does not accept the Province’s  
argument that there is no infringement because Blueberry members can continue to  
exercise their treaty rights within a broader traditional territory, outside the bounds of  
the Blueberry Claim Area. This approach disregards Blueberry’s perspective and the  
evidence relating to Blueberry’s patterns of use and occupation. It also disregards  
traditional cultural and spiritual areas of significance; in essence telling Blueberry to  
use the further edges of its territory. While traditional territory is relevant in both  
consultation and legal proceedings, if the Province truly believed that Blueberry can  
exercise its treaty rights within a larger area, it would also be consulting with  
Yahey v. British Columbia  
Page 192  
Blueberry about projects and developments in Areas B and C beyond a notification  
level. It cannot have it both ways.  
[
658] I reiterate that I find that the Blueberry Claim Area generally accords with the  
area Blueberry used at the time they adhered to the Treaty, and that they continue to  
use today. For greater clarity, I find that the area delineated as consultation Area A  
is the area Blueberry historically used at the time of the Treaty. The Province  
accepted this in its correspondence to Blueberry. The remaining Blueberry Claim  
Area (which includes the area west of the Halfway River in and around Farrell Creek  
and Butler Ridge), which appears to correspond with part of consultation Area B has,  
as discussed above, been established as an area of more frequent recent use on  
the basis of evidence given by Blueberry members.  
[
659] Accordingly, I conclude that the Blueberry Claim Area represents the  
significant portions of the territory Blueberry used historically and which it seeks to  
continue to use today. It is the area I will refer to when considering if Blueberry’s  
treaty rights have been infringed.  
[
660] I will now discuss the status of various wildlife populations in the Blueberry  
Claim Area which have been identified as being important to Blueberry, and will then  
move to consider the data regarding disturbance in the Blueberry Claim Area.  
D.  
Status of Wildlife in the Blueberry Claim Area  
Lay Witness Evidence and Expert Opinion Evidence  
661] Given the number of lay and expert witnesses who testified at trial, I will  
1
.
[
briefly comment on the use of lay witness evidence versus expert opinion evidence  
as relevant to this and other sections of this judgment.  
[
662] In Yahey v. British Columbia, 2019 BCSC 1934, I noted that “[e]xpert opinion  
evidence has been characterized as an expert interpreting a set of facts and  
providing the finder of fact with a readymade inference”: at para. 10, citing R. v.  
Abbey, [1982] 2 S.C.R. 24 at para. 44. Expert opinion evidence is an exception to  
 
 
Yahey v. British Columbia  
Page 193  
the generally-held rule that witnesses should testify only to facts. As stated in White  
Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 [White Burgess]:  
[
14] To the modern general rule that all relevant evidence is admissible there  
are many qualifications. One of them relates to opinion evidence, which is the  
subject of a complicated exclusionary rule. Witnesses are to testify as to the  
facts which they perceived, not as to the inferences — that is, the opinions —  
that they drew from them. As one great evidence scholar put it long ago, it is  
“for the jury to form opinions, and draw inferences and conclusions, and not  
for the witness”: J. B. Thayer, A Preliminary Treatise on Evidence at the  
Common Law (1898; reprinted 1969), at p. 524; see also C. Tapper, Cross  
and Tapper on Evidence (12th ed. 2010), at p. 530. While various rationales  
have been offered for this exclusionary rule, the most convincing is probably  
that these ready-formed inferences are not helpful to the trier of fact and  
might even be misleading: see, e.g., Graat v. The Queen, [1982] 2 S.C.R.  
819, at p. 836; Halsbury’s Laws of Canada: Evidence (2014 Reissue), at  
para. HEV-137 “General rule against opinion evidence”.  
[
15] Not all opinion evidence is excluded, however. Most relevant for this case  
is the exception for expert opinion evidence on matters requiring specialized  
knowledge. As Prof. Tapper put it, “the law recognizes that, so far as matters  
calling for special knowledge or skill are concerned, judges and jurors are not  
necessarily equipped to draw true inferences from facts stated by witnesses.  
A witness is therefore allowed to state his opinion about such matters,  
provided he is expert in them”: p. 530; see also R. v. Abbey, [1982] 2 S.C.R.  
24, at p. 42.  
[
663] In this case, for example, Dr. Christopher Johnson, Dr. Scott McNay, and Mr.  
Keith Simpson appeared as expert witnesses with specialized knowledge of certain  
wildlife species. They testified to their opinions regarding the state of various species  
in the Blueberry Claim Area, and drew inferences on the cause of population  
changes. Because of their qualification as experts, I am entitled to admit their  
opinions and to use them when making my findings on causation with respect to  
wildlife populations.  
[
664] The Province objected to the admission of some lay evidence as  
impermissible opinion evidence. The Province voiced particular concerns regarding  
Dr. Holt, who testified as a lay witness, though she has been retained as an expert  
consultant in the past by both Blueberry and the Province. Certain documents were  
admitted through her testimony that contain inferences and opinions which are  
inadmissible from a lay witness, for most purposes.  
Yahey v. British Columbia  
Page 194  
[
665] At trial, counsel for Blueberry noted that similar issues – about lay witnesses  
who are professionally trained giving evidence that may cross the line from fact into  
opinion – arose in both the Ahousaht, 2009 BCSC 1494, and Lax Kw’alaams  
proceedings. Counsel provided the Court with transcripts from the Ahousaht  
proceedings where such objections were made, and where Justice Garson ruled to  
allow the evidence, with directions to the parties to be careful that the testimony is  
grounded in fact. Justice Garson noted “there is no such thing as expert evidence.  
It’s expert opinion evidence” (emphasis added). Where a witness is simply  
recounting facts or their understanding of facts, such evidence should be admitted  
(subject to general evidentiary rules).  
[
666] With respect to Dr. Holt, she appeared only as a lay witness, or fact-based  
witness, in her capacity as one of Blueberry’s consultants and as a prior consultant  
of the Province. To the extent that Dr. Holt’s evidence includes her opinion on, for  
example, the efficacy of the Province’s regulatory tools, that evidence is inadmissible  
except to show that Dr. Holt presented such an opinion to the Province in the course  
of her work. I have not relied upon the opinions or inferences contained in any of her  
evidence. However, I agree with counsel for both sides that, subject to other  
evidentiary rules, I may use the facts to which she testified. For example, when she  
was retained by the Province in 2017 to critique their regulatory tools, Dr. Holt found  
that the Province had authorized some degree of development inside every type of  
designated/protected area. As another example, in her work for Blueberry, she  
calculated the amount of the Blueberry Claim Area that fell within a  
protected/designated area and conveyed that information to the Province. This is not  
opinion evidence, and the Province did not dispute its accuracy.  
[
667] In each case, including Dr. Holt’s, I have reviewed and used the evidence  
with this distinction carefully in mind.  
Yahey v. British Columbia  
Page 195  
2
.
Overview  
[
668] I now turn to the evidence dealing with the status of wildlife in the Blueberry  
Claim Area.  
[
669] Although Blueberry members harvest a wide variety of species, only a few  
are principally at issue in this case.  
[
670] The Plaintiffs submit that a number of key species are in decline within the  
Claim Area, most notably caribou, moose, and furbearers, including marten and  
fisher. They submit that industrial development within the Blueberry Claim Area has  
either caused or contributed to these declines.  
[
671] They rely on their own direct evidence, the evidence of two expert witnesses  
Dr. Johnson and Dr. McNay – and various publicly available reports and data  
accepted as authoritative by one or more of the expert witnesses.  
–
[
672] The Province denies some of the subject species are actually in decline in the  
Blueberry Claim Area. The Province contends that, where species are in decline,  
causation cannot be made out. The Province points to non-industrial factors, which  
vary between species, but that broadly include increased predation, natural forest  
fires, climate change, and more.  
[
673] With respect to moose and caribou, the Province highlights increased  
predation by wolves in particular. The Province notes that active “predator  
management” has fallen out of favour, and the practice has largely ended in  
northeastern BC. Predator management essentially consists of culling predators (by  
hunting, poisoning or trapping) to control their population. In the Province’s view, the  
uncontrolled increase in the wolf population has put pressure on caribou  
populations, and, to some extent, moose populations as well.  
[
674] The Province relies on the evidence of Mr. Keith Simpson, detailed below,  
and to some degree on contrary interpretations of the evidence provided by the  
plaintiffs.  
 
Yahey v. British Columbia  
Page 196  
3
.
Causation and Standards of Proof  
[
675] Before delving into the evidence on impacts, it is also useful to review the  
standard of proof the Plaintiffs must meet, and what, exactly, they are trying to  
prove.  
[
676] As part of its case, Blueberry seeks to establish that the decline of various  
species within the Blueberry Claim Area, chiefly moose and caribou, are the result of  
industrial development. The Province argues that while wildlife decline in the  
Plaintiffs’ territory may be correlated with industrial development, the evidence does  
not show a causal relationship, i.e., that wildlife decline is actually the result of  
extensive industrial development.  
[
677] Blueberry has tendered a substantial volume of evidence in support of a  
causal connection and/or correlation between industrial development and species  
decline in the Blueberry Claim Area. Much of that evidence is scientific – it comes  
either via expert witnesses or authoritative provincial documents authored by non-  
witness scientists. At various times, the Province sought to refute this evidence by  
attempting to undermine the absolute certainty of the expert witnesses on their  
theories of causation.  
[
678] Scientists, however, work to a different standard of proof than the court. The  
court does not require proof to a standard of scientific precision or certainty (Snell v.  
Farrell, [1990] 2 S.C.R. 311 [Snell]; Clements v. Clements, 2012 SCC 32; Ediger v.  
Johnston, 2013 SCC 18 at para. 36 [Ediger]). As this is a civil case, neither does the  
court require proof to the criminal law standard of beyond a reasonable doubt. The  
civil standard of proof requires the plaintiff to prove causation only on a balance of  
probabilities.  
[
679] Causation in the context of a cumulative effects claim is something of a novel  
or currently developing issue at law, and one which was not fully litigated at trial. It is  
not necessary for me to fully explore it here. For now, it is enough to note that I am  
not tasked with determining whether industrial development is the only cause of  
 
Yahey v. British Columbia  
Page 197  
wildlife decline, nor with resolving debates amongst the scientific community. I am  
tasked only with determining whether, based on the evidence before me and on a  
balance of probabilities, the Province’s actions have caused, contributed to or  
resulted in an infringement of the Plaintiffs’ rights which include the Province’s  
actions in permitting the industrial development.  
[
680] In the context of treaty litigation and s. 35, it is open to the court to take a  
robust common sense approach to cause and contribution. In Sopinka J.’s  
unanimous decision in Snell v. Farrell, [1990] 2 S.C.R. 311, he noted at 327:  
If I were convinced that defendants who have a substantial connection to the  
injury were escaping liability because plaintiffs cannot prove causation under  
currently applied principles, I would not hesitate to adopt one of these  
alternatives.  
[
681] Given the specialized nature of the subject matter, I am entitled to rely on  
expert testimony for inferences and opinions on causation: White Burgess at para.  
5. That said, the presence or absence of evidence from an expert positing or  
1
refuting a causal link is not determinative of causation: British Columbia (Workers’  
Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 at para. 38  
[
Fraser Health]. Causation can be inferred – even in the face of inconclusive or  
contrary expert evidence – from other evidence, including merely circumstantial  
evidence: Fraser Health at para. 38.  
[
682] Finally, I note from Ediger that the trier of fact may, upon weighing the  
evidence, draw an inference against a defendant who does not introduce sufficient  
evidence contrary to that which supports the plaintiff’s theory of causation (at para.  
3
6). In this case, the Province has significant informational power differential as it  
holds much of the data distinctly applicable to the issues in this case.  
4
.
Wildlife Management Units  
[
683] Much of the available evidence, including the expert testimony tendered at  
trial, refers to units of land called Wildlife Management Units (sometimes referred to  
in the evidence as “WMUs”). The witnesses referred to these units in assessing the  
 
Yahey v. British Columbia  
Page 198  
health and number of wildlife in certain areas. These units are provincially defined  
management areas, on which much of the caribou and moose survey data is based.  
A number of maps overlaying the Blueberry Claim Area with Wildlife Management  
Units and various other datasets were presented at trial. A basic map of the  
Blueberry Claim Area and associated Wildlife Management Units can be found at  
Exhibit 92, Tab 22.  
[
684] As outlined by Blueberry, the main Wildlife Management Units overlapping  
the Blueberry Claim Area can generally be placed into three categories:  
a) The Central Wildlife Management Units: 7-45, 7-34, and 7-44 (and  
perhaps the northern part of 7-33). These are located in the core of the  
Blueberry Claim Area, and overlap with many of Blueberry’s primary  
hunting and trapping territories.  
b) The Outer Wildlife Management Units: 7-46, 7-47, 7-57, and 7-58. These  
include the mountains in the west, while the eastern areas are mostly  
scrub bog forest (black spruce). These are primarily caribou territory.  
c) The Southern Wildlife Management Units: 7-32 and 7-20 (and perhaps the  
southern portion of 7-33). These encompass the southern agricultural and  
urban areas, which are heavily settled.  
[
685] Wildlife Management Unit 7-35, in the west of the Blueberry Claim Area, has  
portions that overlap each of these categories, and cannot be placed easily as a  
whole primarily in any one of them; the western portion is primarily mountain or  
remote less-developed forests, while the eastern portion is more developed and has  
a different habitat.  
5
.
Expert Witnesses  
a) Dr. Johnson  
[
686] Dr. Christopher Johnson was qualified as an expert in wildlife ecology, with a  
specialty in cumulative impacts from resource development. He produced one  
 
Yahey v. British Columbia  
Page 199  
report, dated July 2017 (“Johnson Report”), and two addendums, dated February  
018 (“Johnson Addendum 1”) and May 2019 (“Johnson Addendum 2”). He used  
2
publicly available reports and data to opine on health, population trends, and the  
cumulative effects of industrial development in the Blueberry Claim Area on caribou,  
moose, marten, fisher, beaver, and porcupine.  
[
687] Generally, Dr. Johnson stated that there is “considerable evidence  
demonstrating that the cumulative effects of large scale and rapid industrial  
development result in a decrease in natural levels of biodiversity.” He noted that  
industrial development does not affect all species negatively, but what species it  
does help, it helps at the expense of others. He acknowledged at trial that predator  
control measures would likely increase ungulate populations.  
b)  
Dr. McNay  
[
688] Dr. Scott McNay was also qualified as an expert in wildlife ecology, with a  
focus on caribou and other ungulate populations in BC. His evidence focused on the  
status of caribou herds within the Blueberry Claim Area. He produced one report,  
dated July 17, 2017 (“McNay Report”), in which he estimated population trends and  
assessed the habitat condition of the three caribou herds whose ranges overlap with  
the Blueberry Claim Area. He then used two previously-developed models to predict  
herd population growth based on the calculated habitat disturbances.  
c)  
Mr. Simpson  
[
689] Mr. Keith Simpson was qualified as an expert in wildlife ecology, with a focus  
on the effects of development on wildlife. He produced one report, dated September  
017 (“Simpson Report”). He gave evidence on habitat requirements, population  
2
trends, and the effects of various types of development on a variety of species in the  
Blueberry Claim Area, including caribou, moose, and furbearers.  
Yahey v. British Columbia  
Page 200  
d)  
Expert Credibility  
[
690] I found Dr. Johnson and Dr. McNay to be competent, credible expert  
witnesses. Their testimony was measured and thoughtful. In cross-examination,  
each was candid as to what they could or could not agree with and where applicable  
noted any errors and made corrections. While the Province at one point said Dr.  
McNay resiled from his opinion, I find his comments were no more than a correction  
when a mathematical and labelling error was identified. Dr. McNay’s correction  
added to his credibility.  
[
691] I note the Province’s characterization of Dr. Johnson’s evidence as being  
inextricably linked to the Atlas” – referring to the Atlas of Cumulative Landscape  
“
Disturbance in the Traditional Territory of Blueberry River First Nations, 2016 (“2016  
Atlas”) – is not accurate. Dr. Johnson referred throughout to other surveys and  
reports, including Environment Canada reports and scholarly literature. I have no  
trouble relying on Dr. Johnson’s and Dr. McNay’s opinions in making my findings  
regarding the state of key species in the Blueberry Claim Area.  
[
692] I do, however, have some reservations about Mr. Simpson’s evidence.  
Compared to Dr. Johnson and Dr. McNay, Mr. Simpson is less experienced in the  
areas on which he was asked to opine. Further, his testimony was inconsistent and,  
at times, somewhat argumentative. On several issues, his opinion varied between  
his expert report, direct examination, and cross-examination. In one instance, he  
changed his opinion mid-trial on the relationship between wolf predation and linear  
disturbances based on a single study he read. In another, he did not include certain  
pertinent moose survey information he received that was contrary to his opinion. He  
was unable to adequately explain this omission. Overall, I did not have the same  
confidence in Mr. Simpson’s testimony as that of Dr. Johnson and Dr. McNay.  
Accordingly, where there are differences between these experts, I assign Mr.  
Simpson’s evidence less weight.  
Yahey v. British Columbia  
Page 201  
6
.
Caribou  
a) Overview on Caribou and their Habitat  
693] There are three woodland caribou herds whose ranges overlap with the  
[
Blueberry Claim Area: the Chinchaga, Graham, and Pink Mountain herds. The  
Chinchaga are part of the Boreal Caribou subspecies, while the Graham and Pink  
Mountain herds are classified as Northern Mountain Caribou. A map of the Blueberry  
Claim Area, overlaid with each herd’s territory and the corresponding Wildlife  
Management Units, can be found in the Johnson Report:  
 
Yahey v. British Columbia  
Page 202  
Johnson Report (Exhibit 15, p. 5): Location of caribou populations and corresponding Wildlife  
Management Units (WMU) within the traditional territory of the BRFN (referred to in these  
reasons as the Blueberry Claim Area).  
[
694] Although there are differences between the Northern Mountain and Boreal  
Caribou ecotypes, Dr. McNay summarized a variety of general conclusions  
applicable to both types:  
a) both types require large areas of contiguous habitat with minimal  
anthropogenic disturbances;  
Yahey v. British Columbia  
Page 203  
b) they have a naturally low reproductive rate;  
c) they require undisturbed habitat for calving (birthing and nursing their  
calves), where they can separate themselves from predators;  
d) high calf mortality rates across BC suggest cows do not have access to  
sufficient undisturbed calving grounds;  
e) historically, herds with insufficient access to high-elevation rutting and  
calving grounds have become extirpated; and,  
f) both rely on terrestrial and arboreal lichens, which occur in old-growth  
subalpine forests and some low-elevation forests (arboreal lichens) and  
alpine areas (terrestrial lichens).  
[
695] Dr. McNay noted that Boreal Caribou occur in relatively flatter boreal forests  
in northeastern BC. They live in smaller groups and are mostly sedentary, as  
opposed to migratory. He noted that year-round, they select for areas abundant in  
terrestrial lichens; he explained that they generally avoid deciduous swamps and  
upland habitat, which tend to be home to predators and alternate prey, such as  
moose.  
[
696] Dr. McNay noted that Northern Mountain Caribou seasonally vary their  
habitat. They spend much of their time at high elevations, where predation risk is  
low; when they do descend into lower elevations, they are generally found in old  
stands of lodgepole pine or mixed stands of white spruce and lodgepole pine. He  
noted: they require year-round contiguous mature forests for secure cover and  
foraging; that lichen forage is associated with mature to old forests; and, that  
predation rates are lowest in areas with low anthropogenic disturbance.  
[
697] Mr. Simpson gave evidence that caribou require large areas of contiguous,  
undisturbed habitat. His report detailed a need for habitat that is rich in mature to  
old-growth coniferous forests, lichens, muskegs, peat lands, and upland or hilly  
areas. He noted caribou require large areas of quality habitat to allow them to  
disperse in the face of predators and other disturbances, whether natural or  
Yahey v. British Columbia  
Page 204  
anthropogenic. He also noted they require access to high-quality, undisturbed  
calving areas.  
b)  
Status of Caribou in the Blueberry Claim Area  
[
698] All three wildlife experts (Dr. Johnson, Dr. McNay, and Mr. Simpson) opined  
on the status of caribou within the Claim Area and the cause of their decline. Direct  
evidence was also provided by Blueberry members.  
i.  
Dr. Johnson  
[
699] Dr. Johnson noted that all populations of Boreal Caribou in BC, including the  
Chinchaga, are unlikely to maintain a self-sustaining population over time. They are  
provincially red-listed as “imperiled.” Dr. Johnson noted there is no strong scientific  
link between Boreal Caribou decline and diseases or parasites.  
[
700] In his report, Dr. Johnson noted at page 4:  
The populations in BC are located in the northeastern portion of the  
…
province and are found across landscapes that have been degraded by  
decades of forestry and oil and gas development. Although the total footprint  
of disturbance varies across that area, these caribou are some of the most  
threatened populations in Canada. Environment Canada (2011) has  
assessed all populations of boreal Caribou in BC as unlikely or very unlikely  
to maintain a self-sustaining population over time.  
[
701] Dr. Johnson also cited a science review for Boreal Caribou by Culling and  
Cichowski (2017), which he said reported a decline in the number of caribou found  
across the Chinchaga Range. In 2004, there were an estimated 483 caribou in that  
range, which declined to 250 in 2010. A minimum count survey (only those caribou  
observed, not estimated) located 194 Caribou in 2016.  
[
702] Regarding Northern Mountain Caribou, which includes the Graham and Pink  
Mountain herds, Dr. Johnson noted they are provincially listed as imperiled/special  
concern. He found no available data on the health of these herds (as opposed to  
simply their abundance or population size). Dr. Johnson noted that low calf  
Yahey v. British Columbia  
Page 205  
recruitment (meaning that few calves survive to adulthood) has been cited as a  
cause of the Graham herd decline.  
[
703] Dr. Johnson noted that Environment Canada has set a 35% habitat  
disturbance threshold for caribou management, which has been formally  
incorporated into their Boreal Caribou recovery plan. A disturbance management  
threshold is the point below which range conditions are likely to meet a recovery  
goal. If the level of disturbance is above that – i.e., if more than 35% of the habitat is  
disturbed – the outcome is highly uncertain or unacceptable. Based on Environment  
Canada studies, this threshold or limit of 35% of habitat being disturbed is thought to  
result in a 60% probability of a caribou population being self-sustaining.  
[
704] Dr. Johnson stated that the effect of industrialization on caribou is a very well-  
documented area of research. He cited evidence that:  
a) depending on location, caribou decline can be attributed to a number of  
factors including direct habitat loss, displacement caused by  
anthropogenic disturbances, and unsustainable predation resulting from  
human-caused alteration in the distribution and abundance of predators;  
b) 70% or more of the variation in Boreal Caribou recruitment across Canada  
was attributable to range condition/habitat, most of which was the result of  
anthropogenic activities;  
c) there has been a demonstrated loss of habitat for the Graham herd (he  
found no estimates for habitat disturbance for the Pink Mountain herd);  
and,  
d) studies have estimated the anthropogenic habitat disturbance for the  
Chinchaga herd to be between 74–78.8%.  
[
705] Dr. Johnson also cited evidence from Doig River First Nation that their  
knowledge holders have observed a negative link between oil and gas activities and  
Yahey v. British Columbia  
Page 206  
caribou, which they attributed to poor health from ingesting oil and gas–related  
contaminants.  
ii.  
Dr. McNay  
[
[
[
706] Dr. McNay noted in his expert report at pages 12–13:  
The relationship between anthropogenic disturbance and caribou population  
declines has been well documented (Wittmer et al. 2007, Environment  
Canada 2008, 2011a, Sorensen et al. 2008, Bowman et al. 2010, Johnson et  
al. 2015). Adult female caribou have a greater chance of surviving with  
greater amounts of old, undisturbed forests within their home ranges (Wittmer  
et al. 2007). Johnson et al. (2015) found that caribou population declines  
were highly correlated with habitat disturbance, particularly disturbance in  
caribou calving – summer ranges…  
707] He went on to note:  
The negative relationship between habitat disturbance and caribou declines  
is likely related to the multiple adverse effects of habitat disturbance and  
caribou: increase predation, habitat alteration, habitat fragmentation, loss of  
habitat and forage, and displacement of individual caribou from their  
preferred habitats (British Columbia Ministry of Environment 2014). Of these  
effects increased predation has the largest negative effect on caribou. While  
habitat disturbance is the ultimate reason for caribou population declines,  
increases in predation is often considered the proximate cause…  
708] Overall, Dr. McNay found that all three herds within the Blueberry Claim Area  
–
Chinchaga, Graham, and Pink Mountain – were in decline, with populations  
unlikely to become self-sustaining. He specifically noted that “[d]eclines in the  
Chinchaga and Graham herds are most likely due to habitat disturbance.” He opined  
that the primary proximate cause is wolf predation, the ultimate cause of which is  
anthropogenic habitat disturbances.  
[
709] Habitat disturbance in this context refers to a place where the habitat has  
been disturbed or altered, causing changes to the natural landscape. Anthropogenic  
human-caused) disturbances include seismic lines, roads, forestry cutblocks, oil  
(
well pads, and farms – essentially any area where humans have interfered with the  
landscape. Natural disturbances include forest fires and landslides.  
Yahey v. British Columbia  
Page 207  
[
710] Dr. McNay cited two proposed mechanisms for the increase in wolf predation:  
a) an increase in the predator population brought on by increases in seral-  
associated prey (like moose and deer), which are drawn to the increase in  
early seral vegetation for forage caused by industrial disturbances; and,  
b) ease of predator access to caribou habitat because of anthropogenic  
disturbances, like linear corridors (e.g., roads and seismic lines).  
[
711] “Early seral” habitat is essentially young forest, characterized by a greater  
amount of low-level vegetation, which may provide forage for various animals like  
moose and deer. This can be contrasted with more mature forest, which has less  
underbrush and denser canopy cover.  
[
712] Dr. McNay noted the relationship between anthropogenic disturbance and  
caribou population declines is “well documented,” and is likely related to multiple  
adverse effects from disturbance, including increased predation, change or loss of  
habitat and forage, fragmentation, and displacement of individual caribou from their  
preferred habitats. For example, Dr. McNay noted that linear features (roads,  
seismic lines, etc.) fragment caribou habitat, cause direct habitat loss along the  
feature line, and facilitate vehicle collisions.  
[
713] Dr. McNay also cited evidence that caribou tend to avoid the area  
surrounding development features, which creates habitat loss greater than the  
footprint of the feature itself. For example, they may avoid cutblocks by up to 5.5  
kilometres, and seismic lines or pipelines by up to 2.5 kilometres. Further, forest  
harvesting decreases the availability of arboreal lichen for winter forage.  
[
714] Dr. McNay, citing a BC Ministry of Environment report from 2014, opined that  
industrial disturbances from the forestry and energy sector are the biggest threat to  
Northern Mountain and Boreal Caribou in BC. He noted that natural disturbances,  
including fire and pine beetle outbreaks, may contribute to habitat loss, however,  
their overall impact seems to be less than that of anthropogenic disturbance. Dr.  
Yahey v. British Columbia  
Page 208  
McNay also noted that the impact is “additive,” as several studies have found  
caribou population growth and recruitment are best explained by the percent area  
disturbed by anthropogenic disturbance and fire, versus either individually. For  
example, across 24 Canadian boreal caribou ranges, percent area disturbed by  
anthropogenic disturbances and fire explained 61% of the variation in caribou  
recruitment.  
Boreal Caribou: The Chinchaga Herd  
[
715] Dr. McNay testified that, based on his own modelling, the cause of the  
Chinchaga herd decline is likely habitat disturbance, which is largely anthropogenic.  
He found that the Chinchaga range demonstrates a level of habitat disturbance that  
clearly exceeds any recommended limit. His model (which uses a 250 metre  
anthropogenic disturbance buffer) showed an 87.25% anthropogenic disturbance in  
this range.  
[
716] Further, he noted the level of habitat disturbance in the Blueberry Claim Area  
was disproportionately higher compared to elsewhere in the Chinchaga range –  
2.62% within the Blueberry Claim Area versus 79.14% outside of it. He concluded  
9
this would limit their growth in the Blueberry Claim Area and was likely causing the  
Chinchaga herd to be displaced to other portions of their range.  
[
717] Dr. McNay opined that habitat disturbance levels are too high for a self-  
sustaining Chinchaga population; he stated that the herd was likely to continue  
declining unless multiple management actions are taken.  
Northern Mountain Caribou: The Graham and Pink Mountain Herds  
[
718] Over their entire range, Dr. McNay found that the disturbance levels for both  
Northern Mountain herd ranges were only slightly above recommended disturbance  
limits. His calculations showed a 38.28% disturbance for the Graham herd range,  
and a 36.77% disturbance for the Pink Mountain herd range (compared to the 35%  
Yahey v. British Columbia  
Page 209  
management threshold specified by Environment Canada). These calculations were  
done using a 500 metre anthropogenic disturbance buffer.  
[
719] However, for the portion of the Graham range that exists within the Blueberry  
Claim Area, he found that disturbance levels were higher than for the total range.  
Like the Chinchaga herd, he opined that the Graham herd was probably  
experiencing greater pressure within the Blueberry Claim Area and that their  
distribution was likely displaced from there.  
[
720] Dr. McNay noted that the models he used tended to overestimate population  
growth when compared to demographic data for the Northern Mountain herds. Given  
the models he used did not align as closely with the observed population trends, Dr.  
McNay noted that results were less clear for the Northern Mountain Caribou  
populations. He opined that disturbances within these herd areas were “likely to be  
more detrimental than the preliminary model results suggest,” but that further  
refinement of the model was necessary to draw clearer conclusions.  
iii.  
Mr. Simpson  
[
721] On cross-examination, Mr. Simpson acknowledged that all three herds in the  
Blueberry Claim Area are declining, and are unlikely to reach sustainable  
populations.  
[
722] Mr. Simpson’s evidence on the cause of that decline was somewhat  
conflicted. In his report, Mr. Simpson wrote, without qualification, that “[h]abitat  
fragmentation, increases in seral associated prey (deer, elk and moose) and  
corresponding increases in predators, particularly wolves, is generally accepted as  
the main cause of declines in many caribou populations,” citing Committee on the  
Status of Endangered Wildlife in Canada, “Assessment and Status Report on the  
Caribou Rangifer tarandus; Northern Mountain Population, Central Mountain  
Population, Southern Mountain Population in Canada” (2014, Ottawa): Species at  
Risk Public Registry [COSEWIC 2014 Report]. At one point in cross-examination, he  
agreed with this statement; at another, he cited the cause simply as “wolf predation,”  
Yahey v. British Columbia  
Page 210  
but noted that “there’s some confusion over how that occurs,” and stated that he had  
trouble making the linkage between habitat disturbances and increases in wolf  
predation.  
[
723] Regarding specific disturbance types, Mr. Simpson opined that road density  
and linear disturbances negatively impact caribou. He noted there is a strong  
negative correlation between linear disturbance density and a caribou population’s  
success in a given area. In his report, he noted that standard forest management is  
“not compatible” with the needs of woodland caribou. Further, he noted agricultural  
land was not generally suitable caribou habitat.  
[
724] However, Mr. Simpson also stressed that other possible causes of decline  
should also be considered, including climate change, forest fires, pine beetles, and  
other natural disturbances, particularly since declines have occurred in areas where  
caribou enjoy relatively undisturbed habitat.  
[
725] Mr. Simpson noted that habitat protection measures alone have been  
insufficient to support herd recovery, and that consideration should be given to prey  
reduction and captive rearing strategies.  
iv.  
Blueberry Members’ Evidence  
[
726] Both Raymond Appaw and Jerald Davis testified to caribou declines  
beginning in the 1980s and 1990s. These Blueberry witnesses noted that caribou  
are almost never seen anymore, though rare sightings do occur. Blueberry members  
have stopped hunting caribou due to their declining populations.  
[
727] Some Blueberry witnesses testified that, in recent times, caribou had been  
seen in some of their former habitat. In its written submissions and appendices, the  
Province highlighted a number of specific sightings.  
[
728] Further, a 2018/19 Wildlife Sighting Survey conducted by the Blueberry River  
Lands Department recorded seven sightings of between one and nine caribou.  
Yahey v. British Columbia  
Page 211  
[
729] The Province submits that the Plaintiffs’ own specific evidence on this subject  
rebuts an assertion that caribou are “almost never seen anymore.” However, this  
argument does not consider how frequently caribou were seen before the reported  
decline. The Blueberry members testified to diminishing numbers and increasingly  
infrequent sightings. That they still occasionally see some caribou does not negate  
their more general testimony on declining populations. Further, the overwhelming  
scientific evidence is in line with the witnesses’ testimony: that caribou populations  
are in decline and are unsustainably low.  
v.  
Province’s Theory on Caribou Decline  
[
730] The Province submitted that increased predation – particularly by wolves – is  
the cause of caribou decline. The Province primarily cited the opinions of Dr. McNay  
and Mr. Simpson (detailed above), although they also pointed to comments made by  
Blueberry members at trial; for example, at one point, Raymond Appaw testified that  
wolves had kept ungulate populations down. The Province also referenced predator  
control measures a number of times, either directly or obliquely, including by asking  
each expert whether or not predator control measures would be likely to increase  
ungulate populations.  
th  
[
731] Wolf control in the province dates back to the late 19 century, and at various  
times has included the use of bounties, poison, hired hunters, and shooting wolves  
from planes. However, such measures have become increasingly unpopular with the  
public, and the Province pointed out that predator control measures had largely  
ceased by the 1980s.  
[
732] The Province submits that, in the wake of this cessation, predator populations  
have increased and caused a corresponding decline in caribou populations. The  
Province notes it is implementing wolf control measures to protect the Chinchaga  
and Pink Mountain herds.  
[
733] The Province also suggested that increases in seral-associated ungulates  
including moose and deer) may have allowed for an increase in the wolf population,  
(
Yahey v. British Columbia  
Page 212  
with corresponding declines in caribou. The theory is that moose and deer  
populations have increased, and as they move into caribou territory, they bring their  
main predator (wolves) with them. Despite the fact that caribou are not their  
traditional prey, wolves will opportunistically or incidentally hunt caribou when they  
move into caribou territory. In sum, the Province suggests that increased moose and  
deer have led to increased wolves, which has caused a decline in caribou.  
[
734] As the Plaintiffs pointed out, the difficulty with the Defendant’s argument here  
is that it stops at the immediate cause of death of various individual caribou. In Dr.  
McNay’s evidence, he pointed out that increased predation is ultimately believed to  
be the result of human disturbance. Dr. Johnson’s evidence was largely the same. I  
note that even Mr. Simpson, who originally declined to draw any conclusions on the  
relationship between industrial disturbance and wolf predation, changed his opinion  
at trial, and eventually agreed that linear disturbances could cause increased  
predation for caribou.  
[
735] The proposed mechanism is that anthropogenic disturbances cause an  
increase in moose- and deer-friendly early seral habitat. As such, moose and deer  
have moved into caribou territory, bringing wolves with them. Thus, human-caused  
habitat disturbance is widely theorized to be the ultimate cause of caribou decline.  
c)  
Conclusions on Caribou  
[
736] There was clear consensus among the experts and witnesses that the  
caribou populations in the Blueberry Claim Area are in serious decline, and are  
unlikely to reach self-sustaining levels.  
[
737] I accept the evidence of Dr. Johnson and Dr. McNay – and even Mr. Simpson  
to a certain extent, as explained above – that anthropogenic disturbance, including  
industrial disturbance, has largely caused or contributed to that decline. This is  
further consistent with the direct evidence provided by Blueberry members, which  
has indicated limited to no sightings of caribou, unlike in times past.  
Yahey v. British Columbia  
Page 213  
7
.
Moose  
a) Overview on Moose and Their Habitat  
738] Dr. Johnson described suitable moose habitat as containing a mix of forest  
[
ages and classes in close proximity, to provide a combination of cover (older forest)  
and forage (younger forest and shrubland).  
[
739] Mr. Simpson’s evidence on moose habitat requirements largely aligned with  
Dr. Johnson’s: moose require a “mosaic” of shrubland and young to mature forest  
within both their summer and winter ranges, which provides a mix of forage and  
cover. Mr. Simpson noted that the availability of suitable winter habitat is generally  
considered the most important factor for moose populations. He noted that high  
snow depths are bad for moose, and that in areas with greater snowfall, the best  
habitat is old forest (for cover) situated near seral shrubland (for forage).  
[
740] In his testimony, Mr. Simpson agreed that effective winter habitat is another  
critical factor for moose. He emphasized the importance of winter habitat that  
provides shelter and thermal cover close to forage in his report, at p. 7:  
The availability of winter habitat is generally considered the most important  
factor required to sustain moose populations… Moose require a mix of forest  
age classes in close proximity to provide feeding habitat (<20 years old),  
thermal and snow interception cover (>60 years) as well as hiding cover (20-  
60 years)…  
b)  
Moose Populations in the Blueberry Claim Area  
[
741] Dr. Johnson and Mr. Simpson opined on moose populations within the Claim  
Area. Direct evidence was provided by Blueberry members. A variety of provincial  
studies, reports, and other documents were also adduced at trial.  
i.  
Dr. Johnson  
[
742] Dr. Johnson reviewed population data for moose in the Peace Region, which  
significantly overlaps with the Blueberry Claim Area. He noted that population trends  
are not available for all Wildlife Management Units within the Blueberry Claim Area.  
 
Yahey v. British Columbia  
Page 214  
At the time of the Johnson Report, for Wildlife Management Units with available  
data, Dr. Johnson found that surveys indicated moose populations had:  
a) likely increased in Wildlife Management Unit 7-35;  
b) likely decreased in Wildlife Management Units 7-32, 7-42 and 7-44  
(though more recent data for 7-32 suggests an increase, as will be  
discussed below; furthermore, the data for 7-44 was out of date at the time  
of the Johnson Report, and numbers may have increased compared to  
earlier survey data from the 1980s); and,  
c) possibly increased in Wildlife Management Units 7-45 and 7-46, though  
the data on 7-45 was flawed and out of date, and there was only a single  
survey for 7-46. (As will be discussed below, more recent government  
data suggests moose are actually declining in Wildlife Management Unit  
7
-45.)  
[
743] The Johnson Report contains a map of the Blueberry Claim Area, overlaid  
with the Wildlife Management Units including data on areas of likely moose increase  
or decrease at p. 11.  
Yahey v. British Columbia  
Page 215  
Johnson Report (Exhibit 15, p. 11): Location of Wildlife Management Units within the  
traditional territory of the BRFN (referred to in these reasons as the Blueberry Claim Area)  
with corresponding trend in population change of moose, where available.  
[
744] In his report, Dr. Johnson noted that between the various regional segments,  
there was evidence of moose declining in some areas and increasing in others,  
though he was unclear on how some of the reports he reviewed had obtained  
population data. At the time, he found that “[i]ncomplete data…prevent a full  
description and evaluation of the population dynamics of moose across the  
traditional territory.” However, in Johnson Addendum 2, he points to data from a  
Yahey v. British Columbia  
Page 216  
2
018 study by Kuzyk et al. (“Kuzyk 2018”) that concluded moose populations within  
an area that includes the Blueberry Claim Area had actually declined between 5-  
2% annually from 2011 through 2015. He felt this new study was better than an  
1
older study by the same author (which had found moose populations to be stable),  
as it reflected improvements in data and study methods.  
[
745] Dr. Johnson noted it is often thought that landscape disturbance actually  
results in increased quality/size of habitat for moose, as it creates a convergence of  
early seral forage areas with older forest cover. However, he also noted that many  
populations have declined in the last decade despite increases in these  
disturbances. He stated that the causes of these regional declines are unclear, and  
are currently being studied. That said, he did summarize a number of empirical  
findings on the effects of industrialization on moose:  
a) there is evidence that moose frequently use cutblocks, however,  
preliminary results from one study showed that moose density in  
northeastern BC was positively correlated with wildfire-caused  
disturbances, but not with anthropogenic ones (like cutblocks, roads, and  
seismic lines);  
b) some evidence suggests moose avoid or are hesitant to cross roads or  
road-dense areas, although this appears to vary by season, gender, and  
scale of analysis;  
c) broad-scale use of herbicides reduces forage for moose, although moose  
may eventually return to or even favour previously-treated areas;  
d) studies suggest moose will strongly avoid very recent habitat  
disturbances; and,  
e) generally, large-scale forest change can have negative repercussions for  
moose populations.  
[
746] He noted that we cannot assume a continuous positive relationship between  
areas of successional plant communities (i.e., forage areas) and moose habitat  
Yahey v. British Columbia  
Page 217  
quality, as moose require a range of stand ages to thrive. He could not find any  
guidance on the composition of foraging and cover habitats moose require to  
indicate at what threshold a lack of mature forest might start to limit moose.  
However, the Provincial Cumulative Effects Framework, which will be discussed  
later, considers moose habitat “disturbed” if it is within one kilometre of a road or  
major industrial development. Dr. Johnson noted that, based on only a 500 metre  
buffer (i.e., half of the provincial disturbance buffer for moose), the 2016 Atlas found  
an 84% territory disturbance in the Blueberry Claim Area. Further, the BC  
Cumulative Effects Maps he considered in Johnson Addendum 1 showed that road  
disturbance was “very high” and mitigation was “very low” for moose across much of  
the Blueberry Claim Area.  
[
747] Dr. Johnson also noted that traditional knowledge-holders from some First  
Nations reported that moose, like caribou, are negatively affected by oil and gas  
developments via ingestion of contaminants.  
ii.  
Mr. Simpson  
[
748] Mr. Simpson noted that moose are provincially listed as a “secure” species;  
the province considers them widespread and abundant. In his opinion, based on the  
available data, moose populations in the Peace Region and the Peace River  
Corridor are stable. However, in the Northeast Rockies portion of the Blueberry  
Claim Area, he found that moose appear to be declining.  
[
749] Mr. Simpson also opined on the effects of various industrial development  
types with respect to moose.  
[
750] Regarding forestry, he noted that moose habitat shows less of a decline in the  
face of forestry activities than some other species, including caribou, fisher, and  
marten. That decline is generally based on the availability of winter habitat, i.e., old  
coniferous forests for cover. He also noted that agricultural land represents a  
“permanent loss of habitat” for moose.  
Yahey v. British Columbia  
Page 218  
[
751] Mr. Simpson further noted that roads may have a negative effect on moose,  
by increasing access to moose by hunters and other predators. In his report, he  
cited studies concluding that linear corridors facilitate wolf predation on moose (as  
well as other ungulates). He noted other experts have indicated that, as a point of  
management, road networks in forestry areas should be minimized or deactivated  
for up to 10 years following cutblock harvesting, until the vegetation has grown high  
enough to obscure moose from road traffic.  
[
752] Mr. Simpson also noted that in the Peace River Corridor – an area with  
extensive development and also subject to extensive study – moose populations  
appear stable. Further, he opined that based on his “limited review” of the literature  
and his own experience, predators may be less tolerant of human presence than  
some ungulates, including moose, which might account for his observations that  
moose are stable or increasing in parts of the Blueberry Claim Area subject to the  
most development.  
iii.  
Blueberry Members’ Evidence  
[
753] All Blueberry witnesses testified that they have experienced a decline in  
moose in the Blueberry Claim Area. They find moose hard to hunt, and their  
availability does not meet the community’s needs. Several members noted that  
moose are no longer found in areas they were once plentiful. They noted that moose  
generally avoid areas of industrial activity or clearcutting.  
[
754] Although various witnesses noticed a decline in moose at different times in  
different areas, they have all noticed a significant decline in the last 10 to 15 years.  
[
755] The Province has conceded that moose are a key species for Blueberry,  
although it does not concede there is any proven decline in moose population within  
the Blueberry Claim Area. The Province contrasts the general evidence provided by  
Blueberry community members (i.e., that moose are declining) with those members’  
more specific evidence, which includes testimony from multiple members that they  
Yahey v. British Columbia  
Page 219  
still see and are able to hunt moose in the Blueberry Claim Area. I will not review all  
of that specific evidence here, but it includes that:  
a) between the Blueberry witnesses, for example, 12 moose were harvested  
in a recent year;  
b) Norma Pyle testified to shooting six moose on five trips between 2009 and  
2
015;  
c) Jerald Davis testified that, although it was more difficult to hunt, he was  
still able to get enough to allow him to “eat [moose] every day,” and that  
he has heard from members of Blueberry and other nations that they see  
moose daily (although he did not necessarily believe them); and,  
d) Raymond Appaw testified to a number of active moose licks in close  
proximity to the Reserve.  
[
756] The Province also says evidence provided by Blueberry suggests that those  
members who do actively hunt or trap may spend less time on the land than before  
as a result of competing commitments. For example:  
a) Chief Yahey noted that he does not hunt on a daily basis because of his  
job, and noted that in 2012 specifically he was only able to hunt a small  
handful of times;  
b) Norma Pyle likewise testified she had limited time to hunt or fish due to  
her job; and,  
c) Georgina Yahey explained that it was harder for her family to travel long  
distances or take longer trips while she was in school.  
[
757] The Province contrasted this evidence with historical evidence of the effort  
and time spent hunting by Blueberry members, including testimony by Chief Yahey  
that, at the time of Treaty 8, the Fort St. John Beaver Band was semi-nomadic and  
had to travel long distances in pursuit of food resources. They also pointed to  
Yahey v. British Columbia  
Page 220  
evidence from Dr. Ridington that even as far back as the 1970s, only one in four  
hunts was successful.  
iv.  
Province’s Theory on Moose Populations  
[
758] To the extent that any decline has occurred, the Province submits that such a  
decline “likely reflect[s] a return to a more natural level, prior to the extensive  
predator control measures in the mid-century.” The Defendant argues that Blueberry  
members may have a distorted sense of the historical abundance of moose, based  
th  
on a period of artificially high moose populations in the mid-20 century, which are  
now simply returning to more normal historical levels.  
[
759] In particular, they rely on a statement from the Plaintiffs’ expert, Dr. McNay,  
who commented at trial that “with the amount of habitat disturbance that’s happened  
in the last 50 years, the moose population has grown basically from 0 to 170,000  
animals.” The Province argued that a combination of intensive predator control  
between the 1950s to 1990s, increased forest harvesting (resulting in an increase in  
forage habitat), tighter hunting restrictions, and a greater history of prescribed  
burning increased moose populations beyond their natural equilibrium.  
[
760] As the Plaintiffs pointed out, however, Dr. McNay opined on caribou  
populations. His expert report and his testimony at trial focused on caribou. He was  
not asked to study moose generally, nor to opine on moose in the Blueberry Claim  
Area, except to the extent that moose populations have some relationship to or  
interaction with caribou populations. The comment quoted above was made  
rhetorically, in direct examination, while discussing increased predation on caribou in  
caribou habitat, i.e. that there has been an increase in moose in areas traditionally  
associated with caribou. It was not a general comment on moose populations within  
the Blueberry Claim Area, and, further, Dr. McNay cited no time period for this  
increase in moose.  
[
761] Blueberry highlighted several additional issues with the Province’s theory that  
declining moose populations are simply returning to “natural” or historical levels.  
Yahey v. British Columbia  
Page 221  
They pointed out the Province failed to adduce much, if any, evidence to support the  
theory. Where evidence was proffered, Blueberry argued it had been misinterpreted,  
and did not actually support the Province’s propositions.  
[
762] Blueberry made compelling rebuttal arguments with respect to each of the  
factors cited by the Province as having increased moose populations from the 1950s  
to the 1990s (predator control, increased forestry, hunting restrictions, and  
prescribed burning). I am inclined to agree with Blueberry on the following points.  
[
763] Regarding predator control measures, which the Defendant implies would  
have decreased the wolf population and thus increased the moose population over  
the relevant period:  
a) the Defendant provided no evidence of the magnitude or effects of  
historical predator control measures within the relevant Wildlife  
Management Units in the Blueberry Claim Area;  
b) predator control was in decline, and ultimately ceased, well before the  
Plaintiffs began noticing a decline in moose. The Plaintiffs specifically  
pointed to evidence given by Mr. Simpson that populations “quickly  
recover” after the cessation of predator control measures; however, these  
measures were gradually discontinued beginning in the 1950s and had  
stopped altogether at least 10 years (in the mid-1990s) before the  
Plaintiffs began noticing a decline in moose (in the mid-2000s);  
c) much of the expert evidence relied upon by the Defendant in support of  
this point was given in relation to caribou habitat, not moose habitat; and,  
d) the Defendant mischaracterized some of the expert testimony on this  
point. For example, the Defendant relied on a quote by Dr. Johnson to  
support the proposition that wolves were the cause of moose decline in  
the territory. However, this was not Dr. Johnson’s evidence, and in fact he  
specifically declined to draw this inference. Dr. Johnson simply agreed  
Yahey v. British Columbia  
Page 222  
that, if all else were equal, wolves could cause a decline in moose  
populations.  
[
764] Regarding the effects of increased forestry, which the Defendant submits  
would have increased forage habitat for moose, resulting in an increased population:  
a) three of the Wildlife Management Units within the Claim Area (7-45, 7-44  
and 7-34) have declining moose populations despite a high forestry  
harvest; and,  
b) forestry has not stalled or declined in these Wildlife Management Units  
since the 1990s, which calls into question the causal relationship between  
increasing forestry and increasing moose populations.  
[
765] Regarding hunting restrictions as a cause of increased moose population, the  
restrictions cited by the Defendant did not come into effect until 1996. This is notably  
after the 1950s to 1990s period proposed by the Defendant, and theoretically should  
have increased rather than decreased the moose population from the mid-1990s to  
present. The Plaintiffs pointed to a credible study which did show a 6% increase in  
provincial moose populations from 1996 (the year the restrictions were implemented)  
to 2005. However, the same study showed a subsequent decline in moose of 32%,  
resulting in a cumulative decline of 29% from 1996 to 2015.  
[
766] Regarding prescribed burning, which the Province submits would have  
increased moose forage habitat in a similar manner to forestry activities, the  
defendants adduced no evidence to suggest a change in prescribed burning over  
the proposed period that would account for the current decline in moose.  
[
767] Finally, this theory about artificially high moose populations followed by a  
return to “natural” levels was newly introduced during the Province’s closing  
argument. It was not introduced by, nor was it put to, any of the experts or Blueberry  
witnesses testifying in this case.  
Yahey v. British Columbia  
Page 223  
v.  
Inconsistent Survey Data for Moose  
[
768] The Province further highlighted the available Wildlife Management Unit  
survey data for moose. Surveys indicate that while moose may be declining in some  
areas, they are increasing in others, independent of the level of disturbance in each  
Wildlife Management Unit. For example, there is evidence that moose populations  
are stable to increasing in the Southern Wildlife Management Units (7-32 and 7-20)  
and Wildlife Management Unit 7-35. These Wildlife Management Units have a high  
level of disturbance. Conversely, declines have been recorded in Wildlife  
Management Unit 7-42, where there has been little industrial disturbance. The  
Province argues this variability – increasing moose populations in some Wildlife  
Management Units with high disturbance levels, and decline in others with relatively  
low disturbance levels – should prevent the inference that habitat disturbance is the  
cause of the alleged declines in Wildlife Management Units 7-45 and 7-34, which are  
at the core of Blueberry’s territory and thus at the core of their claim. I note that  
locations are detailed at the outset of this segment and the map is included earlier.  
[
769] The Plaintiffs provided compelling evidence to rebut this argument. The  
Southern Wildlife Management Units are largely disturbed by agriculture and urban  
settlements; evidence suggests this type of disturbance leads to lower predation and  
higher moose populations. A 2018 provincial survey for Wildlife Management Unit 7-  
3
2 concluded:  
Given the close proximity of portions of [Wildlife Management Unit] 7-32 to  
urban, industrial, and agricultural areas, predation from species like wolves,  
grizzly bear, and black bear is likely much lower compared to more remote  
areas within the Peace Region [citations omitted].  
[
770] Increases were also found in Wildlife Management Unit 7-20 in a 2016-2017  
survey, although there was insufficient information to opine on the cause. The  
Plaintiffs note that these Wildlife Management Units, in particular Wildlife  
Management Unit 7-20, where moose populations have increased, are far from their  
core territory and largely comprised of private land, where they are unable to hunt.  
Yahey v. British Columbia  
Page 224  
[
771] The Plaintiffs point out that the Outer Wildlife Management Units (7-46, 7-47,  
-57, and 7-58) are substantially different habitat than those in the core territory.  
7
Although they are less developed, they are also mountainous and primarily consist  
of caribou territory. They submit, and I accept, that they present a poor comparison  
to the “core” or Central Wildlife Management Units. I agree that moose population-  
to-disturbance trends in these Wildlife Management Units do not necessarily have  
any bearing on a finding of causation for the Central Wildlife Management Units.  
[
772] The Province also pointed to declines in Wildlife Management Unit 7-42 – a  
mountainous region, lying mostly outside of the Claim Area – as an example of an  
area where moose populations are declining despite very low disturbance levels.  
The Plaintiffs note that, like the Outer Wildlife Management Units, Wildlife  
Management Unit 7-42 is ecologically dissimilar to the Central Wildlife Management  
Units. Further, a provincial study conducted in Wildlife Management Unit 7-42 found  
the cause of moose decline was increased natural predation based on the cessation  
of active predator control programs.  
[
773] The Plaintiffs further note that they have not suggested moose had entirely  
disappeared from the Blueberry Claim Area, but rather that populations have  
meaningfully declined such that they are seen and harvested less frequently than  
before. The Plaintiffs highlighted evidence that Wildlife Management Unit 7-45 – a  
core management unit and historical moose habitat – is estimated as being able to  
support about 5,300 moose, but currently contains only 1,400 moose. A provincial  
government study, “Peace Region Technical Report-2019 Winter Moose Survey:  
WMU 7-45” (“2019 Winter Moose Survey”) cites habitat decline as the limiting factor  
for moose in that area, noting: “[c]hanges to the habitat have likely been the main  
factor explaining the decline in the moose population over the past 20 years.”  
[
774] Significantly, Blueberry points to a May 15, 2020 Moose Working Group  
Progress Report prepared in the context of the Regional Strategic Environmental  
Assessment project, which concludes that “linear disturbance and a lack of mature  
and old forests for winter shelter” are the “primary factors thought to influence habitat  
Yahey v. British Columbia  
Page 225  
effectiveness [for moose].” The Regional Strategic Environmental Assessment  
Moose Working Group contains both provincial experts and Blueberry members.  
The Moose Working Group, including provincial representatives, accepted the  
modelling this conclusion was based on.  
[
775] Further, the document included information that, with respect to moose  
populations, “based on available provincial data…[Wildlife Management Units] 7-45  
and 7-34 both have significant decline (down 65% and 51% respectively…),” and  
that these Wildlife Management Units “overlap with a significant industrial footprint”  
which has resulted in “little effective shelter and effective forage where forestry and  
the disturbance footprint affect habitat use by moose, and predation and hunting  
pressures.”  
[
776] Although the Province argued these documents were in draft format, the  
plaintiff gave compelling evidence that they were, in fact, relatively final and that the  
conclusions contained therein had been accepted by the Moose Working Group,  
including its provincial representatives.  
c)  
Conclusions on Moose  
[
777] As a final note, the Province argued that it was unnecessary for me to make  
any conclusions as to the cause of any decline in moose. Blueberry submitted that it  
was critical I make such a finding, particularly for the core Wildlife Management  
Units 7-45 and 7-34. It points out that if I do not rule on causation for moose, the  
Crown will not be precluded from continuing to issue forestry cutting permits  
because, in the Province’s belief, harvesting is solely beneficial for the moose  
population. I agree with Blueberry.  
[
778] The evidence to make such a determination is already before me and the  
issue has been engaged between the parties in this case.  
[
779] As outlined above, there was some disagreement among the experts on the  
subject of moose populations. Given I place more weight on the evidence of Dr.  
Yahey v. British Columbia  
Page 226  
Johnson and Dr. McNay, and further given the direct testimony of Blueberry  
members, I find that, on the whole, moose populations have declined within the  
Blueberry Claim Area, with the exception of the Southern Wildlife Management Units  
7
-32 and 7-20, as well as 7-35. The evidence suggests these have stable or  
increasing populations.  
[
780] Importantly, the Wildlife Management Units most central to the Blueberry  
Claim Area, and which Blueberry primarily uses for hunting – being units 7-45, 7-34  
and likely 7-44 – have shown moose population declines. The results for 7-44 were  
less clear; they showed declines from the 1990s but possibly an increasing or stable  
population from the 1980s. As noted, the latest provincial government Moose Survey  
for unit 7-45 (i.e., the 2019 Winter Moose Survey) indicated a 65% decline in moose  
density since 2006. While some caution was expressed in the report as the 2006  
survey used a mix of surveying methods, the Regional Wildlife Biologist who  
undertook the survey also noted that “[c]hanges to the habitat have likely been the  
main factor explaining the decline in the moose population over the past 20 years.”  
When compared to 1998 survey results, which the report noted used similar  
methods to the recent surveys, the moose population appeared to have declined by  
3
5% in unit 7-45.  
[
781] Over the course of the trial, much evidence was presented on the complex  
relationship between industrial activity and moose populations. Though some  
industrial activity may help moose, the positive effects are not universal. There is  
evidence that agricultural development may allow for increased moose populations  
(as in Wildlife Management Units 7-32 and 7-20) by reducing the amount of  
predation. There is also evidence that limited forestry- and oil and gas-related  
disturbances may increase moose populations – particularly in areas where they  
otherwise may not find forage, such as caribou habitat. Conversely, large-scale,  
intensive development may harm the moose population. While the Province relies on  
the “early seral forage” created after logging to say that such disturbances benefit  
moose, they do not acknowledge the limiting factor created by a lack of effective  
Yahey v. British Columbia  
Page 227  
winter habitat/old forest. The result is that moose populations may increase in some  
areas with high industrial activity (like the Southern Wildlife Management Units)  
while declining in other areas, which are disturbed by activities like forestry and oil  
and gas.  
[
782] I conclude the evidence establishes that the moose declines are the result of  
anthropogenic disturbances, including industrial development impacts upon habitat.  
Evidence points to the importance of old-growth coniferous forests to provide  
effective winter habit for moose survival. Mr. Simpson agreed to this in cross-  
examination when he noted middle age forest provides habitat for hiding and  
security, but moose rely on the larger, contiguous canopy found in old forest for  
thermal and snow interception protection. In his report (at p. 36), he also cited  
evidence that “[m]oose showed a small decline based on the proportion of old  
coniferous forest available for winter habitat.”  
[
783] More specific evidence was provided by Dr. Johnson, referencing the recent  
study from Mumma and Gillingham (2019), as follows:  
a) “Mortality of monitored moose was best explained by a series of variables  
related to human activity and landscape disturbance (i.e., road density and  
the proportion of new cutblocks of 1-8 years post-harvest)”;  
b) “They [Mumma and Gillingham] concluded that relative to snow conditions  
‘…moose that used areas in winter with high proportions of new cutblocks,  
new burns, and pine were more likely to die from apparent starvation’”;  
c) “moose appear to be sensitive to rapid and broad-scale landscape  
change”;  
d) “…moose are quite sensitive to very early successional, very early seral  
cuts” and that “moose avoided clear cuts that were somewhere between  
the age of one to eight years old”;  
e) “…and what they [Mumma and Gillingham] found is that moose mortality  
was related to the amount of roads, so road density, as well as the amount  
Yahey v. British Columbia  
Page 228  
of early seral forest. And that applied to harvest of moose. So if moose  
were in landscapes with early seral, lots of clear cuts and lots of roads,  
they were more likely to be harvested”; and,  
f) “…those moose that die from apparent starvation were more likely to be  
found in landscapes with a high density of roads and a large number of  
early, young clear cuts.”  
[
784] In Johnson Addendum 2, Dr. Johnson also referenced the Kuzyk 2018 report  
titled “Moose population dynamics during 20 years of declining harvest in British  
Columbia,” prepared for the Ministry of Forests. As Dr. Johnson noted, this report  
was a provincial effort by the “brain trust” of provincial experts and represents the  
most current, comprehensive, and best available evaluation of the population trends  
for moose across British Columbia. He said this is clear evidence by provincial  
specialists who reported that “…the provincial moose population increased 6% from  
1
996-2005, subsequently declined 32% from 2006-2015, and declined 29% overall  
during the 20‐year study period.” Dr. Johnson also stated: “Of importance to my  
report…moose populations declined within all [Game Management Zones] found  
within the traditional territory of the Blueberry River First Nations.”  
[
785] I note it is not necessary to determine the exact mechanism of declines in  
moose populations, which are a combination of factors resulting from industrial  
disturbance. The evidence discloses the following direct and indirect causes of loss  
of habitat consequent on industrial development, including forestry and oil and gas  
development:  
a) avoidance (movement to other areas);  
b) increased predation;  
c) loss of winter habitat, forage, starvation, increased stress; and,  
d) increased access by human hunters.  
Yahey v. British Columbia  
Page 229  
[
786] Dr. Johnson testified in respect of Table 4 of the Mumma and Gillingham  
report, which shows that road disturbance, new cutblocks, and herbicide-sprayed  
cutblocks are associated with increased mortality to moose.  
[
787] In the Johnson Report, Dr. Johnson indicates that the density of moose can  
benefit from early successional vegetation resulting from wildfire, but not  
anthropogenic disturbance (cutblocks, density of roads, density of seismic lines). He  
refers to evidence that the application of herbicide reduced the forage availability for  
moose by 60% and 96% in summer and winter, respectively, four years after  
treatment. Dr. Johnson supports the use of a one-kilometre distance from road  
disturbance as an appropriate measure.  
[
788] Ultimately, the experts and the documentary evidence were in agreement that  
the availability of effective winter habitat is the most important limiting factor to  
sustain moose populations. As noted in the “Regional Strategic Environmental  
Assessment Moose Working Group: Habitat Effectiveness Model” (July 2019),  
prepared by Tania Tripp of Madrone Environmental Services Ltd. and Tony Button –  
who has been referred to by witnesses in this trial as the most knowledgeable  
person in the Province on moose and who is presently working in the Ministry of  
Environment – at p. 11:  
Winter forage, security, and shelter are the key life requisites of focus  
because they are considered the important limiting habitats for moose  
populations.  
[
789] Based on the evidence before me, including the experts, authoritative  
provincial documents, and testimony of Blueberry members, I accept there have  
been significant declines in the moose population in Wildlife Management Units 7-45  
and 7-34, and likely some decline in Wildlife Management Unit 7-44. I accept the  
evidence that moose populations have declined on the whole across the Blueberry  
Claim Area, despite increases in some individual Wildlife Management Units. I  
further accept that the likely cause of this decline is anthropogenic habitat  
disturbance including substantial industrial development. These disturbances have  
Yahey v. British Columbia  
Page 230  
created a loss of effective habitat for moose which, along with other factors, has led  
to the decline of moose in the Blueberry Claim Area.  
8
.
Marten and Fisher  
a) Overview on Marten and Fisher and Their Habitat  
[
790] Dr. Johnson noted that there are few studies available on the habitat ecology  
or population dynamics of marten and fisher in BC.  
[
791] Research suggests that marten are dependent on old coniferous forests with  
coarse, woody debris on the forest floor. Dr. Johnson noted there are a large  
number of studies supporting the conclusion that marten respond negatively to early  
successional plant communities and landscape fragmentation associated with large-  
scale forest harvesting. He did note there is some conflicting evidence on whether  
marten actually require a particular stand age or whether the structure was more  
important than age or type, i.e., that younger forest might also be suitable for them.  
In any event, the thrust of the Johnson Report was that logging, fragmentation, and  
clear-cuts have a negative impact on marten; they will avoid open areas; and, that  
they require tall, mature trees to thrive. He noted marten appear to be vulnerable to  
even a small loss of habitat.  
[
792] Dr. Johnson noted evidence that fisher have a larger prey base and will use a  
wider range of forest types than marten, but that they also require an old forest  
structure for habitat. Habitat management strategies for fisher focus on retention of  
large natal trees, like cottonwood and spruce, near riparian areas. Dr. Johnson  
noted that landscape connectivity may be a limiting factor for fisher populations.  
[
793] Dr. Johnson noted that although marten have long been considered old-  
growth dependent, new research suggests that it may be a forest’s “structure” rather  
than its age which is important. Mr. Simpson’s evidence in this regard is consistent  
with Dr. Johnson’s. Mr. Simpson cited research noting marten require coarse, woody  
debris, with sufficient overhead vegetation, including shrubs, saplings and trees to  
provide a mixture of cover and forage for both marten and their prey. This research  
 
Yahey v. British Columbia  
Page 231  
noted marten are not normally found in open habitats, including clearcuts, and avoid  
non-forested types of cover.  
[
794] Mr. Simpson summarized quality fisher habitat as including riparian and  
associated habitats, with large trees for resting and denning and “natural” levels of  
coarse, woody debris to provide adequate rest areas and prey habitat. He noted  
they require areas with at least 30-45% mature or old forest with a productive  
understory; adequate shrub and canopy cover; and, landscape corridors between  
mature and old forests, ideally along riparian areas. He cited a study noting that tree  
patches should be at least two hectares in size.  
b)  
Status of Marten and Fisher in the Blueberry Claim  
Area  
i.  
Dr. Johnson  
[
795] Dr. Johnson noted that population and health data for these species is not  
widely tracked, and he found no reliable evidence on this subject.  
[
796] Regarding the effects of development, Dr. Johnson noted that most studies  
on marten and fisher have only considered the specific effects of forestry; there is  
little data available on cumulative effects. However, he cited evidence of the  
following:  
a) marten in northeastern BC may be disturbed by large or open seismic  
lines, but not by smaller ones (i.e., less than two metres in width) or those  
with recovering vegetation;  
b) an increased proportion of disturbance and cuts was an important  
predictor in harvest declines for one study in western Alberta (although  
harvest data is confounded by other variables, including trapper  
behaviour). This negative correlation between anthropogenic habitat  
disturbance and trapping success was supported by a newer study  
considered in his Addendum 2;  
Yahey v. British Columbia  
Page 232  
c) logging causes a decrease in quality marten and fisher habitat; and,  
d) one can expect a considerable reduction (more than 50%) in the  
probability of marten occupying areas with a seismic line density  
exceeding 10 kilometres per kilometre square.  
[
797] At trial, Dr. Johnson opined that there is “strong evidence” to suggest that a  
loss of canopy cover is detrimental to marten, and that this loss is mainly related to  
forest harvesting.  
[
798] Dr. Johnson noted that, per the Atlas, there is very little intact forest (~14%)  
remaining in the Blueberry Claim Area. However, he found that because of the  
limited data on fisher, it was hard to say exactly what this meant for them. He did  
note that because of evidence suggesting they require large tracts of contiguous  
habitat, fisher are probably not doing well within the Blueberry Claim Area.  
ii.  
Mr. Simpson  
[
[
799] Mr. Simpson noted that marten are provincially listed as a “secure” species.  
800] Mr. Simpson noted the Province considers fisher a species of “special  
concern.” He opined that fisher populations within the Blueberry Claim Area are  
stable, though little is known about population trends and most information comes  
from harvest statistics, which contain many confounding variables (including the  
number of trappers in a given year and their skill level).  
[
801] On the effect of industrial development, Mr. Simpson noted a study showing  
substantial” declines in modelled habitat for both fisher and marten in areas where  
“
forestry was the greatest change. He noted that agricultural land clearing is  
destructive of fisher and marten habitat.  
[
802] At trial, Mr. Simpson stated that he viewed his conclusions on fisher to be  
based on the other … information that’s contained in the report and from my  
experience in the area,” though admitted it was “not well documented.”  
“
Yahey v. British Columbia  
Page 233  
iii.  
Blueberry Members’ Evidence  
[
803] Some Blueberry witnesses testified that they had observed declines in marten  
and fisher in harvested areas, and reported decreased trapping success.  
[
804] Wayne Yahey testified that his family’s trapline used to be “premier” marten  
habitat, which has now been destroyed by logging. Norma Pyle testified that  
although forestry proponents leave brush piles for marten and fisher after a clear cut,  
Blueberry does not support this strategy. Ms. Pyle had “little confidence” that such  
brush piles were equivalent to standing timber for marten and fisher.  
c)  
Conclusions on Marten and Fisher  
[
805] Based on the limited evidence, it is difficult to make substantive conclusions  
on the populations of marten and fisher in the Blueberry Claim Area. However, Dr.  
Johnson concluded that – irrespective of the actual populations of marten – the  
evidence shows a negative relationship between human-caused habitat change and  
trapping success, and that forestry activities result in fewer marten. In addition,  
Blueberry member evidence has corroborated this state of affairs.  
[
806] I find accordingly that it is likely industrial activity has a negative impact on  
populations of marten and fisher due to loss of canopy cover, therefore interfering  
with the exercise of Blueberry’s trapping rights.  
9
.
Conclusions on Wildlife  
[
807] I have reviewed the evidence in detail, including that of the expert witnesses.  
Dr. McNay and Dr. Johnson, whose testimony I accept, testified to their opinion that  
industrial development has caused the decline of certain species within the  
Blueberry Claim Area, as summarized below. In developing their opinions and in  
testimony, they relied in part on government documents, which espouse the same  
opinion, including Kuzyk 2018, and the Regional Strategic Environmental  
Assessment Moose Working Group reports.  
 
Yahey v. British Columbia  
Page 234  
[
808] With respect to caribou, I find that caribou have declined in the Blueberry  
Claim Area, and that anthropogenic disturbance has largely caused or contributed to  
that decline.  
[
809] With respect to moose, I find that moose have declined on average across  
the Blueberry Claim Area, and particularly in the core Wildlife Management Units 7-  
4
4
5 and 7-34. I also find there was likely some decline in Wildlife Management Unit 7-  
4. I find that anthropogenic disturbance is the likely cause of that decline.  
[
810] With respect to marten and fisher, I find it likely that industrial activities, which  
lead to loss of canopy cover, have had negative impacts on marten and fisher in the  
Blueberry Claim Area.  
[
811] Overall, it is clear that wildlife populations that are important to Blueberry are  
in a reduced state that is likely to interfere with Blueberry’s hunting and trapping  
rights. The evidence establishes that the declines are the result of anthropogenic  
disturbance, including industrial development impacts upon habitat.  
E.  
Disturbance and Scale of Development in the Blueberry Claim  
Area  
1
.
Introduction  
[
812] Evidence that industrial development is transforming the landscape, and that  
those transformations are affecting the exercise of rights, is important in this case.  
The evidence of disturbance and impact is, however, in dispute.  
[
813] Three major industries are conducted in northeastern BC: forestry, oil and  
gas, and agriculture. Forestry operations over the years have left cutblocks, and  
resulted in little intact forest remaining. Oil and gas development has left well sites,  
pipelines, cut lines or seismic lines, and other facilities. Agricultural activities have  
resulted in much of the land being fenced and cleared for crops. There is hydro-  
electricity development and infrastructure in the form of dams, such as Site C, and  
 
 
Yahey v. British Columbia  
Page 235  
various mining operations. In addition, a growing network of roads, both paved and  
unpaved, have been built in order to provide access for these industries.  
[
814] The term disturbance, which is used a lot in this case, refers to anthropogenic  
developments (such as those noted above) that, together with natural impacts like  
forest fires, landslides and pests, have changed the landscape: Caslys Consulting,  
Ltd., “Regional Strategic Environmental Assessment Disturbance Methodology”  
(September 2018). By combining and mapping the anthropogenic disturbance and  
the natural disturbance footprints, it is possible to see the comprehensive  
disturbance footprint.  
[
815] One of the reports in evidence in this case – entitled Blueberry Cumulative  
Effects Case Study, prepared for the Oil and Gas Commission by Salmo Consulting  
in January 2003 – defines disturbance as “a natural or human action that affects  
physical, chemical or biological conditions.” A disturbance feature is defined as “a  
corridor or patch created by natural random events (e.g., burn or flood) or human  
action (e.g., cutblock, facility, community, road).” These definitions are possible  
descriptions of what might be considered a disturbance.  
[
816] Blueberry has brought forward evidence – in the form of atlases, maps, and  
data – to show the disturbance footprint or scale of development in its territory. This  
includes: a document prepared by Ecotrust Canada entitled Atlas of Cumulative  
Landscape Disturbance in the Traditional Territory of Blueberry River Fist Nations,  
2
016 (“2016 Atlas”); a review of the 2016 Atlas done by Dr. Brian Klinkenberg; and,  
disturbance data and a comprehensive disturbance layer prepared as part of the  
Regional Strategic Environmental Assessment process (also referred to occasionally  
in these reasons as “RSEA”), which are discussed in further detail below. It has also  
presented viva voce testimony from its members about the impact of changes to the  
landscape and environment, such as smells and sounds, on the exercise of their  
rights. Blueberry says this evidence, taken together (and considered alongside the  
evidence regarding the various regulatory regimes and their lack of enforceable  
Yahey v. British Columbia  
Page 236  
mechanisms to take into account cumulative impacts), is proof the Treaty has been  
breached and its rights infringed.  
[
817] The Province challenges the reliability of the disturbance evidence relied  
upon by Blueberry. More fundamentally, the Province says the disturbance data and  
evidence presented by Blueberry does not establish that the lands have been “taken  
up” such that Blueberry members are unable to exercise their treaty rights in or  
around these places. The Province says that evidence showing proximity to a  
disturbance is not a proxy for lands that are not available for harvesting activities.  
2
.
Admissibility of and Weight to be Given to Certain  
Documents  
[
818] On the question of disturbance and other environmental issues, the Province  
has also objected during these proceedings to a number of documents. It reiterated  
its objection in its final written argument, in a footnote. In that footnote, the Province  
noted it had made objections to the admissibility of “many documents tendered by  
the Plaintiffs.” Without specifying the exhibits to which it objected, the Province  
referred to requirements for adoption of opinion by qualified experts, for putting  
documents to a witness, to the limits of lay opinion evidence, to witnesses not being  
called to speak to draft documents, to citing portions of documents for the truth of  
their contents, and it questioned whether certain documents were indeed “public  
documents.”  
[
819] The Province maintained the objections and observations it made at trial, and  
noted it would comment on specific documents in oral argument if necessary.  
Unfortunately, it did not do so.  
[
820] The Court will nevertheless deal with the points raised in the footnote and  
previously mentioned at trial at the time certain documents were admitted.  
[
821] The documents the Province has objected to are numerous; however, they  
share common characteristics. As such, I will deal with them as a group when I  
consider the purpose for which they were admitted and the reliance that may be  
 
Yahey v. British Columbia  
Page 237  
placed on them. Where the Province has raised specific issues with individual  
documents, I will deal with them at the end of this section or as part of my analysis,  
as necessary.  
[
822] First, the Province says Blueberry cites portions of many such documents for  
the truth of their contents, purportedly under the “public documents” exception to  
hearsay evidence. The Province notes this exception is not intended to admit  
detailed opinions, or reports of public inquiries that have led to recommendations,  
and argues that the documents relied on by Blueberry do not meet the test for  
“public documents” (relying, in part, on Rumley v. British Columbia, 2003 BCSC 234  
at para. 51 and Radke v. M.S., 2005 BCSC 1355 at paras. 51-53). Examples  
include:  
a) a report by the Forest Practices Board, entitled Cumulative Effects  
Assessment: A Case Study for the Kiskatinaw River Watershed Special  
Report (March 2011);  
b) reports by British Columbia’s Auditor General, including:  
i. An Audit of Biodiversity in B.C.: Assessing the Effectiveness of Key  
Tools (February 2013);  
ii. Managing the Cumulative Effects of Natural Resource Development in  
B.C. (May 2015);  
c) a report by Biodiversity BC’s Technical Subcommittee, entitled Taking  
Nature’s Pulse: The Status of Biodiversity in British Columbia (Victoria,  
BC: 2008);  
d) a report commissioned by the Oil and Gas Comission, Steven F. Wilson,  
“Managing zone-of-influence impacts of oil and gas activities on terrestrial  
wildlife populations and habitats in British Columbia” (Sean Curry and  
James O’Hanley, who testified at trial, reviewed the report and provided  
commentary on it prior to its completion); and,  
Yahey v. British Columbia  
Page 238  
e) other documents produced as a result of collaboration in the Regional  
Strategic Environmental Assessment process, including but not limited to:  
i. R.F. Holt and Dave Myers, Old Forest Current Condition: A Cumulative  
Effects Analysis for the Northeast RSEA Study Area – Final Report  
(June 2019);  
ii. Tania Tripp, Methods Documentation: Regional Strategic  
Environmental Assessment (RSEA) – Moose Working Group: Habitat  
Effectiveness Model (16 July 2019); and,  
iii. Three Regional Strategic Environmental Assessment Moose Working  
Group reports, all dated September 24, 2019, entitled “Potential  
Habitat Conditions for Moose in WMU 7-45,” “Potential Habitat  
Conditions for Moose in WMU 7-31,” and “Potential Habitat Conditions  
for Moose in WMU 7-28.”  
[
823] The Province says the RSEA materials should not be admitted for the truth of  
their contents. The Province says the only admissible opinion evidence on the issue  
of moose habitat is the testimony of Dr. Johnson and Mr. Simpson. The Province  
notes that work done through the RSEA Moose Working Group, on which Blueberry  
relies, is taking a conservative approach, assuming worst-case scenarios and  
making favourable assumptions for the protection of wildlife. Further, the Province  
also says certain reports were never put to Dr. Johnson to be commented on or  
adopted at trial.  
a)  
Analysis  
[
824] As noted by Blueberry, out-of-court statements are admissible for the truth of  
their contents when they fall within the recognized exceptions to the hearsay rule or  
where they meet the criteria of necessity and reliability under the “principled  
approach”: R. v. Youvarajah, 2013 SCC 41 at paras. 20-21. “Public documents” are  
a recognized categorical exception to the rule against hearsay: R. v. A.P., [1996]  
O.J. No. 2986 (C.A.) at paras. 14-15 [A.P.].  
Yahey v. British Columbia  
Page 239  
[
825] The authenticity of these disputed documents was not at issue, nor was their  
relevance.  
i.  
Public Documents Exception  
[
826] The “public documents” exception allows evidence that would otherwise be  
considered inadmissible hearsay to be tendered for the truth of its contents. A public  
document is a document which is “made for the purpose of the public making use of  
it, and being able to refer to it”: Sturla v. Freccia, (1880) 5 A.C. 623 (U.K. H.L.) at  
6
43. Public documents are admissible without proof because of their inherent  
reliability or trustworthiness, and because of the inconvenience of requiring public  
officials to be present in the court to prove them: A.P. at para. 14, citing R. v.  
Finestone, [1953] 2 S.C.R. 107.  
[
827] The test for admissibility under the “public documents” exception is laid out in  
A.P at para. 15. To fall within this exception, it must be established that:  
i. the document must have been made by a public official, that is a  
person on whom a duty has been imposed by the public;  
ii. the public official must have made the document in the discharge of a  
public duty or function;  
iii. the document must have been made with the intention that it serve as  
a permanent record; and,  
iv. the document must be available for public inspection.  
[
828] The fourth criteria may not be strictly required, particularly if there are other  
guarantees of reliability besides full public scrutiny; see A.P. at para. 17.  
[
829] As noted by Blueberry, documents admissible under this exception include  
governmental reports and surveys prepared by an official whose duty it was to  
“
investigate and record his or her findings,” public registers and records, official  
certificates, statutes, parliamentary journals and gazettes: see Sopinka, Lederman &  
Yahey v. British Columbia  
Page 240  
Bryant, The Law of Evidence in Canada, 5th ed. (Markham, ON: LexisNexis  
Canada, 2018) at s. 6.312. However, documents need not fall into a certain category  
of public document to meet the test; the focus should be on the reliability of the  
document: A.P. v. L.K., 2021 ONSC 150 at paras. 153-154.  
[
830] Essentially, as described by Blueberry, the Province relies on cases where  
the results of commissions of inquiry have been held to not fall within the public  
documents exception. These cases rely on a different test for the admission of public  
documents as set out in R. v. Kaipiainen, [1954] O.R. 43 (C.A.), which required the  
inquiry to be “judicial or semi-judicial” for such documents to be admissible. None of  
the documents that Blueberry relies upon, however, are the result of a judicial or  
semi-judicial inquiry. Concerns relating to evidence being given in a confidential or  
untested environment, then summarized in a report without identifying the individual  
complainants or evidence relied upon, do not arise here.  
[
831] I conclude that the documents meet the four criteria set out in A.P.. The  
documents that Blueberry seeks to rely on are public documents and fit within the  
established exception to the rule against hearsay.  
[
832] The documents were either produced or commissioned by government  
officials in furtherance of their public duties. As such, and as Blueberry says, the  
circumstances surrounding the creation of the documents provide guarantees of  
inherent reliability or trustworthiness. The records and reports of public officials are  
admissible for the truth of their contents because of their inherent reliability and  
because of the inconvenience of requiring public officials to testify in court regarding  
these reports.  
[
833] Many of these documents were produced to guide the Province’s decision-  
making with respect to industrial development and wildlife management. Much like  
the documents in P.I.P.S.C. v. Canada (Attorney General), [2005] O.J. No. 5775  
(S.C.J.) [P.I.P.S.C.], they were created “for the purpose of conveying information to  
Ministers and senior government officials or other departments of government,”  
Yahey v. British Columbia  
Page 241  
which means it is reasonable to expect that “a high premium would be placed on  
their accuracy” (at para. 70). Many have been reviewed and vetted by multiple  
contributors. I find they have significant circumstantial guarantees of trustworthiness.  
[
834] Moreover, as reflected in the evidence, the Province purports to rely on these  
documents, or will soon rely on them, when making management decisions in  
Blueberry’s territory. This is particularly so with respect to the Regional Strategic  
Environmental Assessment documents, which the evidence demonstrates were  
subject to both collaboration and authentication as part of the production process,  
and which the Province has indicated will assist with management decisions.  
[
835] With respect to necessity, it was open to the Province to call the authors of  
the reports or other officials to explain the statements made in the documents, but  
they largely chose not to do so. When relying on documents produced by the  
government in a claim against the government, courts have recognized it is “unfair”  
to place the burden on the plaintiffs to call the authors of the documents, who may  
be adverse in interest: P.I.P.S.C. at para. 75.  
[
836] Further, although I have already found the documents admissible under the  
public documents exception, I would, in the alternative, find them admissible under  
the principled approach as documents that are both necessary and reliable: R. v.  
Khelawon, 2006 SCC 57 at para. 49.  
[
837] Overall, I agree as argued by Blueberry that the Province is seeking to  
exclude relevant evidence whose reliability rests on the integrity of the provincial  
government’s own processes. The Province called no evidence to refute the  
reliability of these reports. Their objections are primarily technical, on the grounds  
that they fall outside the public documents exception to hearsay, rather than on the  
substantive grounds that they are irrelevant, unreliable or unnecessary.  
[
838] The purpose of the hearsay rule is not served by excluding the evidence: “As  
with the proper application of all rules of evidence, it is wise to always keep in mind  
the purpose of the rule…the basis of the hearsay rule-the adversary’s inability to  
Yahey v. British Columbia  
Page 242  
cross examine the person with knowledge of the event”: Sopinka at s. 6.39, citing  
Ron Delisle, Don Stuart & David Tanovich, Evidence: Principles and Problems, 10th  
ed. (Toronto: Carswell, 2012) at 691. Here, many of the documents were actually  
produced by the adversary (i.e., the Province).  
[
839] Moreover, in some cases, documents were even adopted as authoritative  
works by one of the Defendant’s own expert witnesses. For example, Mr. Simpson  
cited as authoritative, and adopted, portions of the COSEWIC 2014 Report.  
[
840] I note that while Blueberry does not heavily rely on all of these reports,  
including the Auditor General reports, Blueberry would suffer significant prejudice if  
the Province’s argument concerning these reports were acceded to. The reports are  
part of the overall evidence. They do not necessarily stand alone, but are  
corroborative of various points made by Blueberry in this matter.  
[
841] In these circumstances, the probative value of the documents outweighs any  
prejudicial effect. The documents therefore pass the threshold for admissibility, and  
are admitted for the truth of their contents.  
b)  
“Examples” of Objections  
[
842] While the Province was not specific with respect to the objected to  
documents, in the footnote it did set out “examples” of the kinds of documents at  
issue, which I will deal with now.  
[
843] I note first, Auditor Generals’ reports have been recognized as public  
documents that fall within the exception to the rule against hearsay: Authorson v.  
Canada (Attorney General), 53 O.R. (3d) 221 (S.C.J.) at para. 50, rev’d on other  
grounds 2003 SCC 39. These reports are the product of “an official whose duty it  
was to investigate and record his or her findings”: Sopinka at s. 6.312.  
[
844] The government is able to review and does respond to the Auditor Generals’  
reports – with the response being incorporated into the reports – adding to the  
trustworthiness of the document. The Province in this case did respond to both  
Yahey v. British Columbia  
Page 243  
reports, setting out steps it would undertake to fulfill its duties; see BC Auditor  
General, Managing the Cumulative Effects of Natural Resource Development in B.C.  
(May 2015) at p. 9-14, and An Audit of Biodiversity in B.C.: Assessing the  
Effectiveness of Key Tools (February 2013) at pages 4-8. These reports must be  
released to the public and reports are available online, establishing them as a public  
record. These documents have also been included in the evidence.  
[
845] The Forest Practices Board is the Province’s independent watchdog for  
sound forest practices, appointed under the Forest and Range Practices Act, S.B.C.  
002, c. 69. The Forest and Range Practices Act requires that the “Board members  
2
must faithfully, honestly and impartially perform their duties” (s. 136(7)). It conducts  
independent audits and investigates complaints relating to compliance and  
enforcement of forestry legislation.  
[
846] In the “Cumulative Effects Assessment: A Case Study for the Kiskatinaw  
River Watershed Special Report” (March 2011), the Forest Practices Board  
investigated and reported on “how activities regulated under the Forest and Range  
Practices Act (FRPA) and other natural resource developments interact to affect  
FRPA values” (at p. i). This report is a public document available as a permanent  
record online.  
[
847] Two other provincial reports referred to and apparently at issue deal with  
Biodiversity in BC. The first is Taking Nature’s Pulse: The Status of Biodiversity in  
British Columbia, (Victoria: 2008), a report prepared by provincial officials, in  
partnership with conservation groups, as part of their “mandate to produce a  
biodiversity strategy for British Columbia” (at p. xiii). This report is a “companion  
document” of The Biodiversity Atlas of British Columbia. The public purpose of the  
report is to “assist British Columbians in making informed choices regarding  
biodiversity.” The report is available online as a permanent, public record.  
[
848] A common author and editor of both reports is Matt Austin, a Ministry of  
Environment member of the Technical Subcommittee that prepared the document.  
Yahey v. British Columbia  
Page 244  
Mr. Austin is presently an assistant deputy minister of the Ministry of Forests. The  
Province could have called Mr. Austin to testify, but did not. In view of the  
circumstances in which these documents were produced, and the inconvenience of  
requiring Blueberry to call the public official to prove the documents, I agree that the  
requirements of necessity and reliability are met.  
[
849] There are a number of other reports developed through the Regional  
Strategic Environmental Assessment process, including in relation to Old Forest,  
Moose Habitat, Water, and Peaceful Enjoyment that support conclusions with  
respect to the disturbance in the Blueberry Claim Area. The Province has objected  
to these as well.  
[
850] These documents have been jointly commissioned and reviewed by provincial  
representatives and First Nations as part of the Regional Strategic Environmental  
Assessment process, and are based on the Regional Strategic Environmental  
Assessment disturbance data. Dr. Holt spoke about the Regional Strategic  
Environmental Assessment process, the documents, and their origins in her  
testimony.  
[
851] In addition, the evidence demonstrates the vetting process through the  
various project working groups provides assurances of reliability. The data gathered  
through the Regional Strategic Environmental Assessment process has been agreed  
by all witnesses, including provincial government witnesses, to be the best available  
data. The evidence demonstrates it is presently being used, or close to being used,  
and relied upon by the Province. I will deal with the specifics of the Province’s  
objection to the Regional Strategic Environmental Assessment disturbance data  
later, as part of my analysis on disturbances.  
[
852] Another example of a report, the admissibility of which the Province  
apparently objects to, was commissioned by the Oil and Gas Commission and  
authored by Steven F. Wilson of Ecologic Research. Entitled “Managing zone-of-  
influence impacts of oil and gas activities on terrestrial wildlife populations and  
Yahey v. British Columbia  
Page 245  
habitats in British Columbia,” the Oil and Gas Commission described it as an  
assessment of the science and management literature surrounding the use of zone-  
of-influence buffers. This has been identified throughout this trial, as an issue in the  
management of disturbance and cumulative effects.  
[
853] The Oil and Gas Commission both commissioned and relied upon this report.  
This included in discussions and consultation with Blueberry, and in the Area Based  
Analysis tool used by the Commission. Both Sean Curry and James O’Hanley of the  
Oil and Gas Commission commented on this report.  
[
854] The Province could have called Mr. Wilson to testify about the report, but it  
did not. Its own witnesses testified they had used and referred to this report. In these  
circumstances, it is not entirely clear why the Province would object to the contents  
of this report or require Mr. Wilson to testify.  
[
855] I will deal with objections to other documents as necessary throughout the  
remainder of the judgment.  
3
.
2016 Atlas and Dr. Klinkenberg’s Review  
[
856] The 2016 Atlas is an assembly of maps and data tables that sets out the  
scale and nature of industrial development in Blueberry’s traditional territory. Dr.  
Brian Klinkenberg, who provided an expert report reviewing the soundness of the  
2
016 Atlas, described it as an “inventory” of industrial developments in Blueberry’s  
territory. The 2016 Atlas reports this information as of approximately 2016 and  
contextualizes the increase of development up to that date.  
[
857] The 2016 Atlas does not define what constitutes an industrial development,  
but under the broad heading “Industrial and Infrastructure Land Uses” includes data  
and maps relating to agriculture and private lands; roads; transmission lines; oil and  
gas projects including wells, facilities, pipelines, tenures and fields, geophysical  
exploration, unconventional natural gas fields and Montney basin, and water  
withdrawals and stream crossings; forestry; mining; hydropower; and, wind power  
 
Yahey v. British Columbia  
Page 246  
tenure and towers. These types of industrial developments generally accord with  
how industrial developments are defined in the pleadings. Paragraph 30 of  
Blueberry’s Notice of Civil Claim states:  
30. The Defendant has authorized activities, projects and developments  
within, and adjacent to, the Plaintiffs’ Traditional Territory, including but not  
limited to the following types of activities, projects and developments:  
a) oil and gas;  
b) forestry;  
c) mining;  
d) hydroelectric infrastructure;  
e) roads and other infrastructure;  
f) agricultural land clearing;  
g) land alienation and encumbrance; and  
h) other industrial development (collectively the “Industrial  
Developments”).  
[
858] My use of the term industrial development in these reasons reflects the types  
of activities, projects, and developments Blueberry refers to at para. 30 of its Notice  
of Civil Claim.  
[
859] The 2016 Atlas follows from the 2012 Atlas produced by Peter G. Lee and  
Matt Hanneman for Global Forest Watch Canada and the David Suzuki Foundation,  
entitled Atlas of Land Cover, Industrial Land Uses and Industrial-Caused Land  
Changes in the Peace Region of British Columbia, which is also referred to as the  
Lee and Hanneman Report.  
[
860] The authors of the 2016 Atlas describes it as a “necessary starting point,”  
noting that numbers and maps are tools that can assist in gaining an understanding  
of the nature and scale of cumulative effects in Blueberry’s territory, but that  
examining cumulative effects on a landscape is a “multi-layered endeavour and no  
single snapshot can tell the whole truth at once.” As is discussed later, Dr.  
Klinkenberg, who provided an expert report on the soundness of the 2016 Atlas,  
noted in cross-examination that he agreed with this description.  
Yahey v. British Columbia  
Page 247  
[
861] Blueberry first tendered the 2016 Atlas in its August 9, 2016 injunction  
application that sought to enjoin the Province from allowing further industrial  
development in segments of its traditional territory pending trial of this action. One of  
the disputes before the Court in the injunction application was whether the 2016  
Atlas contained expert evidence and opinion (as the Province argued) or whether it  
was simply a summary of publicly available data which was then assembled in the  
report (as Blueberry argued).  
[
862] In Yahey 2017, I reasoned that the selection and analysis of the data  
contained in the 2016 Atlas showed that expertise and opinion was involved in its  
preparation. I noted that doubts had been raised about the accuracy, objectivity and  
therefore reliability of the 2016 Atlas’ cartographic presentation (at para. 80), and  
that it had not benefited from proper qualification, viva voce testimony in direct- or  
cross-examination, or countering opinion (at para. 81). The same deficiencies were  
present in the evidence relied upon by the Province in that application to establish  
the existence of healthy and sustainable wildlife populations (at para. 84). I  
concluded there was a conflict in the evidence that needed to be tested at trial.  
[
863] As a result of this ruling, Blueberry retained Dr. Klinkenberg to comment on  
the soundness of the 2016 Atlas. Dr. Klinkenberg provided his expert report on the  
016 Atlas, entitled “Expert Report on the Atlas of Cumulative Landscape  
2
Disturbance in the Traditional Territory of Blueberry River First Nations (2016)” (20  
July 2017) (“Report on the Atlas”).  
[
864] In Yahey v. British Columbia, 2018 BCSC 829, I held that Dr. Klinkenberg had  
provided a detailed review of the data in question (the vast majority of which derives  
from government sources) and its validity (at para. 58). I concluded there was a  
“circumstantial guarantee of trustworthiness” such that those parts of the 2016 Atlas  
report that Dr. Klinkenberg had adopted within his area of expertise could be  
considered part of his opinion, as per R. v. Marquard, [1993] 4 S.C.R. 223.  
Yahey v. British Columbia  
Page 248  
[
865] Those parts of the 2016 Atlas adopted by Dr. Klinkenberg, and Dr.  
Klinkenberg’s own Report on the Atlas, were therefore deemed admissible.  
Commentary in the 2016 Atlas that was beyond Dr. Klinkenberg’s area of expertise,  
did not form part of his opinion evidence. Blueberry was directed to identify those  
parts that fell into that category and provide that information to the Province. It did so  
by shading the portions of the 2016 Atlas that Dr. Klinkenberg considered beyond  
his expertise.  
[
866] Dr. Klinkenberg testified at trial, and his Report on the Atlas was admitted as  
Exhibit 9. The shaded version of the 2016 Atlas is Exhibit 12 in these proceedings.  
4
.
RSEA Disturbance Data and Disturbance Layer  
[
867] In addition to the 2016 Atlas and data associated with that document,  
Blueberry introduced into evidence and relies on a number of products from the  
Regional Strategic Environmental Assessment process, namely a disturbance layer  
and disturbance datasets. As is set out in greater detail below, the purpose of  
developing the disturbance datasets and disturbance layer was to create one layer  
that could be relied on to be a reasonable interpretation of what is actually on the  
ground, and that could be usable as the actual disturbance footprint. The best  
available provincial data regarding where and how the landscape has been modified  
would be collected in one place, and, through the Regional Strategic Environmental  
Assessment process, that data would be made accessible to others to use in spatial  
analysis and to inform decision making.  
a)  
Background to the RSEA Process  
[
868] This Regional Strategic Environmental Assessment process is a broad  
collaborative planning process involving seven Treaty 8 First Nations and the  
Province, and also includes representatives from industry (primarily from the forestry  
and oil and gas sectors) as observers. Blueberry joined the Regional Strategic  
Environmental Assessment process in 2016.  
 
Yahey v. British Columbia  
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[
869] Dr. Rachel Holt is Blueberry’s technical representative for the Regional  
Strategic Environmental Assessment process and testified about it. Dr. Holt has  
extensive professional knowledge and experience with respect to forestry and  
management of lands and ecosystems and has worked for 20 years for the  
government of British Columbia.  
[
870] While in more recent years Dr. Holt has undertaken work for First Nations, Dr.  
Holt has also: done old forest analysis for the provincial government for land use  
planning, including work spanning 15 years on the Great Bear Rainforest Joint  
Solutions Project; was appointed to the Old Growth Technical Group in the  
development of the provincial Cumulative Effects Framework; served as a board  
member for the Forest Practices Board between 2008 and 2014; helped develop a  
Conservation Framework for the Province; and, advised on developing monitoring  
protocols used by the Forest and Range Evaluation Program.  
[
871] While the Province sought to characterize Dr. Holt as an advocate of  
Blueberry, her history includes working extensively for the government over many  
years, as well as working for First Nations. I found her evidence reliable and  
probative of a number of matters, including the Regional Strategic Environmental  
Assessment process.  
[
872] In 2015, Dr. Holt undertook work for the Fort Nelson First Nation with respect  
to forestry analysis; she also worked for Blueberry to develop a report on the state of  
old forest in the northeast of BC. In 2016, she drafted Blueberry’s Land Stewardship  
Framework. In 2017, she assisted Blueberry in providing comments on the Fort St.  
John Sustainable Forest Management Plan to the Province, and she also provided a  
review of the statutory tools available to protect southern mountain caribou, which  
was provided to the Province.  
[
873] As previously noted, Dr. Holt is a fact witness. She explained the regulatory  
context and the nature of processes undertaken with respect to the Regional  
Strategic Environmental Assessment and other matters. I consider Dr. Holt’s  
Yahey v. British Columbia  
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testimony with respect to all these matters, and others, to be of assistance in  
resolving questions of fact. I have not considered her evidence as expert opinion  
evidence because, as the Province points out, she was not proffered as an expert in  
this case. I have therefore considered her evidence to ascertain certain factual  
aspects of this case.  
[
874] Dr. Holt recommended that Blueberry join the Regional Strategic  
Environmental Assessment process as the area under consideration included a core  
part of the Montney shale basin, which is part of the Blueberry Claim Area.  
[
875] Dr. Holt described the Regional Strategic Environmental Assessment process  
as being a collaborative environmental assessment and land management process  
that involves a series of Project Table meetings held approximately every six weeks.  
Participants come together and decide upon key pieces of work to undertake  
through the process. Dr. Holt emphasized the Regional Strategic Environmental  
Assessment process is one that continues to evolve over time.  
[
876] In 2019, the Regional Strategic Environmental Assessment initiative  
developed a sub-project focused on the Fort St. John Timber Supply Area, which  
covers an area similar to the Blueberry Claim Area. Dr. Holt testified this was done  
because the RSEA Project Table concluded this is the central area of development:  
it has extensive forestry and oil and gas development as it sits upon the Montney  
shale basin. It also has a large agricultural area.  
[
877] The Regional Strategic Environmental Assessment initiative is presently  
undertaking a cumulative effects analysis of this area, and that work is referred to as  
the Methods Pilot. The Methods Pilot has had some setbacks. Chris Pasztor of the  
Ministry of Energy and Mines, who was the provincial co-lead for the RSEA initiative,  
testified it was anticipated the Methods Pilot analysis and modelling work would be  
finalized by March 2021, but the pandemic and other issues have affected that  
timing. The Province’s written submissions, which were submitted in the fall of 2020,  
refer to this work as “ongoing.”  
Yahey v. British Columbia  
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[
878] As part of the Regional Strategic Environmental Assessment process, the  
Project Table (after consulting with their respective principals and communities)  
identified four indicators representing core values in Northeastern BC: old forest,  
moose, water, and peaceful enjoyment. The Project Table then established working  
groups to look into and report back on these core values.  
b)  
RSEA Data Working Group, Methodology and  
Disturbance Layer  
[
879] It was recognized that, in order to progress the work of RSEA, all parties  
would need one source of data they could use and trust. A data working group was  
constituted with representatives from both the Province and participating Treaty 8  
First Nations.  
[
880] The data working group was cognizant that disturbance data associated with  
certain activities such as oil and gas development and forestry are held in separate  
government departments. The data are stored and updated differently, and  
departments do not reference each other’s data in a comprehensive way. For  
example, if someone wanted to know how many roads there were in northeast BC,  
they would have to access and review all the datasets, but they would not  
necessarily know if they had retrieved all the available datasets, or whether they  
overlapped such that they were double counting.  
[
881] One of the primary tasks of the data working group was to establish a layer of  
disturbance information that gathered into one place all the relevant datasets stored  
and utilized by the Province. Therefore, it was decided that other RSEA work should  
be put on hold until this reliable disturbance data was generated.  
[
882] As a result, around 2017, the provincial government contracted Caslys  
Consulting Ltd. (“Caslys”) to undertake this project and prepare the disturbance layer  
and disturbance datasets. The disturbance layer was prepared through a year-long  
process and presented on a number of occasions to the RSEA data working group.  
Caslys and the provincial representatives undertook quality assurance of the data  
Yahey v. British Columbia  
Page 252  
and process. Ultimately, the data was distributed to all the participants at the RSEA  
Project Table and entered as Exhibit 52 in these proceedings.  
[
883] Dr. Holt indicated the results of the project are a practical and consolidated  
dataset that combines best available data in a manner that is flexible enough to  
support a wide array of Geographic Information System (“GIS”) modelling and  
decision-support tasks. Through this approach, landscape and regional implications  
can be quantified and monitored into the future.  
[
884] The executive summary of Caslys’ “Regional Strategic Environmental  
Assessment (RSEA)-Disturbance Methodology Version 2.0” (September 2018)  
(“Methodology Document”), describes this work as follows at p. 2-3:  
The RSEA Disturbance Methodology is a framework that brings together the  
best available landscape disturbance data into a consistent format for use in  
land and environmental management decisions. … The procedures and  
derived [Geographic Information System] GIS datasets produced through this  
project have been developed through collaboration with stakeholders from  
both the RSEA Data Management Working Group and broader participation  
by the RSEA table, which includes representatives from the province, Treaty  
8
First Nations and industry proponents. Together these groups have a  
diverse set of decision support requirements that benefit from the best  
available spatial data that characterizes where the landscape has been  
modified through development activities or selected natural factors. Having a  
comprehensive dataset to support all of these decisions will build continuity  
and improve validity into our on-going management tasks. The RSEA  
Disturbance Methodology provides a framework for periodic data updates,  
while also giving those that use spatial information a flexible and  
comprehensive product that has been designed to support all forms of spatial  
analysis and mapping initiatives that depict land disturbance impacts.  
[
…]  
A conservative approach was followed throughout the development of the  
mapping product. …  
[
885] The purpose of preparing the disturbance dataset and disturbance layer is  
succinctly set out in the Methodology Document, which states at p. 1 that “the  
objective of this project was to develop and test a documented, transparent  
disturbance methodology that is replicable by third parties and understandable to a  
wide ranging audience.” As noted by Dr. Holt, the dataset was prepared for use by  
Yahey v. British Columbia  
Page 253  
those at the RSEA table. The data was intended for use by a GIS practitioner who  
would utilize the data to spatially represent the disturbances.  
[
886] The Methodology Document states at p. 77: “The consolidated dataset is a  
polygonal map layer that incorporates all human disturbance footprints into a single  
file.” This combined anthropogenic disturbance layer was referred to in the evidence  
as “Level C.” Levels A and B contained data relating to specific “themes” (i.e., files  
that delineate all disturbance footprint areas by theme i.e. individual layer files such  
as road, oil and gas development, mining seismic communities, agriculture). Level D  
is the comprehensive disturbance footprint that includes both anthropogenic and  
natural disturbance.  
[
887] The disturbance layer was available by September 2018 at which time the  
disturbance data itself was distributed for download to RSEA participants.  
[
888] Dr. Holt requested that Gregory Khem, a GIS technician, calculate the overall  
disturbance in Blueberry’s territory. In other words, take the shape file from the  
RSEA disturbance layer, “clip” the data from the 25 million hectare dataset included  
in the RSEA study area to focus on the approximately 4 million hectares that make  
up the Blueberry Claim Area, and run the calculations (i.e., map the disturbances)  
applying first a 250-metre, and then a 500-metre, buffer.  
[
889] The buffering process was described as simple math: the computer draws  
either a 250-metre line or a 500-metre line around everything in the data layer, and  
then it adds up how much area is within those areas and uses the total Blueberry  
Claim Area as the denominator. This shows how much of the Blueberry Claim Area  
is affected by disturbance. The results of these calculations indicated that 85% of the  
Blueberry Claim Area is within 250 metres of a disturbance, and 91% of the  
Blueberry Claim Area is within 500 metres of a disturbance.  
[
890] The inclusion of this information and the use of certain maps derived from the  
disturbance layer and datasets developed as part of the RSEA process became an  
issue at trial. The Province argued that the maps and summary calculation table  
Yahey v. British Columbia  
Page 254  
derived from the RSEA disturbance layer and datasets were not admissible. The  
Province said the maps and table were expert evidence, lacked probative value in  
determining the issues in the case, and were unreliable.  
[
891] I dealt with these arguments in Yahey v. British Columbia, 2019 BCSC 1934,  
where I concluded the objected to documents were admissible, and that the  
Province would be free to raise issues about weight in final argument. Some portions  
of that judgment bear repeating.  
[
892] I noted at para. 10 that while the RSEA disturbance layer and disturbance  
data is technical in nature and may require a specialist with knowledge to explain,  
this evidence does not constitute expert opinion, as it does not offer any  
interpretation or express any view or conclusion. At para. 20, I noted that the  
disturbance layer and disturbance data contained indicia of reliability: they were  
produced collaboratively at the RSEA table using provincial data, they were  
developed using an open and standardized methodology, they were shared by the  
Province with all members of the Regional Strategic Environmental Assessment  
process and were intended to be used by third parties, and the parties agreed these  
were the best available data for the purpose of determining landscape scale  
disturbance.  
[
893] In final argument, the Province reiterated its arguments that the maps and  
data tables derived from the RSEA disturbance layer and disturbance datasets  
lacked probative value and were unreliable. I will deal with these issues as part of  
my analysis on the disturbance data and the scale of development in the Blueberry  
Claim Area.  
[
894] A number of witnesses in addition to Dr. Holt testified about both the RSEA  
disturbance methodology and the use of the data. They included: Chris Pasztor of  
the Ministry of Energy and Mines, who was the provincial co-lead for the Regional  
Strategic Environmental Assessment initiative; Greg Van Dolah a representative for  
the Ministry of Forests; Dr. Jennifer Psyllakis, the provincial representative in charge  
Yahey v. British Columbia  
Page 255  
of developing the Province’s Cumulative Effects Framework; and, Sean Curry from  
the BC Oil and Gas Commission.  
[
895] While Dr. Holt agreed in cross-examination that Caslys took a conservative  
approach to developing the disturbance layer and disturbance data, erring on the  
side of being overly inclusive of potential disturbance, she also testified to it being  
“one of the, if not the, best compiled disturbance datasets in the province.” She  
noted it has had more time and money put into it than any other project of this kind,  
and that she had never seen such a concerted effort by a team of experts on a data  
layer in a project of this scale.  
[
896] The Province’s witnesses also attested to the reliability of the data. Mr. Van  
Dolah noted that one of the initial concerns of all participants in the RSEA process  
was that there was a need for “trusted data.” He referred to the collaboration that  
has been occurring through the RSEA process. He testified that the products of the  
RSEA work, such as the disturbance layer information, were “what all parties within  
RSEA are agreeing to be as that trusted data.” He went on to note that this data is  
the “best data that is currently available.”  
[
897] Mr. Pasztor agreed that the data was built collaboratively and used an  
approach that “clearly applies methodologies and procedures how one would go  
about articulating disturbance on the land base.” Mr. Curry of the Oil and Gas  
Commission confirmed that the 2016 Atlas used the right datasets and the data used  
was “reasonable.”  
[
898] Dr. Psyllakis noted that to understand impacts on treaty rights one should  
look at both the RSEA disturbance data and information from Blueberry members.  
[
899] All of this demonstrates that the disturbance layer uses appropriate  
methodologies, is trusted by the parties to the Regional Strategic Environmental  
Assessment process, and can be relied upon and given weight by the Court. I  
therefore do not accept the Province’s arguments that the disturbance layer and  
datasets are unreliable or lack probative value.  
Yahey v. British Columbia  
Page 256  
5
.
Analysis of Disturbance Data and Scale of Development in  
the Blueberry Claim Area  
a)  
Findings of Fact on the Level of Disturbance and  
Scale of Development in the Blueberry Claim Area  
[
900] I note at the outset that the Province does not deny there has been extensive  
development since 1900 throughout BC, including in the northeast. It could not  
realistically say otherwise when considering the industrial development that has  
occurred in the northeast, in particular.  
[
901] That said, and as Blueberry has pointed out, the Province consistently seeks  
to raise doubt regarding the nature or quality of its own data concerning resource  
use and industrial development in this part of the province.  
[
902] The provincial natural resource ministries and agencies, including the  
provincial Chief Forester, rely on provincial data when undertaking the Timber  
Supply Review and Annual Allowable Cut determination; the Ministry of Forests in  
tracking forest inventory; the Ministry of Energy and Mines in tenuring; and, the Oil  
and Gas Commission in regulating oil and gas activities.  
[
903] Much of the data accessed and relied on in the 2016 Atlas and the RSEA  
disturbance layer and datasets is, by professional consensus, the best available  
data, and data that is to be trusted. Moreover, with respect to the RSEA disturbance  
layer and disturbance data, the provincial representatives have conceded this is the  
best available data. This is also data upon which the Province purports to manage  
the landscape and wildlife. It relies upon it to show the state of the landscape.  
[
904] Accordingly, with respect to the overall disturbance in Blueberry’s territory, I  
accept the conclusions set out in the data relied upon by Blueberry, as reflected in  
the 2016 Atlas and the RSEA disturbance layer and datasets.  
[
905] I conclude, as the 2016 Atlas demonstrates, that based upon the data  
available as of January 2016:  
 
Yahey v. British Columbia  
Page 257  
a) 73% of the Blueberry Claim Area is within 250 metres of an industrial  
disturbance; and,  
b) 84% of the Blueberry Claim Area is within 500 metres of an industrial  
disturbance.  
[
906] I also conclude, as the Regional Strategic Environmental Assessment’s 2018  
disturbance datasets demonstrate, that, by September 2018, the level of disturbance  
in the Blueberry Claim Area was as follows:  
a) 85% of the Blueberry Claim Area is disturbed when a 250-metre buffer is  
applied; and,  
b) 91% of the Blueberry Claim Area is disturbed when a 500-metre buffer is  
applied.  
[
907] The extent of any further disturbance in the Blueberry Claim Area since the  
close of evidence in the summer of 2020 is not known.  
[
908] These conclusions reflect the state of the landscape over which Blueberry is  
trying to exercise its rights. This is important contextual information that is further  
bolstered by the members’ evidence regarding their attempts to continue to exercise  
their rights in a territory that is significantly impacted by development.  
[
909] As noted by Blueberry, further corroboration of the percentages relating to  
disturbance in the Blueberry Claim Area is provided by the fact that the RSEA  
Project Table ran the data for the Fort St. John Timber Supply Area (which makes  
up a substantial portion of the Blueberry Claim Area) and found as well that 85%  
was within 250 metres of a disturbance. In cross-examination on October 24, 2019,  
Dr. Holt testified “we just ran this in the RSEA pilot and got the exact same  
numbers…[a]n entirely other set of people did that work.”  
[
910] Furthermore, other studies and reports corroborate the data and conclusions  
set out both in the 2016 Atlas and the RSEA disturbance layer.  
Yahey v. British Columbia  
Page 258  
[
911] For example, the overall level of disturbance in the Blueberry Claim Area is  
further corroborated by the disturbance calculations in scientific reports on caribou  
habitat. As discussed in greater detail earlier, government reports from 2009 and  
2
010 suggest the area within the Blueberry Claim Area used by the Chinchaga herd  
is approximately 79% to 93% disturbed, when applying a 250-metre buffer. This  
information is found in Conrad Thiessen’s 2009 report for the BC Ministry of  
Environment, “Peace Region Boreal Caribou Monitoring: Annual Report 2008-09”  
(May 2009) (“Thiessen 2009 Report”) and the Chris Pasztor and Steven F. Wilson  
Report entitled “Projected Boreal Caribou Habitat Conditions and Range Populations  
for Future Management Options in British Columbia” (22 April 2010) (“Pasztor and  
Wilson Report”), the latter report being one for the Ministry of Environment and the  
Ministry of Energy and Mines.  
[
912] Furthermore, Environment Canada identifies the disturbance management  
threshold for Boreal Caribou as being 65% undisturbed habitat in a caribou range  
i.e., not greater than 35% disturbance): Environment Canada, “Recovery Strategy  
for the Woodland Caribou (Rangifer tarandus caribou), Boreal Population in Canada”  
2012). If this 65% intactness threshold is met it provides a 60% chance of a local  
population being self-sustaining.  
(
(
[
913] Finally on this point, while the Province continues to point to a variety of  
issues that it says renders the data “unreliable,” it is uncontroverted that the RSEA  
disturbance data has been developed jointly between these parties, along with other  
participants at the RSEA table. While the Province says management  
recommendations based on this data still need to be approved before it can be  
directly implemented in decision making processes, this does not affect the validity  
of the data, which through great effort has been developed and approved by the  
parties to this litigation, along with other Treaty 8 First Nations. The evidence is also  
clear that the parties are using some of this data in collaborative processes presently  
underway. As noted earlier, I find this data reliable and give it weight in my analysis  
regarding disturbance within the Blueberry Claim Area.  
Yahey v. British Columbia  
Page 259  
b)  
Province’s Points of Contention Regarding the  
Disturbance Data  
[
914] In coming to my conclusions set out above, I have considered the Province’s  
points of contention regarding the disturbance data and other data placed before the  
Court. I will now set out my analysis with respect to the Province’s specific points of  
contention.  
[
915] The Province essentially argues, first, that Blueberry relies on data which is  
known to overestimate the actual disturbance. Second, it maintains the data does  
not allow for any differentiation or determination of the effect of a particular  
disturbance. This, the Province argues, goes to its consistent point that this Court  
cannot rely on either the 2016 Atlas or the RSEA disturbance data as presented, as  
it does not reflect whether or not Blueberry members can exercise their treaty rights.  
[
916] In particular, the Province argues that the disturbance data does not establish  
that Blueberry members are unable to exercise their treaty rights. It emphasizes that  
not all disturbances impact wildlife or wildlife habitat, and not all are permanent. The  
Province says, for example, that Blueberry can still hunt in a clearcut or on lands  
under which there is subsurface development. It says despite development in the  
Blueberry Claim Area and surrounding areas, Blueberry members are able to  
exercise their treaty rights to hunt, fish, and trap.  
[
917] The Province also argues that not every disturbance is a “taking up” under the  
Treaty. The Province says instead of canvassing the community for evidence of the  
collective exercise of treaty rights, Blueberry emphasized evidence of the proximity  
of areas within their territory to disturbances, appearing to assume that all forms of  
landscape disturbance amount to “taking up.” The Province maintains this  
assumption is contrary to both the legal definition of taking up, and the expert  
evidence given by Blueberry’s wildlife ecologists.  
[
918] The Province therefore takes issue with Blueberry’s argument that the data  
regarding industrial development, and the presentation of that data via the 2016  
Yahey v. British Columbia  
Page 260  
Atlas and RSEA disturbance layer, presents an accurate reflection of the  
disturbance on the ground, or an accurate measurement of the cumulative effects of  
development in the Plaintiffs’ territory.  
[
919] I will deal with the specific points raised by the Province with respect to the  
disturbance data and what it illustrates about the scale of development and level of  
disturbance in the Blueberry Claim Area. In doing so, I will further comment on the  
2
016 Atlas, the RSEA disturbance data, and other points made by the Province.  
[
920] As part of my analysis, I will deal later with the question of whether a  
disturbance is a “taking up” and the resultant effect on Blueberry’s ability to exercise  
its treaty rights.  
[
921] Prior to dealing with the 2016 Atlas, I will briefly deal with the Province’s point  
that, in addition to the same limitations identified in the RSEA data, the disturbance  
layer Level C (which is the combined anthropogenic layer relied upon by Mr. Khem)  
includes additional types of disturbance not captured in the 2016 Atlas calculations,  
including recreational sites, trails, and communities. As such, the calculations are  
not comparable.  
[
922] In considering that point, however, I conclude that this may have led to the  
slightly larger conclusion of disturbance in the RSEA disturbance data of 85%  
disturbed based on a 250-metre buffer, and 91% disturbance based on a 500-metre  
buffer. This is contrasted with the corresponding numbers of 73% and 84%  
disturbance set out in the 2016 Atlas. In addition, this difference may well be  
attributed to additional development in the territory in the intervening two years.  
Suffice it to say, either set of numbers is significant, and choosing one over the other  
does not fundamentally affect the conclusions in this case.  
c)  
2016 Atlas and Dr. Klinkenberg’s Review  
[
923] Both the 2016 Atlas and Dr. Klinkenberg’s Report on the Atlas refer to  
disturbances within Blueberry’s “traditional territory.” In the 2016 Atlas, the area  
Yahey v. British Columbia  
Page 261  
demarcated as being Blueberry’s “traditional territory” is that outlined in the Notice of  
Civil Claim that initiated these proceedings. For ease of reference, I will therefore  
refer to the area to which the 2016 Atlas pertains as the “Blueberry Claim Area.”  
[
924] The 2016 Atlas was prepared almost entirely from provincial data. The data  
used reflects the scale and nature of industrial development in the Blueberry Claim  
Area up to mid-January 2016. As noted earlier, Blueberry provided the 2016 Atlas to  
the Province as a means of objectively demonstrating their concerns regarding  
impacts to the lands on which they rely for the exercise of their treaty rights. The  
Province did not respond to this document, other than to acknowledge its receipt and  
note the amount of work it must have involved.  
[
925] While the Province says it has responded to the 2016 Atlas in the context of  
this litigation, that is not consistent with the honour of the Crown. The Crown cannot  
ignore a legitimate request by a First Nation to address information and concerns  
relating to cumulative impacts by pointing to litigation which may take years to  
complete. There is an obligation on the Crown to deal with matters outside litigation.  
The honour of the Crown requires more than just an adversarial response in the  
context of this litigation. The courtroom is not an alternative to the negotiating table,  
and true reconciliation is rarely, if ever, achieved in courtrooms: R. v. Desautel, 2021  
SCC 17 at paras. 87, 91.  
[
926] Furthermore, while the Province says, in any event, that it has established the  
Regional Strategic Environmental Assessment process to address the cumulative  
impacts on treaty rights which the 2016 Atlas does not address, it then raises doubts  
about the products coming out of that process. As the evidence demonstrates  
however, it established the RSEA process for the express goal of collecting and  
coordinating trustworthy information about natural- and human-induced disturbance  
on the landbase in northeastern BC to inform decision-making on cumulative  
impacts. It cannot now cast doubt or denigrate the soundness of the data assembled  
through the RSEA process in the context of this litigation.  
Yahey v. British Columbia  
Page 262  
[
[
927] I now turn to Dr. Klinkenberg’s assessment of the 2016 Atlas.  
928] Dr. Klinkenberg’s testimony concerned the verification and validation of the  
data used in the 2016 Atlas.  
[
929] At p. 16 of his Report on the Atlas, Dr. Klinkenberg situated the Blueberry  
Claim Area (which he, like the authors of the 2016 Atlas, referred to as “Blueberry  
Traditional Territory”) within a larger study area. He noted:  
More than 99% of the Blueberry Traditional Territory is within the Peace River  
Regional District (RD). To the North, the Peace River RD shares a border  
with the Northern Rockies RD. Together they form the North East  
Development Region. Active oil and gas exploration and extraction has taken  
place in this region extensively. In order to look at a broader context and  
include a comparable (e.g. vegetation, resources, climate) area, this larger  
region will be used (the ‘study area’). The study area is bounded by Alberta  
(
East), the Fraser-Fort George RDs (South), the Buckley-Nechako and  
Stikine RDs (West) and the Northwest [T]erritories (North). The area is more  
than 200,000 Km² and represents approximately 21% of the BC territory. The  
study area and the BRFN traditional territory are represented in Figure 2.  
Yahey v. British Columbia  
Page 263  
Exhibit 9: Expert Report on the Atlas of Cumulative Landscape Disturbance in the Traditional  
Territory of Blueberry River First Nations (2016) by Dr. Klinkenberg, page 16, Figure 2 showing  
the Blueberry Claim Area in relation to the Study Area.  
[
930] The Court heard evidence of Dr. Klinkenberg’s detailed review of the data  
contained in the 2016 Atlas and its validity, noting the vast majority of it came from  
provincial government sources. This included, as noted by Blueberry:  
a) examination of the maps, tables and data sources used;  
b) examination of the forestry data, including an analysis in Appendix 4 and 5 of  
the Ministry of Forests’ cutblock dataset and comparison to the forest change  
dataset 1985-2011 (regional level and local level);  
c) analysis of the temporal change in the coal and mineral tenures data  
(Appendix 6);  
Yahey v. British Columbia  
Page 264  
d) annotation and review of the 36 maps presented in the 2016 Atlas (Appendix  
); and,  
7
e) reproductions of Maps 32 and 34 to highlight scale-related issues (Appendix  
).  
9
[
931] Dr. Klinkenberg agreed that the scale chosen for the maps in the 2016 Atlas  
gave the impression the marked feature was larger than it actually was, and created  
a “cluttered” impression. He noted one could not distinguish individual features on a  
map when it is displayed at a scale of 1:1.8 million (meaning 1 millimetre on the map  
represents 1.8 kilometres on the ground), but the purpose of the density maps was  
to provide an overview perspective of what is going on.  
[
932] With respect to the cartographic representation in Maps 31-34 of cumulative  
effects in the Blueberry Claim Area, at page 48, Dr. Klinkenberg said the density of  
the features as displayed on these maps appear to be a cartographically-correct  
presentation, given the small scale of the maps. He noted the question of the  
appropriate size of the buffer around the disturbance i.e., 250 or 500 meters was  
not, however, a matter he could attest to.  
[
933] Dr. Klinkenberg noted the field of cartography has changed over the last 40  
years. Maps are now more inherently a subjective account of the natural world.  
However, when it was put to Dr. Klinkenberg that one cannot rely on the maps in the  
2
016 Atlas for the “truth,” he disagreed. He noted that while all maps are a distortion  
of the earth, the fact that there are certain features in certain places, such as, for  
example, seismic lines, is not subjective criteria. This is an objective fact that the  
map now presents.  
[
934] Dr. Klinkenberg’s comments regarding subjectivity do not extend to the data  
underlying the maps in the 2016 Atlas and his Report on the Atlas, most of which  
were obtained from government sources. Those Dr. Klinkenberg downloaded and  
verified were the same datasets and sources, with a few minor exceptions. In  
Appendix 7 of his Report on the Atlas, Dr. Klinkenberg undertook an annotated and  
Yahey v. British Columbia  
Page 265  
helpful review of the 36 maps presented in the Atlas that deal with any notable  
subjective features.  
[
935] With respect specifically to the completeness and accuracy of the 2016 Atlas  
data sources, at page 17 of his report, Dr. Klinkenberg noted:  
Most of the data portrayed and analyzed in the Atlas is public data available  
through different open data portals from the BC government. It is evident that  
oil and gas exploration and extraction as well as forest harvesting are the  
main potential sources of environmental impact in our study area. As a  
second step in the analysis, the focus was on evaluating the completeness  
and accuracy of the datasets used in the Atlas to portray disturbances  
associated with these two extractive industries.  
[
936] Dr. Klinkenberg noted that three main datasets were used in the 2016 Atlas  
for the visualization of disturbances associated with oil and gas exploration: one  
containing locations of oil and gas wells, one for pipelines, and one for exploration  
lines (seismic lines) from 1996 to 2015.  
[
937] In addition, the 2016 Atlas made use of two main datasets to portray  
environmental impacts associated with the forestry industry: one developed by  
Global Forest Watch, and one of consolidated forest cutblocks from the Ministry of  
Forests. While he was unable to validate the Global Forest Watch data, he noted as  
per pages 20-21 of the 2016 Atlas, 60% of B.C. has intact forest landscape, while  
only 13.78% of the Blueberry Claim Area had intact forest landscape.  
[
938] At page 41 of his Report on the Atlas, Dr. Klinkenberg noted that as the  
government continuously updates its online data he cannot say with 100%  
confidence that the data presented in the 2016 Atlas is a complete and accurate  
representation of the data the authors downloaded at the time, because, as he  
wrote, he is unable to “turn back time.” He noted, however, for some datasets,  
including those related to seismic lines and oil and gas wells, one can make an  
independent assessment of the accuracy and completeness of the dataset by  
overlaying the data on recent satellite imagery and doing visual comparisons. He  
can also assess the cutblock records by comparing the government records to an  
Yahey v. British Columbia  
Page 266  
independently produced assessment of logging activity by year (citing White et al  
017, A nationwide annual characterization of 25 years of forest disturbance and  
recovery for Canada using Landsat time series).  
2
[
939] Dr. Klinkenberg noted he undertook a qualitative analysis – a rigorous  
quantitative statistical analysis would require considerable more time and effort – but  
the results nonetheless provide useful insight into the data completeness issue.  
[
940] The data itself is the more helpful evidence for the Court – especially in view  
of the changes in cartography over the last 40 years attested to by Dr. Klinkenberg.  
Maps, however, are tools that can assist in presenting this data spatially and  
visually.  
[
941] Dr. Klinkenberg ultimately provided his expert opinion on the question posed:  
Whether the Atlas, as an inventory of human induced and accumulated disturbance  
“
in BRFN traditional territory, is a sound document?” At page 28 of his report, he  
concluded it was sound:  
Yes. Based upon reviewing all of the publicly-available downloadable  
datasets, performing validation on several of the maps either by reproducing  
the map or by conducting qualitative tests using independently-derived data,  
as well as by reviewing every map from a professional cartographer’s  
perspective, and reviewing other documents related to cumulative impact  
assessment in British Columbia, in my opinion the Atlas is a sound document.  
There are some minor faults, but nothing that would cast doubt on the  
accuracy, objectivity and therefore the reliability of the Atlas’ cartographic  
presentation.  
(
emphasis in original)  
[
942] Those “minor faults” related to some duplication and updates in the datasets  
between 2016 and his 2017 Report on the Atlas, but, as indicated, did not cast doubt  
on the accuracy, objectivity, and reliability of the maps in the Atlas. One area of  
duplication, for example, was with respect to some of the seismic lines in Map 22.  
[
943] The Province extensively cross-examined Dr. Klinkenberg. The Province  
pointed out that Dr. Klinkenberg agreed that the tables and maps in the 2016 Atlas  
Yahey v. British Columbia  
Page 267  
“are not, nor should they be interpreted as an accurate reflection of the actual  
disturbance on the ground.” Rather he agreed they represent “a plotting of the data.”  
The Province says, as a result, it is clear that the 2016 Atlas over-represents the  
scale of disturbance and represents a “worst case scenario.”  
[
944] The Province also says Dr. Klinkenberg agreed that much of the data used by  
the authors of the 2016 Atlas reflects permitted or authorized activity or tenure, as  
opposed to actual development.  
[
945] In addition, the Province says given that Dr. Klinkenberg, in cross-  
examination, distanced himself from some of the commentary in the 2016 Atlas, it  
became impossible to determine what Dr. Klinkenberg accepted as accurate and  
reliable in the 2016 Atlas.  
[
946] While Dr. Klinkenberg was not able to agree with a variety of written  
conclusions in the 2016 Atlas as being either subjective opinion, outside his  
expertise or knowledge, or referring to the 2012 Atlas which he did not review, he did  
verify the accuracy of the data, including and specifically the statistical information in  
Table 22 on page 73 of the 2016 Atlas with respect to the extent of cumulative  
effects in the Blueberry Claim Area.  
[
947] That table notes the industrial footprint in the Blueberry Claim Area (taking  
into account roads, transmission lines, seismic lines, pipeline tenures, consolidated  
cutblocks, and agricultural areas) affected 13% of the area; when buffered by 250  
metres it was 73%; and, when buffered by 500 metres, 84% of the Blueberry Claim  
Area was affected by an industrial disturbance.  
[
948] Dr. Klinkenberg agreed with the essential portions of the 2016 Atlas, being  
the maps and tables from verified government data sources, that establish industrial  
disturbance in the Blueberry Claim Area.  
[
949] In addition, in cross-examination, Dr. Klinkenberg said that he agreed with  
the final conclusion in the 2016 Atlas, which he said was based on the data. This  
Yahey v. British Columbia  
Page 268  
part of the 2016 Atlas should therefore not have been shaded as an area he could  
not verify. That conclusion, at page 85 reads as follows:  
Examining cumulative effects upon a landscape is inherently a multi-layered  
endeavour and no single snapshot can tell the whole truth at once. Numbers  
and maps are only two of the tools that can assist in gaining an  
understanding of the nature and scale of cumulative effects upon the  
traditional territory of Blueberry River First Nations. This understanding can  
only be crude, but it is a necessary starting point. The analysis in this Atlas  
which is based upon government of British Columbia data, reveals that  
approximately 73% of the area inside Blueberry River First Nations traditional  
territory is within 250 metres of an industrial disturbance, and approximately  
84% is within 500 metres of an industrial disturbance.  
d)  
Dr. Klinkenberg’s Analysis of Oil and Gas  
Disturbances  
[
950] At page 20 of his Report on the Atlas, Dr. Klinkenberg indicated that to verify  
the accuracy of the oil and gas disturbances noted in the 2016 Atlas he had  
randomly selected a number of sites to visually inspect using aerial imagery. He  
concluded at page 20 that the Blueberry Claim Area had nearly twice as much  
disturbance associated with oil and gas development as the surrounding regional  
districts that made up the study area:  
Although this in-depth analysis was not intended to specifically document the  
differences in the intensity of development between study region (i.e., Prince  
George RD and the Northern Rockies RD) and the Blueberry River FNTT  
[
i.e., the Blueberry Claim Area], the differences in the number of 5 km x 5 km  
cells that intersected with at least one linear or point disturbance are  
dramatic. While almost 91% of the 5 km x 5 km cells that fall within the  
Blueberry River FNTT intersect with some form of disturbance, only 52% of  
the total study area cells do. If we exclude the Blueberry River FNTT cells  
from the overall study area and recalculate the percentage of cells affected  
(
i.e., (4456-1523) / (8600-1677)), the number of affected cells drops to 42%.  
So, using a relatively crude measure of disturbance, it appears as if the  
spatial extent of the disturbance associated with oil and gas developments is  
more than double (90.8% of the cells) in the Blueberry River FNTT than that  
in the surrounding regional districts (42% of the cells).  
Table 2. Surveyed Areas  
Feature  
Count  
Number of 5 X 5 Km Cells in Study Area  
8,600  
Yahey v. British Columbia  
Page 269  
Number of Cells Intersecting Oil and Gas  
4,456 (51.8%)  
Features (wells, seismic lines, or pipelines)  
Number of 5 X 5 Km cells within the Blueberry  
River FNTT  
1,677  
Number of cells intersecting Oil and Gas Features  
within the BRFNTT  
1,523 (90.8%)  
[
951] The Province retained Ann Blyth to prepare an expert report responding to  
this aspect of Dr. Klinkenberg’s work, namely the accuracy of his analysis of the oil  
and gas datasets used in the 2016 Atlas.  
[
952] Ms. Blyth provided an expert report dated February 2018. Ms. Blyth was  
qualified as an expert in GIS and remote sensing, including the accuracy of spatial  
data and interpreting aerial photographs and satellite imagery.  
[
953] Ms. Blyth was asked to re-create the disturbance analysis undertaken by Dr.  
Klinkenberg at page 20 of his report. In doing so she redefined the study area to be,  
in the Province’s view, more representative of the Blueberry Claim Area, decreased  
the size of the cells analysed to improve the spatial position, and increased the  
number of cells analysed to increase the confidence level.  
[
954] Ms. Blyth said her results indicated that 37.5% of the cells in the study area  
overlapped with oil and gas disturbances compared to 51.8% for Dr. Klinkenberg,  
and 56.4% of the cells within the Blueberry Claim Area overlapped with oil and gas  
disturbances compared to 90.8% for Dr. Klinkenberg. Ms. Blyth attributed the  
differences in outcome to the cell size, and the differences in the boundaries of the  
study areas.  
[
955] While conducting an accuracy assessment of her results by reviewing the  
imagery, Ms. Blyth indicated she erred on the side of determining a feature was  
present in a cell, rather than not. Ms. Blyth testified that in the 96 cells she sampled  
there was a tendency by Dr. Klinkenberg to over-represent the amount of oil and gas  
disturbance. She noted 41.7% of the cells over-represented disturbances, and 24%  
under-represented.  
Yahey v. British Columbia  
Page 270  
[
956] Significantly, however, in cross-examination Ms. Blyth confirmed that if one of  
a number of features was not visible in the imagery associated with that cell (i.e.,  
was missing in the cell) it would be marked as having been over-represented. As an  
example, if Dr. Klinkenberg had mapped 5 features in a cell, but only 4 were  
accounted for in the imagery, Ms. Blyth would have characterized this as having  
been an over-representation of the disturbance data. Notably, Ms. Blyth agreed,  
however, that a cell in the over-represented category did not mean that a  
disturbance or activity was not present in the cell.  
[
957] Ms. Blyth agreed that while her overall study area was different from Dr.  
Klinkenberg’s, the Blueberry Claim Area was the same, and therefore comparable.  
She also agreed that both Dr. Klinkenberg’s result (i.e., 90.8% of the cells in the  
Blueberry Claim Area intersecting oil and gas features) and her results (i.e., 56% of  
the cells in the Blueberry Claim Area intersecting oil and gas features) were correct.  
Her study still found a larger level of disturbance in the Blueberry Claim Area than in  
the study area.  
[
958] Regardless, as Blueberry points out, ultimately Ms. Blyth’s report is of limited  
utility to the Court. Ms. Blyth did not review the 2016 Atlas, but only five pages of Dr.  
Klinkenberg’s Report on the Atlas (pages 18-22), which dealt with the analysis of oil  
and gas datasets, and she did not contradict his evidence. Her study still found a  
large level of disturbance in the Blueberry Claim Area and her concept of “over-  
representation of disturbance” did not assist as it did not reflect that an area was not  
disturbed. Rather, it may have only been “less disturbed” based on the criteria Ms.  
Blyth used to reach this conclusion.  
[
959] The evidence established that Blueberry, as part of its efforts to have the  
Province address what it described as devastating cumulative impacts in the  
Blueberry Claim Area, went to considerable efforts to commission and assemble the  
data and maps in the 2016 Atlas and present them to government. The 2016 Atlas  
provides a helpful visual of the area where Blueberry members are trying to exercise  
Yahey v. British Columbia  
Page 271  
their treaty rights. Again, it is most striking that the Province never addressed this  
report – and has never presented any different data to counter this information.  
[
960] As indicated earlier, I agree with Blueberry that if the Province had different  
information, it was bound as a matter of honourable dealing to provide this  
information to Blueberry. It did not do so.  
e)  
Does the Data Over-represent Disturbance in the  
Blueberry Claim Area?  
[
961] The Province made many of the same arguments with respect to the  
accuracy of the disturbance data in the 2016 Atlas that ultimately developed through  
the Regional Strategic Environmental Assessment process. I will therefore deal with  
these issues together.  
[
962] There are essentially three alleged categories of deficiencies in the data  
identified by the Province. The first is the over-representation of disturbance; the  
second is lack of differentiation of the effect of disturbances; and, the third is that  
Blueberry members can still exercise their rights to hunt, fish, and trap  
notwithstanding a disturbance, since particular disturbances such as cutblocks allow  
for early regrowth and can still support wildlife.  
[
963] The Province argues that the data in both the RSEA disturbance layer and  
the 2016 Atlas over-represent disturbance in the Blueberry Claim Area. This is  
largely because the data includes activities that are authorized or permitted, but not  
yet built. Some of the specific issues identified by the Province are:  
a) the pipeline data may reflect tenured or authorized pipelines, as  
opposed to constructed pipelines;  
b) the well data includes both authorized wells that may not have been  
drilled, and cancelled wells; and,  
c) the forestry consolidated cutblocks data may reflect authorized as  
opposed to harvested cutblocks.  
Yahey v. British Columbia  
Page 272  
[
964] Much of this argument covers the oil and gas industry, although some reflects  
forestry practices and authorization. I will deal first with the oil and gas disturbance  
data.  
i.  
Oil and Gas  
[
965] The 2016 Atlas shows the number of well authorizations by year since 1918.  
Between 1918 and 1990, the number of authorizations held relatively steady, other  
than a spike in the 1960s and 1970s. The authorizations, however, significantly  
increased in the late 1990s, with a significant spike starting in 2003, and truly spiking  
from 2004 to 2006, and again in 2014. Figure 1 at page 38 of the 2016 Atlas notes  
that (as of January 2016) there were 19,974 oil and gas wells in the Blueberry Claim  
Area, 36% of which were active. Of those active wells, 74% were solely gas.  
[
966] The figure at page 38 of the 2016 Atlas demonstrates, whether or not all  
these wells have been built, both an accumulation of well authorizations, and an  
increased rate of development from the 1990s, with a significant increase since the  
early 2000s.  
[
967] At page 64, the 2016 Atlas notes that well sites in the Blueberry Claim Area  
encompass an area of 10,482 hectares.  
[
968] Table 13 on page 41 of the 2016 Atlas shows that within the Blueberry Claim  
Area there were 9,435 oil and gas facilities, the majority of which (65.82%) were test  
facilities, and just over 10% of which were battery sites, which means a gas or oil  
facility with product separation and multiphase delivery point measurement for one  
or more wells. Maps 14, 15, 16 and 20 of the 2016 Atlas show the spatial distribution  
of these sites across the Blueberry Claim Area. Map 17 shows the density of new  
well authorizations in the Blueberry Claim Area, comparing the periods from 1950-  
1
970, 1970-1990, 1990-2010 and 2006-2016. The 1990-2010 period shows the  
highest density of new well authorizations. All of this is corroborated by the evidence  
given by Blueberry members.  
Yahey v. British Columbia  
Page 273  
[
969] Importantly, the Oil and Gas Commission’s Comprehensive Liability  
Management Plan, published in May 2019, provides additional context. That plan  
indicates that, three years after the 2016 Atlas was published, there were 25,451 oil  
and gas wells in British Columbia, of which 40% were active.  
[
970] The area impacted by oil and gas is also set out in the Forest Operations  
Schedule 2017. This shows that the Total Crown Forest area impacted by oil and  
gas in the Fort St. John Timber Supply Area (which overlaps with much of the  
Blueberry Claim Area) is approximately 102,000 hectares. The 2019 RSEA Forestry  
Data Package shows an oil and gas imprint of 138,955 hectares within the Fort St.  
John Timber Supply Area.  
[
971] While the Province points out that wildfires since 1950 have accounted for  
almost three times as much disturbance as wells since 1918, this does not remove  
the reality that anthropogenic disturbances (and specifically those from oil and gas)  
have a significant and a different effect on the landscape. Furthermore, the lack of  
restoration of wells (until recently), and the nature of that restoration is fundamentally  
different from the natural restoration that occurs after wildfires. Unlike restoration  
techniques used in the past, natural restoration after a wildfire promotes the growth  
of natural forage and habitat for wildlife.  
[
972] The Province says that for both the 2016 Atlas and the RSEA disturbance  
layer, restored wells are included in the disturbance category and should not be. The  
evidence demonstrates, however, that a “restored” well does not mean the natural  
habitat is restored. While more recent efforts are underway by Petronas and others  
to restore a well to its natural habitat by using natural vegetation and engaging First  
Nations in these efforts, these efforts are new and restorations to date have not  
done so. Photos of a restored well that are in evidence in these proceedings show  
an area resembling a field rather than restored habitat. A restored well likely  
therefore maintains a disturbance footprint on the ground.  
Yahey v. British Columbia  
Page 274  
[
973] In addition, with respect to oil and gas tenures granted, the 2016 Atlas sets  
out the extent of oil and gas tenuring in the Blueberry Claim Area as follows:  
a) of the total area of BC reserved for pipelines via tenures, 46% falls within the  
Blueberry Claim Area; and,  
b) active petroleum and natural gas tenures cover 69% of the Blueberry Claim  
Area.  
[
974] Chris Pasztor, the decision maker for issuance of tenure in the Ministry of  
Energy and Mines, confirmed that over the past ten years, most of the oil and gas  
industry within British Columbia has been targeting the Montney shale basin (also  
referred to as the Montney Play Trend). The Montney shale basin is part of the  
Western Canadian Sedimentary Basin that stretches across most of northeast  
British Columbia and into Alberta. The Western Canadian Sedimentary Basin is also  
made up of three other geological formations: the Cordova Embayment, the Horn  
River Basin, and the Liard Basin. Part of the Montney Play Trend, referred to as the  
North Montney (or the North Montney Field), overlaps with the Blueberry Claim Area.  
[
975] While the Province notes that tenures have a limited term and can be  
cancelled or withdrawn, as Blueberry points out, these areas can then be re-tenured.  
Furthermore, tenure is granted in multiple layers, so a withdrawal or cancellation of a  
tenure does not necessarily mean the area is free from development.  
[
976] In addition, the amount of existing (‘active’) tenures in the Blueberry Claim  
Area is extensive, as shown in a number of exhibits.  
[
977] Chris Pasztor also testified about a table titled “Oil and Gas Rights Sales”  
from 1978 to February 19, 2020, which shows the amount of hectares of tenures  
disposed (i.e., sold and re-sold) from 1978 to February 19, 2020. It notes that in this  
timeframe, 18,170,215 hectares have been disposed.  
[
978] A March 20, 2015 map prepared by the Ministry of Natural Gas Development,  
Upstream Development Division, Tenure and Geoscience Branch which is in  
Yahey v. British Columbia  
Page 275  
evidence in these proceedings shows that “if all currently deferred parcels were  
disposed the increase in the BRFN Consultation Area A and current active tenure  
would be 1%.” I take this to mean that, notwithstanding that some of the parcels  
within the Blueberry Claim Area have been deferred (meaning the tenure request  
has been held back from potential disposition for an indefinite period of time), this  
constitutes only a minute portion of the land base that is not already covered by  
active tenure.  
[
979] The “RSEA Interim Measures Agreement Related to Petroleum and Natural  
Gas Development” (15 June 2018), appends a map that helpfully illustrates in grey  
shading the amount of active tenure in three areas within the Blueberry Claim Area  
that Blueberry had previously identified as being “critical” areas. Area 2 and 3 are  
extensively tenured, while Area 1 is less so.  
Yahey v. British Columbia  
Page 276  
Exhibit 108, Tab 28: Appendix 1 to RSEA Interim Measures Agreement Related to Petroleum  
and Natural Gas Development, showing the outlines of Areas 1, 2 and 3, and active tenure in  
grey.  
[
980] I agree with Blueberry that the location of the active tenures on the maps  
illustrates how closely oil and gas activity overlays with the Blueberry Claim Area.  
While oil and gas tenures are not, as the Province points out, a direct measure of  
surface disturbance, the overwhelming scale of tenure sales is an indication of the  
extent and amount of potential activity.  
Yahey v. British Columbia  
Page 277  
[
981] The Province maintains that even when an application is made to the Oil and  
Gas Commission for a permit associated with a tenure, this does not necessarily  
mean there will be surface disturbance or any corresponding impact on rights. This  
point was emphasized repeatedly by Mr. Pasztor.  
[
982] During his testimony on July 27, 2020, Mr. Pasztor stated several times that  
the decision to dispose tenure is “purely subsurface-related,” “doesn’t result in any  
immediate physical impacts to the land base,” and, as such, the Ministry takes the  
position that the disposition of tenures does not infringe treaty rights since the  
tenures will not authorize any activities. Mr. O’Hanley, from the Oil and Gas  
Commission testified, however, that the grant of tenure is a clear indication or  
“signal” from government that an area may be developed, and/or is a candidate for  
development.  
[
983] The difference between Mr. Pasztor’s and Mr. O’Hanley’s understandings of  
the implications of decisions to dispose tenure clearly illustrate that, as Blueberry  
says, government agencies operate in “silos,” and are like “two ships passing in the  
night.” One agency is of the view that the other will consider treaty rights and the  
other is of the view that treaty rights have already been considered, or that they  
need not be as the area is designated for development.  
[
984] Mr. Pasztor referred to “caveats” on the grant of tenure that protect treaty  
rights, but these are not given much, if any, significance in the Oil and Gas  
Commission’s application management system. The existence of the caveat  
appears to be to avoid potential claims for compensation from proponents as  
reflected in the Risk Assessment to Support the Disposition of Petroleum and  
Natural Gas Parcels (November 13, 2019). The introduction to that document states:  
The decision to dispose petroleum and natural gas (PNG) tenure, i.e.,  
subsurface rights, does not authorize any physical impact to the land (i.e.,  
surface). Rather it is considered strategic in nature and is the first step to an  
administrative process to support future activities to explore for and develop  
PNG resources. Exploring for and developing PNG resources is considered  
the second step and is a separate decision that can have physical impacts to  
stakeholders and First Nations [sic] rights and interests, as well as values,  
Yahey v. British Columbia  
Page 278  
features and objectives that government has identified as requiring special  
management and protection (i.e., values, features and objectives identified in  
the Environmental Protection and Management Regulation under the Oil and  
Gas Activities Act.) Because these two administrative decisions are separate  
and tenure is issued without any exploration or development planning, there  
may be situations where compensation is triggered if the tenure cannot be  
accessed due to legal requirements and obligations.  
[
985] Furthermore, with respect to authorized but not yet built pipelines – such as  
the Prince Rupert Gas Transmission Project, the West Coast Transmission Project,  
and the northern portion of the North Montney Transmission line – the Province led  
no evidence to demonstrate to what extent this alleged “over-estimation” existed in  
the disturbance data. As noted by the Province, the total pipeline tenure is only  
0
.73% of the Blueberry Claim Area, so any over-estimation of disturbance based on  
authorized, but not yet built, pipelines affects less than 1% of the Blueberry Claim  
Area, in any event.  
[
986] Furthermore, pipelines that have been authorized but not yet built, may still be  
built. There is nothing to prevent that, and while it may not reflect an actual physical  
disturbance on the land, the reality is that it may yet occur without further input from  
Blueberry.  
[
987] I note, in addition, the RSEA disturbance layer also removed overlapping  
features like pipelines so that they only count once.  
ii.  
Linear Features  
[
988] The Province also argues the data over-estimates disturbance from linear  
features because it:  
a) includes old seismic lines, including Terrain Resource Information  
Management (“TRIM”) data which is primarily seismic lines from before 1992;  
b) assigns set widths for various linear features where no data was available  
(e.g., between 4 and 7 metres for seismic lines, 50 metres for all power lines,  
and 32 metres for all pipeline rights of way); and,  
Yahey v. British Columbia  
Page 279  
c) includes authorized but not constructed developments.  
[
989] The Province also points out that in the overall RSEA disturbance data and in  
the 2016 Atlas, roads are not distinguished in terms of being decommissioned forest  
roads or active roads and the same buffers are applied. The point being that an  
active road has more disturbance than one not used, which may have recovering  
habitat. This distinction is acknowledged in the 2016 Atlas, which references  
“decommissioned/overgrown/unknown” roads as being 1,221 kilometres of the total  
5
0,238 kilometres. Furthermore, a decommissioned road cannot simply be ignored  
as a disturbance. While it may have a lesser impact than an active industrial road or  
an urban road, it will still have an impact.  
[
990] Linear features such as roads, seismic lines, transmission lines, and pipelines  
are inherently disruptive disturbances on the landscape, as the government’s  
specialists recognize. I note the evidence establishes, and the Oil and Gas  
Commission’s own specialists acknowledge, that old seismic lines (such as those  
that were initially cleared using bulldozers prior to the 1990s) are very long term  
disturbances. Many old seismic lines can still be seen on satellite imagery.  
[
991] Furthermore, in their 2017 report on Boreal Caribou in British Columbia,  
Diane Culling and Deborah Cichowski noted that while industry has made important  
improvements in operational practices and methods with respect to seismic lines  
over the past few decades, this has been offset by a corresponding increase in the  
level and intensity of development.  
[
992] While the Province says it doesn’t accept the Culling and Cichowski report,  
this is a 2017 report directed by the provincial Ministry of Forests, with review  
comments provided by provincial representatives such as Mr. Pasztor and  
referenced by the three wildlife experts who testified in this case, including Mr.  
Simpson, the Province’s expert. In addition, the Province’s “Boreal Caribou  
Recovery Implementation Plan” (draft 30 March 2017) indicates provincial policy on  
the rates of recovery for linear features extends from 35 to 100 years:  
Yahey v. British Columbia  
Page 280  
The Province considers linear features in upland habitats restored > 35 years  
from disturbance, while linear features in lowland habitats take at least 100  
years to restore naturally (Appendix H).  
[
[
993] Mr. Pasztor agreed with this specific statement on cross-examination.  
994] I note that, in recognition that seismic features have an impact that varies, the  
Regional Strategic Environmental Assessment report entitled “Old Forest Current  
Condition: A Cumulative Effects Analysis for the Northeast RSEA Area” and the  
report produced by Madrone Environmental Service Ltd. on moose habitat did not  
include this data in calculating the disturbances. As Dr. Holt testified, in those areas  
it did not make much difference as there were so many disturbances everywhere.  
[
995] The effect of linear features with respect to predators is demonstrated in the  
same Boreal Caribou Recovery Implementation Plan, which states:  
Dickie (2015) reported that vegetation taller than 1 m on linear features  
reduced wolf movement by 23% in summer, while vegetation needed to be  
taller than 5 m in winter to decrease wolf travelling speed (Dickie 2015).  
[
996] In addition, the Province’s Taking Nature’s Pulse: The Status of Biodiversity in  
British Columbia outlines how linear features and utility corridors (including roads,  
railways, seismic lines, transmission lines and pipelines) represent key pressures or  
threats to biodiversity and have impacts that extend far beyond their corridors.  
[
997] The Province produced Taking Nature’s Pulse, along with whom it referred to  
as “partners,” who are set out in the acknowledgements. These “partners” include  
Dr. Holt, who was noted as having peer reviewed the draft report, and having  
participated in a workshop associated with the draft report. Dr. Holt testified that the  
lead author of this report was Matt Austin, who was then with the Ministry of  
Environment and is now with the Ministry of Forests.  
[
998] Taking Nature’s Pulse states at pages 199-200:  
Even relatively narrow roads through forest can produce marked edge  
…
effects that may have negative consequences for the function and diversity of  
these ecosystems. There is also significant ecosystem degradation in the  
Yahey v. British Columbia  
Page 281  
area beyond the actual feature. The construction of linear features alters  
hydrology in water courses and increases sedimentation, and can disconnect  
streams from floodplains and block aquatic species movement.  
Roads and other linear features impede the movement of native species,  
facilitate invasion by alien species and alter predator-prey relationships.  
Specifically, roads can fragment ranges, populations, habitats and  
ecosystems, and reduce gene flow, resulting in loss of genetic diversity.  
Roads can increase access to previously inaccessible areas, resulting in  
increased road kill of wildlife and increased access for legal and illegal fishing  
and hunting. Both on-road traffic and off-road vehicles create disturbance,  
which can alter species behaviour. Roads also facilitate ecosystem  
conversion, ecosystem degradation, and alien species invasion and  
environmental contamination.  
The ecological impacts of roads can affect approximately 20 times the land  
area that the roads actually cover. Hence roads and other linear features are  
a useful index for the cumulative impact on biodiversity…  
[
999] As noted by certain maps in Taking Nature’s Pulse:  
a) there is high and pervasive road density in northeast British Columbia, with  
what is essentially the core of the Blueberry Claim Area seeing some of the  
highest levels of density (Map 20, p. 202);  
b) the highest oil and gas site density in the province lies within the core of the  
Blueberry Claim Area, with up to 14.73 oil and gas sites per squared  
kilometre (Map 22, p. 208); and,  
c) the largest area and highest levels of terrestrial ecosystem conversion in the  
province lie at the core of the Blueberry Claim Area (Map 12, p. 161).  
Ecosystem conversion refers to the direct and complete conversion of natural  
ecosystems to landscapes for human uses.  
[
1000] Dr. Holt noted the RSEA table is using road indicators in their work on linear  
disturbances to understand the landscape condition. With reference to the map  
prepared by Caslys and included at p. 202 of Taking Nature’s Pulse (which is also  
included in the Land Stewardship Framework that Dr. Holt prepared for Blueberry),  
Dr. Holt testified that in the area around Fort St. John, and indeed throughout the  
Blueberry Claim Area, there is very high and pervasive road density.  
Yahey v. British Columbia  
Page 282  
[
1001] The 2016 Atlas indicates that more than 1,884 kilometres of petroleum  
access and permanent roads were authorized between 2013 and 2016. The  
Province points out that the 2013 Oil and Gas Regulation required a permit for any  
pre-existing roads used for oil and gas development, such as forest service roads.  
Regardless, roads exist, whether permitted or not, whether old or new.  
[
1002] The evidence of Dr. Klinkenberg shows that within the Blueberry Claim Area,  
there is an average of 4.79 kilometres of linear disturbance per square kilometre  
this includes roads, transmission lines, seismic lines, and pipelines) and that  
(
significant portions of the Blueberry Claim Area have a linear disturbance density  
that is much higher, ranging up to 15.8 kilometres per square kilometre.  
iii.  
Forest Harvest  
[
1003] The 2016 Atlas, relying on Ministry of Forests’ 2015 consolidated cutblock  
dataset, states that 195,091 hectares of the Blueberry Claim Area has been logged  
since 1950.  
[
1004] Dr. Klinkenberg conducted an independent review of the cutblock dataset,  
validating its completeness by comparing it to a dataset recently published by the  
Canadian Forest Service and the University of British Columbia demonstrating the  
year of forest change and type of change (e.g., harvest or wildfire). He concluded  
there was a “reasonable areal match” between the two datasets.  
[
1005] While the Province says this is an overestimation, as the consolidated  
cutblock data may reflect authorized as opposed to harvested cutblocks, the RSEA  
disturbance layer, like the 2016 Atlas, relies on the provincial consolidated cutblock  
dataset. The Methodology Document states that this dataset is “...the best  
representation of cutblocks on the landscape...” with a “[h]igh” level of confidence  
due to the “quality of the input datasets.”  
Yahey v. British Columbia  
Page 283  
[
1006] In addition, while Mr. Van Tassel of the Ministry of Forests had not personally  
verified these 2016 Atlas numbers, he noted “looking at the results dataset, I would  
say that could very well be an accurate number of total area harvested.”  
[
1007] The Province also says the 2016 Atlas does not put the landscape  
disturbances in the Blueberry Claim Area in context, and presents a one sided  
picture. It maintains that forest harvesting in the Blueberry Claim Area was less than  
in the province as a whole, in every year. The Province, relying on Dr. Klinkenberg’s  
report, notes the total accumulated percentage of forest change in the Blueberry  
Claim Area was less than half what it was in the province as a whole – 3.63% for the  
Blueberry Claim Area, as opposed to 8.71% for the entire province – and that the  
2
016 Atlas failed to mention this.  
[
1008] In cross-examination in answer to this question, Dr. Klinkenberg noted,  
however, that the 2016 Atlas looked at intact forest landscape, and used this as the  
denominator for assessing forest change, whereas he used the total land base as  
the denominator. If he too had used intact forest as the denominator that would have  
changed the percentages considerably in figures 4 and 5 of his Report on the Atlas,  
making them much higher.  
[
1009] As a more accurate comparison, Dr. Klinkenberg noted, as per the Global  
Forest Watch dataset, approximately 60% of BC is intact forest landscape, while the  
Blueberry Claim Area has less than 14% intact forest landscape (i.e., a quarter as  
much as within BC as a whole). As the land base of intact forest is far smaller within  
the Blueberry Claim Area than within the province as a whole, any logging that  
occurs within the Blueberry Claim Area would therefore have a relatively larger  
impact.  
[
1010] The rate of forest harvest is also useful to consider in assessing disturbance  
in the Blueberry Claim Area. The Blueberry Claim Area is in the Fort St. John Timber  
Supply Area. As set out in the Ministry of Forests’ 2016 Timber Supply Analysis  
Discussion Paper for the Fort St. John Timber Supply Area, in Figures 10 and 11,  
Yahey v. British Columbia  
Page 284  
the annual area harvested in the Fort St. John Timber Supply Area is approximately  
-8,000 hectares, and on average a volume of 300 cubic metres is harvested per  
hectare. The concentration of the harvest is set out in the Chief Forester’s May 10,  
018 Rationale for Allowable Annual Cut Determination (“Chief Forester’s  
7
2
Rationale”) and the Fort St. John Timber Supply Area Timber Supply Review Data  
Package. I discuss this in further detail below when considering the regulatory  
regime for forestry management.  
[
1011] I note briefly here that 55.3% of the actual harvest in the Fort St. John Timber  
Supply Area has occurred in the Blueberry Landscape Unit (which is at the heart of  
the Blueberry Claim Area) – even though only 28.7% of all of the timber harvesting  
land base in the Fort St. John Timber Supply Area occurs in that landscape unit.  
[
1012] The Chief Forester’s Rationale also corroborated the forestry-related  
disturbance data in the Blueberry Claim Area. At page 21 of that document, the  
Chief Forester says:  
Input was received from BRFN and the public regarding concerns that the  
level of harvest is concentrated in the southern and central part of the TSA  
(
(
the ‘core’), with little likelihood of harvesting more remote parts of the TSA  
the ‘periphery’). They have commented that the concentrated harvest activity  
in the core is not sustainable and it may have negative environmental and  
economic impacts while also impacting their treaty rights. A supplementary  
analysis was conducted, verifying the concentration of harvesting in the core  
of the TSA.  
The core encompasses approximately 56 percent of the THLB [timber  
harvesting land base] and accounts for approximately 87 percent of the  
historic harvesting. The periphery encompasses approximately 44 percent of  
the THLB and accounts for approximately 13 percent of the historic  
harvesting. Appendix 4 shows a map of the Fort St. John TSA outlining the  
landscape units comprising the core and the periphery.  
In recent years Ministry staff has made requests of the forest licensees to  
increase their level of harvest in the periphery, but these requests have not  
been followed. Forest licensees commented that they are meeting the  
objectives and requirements of the FSJPPR [Fort St. John Pilot Project  
Regulations] and will direct harvesting to the periphery as harvest  
opportunities in the core decline.  
(
emphasis added)  
Yahey v. British Columbia  
Page 285  
[
1013] The Chief Forester’s Rationale specifically noted the supplementary analysis  
was conducted verifying the concentration of harvest in the southern and central part  
of the Timber Supply Area, which is largely within the core of the Blueberry Claim  
Area. Of further note was that Ministry staff had made requests of forest licensees to  
increase harvest in the ‘periphery’ area and this request was not followed. The ‘core’  
encompasses 56% of the timber harvesting land base, but accounted for 87% of the  
historic harvest. This once again is the Province’s own information and further  
corroborates the data that reflects the high level of disturbance within the Blueberry  
Claim Area.  
[
1014] To understand the impact of this it is helpful to place this information in the  
context of the maps entered into evidence.  
[
1015] Appendix 4 of the Chief Forester’s Rationale shows the Landscape Units,  
and indicates that the Blueberry, Lower Beatton, Kobes, Halfway and Tommy Lakes  
South Landscape Units (coloured in green on the map below) constitute the “core” of  
the Fort St. John Timber Supply Area.  
Yahey v. British Columbia  
Page 286  
Exhibit 42, Tab 2: Fort St. John Timber Supply Area Rationale for Allowable Annual Cut  
Determination, May 10 2018, Appendix 4. Map of the Fort St. John TSA showing the Landscape  
Units comprising the core and the periphery areas.  
[
1016] The “enhanced resource development” zone, which was set in the Fort St.  
John Land and Resource Management Plan, is identified in pink on a map included  
in the Sustainable Forest Management Plan and set out below. The Fort St. John  
Land and Resource Management Plan notes that the “enhanced resource  
development” land use category includes lands:  
-
-
-
with existing or with future potential suitability, for intensive resource  
development with due consideration to the management of other resource  
values.  
where a high priority has been designated for a special or combined  
resource management emphasis (such as high intensity forest  
management regime or range management emphasis).  
where investments in resource development and enhancement are  
encouraged in full compliance with the existing regulatory regime.  
Yahey v. British Columbia  
Page 287  
[
1017] This enhanced resource development zone takes up more than half of the  
Blueberry Landscape Unit, the northern half of the Kobes Landscape Unit, and the  
southern half of the Tommy Lakes Landscape Unit, and other areas.  
Exhibit 43: Fort St. John Pilot Project Sustainable Forest Management Plan #3, Figure 2 at  
page 23, showing Landscape Units and Resource Management Zones.  
[
1018] The Sustainable Forest Management Plan at page 31 says the following with  
respect to “High Intensity Forest Management LU’s [Landscape Units]”:  
The Blueberry, Halfway, Kobes and Tommy Lakes LU’s are included in this  
zone. The LRMP’s [Land and Resource Management Plan’s] predominant  
timber objective in the RMZ’s [Resource Management Zones] that make up  
the majority of these landscape units is to establish forest production targets  
consistent with high intensity forest management regimes. Similarly, the  
predominant biological diversity emphasis identified in the LRMP for these  
zones is low. To meet other non-timber objectives identified in the LRMP,  
Yahey v. British Columbia  
Page 288  
some unique areas within these LU’s will receive special management  
attention.  
[
1019] The Province maintains that over the last 40 years, only 11% of Blueberry’s  
core” area (i.e., the Blueberry, Kobes, Halfway, and Tommy Lakes South  
Landscape Units) has been harvested. This percentage is based on approximately  
00,000 hectares, of a total 1.8 million hectares, having been harvested from the  
core” area.  
“
2
“
[
1020] As pointed out by counsel for Blueberry, however, much of the land within the  
.8 million hectares relied on by the Province as constituting the total core area  
1
cannot be harvested, as it consists of lakes, rivers, wetlands, alpine, non-Crown land  
and the like. Blueberry says the correct way of determining the percentage of  
harvest from the “core” area (or, more specifically, from the Blueberry Landscape  
Unit) over time can be ascertained from figures contained in an August 23, 2016  
letter from Mr. Atmo Prasad, a manager in the Forest Analysis and Inventory Branch  
of the Ministry of Forests.  
[
1021] Mr. Prasad notes that the Blueberry Landscape Unit contains 28.7% of the  
timber harvesting land base, which (according to Table 2 of the Ministry of Forests’  
016 Timber Supply Analysis Discussion Paper for the Fort St. John Timber Supply  
2
Area) is approximately 1,000,000 hectares. In other words, the Blueberry Landscape  
Unit contains 280,000 hectares of harvestable timber. Mr. Prasad then notes that  
approximately 55% of the total timber harvesting land base harvested in the Timber  
Supply Area has been harvested from the Blueberry Landscape Unit.  
[
1022] Blueberry therefore submits the amount harvested from the Blueberry  
Landscape Unit is 110,000 hectares (i.e., 55% of 200,000 hectares) divided by  
80,000 hectares, which equals 39%.  
2
[
1023] In addition, relying on Table 2 in the 2016 Timber Supply Analysis Discussion  
Paper for the Fort St. John Timber Supply Area, Blueberry notes that within the  
Timber Supply Area approximately 102,000 hectares are recognized as having an  
Yahey v. British Columbia  
Page 289  
“oil and gas imprint.” If land available for forest harvesting is reduced by the oil and  
gas activity in the Timber Supply Area (which is largely within the Blueberry  
Landscape Unit, but Blueberry’s calculations assumed that only 50% of that oil and  
gas imprint (i.e., 50,000 hectares) was within that Landscape Unit) the amount of  
disturbance can reach 75% of the “core” of the territory.  
[
1024] Blueberry’s main point, and I agree, is that the Province’s estimate of 11% of  
the “core” of the territory being harvested or affected is a gross under-estimation.  
That figure is based on a landbase that included not only forested areas, but also  
lakes, rivers and mountain tops. I conclude therefore that the lands within the “core”  
or the Blueberry Landscape Unit that have been harvested or otherwise imprinted  
with roads or oil and gas development is a much higher percentage, and likely  
between 50% and 75% of that area. The disproportionate harvest in this area is  
corroborated by the evidence of Blueberry members as to the impacts on their  
territory.  
[
1025] While Blueberry mainly pointed to the level of harvest to illustrate disturbance  
in the Blueberry Claim Area, this should be placed in context of the impact of a  
harvested cutblock. As noted by Blueberry, when a cutblock is harvested, the habitat  
is likely taken from a high habitat value (including winter habitat) to no winter habitat  
with perhaps some value as early seral forage for moose. While the Province  
characterized this as a positive effect of a disturbance, as new forage will grow, the  
negative impact of the loss of winter habitat is significant therefore precluding an  
overall characterization of a cutblock as being an example of a positive effect on  
wildlife.  
[
1026] Almost all of the cutblocks in the Blueberry Claim Area are 40 or 50 years old.  
High or effective habitat” does not exist until trees are, at a minimum, 60 years old.  
“
Mr. Simpson suggested that a deciduous tree at 60 years might fulfill some of the  
high habitat criteria. Dr. Johnson’s evidence, however, was that trees needed to be  
1
00 to 140 years to fulfill this habitat function, and Mr. DeLong’s work suggested 140  
years. This is relevant to the existence and effectiveness of wildlife habitat, including  
Yahey v. British Columbia  
Page 290  
for moose and caribou. The level of the harvest put into the context of its impact, is  
important to consider when evaluating disturbance.  
iv.  
Old Growth Forest  
[
1027] With respect to disturbance on the Blueberry landscape and Old Growth  
Forest, Dr. Holt also referred to and testified about the Regional Strategic  
Environmental Assessment report entitled “Old Forest Current Condition: A  
Cumulative Effects Analysis for the Northeast RSEA Study Area” (“RSEA Old Forest  
Report”), which Dr. Holt and Dave Myers of Ecora Consulting Ltd. completed in June  
2
019.  
[
1028] Dr. Holt testified as follows:  
And I will say that it [a robust cumulative effects analysis of current condition  
for old growth] was identified as a priority action item because all the nations  
at the table [referring to the Regional Strategic Environmental Assessment  
process] identified old forest as being very important to them also because  
the Province also uses old forest as their primary management tool to  
maintain diversity.  
[
1029] As noted by all three expert witnesses who testified about the status of wildlife  
populations in the Blueberry Claim Area, old growth forests provide habitat for a  
diversity of species, including unique species such as caribou and moose. They also  
contain cultural values important to Indigenous peoples. Old growth is an important  
indicator used to assess the conditions of forested ecosystems, and to evaluate the  
status of resource stewardship. The measurement of old growth forest is therefore a  
very relevant indicator of biodiversity and impacts on treaty rights.  
[
1030] The Chief Forester confirms this at page 15 in the Allowable Annual Cut  
Rationale:  
I agree that in addition to contributing to conservation biodiversity at the  
landscape level, mature and old growth forests are also an important  
component of accommodating First Nations interests in wildlife for food and  
ceremonial purposes. The maintenance of landscape level biodiversity is an  
important component that supports First Nations in sustaining their traditional  
ways of life.  
Yahey v. British Columbia  
Page 291  
[
1031] The Regional Strategic Environmental Assessment Old Forest Working  
Group, which has government representatives, including Mr. Van Tassel, and  
receives advice from the former regional ecologist from the northeast, Mr. Delong,  
was tasked with gathering the appropriate data and undertaking the cumulative  
effects analysis of old forest as a priority action item for the RSEA initiative.  
[
1032] Dr. Holt said the Regional Strategic Environmental Assessment project  
wanted to focus in and look at the landscape unit level to understand the status of  
old forest in the whole northeast RSEA area.  
[
1033] Fieldwork for the RSEA Old Forest Report was done in the summer of 2017.  
The drafting and completion of this report had to wait for the completion of the RSEA  
disturbance layer so that information, recognized as the best available information  
on disturbance for the study area, could be used. Using that data, the authors  
undertook a “functional forest analysis.”  
[
1034] This analysis was predicated on the Province’s 1995 Biodiversity Guidebook.  
The Biodiversity Guidebook was the first attempt in BC to present guidance for forest  
management based on natural disturbance dynamics. The Biodiversity Guidebook  
provides specific guidance for seral stage distribution, patch size, wildlife tree patch  
amount, and spatial arrangement, and more general guidance on species  
composition and stand structure.  
[
1035] The RSEA Old Forest Report seeks to answer two key questions: (1) How  
much old forest is there? and (2) How much of it is in good condition, or can be  
considered “functional forest”?  
[
1036] Dr. Holt described the approach used in the RSEA Old Forest Report as  
assessing how much actual old forest there is in the northeast today, and comparing  
it with what there would have been under natural conditions.  
[
1037] The RSEA Old Forest Report analyzed the condition of old forest in the study  
area by buffering the RSEA disturbance layer by 20 metres, 50 metres, 100 metres,  
Yahey v. British Columbia  
Page 292  
and 250 metres to compare results (see Ex. 47, Tab 7, p. 13). During her testimony,  
Dr. Holt provided the following explanation for the use of buffers of various  
distances, noting the effect of particular types of disturbances varies:  
…
we know that the effects of disturbances, be they roads or well sites or  
railways or pipelines, they have different types of effects on the surrounding  
forest. That’s not of dispute at all in the science literature. And what is  
discussed is how far those effects go into the forest.  
And we know that they go different distances and that the distance – the  
importance of the distance really changes with respect to different values. So,  
for instance, dust landing on berries may go 30 metres. Noise, disturbance  
noise may go 50 metres. Temperature change may go 50 to 100 metres.  
Sedimentation into creeks and other kinds of disturbances like predators, for  
instance, being able to get into the middle of patches, those have very large  
distances.  
[
1038] The RSEA Old Forest Report provides analysis for two categories of old  
forests: forests greater than 140 years in age, and those greater than 250 years in  
age. The results show the Blueberry Landscape Unit has only 9% of old growth  
forest greater than 140 years, when 17-33% would be expected; and, it has no forest  
older than 250 years, when between 6-12% would be expected.  
[
1039] With respect to how much of the old growth forest may be in good condition  
or “functional,” after factoring in the disturbances (i.e., overlaying all the roads, well  
sites, transmission lines, pipelines etc.), the RSEA Old Forest Report notes at pages  
3
7 and 40 that there is almost no old forest greater than 140 years in the Blueberry  
Landscape Unit further than 250 metres from a disturbance.  
[
1040] While the Province quarrels with the estimate of old forest; particularly in the  
Blueberry Landscape Unit and has provided mathematical calculations to say it is  
double” the amount referenced by the Plaintiffs, I prefer the above analysis which  
“
places the old forest within the context of effective functional forest, which is critical  
for wildlife habitat.  
[
1041] Dr. Holt indicated the RSEA Old Forest Report has been submitted to the  
Regional Strategic Environmental Assessment table and the indicators of old forest  
Yahey v. British Columbia  
Page 293  
and functional forest are now being used in ongoing work referred to as the Methods  
Pilot.  
f)  
Do the Effects of Disturbance Vary?  
[
1042] Despite the evidence on the amount of disturbance, the Province argues that  
another defect of the disturbance data which Blueberry relies upon is that it does not  
take into account the unequal effect of disturbances. The Province maintains that the  
impact of development varies depending on the type of development, its intensity,  
and its duration. It also says that the impact of industrial development on wildlife  
varies depending in the species, and even among populations of the same species.  
The Province adds that even when the effects are negative, they do not necessarily  
reduce or displace the species.  
[
1043] The Province pointed out Dr. Holt agreed and noted that the potential effects  
of a disturbance will vary based on:  
a) the type of disturbance (e.g., single lane road, highway, pipeline);  
b) the frequency of use (e.g., number of vehicles, speed);  
c) the type of impact (e.g., noise, light);  
d) the species of interest (e.g., moose, caribou, beetles); and,  
e) the nature of the surrounding area (e.g., cleared/treed,  
upslope/downslope).  
[
1044] The Province points out with respect to the level of disturbance associated  
with a specific activity, Dr. Johnson confirmed that while there would be a variance  
over any set distance it would decrease the further one moves away. This is referred  
to as the “decay function” – where an animal’s response to a disturbance decreases  
as the distance from a feature increases. For example, the disturbance associated  
with a road would be greater closer to the traffic and lesser further away.  
Yahey v. British Columbia  
Page 294  
[
1045] As a result, the Province says that the impacts of development vary in their  
nature and timing and not all disturbances are “taking up” such that the land cannot  
be used for the exercise of treaty rights.  
[
1046] Blueberry does not disagree with this proposition. Blueberry says, however,  
that the law recognizes that, regardless of these variations, impacts can accumulate  
and converge so as to cause a breach of the substantive promise of Treaty 8. It  
points out the Province has led no evidence to refute the evidence before the Court  
that this accumulation and convergence has now occurred in the Blueberry Claim  
Area.  
[
1047] Much of what the Province says on this point relates to the use of zones of  
influence or buffers in the various reports, datasets, and disturbance layers that are  
in evidence. It says that for some disturbances, there will potentially be no effect  
immediately outside of the actual disturbance, and that in those situations, there  
would be no basis for applying any buffer. The Province criticizes the disturbance  
evidence relied on by Blueberry as it includes zones of influence (i.e., applies  
buffers) of varying distances.  
[
1048] The Province says that the use of zones of influence in measuring the impact  
from the immediate footprint of industrial development is not an established or well  
accepted method.  
[
1049] This position, however, is not supported on the evidence. The concept of and  
measurement of zones of influence objected to by the Province are now routinely  
used by government and other experts in measuring and analysing the impacts of  
anthropogenic disturbance beyond their immediate footprints.  
[
1050] For example, Environment Canada’s “Scientific Assessment to Inform the  
Identification of Critical Habitat for the Woodland Caribou (Rangifer tarandus  
caribou), Boreal Population, in Canada” (2011 update) applied a 500 metre zone of  
influence for anthropogenic disturbance, as did Environment Canada’s “Recovery  
Yahey v. British Columbia  
Page 295  
Strategy for the Woodland Caribou (Rangifer tarandus caribou), Boreal Population in  
Canada” (2012).  
[
1051] Similarly, the Province’s Boreal Caribou Recovery Implementation Plan of  
017 adopted a 500 metre zone of influence and applied it to all forestry cutblocks  
and anthropogenic disturbances.  
2
[
1052] Further, reports applying a 250 metre zone of influence for a variety of types  
of industrial disturbance (cutblocks, roads, seismic lines, etc.) include Sorensen at  
al.’s 2008 Boreal Caribou study in the Journal of Wildlife Management entitled  
“Determining sustainable levels of cumulative effects for boreal caribou”; the  
Thiessen 2009 Report; and the Pasztor and Wilson Report.  
[
1053] Dr. Johnson noted in his expert report that the Environment Canada Boreal  
Caribou work has used a 500 metre buffer instead of the 250 metre buffer used by  
Sorensen et al.  
[
1054] The 2003 Salmo report entitled Blueberry Cumulative Effects Case Study,  
commissioned by the Oil and Gas Commission as part of a cumulative effects  
assessment and management framework for northeast British Columbia, used a 500  
metre zone of influence for all potentially high use features such as roads, pipelines,  
railway lines, well sites, communities and clearings to represent the area were  
reduced habitat effectiveness to occur. Salmo noted that the use of a 500 metre  
zone of influence is considered conservative because avoidance is generally related  
to the level of activity rather than the features themselves.  
[
1055] In addition, the provincial Cumulative Effects Framework noted that high  
suitability habitat for moose is considered to be disturbed if it is within one kilometre  
of gravel or paved roads, or the footprint of a major industrial development.  
Numerous other reports say the same thing.  
[
1056] While I will not review all the scientific reports that supported use of buffer  
zones, I do conclude that use of 250- to 500-metre zones of influence with respect to  
disturbance features is a reasonable approach when assessing disturbance impact  
Yahey v. British Columbia  
Page 296  
and is not an over-representation, as argued by the Province. It is the zone of  
influence that illustrates the level of potential disturbance.  
[
1057] While there is no doubt that applying different buffers will produce different  
results, and that maps applying 500 metre buffers around disturbances will show a  
more drastic effect than those with no buffers, the data and its spatial representation  
along with satellite photos, aerial photos, and on the ground photos, must be  
considered within the context of the evidence as a whole.  
[
1058] The disturbance datasets and disturbance layer have been created as part of  
a collaboration between the Province and Treaty 8 Nations, along with stakeholders.  
The data was intended to be accessed and used for the management of the land. It  
has been subject to quality assurance and cannot be so easily dismissed. The  
Province, which is the custodian of this data, has not shown any great magnitude to  
their criticisms. The evidence therefore must be given significant weight with  
awareness of the limitations expressed.  
F.  
Do the Disturbances Constitute Lands Taken Up?  
Province’s Position  
1059] I will now deal with the Province’s argument that not all disturbances  
1
.
[
constitute lands “taken up” as, despite the disturbances evident by the data,  
Blueberry members can still exercise their treaty rights. This has largely been dealt  
with in the section outlining the members’ evidence on this point, but I reiterate a few  
points here.  
[
1060] It must be recalled that the text of Treaty 8 provides that the signatories and  
adherents to the Treaty have the right to hunt, trap and fish through the tract  
surrendered “saving and excepting such tracts as may be required or taken up from  
time to time for settlement, mining, lumbering, trading or other purposes.” This has  
been described by the Supreme Court of Canada in Badger, as the “geographic  
limitation” on the exercise of treaty rights (at para. 40).  
 
 
Yahey v. British Columbia  
Page 297  
[
1061] In Badger, Justice Cory reasoned that the Indigenous signatories to Treaty 8  
would have understood that land had been “required or taken up” when it was visibly  
being put to a use that was incompatible with the exercise of their rights (at paras.  
5
3-54). This has become known as the “visible incompatible use” test. Whether or  
not land has been “taken up” or remains “unoccupied” (which is the language used  
in the NRTA, which does not apply in this case) is a question of fact to be resolved  
on a case-by-case basis (at paras. 57-58).  
[
1062] The Province says that certain disturbances such as clearcuts and  
subsurface development do not constitute lands that have been taken up, since  
Blueberry members can continue to exercise their rights in these places. The  
Province’s position seems to be contrary to the plain language of Treaty 8 which, on  
its face, suggests lands are “taken up” when required for, among other things,  
mining and lumbering purposes. I will, however, go on to consider whether lands that  
have been clearcut, or are the site of subsurface exploration or development, are  
being put to a use which is a “visible, incompatible use” with the exercise of treaty  
rights. This analysis will show that, in my view, there are sufficient indicia to suggest  
these lands, and the roads used to access them, are being put to a use which is  
incompatible with the exercise of treaty rights and thereby “taken up.”  
2
.
Analysis and Conclusions  
[
1063] In Badger, the Court referred to the following indicia that lands had been  
taken up: buildings or fences having been erected on the lands, the lands being put  
into crops, the presence of farms or domestic animals, and physical signs  
manifesting exclusionary land use (at paras. 23, 53, 67, 68). The presence of  
abandoned buildings, however, would not necessarily signify to Indigenous people  
that land was taken up in a way that precluded hunting (at para. 53).  
[
1064] Blueberry members including Jerry Davis, Georgina Yahey and Wayne Yahey  
testified that logging roads by their nature serve to exclude Blueberry members from  
accessing areas they used to hunt and trap. These roads were described as being  
 
Yahey v. British Columbia  
Page 298  
heavily trafficked and very dangerous, as they are frequented by large logging trucks  
and other industrial vehicles. These tend to be radio-controlled and monitored roads,  
meaning those travelling on them are required to tune into particular radio channels  
and periodically report their locations. This poses a barrier and a risk for a lot of  
Blueberry members. Georgia Yahey testified as follows:  
…
it’s radio controlled, so these radios cost from up – I don’t know, $500  
dollars to $1,000. So … even when we go hunting I have to have a radio. And  
there is a lot of families that can’t afford these radios and they just take a  
chance. And it’s so scary out on those roads. Even I had a radio I almost got –  
this huge logging truck almost ran me over. It ran me literally off the road. If I  
didn’t do that he probably would have hit me.  
[
1065] Wayne Yahey testified that the presence of road monitors deters members  
from accessing the places they used to harvest, and is understood as an  
exclusionary sign – that the lands are being used by others.  
…
the traffic will only increase… as there’s more development there the traffic  
obviously increased a lot. … where they had road monitors on these roads.  
Road monitors are people from the industry that stop you if you’re on that  
road, and they ask you if you have … a truck radio and what are you doing on  
that road.  
And based on those factors, a lot of people from my community, especially  
the elders that go back into their trapline, when the road monitors – they call  
them road cops from industry – stop them, and then they will have no radio  
and then they will tell them that they have to leave that area. And most of  
these elders don’t understand that, that they have to call the kilometres  
because the road is so busy. So every 2 kilometres you would have to call on  
the radio, saying your whereabouts on that road.  
So when they tell the elders that, and the elders, they come back to us and  
they are pretty frustrated and obviously mad and discouraged, they said  
that’s my trapline area. That’s where I grew up. That’s where I was born. And  
these people tell me I can’t go back there.  
But we have to explain to them that’s industry, they have their road monitors,  
and then they kind of monitor. But from there they don’t go back. They say  
I’m not going back there.  
That discourages them from going back because they get stopped and they  
told them you can’t be on this road. So they kind of – they kind of get  
frustrated. And they said this is where I grew up, this is – this is my birthplace.  
…
when it’s busy on the road that’s what they have, they have road monitors.  
Every vehicle that comes in, wherever it be. And if they are a hunter without a  
Yahey v. British Columbia  
Page 299  
road – without a radio, they would stop you and they said you have to leave  
because you don’t have a radio.  
[
1066] Georgina Yahey also testified about the signs she has encountered  
throughout the Blueberry Claim Area, photographs of which were entered into  
evidence. These signs note: no shooting areas, poisonous gas areas, high vehicle  
traffic areas, that people are working in the area, hard hat areas, that use of radios is  
required and that drivers are advised to drive defensively. These kinds of signs  
indicate that these areas have been taken up and are not available for harvesting,  
and, moreover, that it would be dangerous to do so. Ms. Yahey’s evidence was that  
when she sees such signs at areas where she used to hunt, she does not continue  
to hunt there anymore. For her, the signs are warnings of how dangerous and busy  
these areas are.  
[
1067] While there may not be “no trespassing” signs or fences in a clearcut, it goes  
without saying that, when forests have been clearcut, the land is fundamentally  
altered – the forests are gone. This is the central sign to Blueberry that the land has  
been put to a use that is visibly incompatible with the exercise of its rights.  
[
1068] The habitat that supported wildlife is gone, and may take decades to return in  
terms of supporting the biodiversity it once did. Under the Province’s current  
approach to forestry management and allowing for the harvesting of adjacent  
clearcuts, all that is left are “wildlife tree patches” or “little islands” of forests,  
surrounded by vast cleared areas of consecutive clearcuts. Moreover, as noted by  
Blueberry, with a focus on converting natural forests to managed plantations,  
forestry companies may actively suppress regrowth by applying herbicide  
treatments, undertaking manual thinning, replacing the natural mixed forests with  
limited species crop plantations, and engaging in other silviculture practices.  
[
1069] Quite aside from whether a disturbance such as a clearcut legally or factually  
constitute lands taken up, the Court is to consider whether these are places within  
Blueberry’s territory where members can meaningfully exercise their rights. The  
Province’s arguments overlook this point.  
Yahey v. British Columbia  
Page 300  
[
1070] Blueberry members repeatedly referred to the “damage” done by clearcutting.  
They testified that clearcuts left to regenerate are, for many years, virtually  
impassable for moose, because the deciduous trees grow in so thick. As a result,  
moose are largely gone from clearcuts.  
[
1071] The members’ evidence summarized in these reasons indicates that  
Blueberry members do not hunt in clearcuts. With both the forests and wildlife  
largely gone, this is not surprising. While a member may opportunistically shoot a  
moose by the side of the road, this was not part of their traditional way of life.  
[
1072] On this point, I do not agree that Blueberry did not canvass the community for  
evidence of the collective exercise of treaty rights. The Province appears to seek to  
draw an inference or imply that if Blueberry had done so, evidence of the regular  
exercise of treaty rights would have been present. This inference or implication is  
without foundation.  
[
1073] The Province did not pose the question of why more Blueberry members did  
not testify to any of the witnesses; several of the witnesses, on account of their  
leadership positions, could have answered that question. Members of Blueberry  
testified about their ability to exercise treaty rights in previous times and in the  
current context. Those members included skilled hunters and generally appeared to  
represent a broad section of the membership.  
[
1074] When members have returned to important hunting or trapping places only to  
find them clearcut, they experience a sense of loss. These are not places where  
they then continue to exercise their rights. As Wayne Yahey testified:  
…
Other areas were being developed heavy. So it’s kind of like these other  
areas were being – there was major development in terms of logging. So that  
kind of – when there’s areas like that to the Dane-zaa people, when there’s  
heavy development in an area like that, we don’t frequent those – we don’t go  
there. It’s like I said, it makes them angry, it makes them hurt.  
They don’t want to go see a place where they remember it was a special  
place at one time and when they go back there, it just bothers them. They  
don’t want to go back there when there’s that development.  
Yahey v. British Columbia  
Page 301  
[
1075] From Blueberry’s perspective these disturbances are areas where they  
cannot exercise their rights in a meaningful way. On closer examination, it is clear  
that overall while a minor disturbance may not have an impact and therefore be a  
taking up, it must be recalled that this is a cumulative impacts case, and the  
combination of these disturbances has created the adverse impact on treaty rights  
argued by Blueberry. The Province’s argument that not all disturbances constitute a  
taking up as Blueberry members can still exercise their treaty rights in places such  
as clearcuts is without merit.  
[
1076] In view of all of this, I have concluded that, the landscape over which  
Blueberry is seeking to exercise its treaty rights has been significantly impacted by  
industrial development. As reflected in the 2016 Atlas and the Regional Strategic  
Environmental Assessment disturbance data from 2018, 73% to 85% of the  
Blueberry Claim Area is within 250 metres of a disturbance, and between 84% to  
9
1% of the Blueberry Claim area is within 500 metres of a disturbance.  
[
1077] That scale, even give or take a percent or more, is fundamentally not what  
was agreed to at Treaty. The promise was not to interfere with the exercise of treaty  
rights. As Blueberry has argued, that is both a freedom “from” and a freedom “to”  
and it requires a certain level of proactive protection. Blueberry needs places to  
exercise its rights and an opportunity to harvest healthy wildlife. These conditions  
are not being met in this landscape where, according to 2018 data, over 90% of the  
Blueberry Claim Area is within 500 metres of a disturbance.  
G.  
Blueberry Members’ Ability to Exercise Treaty Rights  
Introduction  
1078] As I have noted, this is a novel case. Aboriginal and treaty rights, and the  
1
.
[
infringement of these rights, have often been considered in the context of regulatory  
prosecutions (Sparrow; Van der Peet; Badger). The applicable tests have been  
developed in that setting. To date, the cases in which Indigenous people have  
 
 
Yahey v. British Columbia  
Page 302  
alleged infringements of their Aboriginal and treaty rights have focussed on single  
authorizations or specific provisions in statutes and regulations.  
[
1079] In this case, Blueberry alleges that the cumulative impacts from a range of  
provincially authorized activities, projects and developments associated with oil and  
gas, forestry, mining, hydroelectric infrastructure, agricultural clearing and other  
activities (which I refer to here as industrial development), within and adjacent to  
their traditional territory have resulted in significant adverse impacts on the  
meaningful exercise of their treaty rights.  
[
1080] Despite these disturbances in their territory, the Province has argued that  
there is no infringement or breach of the Treaty because Blueberry members  
continue to exercise their treaty rights in a meaningful way both inside and outside  
the Blueberry Claim Area. In support of this proposition, the Province draws the  
Court’s attention to specific evidence given by Chief Marvin Yahey in examination for  
discovery and by Blueberry members in direct and cross-examination. This  
evidence, it says, confirms the members’ ability to continue to meaningfully hunt,  
trap, fish, and gather and to pass these skills and knowledge on to younger  
generations. The Province argues strongly that this specific evidence counters  
Blueberry’s overly broad statements that members are unable to hunt, trap and fish  
and that their rights have been infringed.  
[
1081] In addition, the Province points out that Blueberry decided not to call some of  
its most successful hunters and trappers as witnesses at trial. The Province says the  
Court, therefore, has only selective and individualistic evidence from seven  
members about the exercise of treaty rights. Nor did Blueberry survey its members  
or update the study done by Mr. Brody in the early 1980s to provide the Court with  
evidence of where and how treaty rights are being exercised today. The Province  
also argues that Blueberry has focussed on difficulties in hunting moose and  
caribou, while overlooking other species on which Blueberry continues to rely such  
as deer, elk, buffalo, sheep, lynx and beaver.  
Yahey v. British Columbia  
Page 303  
[
1082] The Province also suggests that if Blueberry members are hunting, trapping  
or fishing less frequently or successfully than they used to, this is because of  
community dynamics and personal decisions or is a matter of perception, and is not  
an infringement. The Province suggests that many of Blueberry’s most successful  
hunters are now too old to hunt or have died, that members don’t have time to hunt,  
and that the younger generation is more interested in other activities. As for trapping,  
the Province suggests that members are trapping less as the market for furs has  
dropped.  
[
1083] The Province recognizes that hunting, trapping and fishing may be more  
difficult today, but it emphasizes that the Treaty does not guarantee that Blueberry  
members will have success in hunting, fishing or trapping. In any event, the Province  
says that members are still able to carry out what is important to them, and that their  
success rates (for example, an estimated 25% success rate in moose hunting) are  
the same as they were in the 1960s.  
2
.
Province’s Appendices 1 and 2  
[
1084] The specific evidence relied on by the Province, which it says rebuts  
Blueberry’s broad arguments about infringement and the inability to exercise treaty  
rights, is summarized in Appendices 1 and 2 of the Province’s final written argument.  
[
1085] Appendix 1 is a compendium of some of the evidence given by Blueberry  
members in direct and cross-examination regarding their activities on the land. The  
Province’s cross-examination of the Blueberry members who testified at trial was  
largely focussed on interviews that five of the witnesses had done for knowledge and  
use studies (also sometimes referred to as traditional use studies) relating to  
particular projects. In Yahey v. British Columbia, 2018 BCSC 123, I ruled that  
transcripts of these interviews should be disclosed, as they were pertinent and  
probative. Appendix 1 also includes information from the examination for discovery  
of Chief Marvin Yahey, who did not testify at trial. Certain portions of that  
examination of discovery were, however, read into the record.  
 
Yahey v. British Columbia  
Page 304  
[
1086] The information included in Appendix 1 is organized on a year-by-year basis  
and indicates that Blueberry members participated in the following activities:  
a) 2019: picking berries; attending cultural events including culture camps;  
fishing at Billy’s Hole at Pink Mountain and along the Peace River; hunting  
for moose in and around the Graham River, Sikanni River, Pink Mountain,  
Alaska Highway, Lily Lake, Carbon Lake, and Butler Ridge; hunting elk at  
Pink Mountain; eating moose every day; observing caribou near Marion  
Lake Pass; and, teaching skills to younger generations;  
b) 2018: picking berries around the Tommy Lakes and Fort St. John areas;  
observing moose at Inga Lake; hunting sheep; fishing at Billy’s Fishing  
Hole; and, trapping at the Yahey family trapline;  
c) 2017: hunting moose and sheep, and trapping lynx and fisher at Pink  
Mountain; berry picking, hunting and trapping at Tommy Lakes; berry  
picking at Lily Lake and in and around Fort St. John; attending culture  
camp; and, carrying out spiritual practices at the Dancing Grounds;  
d) 2016: visiting popular fishing locations near Sikanni River falls; observing  
beaver dams on the Beatton River; noticing signs of moose, elk and  
buffalo at Pink Mountain; hunting deer at Pink Mountain and Farrell Creek;  
hunting deer and elk around Lily Lake and the Beatton River; hunting  
sheep at Rocky Creek Pass (west of Pink Mountain); collecting medicinal  
plants along the Beatton River; camping near the Graham River, Carbon  
Lake and Mile 5 of the Beatton Airport Road; cutting a trail near Mile 5;  
drinking from a spring at the Dancing Grounds; attending culture camps;  
and, teaching skills to younger generations;  
e) 2015: camping and hunting moose in the Beatton area; hunting elk and  
deer along the Beatton River Road near Mile 73, Butler Ridge, Beryl  
Prairie, and Farrell Creek; hunting moose northeast of Chetwynd, west of  
Hudson’s Hope, north of the Williston Reservoir, Addick Creek Road, and  
Yahey v. British Columbia  
Page 305  
Umbach; hunting sheep and elk west of Pink Mountain; noticing mineral  
licks in the Umbach area; and, teaching skills to younger generations;  
f) 2014: hunting buffalo, elk, moose and sheep in the Pink Mountain area;  
observing caribou west of Pink Mountain Ranch; hunting deer southwest  
of Fort St John; hunting moose near Inga Lake, north of Fort St. John,  
towards the Beatton River, and south of Lily Lake; hunting deer near the  
Reserve; hunting sheep and moose at Butler Ridge; visiting the Dancing  
Grounds for spiritual sustenance and camping; fishing along Pink  
Mountain Road, the Halfway River, McQue Flats, and Dunlevy Inlet.  
g) 2013: camping and fishing at the Chowade River and Graham River; and,  
noticing good habitat for moose and other wildlife west of Chetwynd,  
around Beattie Peaks and Carbon Creek;  
h) 2012: picking berries near Carbon Lake and near Pink Mountain; camping  
in the Sukunka River area; fishing southeast of Chetwynd; hunting moose  
north of Lily Lake; hunting in the Halfway River Valley; hunting moose  
along a pipeline right of way of the Beaton River Road;  
i) 2011: hunting moose and elk in the Hudson’s Hope and Halfway River  
areas up to Pink Mountain; hunting sheep and elk in the Sikanni River  
area; hunting elk near the Reserve; hunting elk at Pink Mountain; hunting  
moose at Tommy Lakes; teaching skills to younger generations; attending  
culture camp at Pink Mountain; and,  
j) 2008-2010: camping in the Addick Creek area and observing signs of  
moose and mineral licks; hunting moose in the Wolfe/Davis trapline area;  
fishing near Hudson’s Hope and on the Halfway River; hunting and berry  
picking in cutblocks; camping, fishing and berry picking in the Monkman  
Park area; camping on the Sikanni River area and observing mineral licks  
in this area.  
Yahey v. British Columbia  
Page 306  
[
1087] In addition, the Province has prepared Appendix 2, which it describes as a  
summary of the evidence given by members about their ongoing and continued use  
of areas inside and outside the Blueberry Claim Area. Appendix 2 is more detailed  
than Appendix 1. It categorizes the evidence regarding hunting, trapping, fishing,  
camping, gathering, and spiritual activities into the areas where these activities took  
place both within and outside the Blueberry Claim Area, and appends a map.  
Appendix 2 points to evidence of Blueberry members exercising their treaty rights in  
the following places:  
a) Central or core areas, including the Dancing Grounds, Beatton River,  
Aitken Creek, Inga Lake, Prespatou, Wonowon, Mile 5;  
b) Northwest areas, including Pink Mountain, Lily Lake, Sikanni Chief River,  
Upper Halfway River, McQue Flats;  
c) Northeast areas, including the Tommy Lakes area and various traplines;  
d) Southeast areas, including Fort St. John and Charlie Lake;  
e) Southwest areas, including the Peace River, Butler Ridge, Dunlevy Creek,  
Farrell Creek, and Cameron Lake; and,  
f) Areas outside the Blueberry Claim Area, mostly south and west of the  
Blueberry Claim Area.  
[
1088] Much of what is included in these appendices is information that was provided  
by Blueberry members for the purposes of preparing traditional use studies relating  
to various proposed pipeline projects. These studies are often completed as part of  
the consultation process, as a means of providing further information about a First  
Nation’s use of an area within a project’s footprint, including how frequently an area  
is used, and the importance of the area to the First Nation.  
[
1089] When consulting with Blueberry about projects that are proposed for a  
location within or adjacent to its traditional territory, the Province will often solicit  
such information and use it to inform the scope of the duty to consult. See, for  
Yahey v. British Columbia  
Page 307  
example, Mr. Recknell’s May 26, 2014 (discussed earlier in these reasons)  
regarding consultation area boundaries, where he noted that “[i]nformation about  
current use, including how frequently an area is used and whether there are any  
unique or special characteristics of the area, will also inform the Province’s scope of  
the duty to consult in Area A.”  
[
1090] The purpose of putting forward evidence of First Nation’s knowledge and use  
is to show the decision-maker the importance of the area to the First Nation, to  
attract a deeper level of consultation, to have meaningful discussions about the  
project and how to avoid impacts on the exercise of rights, and to potentially reach  
agreement or accommodation in relation to the proposed project.  
[
1091] It is therefore not surprising that Appendices 1 and 2 read as an inventory of  
activities undertaken by certain Blueberry members inside and outside the Blueberry  
Claim Area over the last approximately 10 years. The witnesses were responding to  
questions about when and where they had hunted, trapped, fished, camped and  
undertaken other cultural activities over the years.  
[
1092] Notably, neither Appendix 1 nor Appendix 2 refers to the multitude of  
evidence given by Blueberry members about the difficulties they have experienced  
in trying to exercise their rights to hunt, trap or fish; the observations they have made  
about impacts or changes to the landscape and wildlife; the significance of any of  
these changes on their way of life; their concerns about potential future impacts;  
and, their general sense of loss.  
3
.
Analysis and Conclusions  
[
1093] Blueberry has the burden of proving, on a balance of probabilities, the nature  
of its treaty rights, and that they have been infringed.  
[
1094] The civil standard of balance of probabilities has been described as proof by  
a preponderance of probability. The application of the standard will depend on the  
nature of the case. In Mitchell, Chief Justice McLachlin stated that “…[C]laims must  
 
Yahey v. British Columbia  
Page 308  
be proven on the basis of cogent evidence establishing their validity on the balance  
of probabilities. Sparse, doubtful and equivocal evidence cannot serve as the  
foundation for a successful claim” (at para. 51). Chief Justice McLachlin went on to  
note that indisputable evidence is not required to establish an Aboriginal right, but  
neither should the claim be established on the basis of evidence that is inevitably  
scarce (at para. 52).  
[
1095] The Supreme Court of Canada has also recognized that, in Aboriginal and  
treaty rights cases, a sensitive application of evidentiary principles is needed, in  
order to take into account the difficulties of proof of historical facts (Simon at para  
4
1). In Sparrow, the Court reasoned it was “crucial to be sensitive to the aboriginal  
perspective itself on the meaning of the rights at stake” (at 1078). In Delgamuukw,  
Chief Justice Lamer emphasized that Aboriginal rights are sui generis and “demand  
a unique approach to the treatment of evidence which accords due weight to the  
perspective of aboriginal peoples” (at paras. 82, 84).  
[
1096] These statements about evidence, perspective, and weight relate primarily to  
the determination of the right, but are also relevant to the court’s determination of  
infringement. Giving appropriate weight to the evidence given by Blueberry members  
about the impacts to the exercise of their rights is part of being sensitive to  
Blueberry’s perspective on the “meaning of the rights at stake.”  
[
1097] I am cognizant that Blueberry members have provided evidence that they  
continue to hunt, fish and trap, and have spoken about where, when and how they  
do these activities. As dots on a map, these specific instances of Blueberry  
members hunting moose, trapping lynx, fishing or picking berries may seem to paint  
a picture that treaty rights can and are being exercised, and that by virtue of this,  
their exercise must be meaningful. But it is not the whole picture.  
[
1098] The Province has highlighted only one aspect of the evidence given by  
Blueberry members about the exercise of their rights. What it has chosen not to  
Yahey v. British Columbia  
Page 309  
highlight is the evidence provided by those same members about the impacts and  
loss they are already experiencing.  
[
1099] I am mindful of the consistent themes echoing through each of the witnesses’  
testimony. They are not able to exercise their rights as they used to. They cannot  
access the preferred hunting, trapping and fishing places within the core of their  
territory, and have to travel further from their homes and even to areas outside of the  
Blueberry Claim Area to find signs of wildlife. The habitat has been fragmented,  
polluted, and in some cases has disappeared. The wildlife are not as healthy or  
abundant. They do not have peaceful enjoyment on their traplines or in their hunting  
areas, as they smell the sour gas and hear the drones of oil and gas infrastructure.  
They do not feel safe or welcome in their territory. I am also cognizant that the  
evidence given by Blueberry members is supported by and reflected in scientific and  
technical data and maps which indicates the level of disturbance within the  
Blueberry Claim Area.  
[
1100] The evidence on these points is not just of a general nature, as the Province  
argues. Witnesses, including Georgina Yahey and Wayne Yahey, provided specific  
examples of finding that areas where they used to collect medicinal or other plants  
had been cleared, and needing to look for other places where they could harvest  
these important items. They and other witnesses testified about difficulties in  
accessing hunting and trapping places in several areas, including near the Reserve,  
Aitken Creek, Mile 98 and the Beatton Airport Road, because of development,  
forestry, oil and gas infrastructure, and fenced private lands. Wayne Yahey spoke  
about returning to the Yahey trapline to find it almost entirely clearcut, and being  
able to see from one end of the trapline to the other, with no forests around it.  
Raymond Appaw spoke about not being able to fish for suckers in Charlie Lake, as it  
has essentially been turned into a sewer.  
[
1101] Kayden Pyle and Mr. Yahey testified about how they and Blueberry elders felt  
unwelcome in their territory. Witnesses testified about having difficulty finding safe  
Yahey v. British Columbia  
Page 310  
places to hunt, and being concerned about the potential of hitting oil and gas  
infrastructure.  
[
1102] Jerry Davis and Ms. Yahey testified about no longer being able to drink the  
water from the creeks, or which they used to dig from muskeg. Witnesses, including  
Norma Pyle and Kayden Pyle, testified about seeing fewer moose tracks and more  
clearcuts. They spoke about the smell of sour gas and the drone of compressors  
and other oil and gas infrastructure which affects and their peaceful enjoyment. They  
spoke about moose licks being destroyed by vehicles or development, or drying up.  
While the Province maintains that one of the moose licks at issue is now restored,  
and brought evidence and photos to reflect that, its destruction had both an  
emotional and a direct and significant effect on hunting rights for some time.  
[
1103] All these specific incidences of impacts add depth to what Blueberry  
members are experiencing – it qualifies their loss – and supports Blueberry’s  
allegations that their rights have been infringed.  
[
1104] Moreover, the inventory included in the Province’s Appendices 1 and 2 also  
supports Blueberry’s allegations of infringement, as it is clear that much of the  
hunting and fishing is occurring outside of the core territory, in and around Pink  
Mountain, and also beyond the Blueberry Claim Area.  
[
1105] Blueberry has not alleged that members no longer hunt, trap, fish or gather  
within their traditional territories; nor do they need to show that they have ceased  
exercising their treaty rights in order to make out their infringement claim. The  
allegation is that their treaty rights have been infringed because they can no longer  
meaningfully exercise their treaty rights as their way of life has been significantly  
diminished.  
[
1106] The evidence is that it is harder to hunt, trap, fish and gather as there are  
fewer places to do so, fewer animals, and more disturbances; and, yet Blueberry  
members do still hunt, trap, fish and gather. This does not mean that the impacts are  
not real or have not been proven. Rather, this shows that Blueberry members are  
Yahey v. British Columbia  
Page 311  
trying, as best they can, to continue their way of life – to help elders get moose  
meat, to use the traplines that have been in their families for generations, and to  
show their children and grandchildren how to camp, hunt, trap and fish, even if they  
cannot do so at the same places where they were first taught.  
[
1107] The law does not require that Indigenous people stop trying to exercise their  
treaty rights. Rather, Blueberry members’ ongoing efforts to exercise treaty rights  
shows just how important these rights are to them. Even though there are fewer  
opportunities to engage in these activities in the core of their territory, they continue  
to try to do so and are willing to go further afield to hunt and to search out the areas  
for peaceful enjoyment.  
[
1108] I do not accept the Province’s argument that Blueberry’s lack of success is  
due to personal circumstances, the fact that people are working as part of the wage  
economy and have less opportunities to hunt and trap, or that the younger  
generation is not interested in continuing this way of life. Mr. Brody’s study in the late  
1
970s and 1980s indicated that members were participating in the wage economy  
then too, and were hunting on evenings, weekends and during breaks. The same is  
true now.  
[
1109] As for youth being less interested in these pursuits, Kayden Pyle, the  
youngest Blueberry member who testified, spoke eloquently about how he truly feels  
like himself when he is on the land, and about the importance to him of continuing to  
hunt and fish as his parents and grandparents did. If other youth are not inclined to  
take up these pursuits it is likely, as Jerry Davis testified, because the state of the  
landscape and wildlife is dissuading them. They watch their family members scout  
for wildlife and not find any, and are losing hope and interest.  
[
1110] While, as noted by the Province, Kayden Pyle and Jerry Davis each shot their  
first moose at around the same age and in the same approximate area, the  
similarities in their experiences on the land as young people – over 55 years apart –  
end there. Mr. Davis, in particular, testified at length about how the land he once  
Yahey v. British Columbia  
Page 312  
knew has been “destroyed” and how he worries about the opportunities that will exist  
for younger generations.  
[
1111] It is not simply a quantitative analysis of the number of times members hunt,  
fish or trap, but about the quality and meaning of Blueberry’s experience on the  
lands. The Province’s arguments overlook this. For example, the Province points to  
Chief Yahey’s evidence in examination for discovery where he stated that there was  
no longer peaceful enjoyment on 80% of the Yahey trapline area because of forestry  
and oil and gas activities. The Province says this means that 20% of the Yahey  
trapline retains peaceful enjoyment.  
[
1112] Assessing and weighing the evidence to make a determination of whether  
there is a prima facie infringement is not a mathematical exercise. As Blueberry said  
in oral argument, it is not about starting at zero (i.e., no exercise of treaty rights) and  
counting up to find instances of the rights being exercised.  
[
1113] I must consider the evidence as a whole, and consider the Indigenous  
perspective. I do not accept that the only conclusion to be drawn from the specific  
instances of the exercise of rights referred to by the Province is that the rights have  
not been infringed. The members’ evidence of loss, together with the disturbance  
data and evidence about the status of wildlife populations in the Blueberry Claim  
Area, supports a finding that there has been a significant and meaningful  
diminishment in the Plaintiffs’ way of life, and that their treaty rights to hunt, trap and  
fish have been infringed.  
[
1114] The eloquent and persuasive evidence of the Blueberry members called in  
this case considered alongside the scientific and technical evidence, has provided  
more than a sufficient base from which the Court can rule on the scope of the rights  
and impacts to them.  
Yahey v. British Columbia  
Page 313  
H.  
Conclusions in Brief  
[
1115] An important part of my task is to consider whether “the time [has come]” –  
that is, whether, for Blueberry, no meaningful rights to hunt, fish or trap remain over  
its traditional territories (Mikisew at para. 48).  
[
1116] On the basis of all this evidence and my findings, I conclude that the time has  
come, the tipping point has been reached, and that Blueberry’s treaty rights (in  
particular their rights to meaningfully hunt, fish and trap within the Blueberry Claim  
Area) have been significantly and meaningfully diminished when viewed within the  
way of life in which these rights are grounded.  
[
1117] I will not repeat my findings, which have been set out in detail earlier, but I  
have assessed meaningfulness, along with my findings in this context and with  
respect, particularly, to Blueberry’s way of life. In view of my findings with respect to  
the state of disturbance in the Blueberry Claim Area, the status of the wildlife,  
Blueberry members’ testimony and other evidence about their ability to exercise their  
treaty rights within a meaningful mode of life, I conclude that the Treaty’s promise  
has been infringed. I note in brief as follows:  
1
.
Way of Life  
[
1118] Blueberry’s Dane-zaa way of life is connected to and dependent on the land  
and wildlife. Blueberry members have, for centuries, moved throughout the territory  
on a seasonal basis to take advantage of the available resources. They continue this  
practice today. Blueberry members plan and schedule hunting, trapping, fishing and  
gathering activities to ensure a steady supply of game, fish and plant resources, and  
to allow areas to rejuvenate. Members have intimate knowledge of the areas within  
the territory and their resource potential.  
[
1119] While some change may be expected, this way of life depends on the  
existence of healthy mature forests, a variety of wildlife habitats, fresh clean water,  
and access to these places. It requires a relatively stable environment, so that the  
 
 
Yahey v. British Columbia  
Page 314  
knowledge held by Blueberry members about the places to hunt, fish and trap stays  
relevant and applicable.  
2
.
Disturbance  
[
1120] Over the last decade or more, Blueberry members have had to exercise their  
rights over a landscape that is becoming increasingly disturbed from a range of  
industrial development, including forestry, oil and gas, mining, hydro-electric  
infrastructure, land clearing, roads and other impacts.  
[
1121] The “core” of the Blueberry Claim Area has, since the late 1990s, been zoned  
as an enhanced resource development zone, available for high intensity  
development. The Province has, accordingly, been encouraging investments and  
enhancements in resource development in this area. Both forestry and oil and gas  
development has focussed on this core area.  
[
1122] By 2016, 73% of the Blueberry Claim Area was within 250 metres of an  
industrial disturbance. By 2018, disturbance had increased such that 85% of the  
Blueberry Claim Area was within 250 metres of an industrial disturbance.  
Disturbance has a direct impact on the sustainability of wildlife and quality of life for  
Blueberry members. This includes both the loss of habitat and the increasing  
anthropogenic presence which impacts on Blueberry’s ability to hunt, fish and trap.  
[
1123] As but one striking example, there is less than 14% intact forest landscape  
within the Blueberry Claim Area.  
3
.
Wildlife  
[
1124] The wildlife Blueberry hunts and traps including moose, caribou, and smaller  
furbearing species, depend on a mix of habitat – contiguous forested areas, old-  
growth forests as well as younger forests and shrublands. The wildlife are all  
affected by disturbances to the land.  
 
 
Yahey v. British Columbia  
Page 315  
[
1125] Moose populations in the central part of the Blueberry Claim Area have  
declined, and habitat disturbance in the form of anthropogenic disturbance, including  
industrial development, is the likely cause of that decline.  
[
1126] Caribou populations in the Blueberry Claim Area have also declined with  
certain populations at risk of extirpation. Anthropogenic disturbance is a significant  
cause of that decline.  
[
1127] Populations of smaller fur bearing species such as marten and fisher have  
declined in the Blueberry Claim Area, likely due to forestry activities.  
[
1128] As members of Blueberry testified, the state of these wildlife populations,  
along with the state of the land, is significantly diminishing Blueberry’s ability to  
exercise its hunting and trapping rights in its territory in a manner consistent with its  
way of life.  
4
.
Infringement  
[
1129] The evidence from Blueberry members about the loss of their ability to  
exercise their rights as part of their way of life, together with the evidence about the  
disturbance of the land and the status of wildlife populations in the Blueberry Claim  
Area, leads me to conclude that the time has come that Blueberry can no longer  
meaningfully exercise its treaty rights in the Blueberry Claim Area. Their rights to  
hunt, fish and trap within the Blueberry Claim Area have been significantly and  
meaningfully diminished when viewed within the context of the way of life in which  
these rights are grounded.  
[
1130] Their way of life which is dependant on healthy mature forests, a variety of  
wildlife habitats, fresh clean water and access to these places are threatened by the  
level of disturbance from industrial development in the Blueberry Claim Area. Their  
ability to hunt, fish and trap in this context is also threatened.  
[
1131] I conclude due to the level of “taking up” caused by Provincially authorized  
activities, including resulting disturbance, the impact on the wildlife, and the  
 
Yahey v. British Columbia  
Page 316  
evidence of Blueberry members that there are not sufficient and appropriate lands in  
Blueberry’s traditional territories to permit the meaningful exercise of their Treaty  
rights.  
[
1132] I conclude therefore that Blueberry members’ rights to hunt, fish and trap as  
part of their way of life have been significantly and meaningfully diminished.  
Blueberry’s rights under Treaty 8 have therefore been infringed.  
[
1133] I now turn to the Crown’s obligations with respect to Treaty 8, and whether  
the Province has fulfilled those obligations. I will briefly reiterate the jurisprudence  
and then deal with the specifics of the allegations concerning the Province’s land  
management and natural resources regulatory framework.  
VIII. HAS THE PROVINCE DILIGENTLY IMPLEMENTED THE TREATY?  
A.  
Overview  
[
1134] In addition to seeking a declaration that the Province has infringed some or all  
of its treaty rights, Blueberry is seeking declarations that the Province:  
a) breached its obligations to Blueberry under the Treaty; and  
b) breached its fiduciary obligations to Blueberry.  
[
1135] In particular, Blueberry argues that the Province breached its obligations  
under the Treaty by failing to diligently implement the Treaty’s promise to protect  
Blueberry’s rights and way of life from the encroaching cumulative impacts of  
industrial development. These arguments are based on the honour of the Crown and  
(to a lesser extent) the Crown’s fiduciary duty.  
[
1136] As I discussed earlier, the honour of the Crown is a foundational principle of  
Aboriginal law and governs the relationship between the Crown and Indigenous  
peoples (Mikisew 2018, at paras. 21-22). The principle of the honour of the Crown is  
understood as arising from the Crown’s assertion of sovereignty and de facto control  
over lands and resources in the face of pre-existing Aboriginal sovereignty. This  
 
 
Yahey v. British Columbia  
Page 317  
tension of conflicting sovereignties has created a special relationship between the  
Crown and Indigenous peoples that requires the Crown to act honourably in all its  
dealings.  
[
1137] The principle of the honour of the Crown was referred to in jurisprudence  
dealing with the relationship between the Crown and Indigenous peoples as far back  
as 1895. In Province of Ontario v. The Dominion of Canada and Province of  
Quebec, [1895] 25 S.C.R. 434 – a case concerning the Robinson Huron Treaty and  
the Robinson Superior Treaty – Justice Gwynne of the Supreme Court of Canada  
(
writing in dissent) evoked the concept of the honour of the Crown to explain the  
Crown’s approach to treaty making and interpretation. He noted that when entering  
into treaties with Indigenous peoples dealing with the surrender of their lands, the  
terms to be performed by the Crown “have always been regarded as involving a trust  
graciously assumed by the Crown to the fulfillment of which with the Indians the faith  
and honour of the Crown is pledged, and which trust has always been most faithfully  
fulfilled as a treaty obligation of the Crown.” The idea that the honour of the Crown is  
pledged to the fulfilment of its obligations to Indigenous peoples has been repeated  
and accepted by the Supreme Court of Canada, including in Mikisew.  
[
1138] The principle of the honour of the Crown underpins and is relevant to all  
aspects of the Crown’s relationship with Indigenous peoples including: the discharge  
of its fiduciary duty when the Crown assumes discretionary control over specific or  
cognizable Aboriginal interests; the negotiation, interpretation and implementation of  
treaties; the duty to consult and accommodate; and the justification of infringements  
of Aboriginal and treaty rights and title.  
1
.
Review of Jurisprudence  
[
1139] In the paragraphs below, I review some of the key jurisprudence on both the  
honour of the Crown and the Crown’s fiduciary obligations. This is important  
backdrop for Blueberry’s arguments that evoke these concepts.  
 
Yahey v. British Columbia  
Page 318  
[
1140] In Guerin v. The Queen, [1984] 2 S.C.R. 335 [Guerin], the Supreme Court of  
Canada recognized that while the Crown is not normally viewed as a fiduciary, there  
are ways the Crown can become a fiduciary in its sui generis relationship with  
Indigenous peoples. Guerin involved the surrender of a portion of Musqueam’s  
reserve lands. There, the Court found that Musqueam had a pre-existing  
independent legal interest in its reserve lands, and that s. 18 of the Indian Act  
conferred on the Crown a broad discretion to deal with surrendered reserve lands.  
Therefore, when the Band surrendered its interest in the reserve to the Crown, this  
gave rise to fiduciary obligations on the Crown in its dealing with the land on the  
Band’s behalf.  
[
1141] In the context of a fiduciary duty arising from the Band’s pre-existing interest  
in its land and s. 18 of the Indian Act, Justice Wilson, in concurring reasons, wrote:  
…the Crown has a responsibility to protect that interest and make sure that any  
“
purpose to which reserve land is put will not interfere with it…,” and that the Crown  
held the lands subject to a fiduciary obligation “to protect and preserve the Band’s  
interest from invasion or destruction.”  
[
1142] The fiduciary relationship was subsequently discussed in Sparrow, where the  
Court set out a general guiding principle for s. 35(1) of the Constitution Act, 1982,  
namely, that government has the responsibility to act in a fiduciary capacity with  
respect to Indigenous peoples. The Court went on to frame the test for the  
justification of infringements of Aboriginal rights to take into account that “federal  
power must be reconciled with federal duty.” One of the considerations at the  
justification stage is whether the infringing legislation or action is consistent with the  
honour of the Crown and the responsibility of the government vis-à-vis Indigenous  
peoples.  
[
1143] In Wewaykum, the Supreme Court of Canada again considered the fiduciary  
relationship between the Crown and Indigenous people and when fiduciary duties  
arise. The interest at issue here was not s. 35 Aboriginal rights (as in Sparrow) or an  
existing reserve to which either Band had pre-existing legal interests (as in Guerin),  
Yahey v. British Columbia  
Page 319  
but rather lands subject to the reserve creation process in which the Bands did not  
have pre-existing legal interests (at para. 77).  
[
1144] Justice Binnie, writing for the Court, reviewed the genesis of the Crown’s  
fiduciary relationship with Indigenous peoples.  
[
78] The Guerin concept of a sui generis fiduciary duty was expanded in R. v.  
Sparrow, [1990] 1 S.C.R. 1075, to include protection of the aboriginal  
people’s pre-existing and still existing aboriginal and treaty rights within s.  
35 of the Constitution Act, 1982. In that regard, it was said at p. 1108:  
The sui generis nature of Indian title, and the historic powers and  
responsibility assumed by the Crown constituted the source of such a  
fiduciary obligation. In our opinion, Guerin, together with R.  
v. Taylor and Williams (1981), 34 O.R. (2d) 360, ground a general  
guiding principle for s. 35(1). That is, the Government has the  
responsibility to act in a fiduciary capacity with respect to aboriginal  
peoples. The relationship between the Government and aboriginals is  
trust-like, rather than adversarial, and contemporary recognition and  
affirmation of aboriginal rights must be defined in light of this historic  
relationship. [Emphasis added.]  
See also: Quebec (Attorney General) v. Canada (National Energy  
Board), [1994] 1 S.C.R. 159, at p. 185.  
[
79] The “historic powers and responsibility assumed by the Crown” in relation  
to Indian rights, although spoken of in Sparrow, at p. 1108, as a “general  
guiding principle for s. 35(1)”, is of broader importance. All members of the  
Court accepted in Ross River that potential relief by way of fiduciary remedies  
is not limited to the s. 35 rights (Sparrow) or existing reserves (Guerin). The  
fiduciary duty, where it exists, is called into existence to facilitate supervision  
of the high degree of discretionary control gradually assumed by the Crown  
over the lives of aboriginal peoples. As Professor Slattery commented:  
The sources of the general fiduciary duty do not lie, then, in a  
paternalistic concern to protect a “weaker” or “primitive” people, as  
has sometimes been suggested, but rather in the necessity of  
persuading native peoples, at a time when they still had considerable  
military capacities, that their rights would be better protected by  
reliance on the Crown than by self-help.  
(
B. Slattery, “Understanding Aboriginal Rights” (1987), 66 Can. Bar  
Rev. 727, at p. 753)  
[
1145] Justice Binnie went on to observe that since Guerin, there had been a “flood”  
of fiduciary duty claims, and he clarified that the fiduciary duty imposed on the  
Crown “does not exist at large but in relation to specific Indian interests” (at paras.  
8
1-83). The focus must be on the particular obligation or interest that is the subject  
Yahey v. British Columbia  
Page 320  
matter of the dispute and whether the Crown assumed discretionary control in  
relation thereto sufficient to ground a fiduciary obligation (at paras. 83 and 85).  
[
1146] The Court recognized the Crown is no ordinary fiduciary, it “wears many hats  
and represents many interests, some of which cannot help but be conflicting” (at  
para. 96).  
[
1147] The concept of the honour of the Crown as a stand-alone duty was discussed  
in Manitoba Metis. In that case, the Supreme Court of Canada considered whether  
the federal government owed and breached fiduciary obligations to the Métis, and  
whether and under what circumstances a court could issue a declaration that the  
Crown had acted in a manner inconsistent with the honour of the Crown. In 1870,  
the Canadian government passed the Manitoba Act, 1870, S.C. 1870, c. 3. Section  
3
1 of the Manitoba Act set aside 1.4 million acres of land that was to be given to  
Métis children. The land grant was intended to be made to give the Métis children a  
head start” over the anticipated wave of settlement. Rather than implement s. 31  
“
swiftly, the federal government’s errors and inactions delayed the land distributions  
for approximately 10 years.  
[
1148] The Manitoba Metis Federation brought a claim seeking a number of  
declarations including that in implementing the Manitoba Act, the federal Crown  
breached its fiduciary obligations to the Métis, and failed to implement the Manitoba  
Act in a manner consistent with the honour of the Crown. Chief Justice McLachlin  
and Justice Karakatsanis (writing for the majority) did not find a breach of fiduciary  
duty, but did find that Canada failed to implement s. 31 of the Manitoba Act in a  
manner that upheld the honour of the Crown.  
[
1149] Chief Justice McLachlin outlined two ways for a fiduciary duty to arise. In the  
Aboriginal context, a fiduciary duty may arise from the Crown assuming or  
undertaking discretionary control over a specific or cognizable Aboriginal interest (at  
paras. 49, 51, referring to Wewaykum, Haida and Guerin). In other situations, a  
fiduciary duty could arise if there was an undertaking by an alleged fiduciary to act in  
Yahey v. British Columbia  
Page 321  
the best interests of one or more alleged beneficiaries, the beneficiary was a defined  
person (or the beneficiaries were a class of people) vulnerable to the fiduciary’s  
control, and the beneficiary or beneficiaries had a legal or substantial practical  
interest that stood to be affected by the fiduciary’s exercise of discretion (at para. 50,  
referring to Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 at para. 36).  
[
1150] The Court held that the Crown had undertaken discretionary control of the  
administration of land grants, but that the Métis did not have a collective Aboriginal  
interest in the land, since (as found by the trial judge) they used and held the land  
individually (at paras. 53-59). Chief Justice McLachlin also emphasized at para. 58  
that an Aboriginal interest in land giving rise to a fiduciary duty “cannot be  
established by treaty, or, by extension, legislation. Rather, it is predicated on historic  
use and occupation.”  
[
1151] Nor did the Court find that the Métis had made out a fiduciary duty based on  
the second route. While s. 31 of the Manitoba Act showed an intention to benefit the  
Métis children, there was no evidence of an undertaking to act in their best interests  
in priority to other concerns or forsaking all other interests (at para. 62). To the  
contrary, the federal government was also concerned with ensuring land was  
available for the construction of the railway and with opening up the province for  
settlement.  
[
1152] Chief Justice McLachlin then turned to the arguments based on the honour of  
the Crown. At paras. 66-67 she noted the honour of the Crown:  
a) arises from the Crown’s assertion of sovereignty over an Aboriginal people  
and de facto control of lands and resources that were formerly in their  
control;  
b) goes back to the Royal Proclamation of 1763 and arises not from a  
paternalistic desire to protect Aboriginal people but rather from recognition  
of their strength;  
Yahey v. British Columbia  
Page 322  
c) has as its ultimate purpose the reconciliation of pre-existing Aboriginal  
societies with the assertion of Crown sovereignty; and,  
d) characterizes the special relationship between the Crown and Aboriginal  
peoples.  
[
1153] Chief Justice McLachlin held that the honour of the Crown was engaged by  
an explicit obligation to an Aboriginal group that is enshrined in the Constitution and  
that an analogy could be drawn between such a constitutional obligation and a treaty  
promise (at paras. 70-71). In both cases there would be an intention to create  
obligations, a measure of solemnity, and promises would have been made for the  
overarching purpose of reconciling Aboriginal interests with Crown sovereignty.  
[
1154] At para. 75, the Court found that when the issue is the implementation of a  
constitutional obligation to an Aboriginal people, the honour of the Crown requires  
that the Crown: (1) takes a broad purposive approach to the interpretation of the  
promise; and (2) acts diligently to fulfill it. The Court recognized that this duty has  
arisen largely in the treaty context (at para. 79).  
[
1155] Because the Crown’s honour is pledged to the fulfillment of its obligations, it  
must endeavour to ensure its obligations are fulfilled (at para. 79). It is expected to  
carry out the work required with due diligence, as good governance requires  
decisions be taken in a timely way. Not every mistake in implementation will bring  
dishonour; however, a persistent pattern of errors and indifference that substantially  
frustrates the purpose of the promise may betray the duty (at para. 82). Diligent  
efforts are required, even if circumstances may ultimately prevent the fulfillment of  
an obligation (at para. 82).  
[
1156] Chief Justice McLachlin held that the constitutional obligation enshrined in s.  
1 of the Manitoba Act was a promise made to the Métis people collectively for the  
3
purpose of reconciling their interests with the Crown’s claim to sovereignty, and it  
engaged the honour of the Crown (at paras. 91-92). The Court held that, on the facts  
of this case, the Crown did not act diligently to fulfill this constitutional promise. In the  
Yahey v. British Columbia  
Page 323  
result, the Court issued a declaration that the federal Crown failed to implement the  
land grant provision set out in s. 31 of the Manitoba Act in accordance with the  
honour of the Crown.  
[
1157] In Grassy Narrows, the Supreme Court of Canada considered the powers and  
obligations on the Province of Ontario with respect to Treaty 3. The central question  
before the Court was whether Ontario had the power to take up lands in the  
Keewatin area under Treaty 3 so as to limit the Ojibway’s harvesting rights under the  
treaty, or whether this must be done by or in cooperation with Canada (at para. 28).  
[
1158] Chief Justice McLachlin held that although Treaty 3 was negotiated by the  
federal government it was an agreement between the Ojibway and the Crown. The  
level of government that exercises or performs the rights and obligations under the  
treaty was to be determined by the division of powers in the Constitution.  
Accordingly, Ontario, and only Ontario, had the power to take up lands under Treaty  
3
(at para. 30).  
[
1159] The Court went on to note that Ontario’s power to take up lands was not  
unconditional and was subject to both the honour of the Crown and fiduciary duties,  
and it referred to the duty to consult prior to taking up lands as outlined in Mikisew:  
[
50]…In exercising its jurisdiction over Treaty 3 lands, the Province of Ontario  
is bound by the duties attendant on the Crown. It must exercise its powers in  
conformity with the honour of the Crown, and is subject to the fiduciary duties  
that lie on the Crown in dealing with Aboriginal interests. These duties bind  
the Crown. When a government – be it the federal or a provincial government  
–
exercises Crown power, the exercise of that power is burdened by the  
Crown obligations toward the Aboriginal people in question.  
[
51] These duties mean that for land to be taken up under Treaty 3, the  
harvesting rights of the Ojibway over the land must be respected. Any taking  
up of the land for forestry or other purposes must meet the conditions set out  
by this Court in Mikisew. As explained by the Ontario Court of Appeal (at  
paras. 206-12), the Crown’s right to take up lands under Treaty 3 is subject to  
its duty to consult and, if appropriate, accommodate First Nations’ interests  
beforehand (Mikisew, at para. 56). This duty is grounded in the honour of the  
Crown and binds the Province of Ontario in the exercise of the Crown’s  
powers.  
(
emphasis in original)  
Yahey v. British Columbia  
Page 324  
[
1160] I note that although the Supreme Court of Canada commented that the Crown  
was subject to both the honour of the Crown and its fiduciary duties, it did not  
expand on what, specifically, the Crown’s fiduciary duties required it to do in relation  
to treaty rights, other than ensuring such rights were “respected.” The Court noted  
that the Province must consult and if appropriate accommodate the First Nation  
before exercising the power to take up lands. The Court also recognized that if the  
taking up amounts to an infringement, the Sparrow/Badger analysis will determine if  
the infringement is justified (at para. 53).  
[
1161] The Supreme Court of Canada had occasion to consider the Crown’s  
fiduciary obligations owed to Indigenous people again in Williams Lake. This case  
involved the review of a decision made by the Specific Claims Tribunal finding that  
the colonial Crown breached its fiduciary obligation to the Williams Lake Indian Band  
when it failed to protect the band’s village lands from pre-emption by settlers, and  
that after 1871, the federal Crown also breached its fiduciary duty in failing to take  
appropriate measures to address this.  
[
1162] Justice Wagner (as he then was, writing for the majority) noted the need to  
focus on and identify with clarity the particular interest that is vulnerable to the  
fiduciary’s discretionary control (at para. 51). He underscored that an Aboriginal  
interest in land giving rise to a fiduciary duty cannot be established or created by  
treaty or legislation, but is “predicated on historic use and occupation” (at para. 53).  
A pre-existing interest in land may, however, be recognized by treaty, legislation or  
policy (at paras. 68 and 81, emphasis by Wagner J.).  
[
1163] Justice Wagner upheld as reasonable the Tribunal’s findings that the Band’s  
substantial and practical interest in its village lands – the land it historically used and  
occupied – constituted a cognizable interest, and the Crown assumed discretionary  
control over this interest. In addition it noted as acceptable an approach that looked  
not only at the form or extent of the Crown’s discretionary power, but also at the  
vulnerability of the interest (at para. 60).  
Yahey v. British Columbia  
Page 325  
[
1164] In terms of the standard of conduct required of the Crown as a fiduciary,  
Justice Wagner noted that the circumstances in which a fiduciary obligation arises  
shapes its content, and that the content varies to take into account the Crown’s  
broader public obligations (at para. 55). This may involve a duty to act with loyalty,  
good faith, ordinary diligence and full disclosure in respect of the interest at stake (at  
paras. 46, 55). While the Crown cannot ignore the reality of its conflicting demands,  
those demands do not absolve it of its fiduciary duty in its efforts to reconcile them  
fairly (at paras. 55, 88).  
2
.
Blueberry’s Position  
[
1165] Relying on Manitoba Metis (and, to a lesser extent, Marshall), Blueberry  
argues that the honour of the Crown gives rise to a positive obligation on the  
Province to implement Treaty 8. It must act to accomplish the purpose of the Treaty  
and of the solemn promise given, and it must do so with diligence. Blueberry argues  
that implementing the Treaty promise means that before the Province authorizes  
land uses in the areas Blueberry relies on, it must put in place measures to ensure  
the essential elements of the Treaty will not be violated. In other words, the Province  
has a positive duty to protect treaty rights, and its management of the lands and  
resources should reflect this.  
[
1166] As its grounding for this “duty to protect,” Blueberry relies on Chief Justice  
Bauman’s statement at para. 424 of West Moberly 2020, where he notes, in obiter:  
It is uncontroversial that the Crown has an obligation, constitutionally enshrined, to  
“
protect Aboriginal rights both treaty and non-treaty, and to act honourably in doing  
so.” Blueberry also points to the Alberta Court of Appeal’s decision in Fort McKay at  
para. 53, where the majority recognized the open ended nature of possible  
obligations arising from the honour of the Crown.  
[
1167] Blueberry says the search to see if the Crown has honourably upheld its  
treaty obligations involves looking for persistent patterns of errors and indifference  
that frustrate the purpose of the solemn promise. Here, says Blueberry, the Province  
 
Yahey v. British Columbia  
Page 326  
has failed to act with diligence, or at all, to address Blueberry’s concerns, protect  
Blueberry’s treaty rights or uphold the treaty promise, with the result that the  
Province has breached its duty to implement the Treaty.  
[
1168] In particular, Blueberry says the Province has failed to:  
a) develop processes to assess whether the ecological conditions in  
Blueberry’s traditional territories are sufficient to support Blueberry’s way  
of life;  
b) develop processes to assess or manage cumulative impacts to the  
ecosystems in Blueberry’s traditional territories and/or on their treaty  
rights;  
c) implement a regulatory regime or structure that will take into account and  
protect treaty rights, and that will guide decision-making for taking up  
lands or granting interests to lands and resources within Treaty 8; and,  
d) put in place interim measures to protect Blueberry’s treaty rights while  
these other processes are developed.  
[
1169] Blueberry goes on to allege that, since none of the above measures have  
been developed or implemented, and since development has continued to proceed  
in the absence of protections for its treaty rights, the Province’s approach to forestry,  
hydro-electric development, land use planning, agriculture, and oil and gas  
development breaches the Treaty and the Crown’s solemn promise that Blueberry  
would not be interfered with in their way of life. Blueberry’s argument and evidence  
focussed on forestry, land use policy and oil and gas development.  
[
1170] In addition, Blueberry argues that in certain circumstances, the Province’s  
actions go beyond constituting a breach of its honourable obligations and constitute  
a breach of its fiduciary obligations, which, at a minimum, require that it act with  
diligence and prudence. Blueberry provided the example of the core of its territory  
being zoned as a high intensity forestry zone in the Sustainable Forest Management  
Yahey v. British Columbia  
Page 327  
Plan. Blueberry said in such a situation, where the Crown is exercising discretionary  
control over its interests, and is taking express actions that run contrary to its treaty  
rights, there is a breach of the Crown’s fiduciary duty.  
3
.
Province’s Position  
[
1171] The Province recognizes that the honour of the Crown is engaged in treaty  
implementation, and that it requires the Crown to act in a way that accomplishes the  
purposes of such treaties. It is a concept that speaks to how the Crown’s obligations  
are to be fulfilled. The Province says the proper approach is to consider the Crown’s  
conduct as a whole, in the context of the case, and ask whether it acted with  
diligence to pursue the fulfillment of the purposes of the obligation.  
[
1172] On the facts of this case, the Province says it has met its honourable  
requirement to manage development in a manner that preserves sufficient habitat,  
territory and wildlife to allow Blueberry’s members to carry on their hunting, trapping  
and fishing mode of life. The Province denies that the Treaty has been breached, or  
that its honourable obligations or fiduciary duties have been breached.  
[
1173] The Province ties the honour of the Crown to the duty to consult, not a  
fiduciary duty. It argues that Blueberry is conflating the honour of the Crown that is  
applicable before an infringement, and the fiduciary duty that is applicable after an  
infringement. The Province recognizes that its right to take up land under the Treaty  
is not unstructured, but is bounded by the prior duty to consult imposed by the  
honour of the Crown. The Province says it is trying to and is engaging with Blueberry  
as part of collaborative processes to address their treaty rights. Many of these  
processes involve First Nations, local governments, and constituents and are  
ongoing. It emphasizes that these engagement processes are occurring prior to  
infringement of any rights and to avoid such infringement from occurring.  
[
1174] Moreover, it says there is no duty for the Province to implement regulatory  
policies that place Blueberry’s views as the paramount views. It has no duty to  
implement the kind of “fettered regulatory structure” Blueberry seems to be seeking.  
 
Yahey v. British Columbia  
Page 328  
The Province says that Blueberry’s complaint is with the Province’s policy decisions  
regarding the management of wildlife and natural resources.  
[
1175] As to the fiduciary duty, the Province emphasizes that the Crown’s fiduciary  
duty does not exist at large, but in relation to specific interests, such as reserve  
lands. The Province notes that in order to attract a fiduciary duty, the First Nation  
must identify a “specific or cognizable Aboriginal interest” in relation to which the  
duty is owed. It says the interest must be a communal Aboriginal interest in land that  
is integral to the nature of the Aboriginal community and their relationship to the  
land. This interest must be predicated on historical use and occupation, and cannot  
be established by treaty or legislation.  
[
1176] The Province seems to be suggesting that in this case, Blueberry has not  
identified a specific or cognizable interest over which the Province has assumed  
discretionary control. The Province also points out that the Crown has  
responsibilities to the public as a whole. It is no ordinary fiduciary; it wears many  
hats, some of which may be conflicting.  
B.  
Application of the Legal Principles  
Management of Treaty Rights  
1177] In dealing with these arguments I will outline the various regulatory regimes  
1
.
[
the Province has put in place to manage oil and gas development, forestry, and  
wildlife, and the impacts of industrial development in the Blueberry Claim Area.  
[
1178] As part of that, I will consider whether the Province’s regulatory regimes take  
into account Blueberry’s constitutionally protected treaty rights, and whether the  
Province has acted diligently to address Blueberry’s concerns about the impacts of  
industrial development on the exercise of their treaty rights and to implement the  
Treaty promise, more generally.  
[
1179] At the outset, I note the Province says that while Blueberry disagrees with the  
means by which the Province manages impacts on treaty rights in its territory, this is  
 
 
Yahey v. British Columbia  
Page 329  
not a commission of inquiry on the Province’s policy choices in managing industrial  
development – it is a case about Blueberry’s ability to practice its treaty rights. With  
respect to managing impacts on treaty rights, the Province argues the Plaintiffs’  
submissions are technical in nature and not supported by the expert evidence on  
cumulative effects policy.  
[
1180] The Province’s submission, however, essentially presupposes a finding that  
despite the impacts of industrial development, Blueberry members can still  
meaningfully exercise their treaty rights. I have concluded they cannot. There is not  
sufficient appropriate lands in the Plaintiff’s traditional territories, in this case the  
Blueberry Claim area, to permit the meaningful exercise of their Treaty 8 rights.  
Sufficient habitat, territory and wildlife has not been preserved to allow Blueberry  
members to carry out their hunting, trapping, and fishing mode of life.  
[
1181] The Province led evidence of the primary ways they manage the impact of  
industrial development on treaty rights, specifically in the forestry and oil and gas  
sectors. Though they described this evidence as a “summary” rather than a  
comprehensive record, the evidence was, in fact, extensive. The Province says the  
evidence establishes that they did and do properly manage for impacts to treaty  
rights and consider cumulative impacts of development.  
[
1182] The Court must examine this evidence as part of the question of whether the  
Crown has diligently implemented the Treaty, ensuring that Blueberry can  
meaningfully exercise its treaty rights. The jurisprudence clearly establishes the  
Crown’s obligation to do so.  
[
1183] In undertaking this exercise, the Court is not a commission of inquiry on policy  
choices. Rather, the Court is examining this evidence in assessing the impacts on  
treaty rights created by the Province’s regulatory choices. Furthermore, Blueberry  
submits that this evidence shows a pattern of perfunctory conduct throughout the  
consultation/regulatory process that has contributed to the substantive problems in  
the Blueberry Claim Area.  
Yahey v. British Columbia  
Page 330  
[
1184] Fundamentally, Blueberry says the level of development surpasses what the  
Treaty contemplated, and the Province’s authorization of this development has  
caused or contributed to Blueberry’s inability to meaningfully exercise their treaty  
rights, which constitutes an infringement of their treaty rights.  
[
1185] The Province’s regulatory regime controls development and impacts in the  
Blueberry Claim Area. Whether and how the regulatory regime considers treaty  
rights is an essential underpinning question as to whether the Crown has diligently  
implemented the Treaty. This includes whether or not there is guidance within the  
regulatory regime for how discretionary decisions should be made. While not every  
aspect of the various regulatory regimes at issues reflect or constitute a breach of  
the Treaty, Blueberry argues their cumulative effects do.  
[
1186] The purpose therefore of reviewing the regulatory regimes for oil and gas,  
forestry, wildlife management, and the progress towards implementing a cumulative  
effects framework is to consider whether the Province, through its regulatory  
regimes, has authorized this level of industrial development and has therefore  
contributed to Blueberry’s inability to meaningfully exercise its treaty rights, and  
breached the Treaty.  
[
1187] While I cannot comment on or consider that entire complex network of  
statutes, regulations, rules and policies, I will deal with the primary components of  
the regulatory regime and focus on the areas I find to be most significant in this  
case. I also note while there may be other causes besides the regulating and  
permitting of industrial development that impact the Blueberry Claim Area, it is  
sufficient in this case that the Plaintiffs prove that the permitting of these  
developments and the regulatory regime’s lack of enforceable mechanisms to take  
into account the cumulative impacts on treaty rights has meaningfully diminished the  
exercise of treaty rights in the Blueberry Claim Area.  
Yahey v. British Columbia  
Page 331  
[
1188] Finally, I note this is not a static environment, with changes to both the  
environment and the regulatory regime. The Court’s task, however, is to consider the  
evidence before it in the context of this claim.  
[
1189] I now turn to the task.  
C. Regulatory Regime for Oil and Gas Development  
Overview  
1190] Oil and gas development in BC is largely concentrated in the northeast of the  
1
.
[
province. The majority of the province’s petroleum resources are gas, rather than oil.  
There are several shale gas basins, one of which – the Montney Play, which is most  
active – overlaps the Blueberry Claim Area. As reflected in a Provincial government  
map overlaying the Oil and Gas Commission North Montney Regional Field with the  
Wildlife Management Units, the Montney overlies Wildlife Management Units 7-34,  
7
-44, and 7-45. These units represent the core of the Blueberry Claim Area.  
[
1191] Historically, most petroleum development was “conventional.” Conventional  
development uses a single vertical well to target a discrete “pool” of oil or gas.  
Development typically requires numerous well pads separated by 500 to 1,500  
metres, with one vertical well per pad.  
[
1192] Many new gas wells are now “unconventional.” Unconventional development  
targets vast subsurface areas – shale basins – that are less porous than  
conventional oil and gas pools. Unconventional wells are drilled horizontally; the well  
pads can be spaced several kilometres apart, and a single pad can accommodate  
up to 40 wells. Unconventional development theoretically results in less surface  
disturbance compared to conventional development.  
[
1193] Before oil and gas development can occur a company must obtain:  
 
 
Yahey v. British Columbia  
Page 332  
a) an oil and gas tenure from the Tenure and Geoscience Branch (“Tenure  
Branch”) at the Ministry of Energy, Mines and Petroleum Resources  
(“Ministry of Energy and Mines”); and,  
b) a permit from the BC Oil and Gas Commission.  
[
1194] A tenure conveys the rights to subsurface resources and is granted over a  
unit of land called a parcel. Permits issued by the BC Oil and Gas Commission allow  
holders to carry out the surface activities necessary to make use of those subsurface  
tenure rights – for example, clearing seismic lines for exploration, or surface drilling  
activities.  
[
1195] The Province contends that it adequately considers treaty rights at both  
stages. Conversely, Blueberry argues that the regulatory framework is inadequate. It  
submits that the scheme is ill-suited to the consideration or accommodation of treaty  
rights. Further, Blueberry argues that the Province’s pattern of conduct and the  
results of these processes prove that the scheme essentially ignores both treaty  
rights and cumulative effects.  
[
1196] For the reasons that follow, I agree with the Plaintiffs.  
Conclusions in Brief  
1197] Although the Province has identified certain measures that it says take into  
2
.
[
account treaty rights and/or cumulative effects, a review and consideration of the  
evidence reflects this is not the case. I find there is a significant disconnect between  
the tenuring and permitting decision makers, such that each believes the other  
considers treaty rights and/or cumulative effects to a greater degree than they  
actually do. This disconnect has created a gap through which Blueberry’s rights  
have fallen.  
[
1198] What tools the Province does have in place – including tenure caveats, permit  
conditions and the Area Based Analysis as presently structured and used by the Oil  
and Gas Commission – are largely ineffective. Other tools, such as Resource  
 
Yahey v. British Columbia  
Page 333  
Review Areas and deferrals, are temporary and essentially have no long-term legal  
effect. They only prevent disposition of tenures on a temporary basis. The Province  
has also refused to designate “No [tenure] Disposition Areas” in areas where the  
demand for tenure is highest, and which are most critical to Blueberry. The Province  
has made some designations in areas that have little demand for activity, and  
therefore this designation has little effect.  
[
1199] Moreover, in reality, the administration and application of these measures, in  
particular the application process of both agencies, does not take into account the  
needs and ability of First Nations to respond to what can only be described as being,  
at times, an avalanche of applications and supporting material.  
[
1200] In this context, the agencies demonstrate what can only be characterized as a  
pattern of perfunctory conduct, having constantly responded to Blueberry with  
identical template letters that either refer Blueberry to different organizations or  
processes or insist that the tools – and the Oil and Gas Commission’s Area Based  
Analysis tool in particular – have addressed Blueberry’s concerns. This inadequate,  
circular response has also contributed to substantive problems in the Blueberry  
Claim Area, as reflected in the evidence before this Court.  
[
1201] While the Province accuses Blueberry of the same conduct, it is the Province  
who is in control of permitting industrial activity. The status quo benefits the  
Province, and in that context, the Province must be responsive to concerns. The  
Province cannot merely indulge in identical, repetitive letters insisting that concerns  
have been met and maintain this satisfies its obligation to properly consider treaty  
rights.  
[
1202] Norma Pyle, who acted as Director of Blueberry’s Lands and Resource  
Department over the pertinent time period, identified and testified to numerous  
applications and the associated correspondence establishing that the practical  
reality of the application process is seriously problematic. I will set out some of this  
correspondence as part of my analysis, but note that these are only examples of  
Yahey v. British Columbia  
Page 334  
what Ms. Pyle said – and I agree – was a continuous reality for Blueberry. Permits  
came in at a staggering rate and with limited response windows, and did not always  
contain critical information about the size and scope of the project.  
[
1203] An application may be referred to Blueberry for one segment of a project,  
when in fact the project scope is much larger. The Oil and Gas Commission  
conducts “deeper” initial consultations on the project, without adequately disclosing  
or disclosing at all, that the project is anticipated to expand over the course of the  
next several years – for example, by adding a processing facility to an area initially  
cleared for a well pad. Subsequent permit applications to expand the project are  
then conducted at a lower consultation level, hampering Blueberry’s ability to  
meaningfully respond on the full scope of the project.  
[
1204] The Province had the opportunity to respond to this evidence, but did not offer  
any correspondence that fundamentally differed. Rather, the reliance on other  
agencies and processes – some of which were and are still in development – was  
confirmed by the Province’s own evidence.  
[
1205] The Province did respond with evidence of the regulatory processes in place,  
maintaining that these did take into account both treaty rights and cumulative  
impacts. I will examine those processes in my analysis.  
[
1206] Finally, the Province pointed to more recent initiatives, which I will deal with  
later. I will say at the outset that while recent initiatives are laudable and are part of  
the way forward, they cannot erase what has been done and they do not as yet have  
legally enforceable protections. They rely on present policy initiatives that could  
change or be abandoned at any time, and do not as yet sufficiently protect  
Blueberry’s ability to exercise it treaty rights in its traditional territory.  
[
1207] In this segment, I will provide a brief overview of the oil-and-gas-related  
agreements between Blueberry and the Province, followed by an examination of the  
tenuring and permitting processes and the Province’s reclamation and remediation  
Yahey v. British Columbia  
Page 335  
efforts. I will then analyze and evaluate the regime, giving regard to the parties’  
specific arguments and critiques.  
[
1208] Because the tenuring process appears to proceed on the basis that  
subsurface grants do not impact treaty rights, this section devotes significant space  
to examining the processes of the Oil and Gas Commission – the agency that the  
Tenure Branch of the Ministry of Energy and Mines says considers treaty rights.  
Most critically, it includes an evaluation of the Area Based Analysis tool, which  
underpins the Oil and Gas Commission’s permitting decisions and is ostensibly used  
to consider treaty rights. However, as will become clear, this tool does not directly  
consider treaty rights at all, and measures cumulative effects on far too broad a  
scale to meaningfully protect the Blueberry Claim Area and Blueberry’s exercise of  
treaty rights therein.  
3
.
Oil and Gas Agreements between Blueberry and the  
Province  
[
1209] I will begin with a review of the various agreements between Blueberry and  
the Province with respect to oil and gas development.  
[
1210] In 2006, Blueberry and the Province entered into an Economic Benefits  
Agreement and a series of Resource Management Agreements. The Province says  
these agreements provided significant benefits to Blueberry in the context of  
resource development in its territory. Although Blueberry has since terminated the  
agreements, some of their provisions are still being used by the Province.  
[
1211] A useful summary of the Economic Benefits Agreement is set out in a briefing  
note prepared for Steve Munro, Deputy Minister of what was then known as the  
Ministry of Aboriginal Relations and Reconciliation, dated March 13, 2013. This  
briefing note was prepared in the context of Blueberry’s written notice of termination  
on March 5, 2013 of the Economic Benefits Agreement and Resource Management  
Agreements with the Province. Based on the evidence, it appears Blueberry  
 
Yahey v. British Columbia  
Page 336  
terminated the agreements in large part due to a perceived lack of meaningful  
response from the Province on cumulative effects issues.  
[
1212] Blueberry and the Province entered into this Economic Benefits Agreement  
on June 2, 2006. In the subsequent years, seven Resource Management  
Agreements were negotiated and completed between the Province and Blueberry  
pursuant to this Economic Benefits Agreement. Among the Resource Management  
Agreements were the Long-Term Oil and Gas Agreement, which was signed in 2007  
and terminated in 2014. The agreements provided activity-based benefit payments  
and consultation capacity funding. The agreements set out a consultation process,  
including a consultation area map for proposed authorizations under each of the  
agreements.  
[
1213] From 2006 to 2013, Blueberry received funding of over $18 million under  
these agreements. While this initially appears to be a significant sum, it should be  
evaluated in light of provincial oil and gas revenues during that time. As Chris  
Pasztor with the Ministry of Energy and Mines testified, while revenue the Province  
receives from royalties is sensitive to price and market demand, the Province’s  
annual revenue could range from $100 million to $175 million in a given year. This  
revenue flows into the Province’s consolidated revenue fund and is dispersed to  
fund public services, such as education and health care.  
[
1214] The March 2013 briefing note indicates that:  
Since signing [sic] of these agreements, implementation has proceeded  
relatively smoothly. In the past year, however, [Blueberry] has become  
increasingly vocal with respect to their concerns about cumulative effects of  
natural resource development within their territory. Although the Province has  
directed their concerns towards current initiatives outside of the agreements,  
such as the Cumulative Effects Pilot project (led by FLNRO [Ministry of  
Forests, Lands and Natural Resource Operations]) and Area Based Analysis  
(
led by OGC [Oil and Gas Commission]), [Blueberry] has become frustrated  
at the perceived lack of progress.  
[
1215] Indeed, the evidence demonstrates that Blueberry had been specifically  
setting out its concerns in response to permit applications before the Oil and Gas  
Yahey v. British Columbia  
Page 337  
Commission since at least early March 2012. As an example, in a letter dated March  
9, 2012 with respect to an application by Progress Energy listed as “Project HZ  
Town d-65-K, 94-B-16, Blueberry specifically noted:  
1
[
Blueberry] has grave concerns that the Applications, in connection with past  
and planned oil and gas development within its traditional territory, are  
jeopardizing its “meaningful right to hunt”. [Blueberry] elders report that  
species of deep significance to the traditional “mode of life” of the community  
are growing increasingly scarce throughout [Blueberry’s] traditional territory.  
Moose are becoming more difficult to access. Furbearers are in rapid decline.  
Wildlife health is also a widespread concern as moose and other species  
harvested by [Blueberry] have been observed consuming contaminated fluids  
in and around unreclaimed well sites (of which there is an unacceptably high  
number as reported in recent years by the Auditor General of British  
Columbia).  
[
1216] With respect to cumulative effects, Blueberry stated:  
The information provided by the [Oil and Gas Commission] in the referral  
package pertained exclusively to site-specific (as opposed to cumulative) and  
bio-physical (to the exclusion of social economic and cultural) effects of the  
Applications. No information was provided to assess impacts within the  
context of relevant historical or future impacts. In consultation on the  
Applications, and in previous applications, [Oil and Gas Commission] staff  
have stubbornly refused [Blueberry’s] requests to examine the Applications in  
connection with associated cumulative effects.  
[
1217] Blueberry’s specific concerns were set out at page 4 of this March 19, 2012  
letter:  
Water Quantity: the unprecedented and irreversible removal of massive  
quantities of water from the hydrological cycle for shale gas extraction, a  
concern shared by organizations such as the Pembina Institute. Consultation  
respecting water quantity reduction should be undertaken at the watershed  
level, not merely on a well-by-well basis. [The Oil and Gas Commission] has  
refused to provide [Blueberry] funding for an external technical review of its  
plans to monitor water usage of the industry.  
Water Quality: the seepage of fracking chemicals into the water table and  
contamination of drinking water. We are aware that some steps have been  
taken to provide a database of fracking chemicals used in British Columbia,  
but that the government has refused to require the disclosure of the quantities  
of each chemical used or that disclosure occur prior to drilling. Without this  
information, there will be no credible way to draw causal connection in and  
requisite legal liability in the event of water contamination.  
Habitat Fragmentation: the cumulative effect of oil and gas access roads,  
pipelines, seismic, and well sites within [Blueberry’s] traditional territory is  
Yahey v. British Columbia  
Page 338  
staggering. Linear disturbance fragments ungulate habitat, cutting off  
traditional migratory patterns – which in turn interferes with the traditional  
knowledge and patterns of hunting. Furthermore, this disturbance enhances  
access for predators such as wolves, which has and continues to throw  
predator/prey relationships out of balance and cause an incremental  
diminution of game populations and the traditional harvesting practices they  
have for generations sustained.  
Access Increasing Non-Aboriginal Hunting: The cumulative effect of criss-  
crossing access roads throughout the territory also increases access for non-  
aboriginal hunters, leading to interpersonal conflicts with [Blueberry] hunters  
and trappers, as well as further unsustainable reductions in game  
populations.  
Access Increasing Accidents: these access roads are also increasing the  
number of traffic accidents in which moose, deer, and other game hunted by  
[
Blueberry] are unnecessarily injured or killed. The access road planning, and  
consultation with [Blueberry] respecting the same, should be undertaken a  
sic] tenure-wide or multiple tenure-wide scale in order to reduce the  
[
cumulative effects of any new access roads on the valuable habitat that does  
remain in [Blueberry’s] territory.  
Safety: As mentioned above, the current high concentration of wells within  
[
Blueberry’s] traditional territory, and sour gas wells in particular, raises  
serious concerns to [Blueberry’s] hunters and trappers who may be out in the  
bush for extended periods of time without cellular phone or other expedient  
forms of communication. To date, no meaningful consultation has occurred  
respecting how safety issues such as these would be addressed in relation to  
the Applications.  
[
1218] Numerous letters to the same effect followed in response to specific  
applications, but also to the Oil and Gas Commissioner and CEO, Paul Jenkins.  
Blueberry sent similar correspondence to the Minister of Energy and Mines, Rich  
Coleman, and the Premier at the time, Christy Clark.  
[
1219] While the Province ultimately invited Blueberry to “discuss a plan of action for  
moving forward, it continued to maintain its position “that it had been addressing  
cumulative effects” for “many years” as reflected in a letter Blueberry received from  
Dale Morgan, the Northeast Regional Manger of the Ministry of Aboriginal Relations  
and Reconciliation, dated September 2, 2016. After reviewing a number of initiatives,  
he said in closing:  
The Province acknowledges that you have significant issues with  
development within your traditional territory. However the province disagrees  
with the [Blueberry] position that the Province’s current approach to  
Yahey v. British Columbia  
Page 339  
identifying, managing and mitigating cumulative effects is inadequate. The  
Province recognizes the importance of managing cumulative effects and has  
been employing a number of stewardship tools to address potential  
cumulative effects of development within [Blueberry] Territory for many years.  
As outlined above, the Province has a number of initiatives and tools to  
address [Blueberry’s] concerns raised in the [Land Stewardship Framework],  
Atlas and the several letters from [Blueberry] to the Province over the course  
of the last year. The Province encourages [Blueberry] to participate in  
Provincial initiatives because we believe that [Blueberry] participation will,  
build trust in provincial processes, and result in outcomes that meet  
[
Blueberry] interests.  
[
1220] This letter was copied to a number of Ministries and individuals including  
Kristy Ciruna of the Ministry of Forests, Sean Curry of the Oil and Gas Commission,  
Richard Grieve representing the Ministry of Natural Gas Development (now the  
Ministry of Energy and Mines), Greg Perrins of the Ministry of Aboriginal Relations  
and Reconciliation, and Cici Sterritt who was Blueberry’s Band Administrator.  
[
1221] After Blueberry terminated their Economic Benefits Agreement and related  
agreements, and prior to commencing this litigation, Blueberry wrote to various  
government agencies and met with the Premier seeking to protect what it considered  
to be critical areas in its territory. Geoff Recknell testified that in February 2015,  
Blueberry provided a map of Critical Areas to the Minister of Aboriginal Relations  
and Reconciliation. Blueberry identified these Critical Areas as places where they  
continued to practice their treaty rights, and requested that the Province suspend  
development in these areas.  
[
1222] Parenthetically, I note that while slightly different versions of critical areas for  
protection have been defined or provided to the Province since 2015, those  
differences do not affect any determination in this case with respect to the overall  
provincial regulatory regime. Some of these critical areas have been negotiated  
between the parties for different purposes.  
[
1223] Some time later, in June 2018, the parties negotiated an Interim Measures  
Agreement dealing with oil and gas development. As a recital noted, the Interim  
Measures Agreement (found at Exhibit 108, Tab 28) was created as an interim tool  
Yahey v. British Columbia  
Page 340  
to “address immediate concerns with respect to [oil and gas] development in  
Blueberry’s] critical areas” while Regional Strategic Environmental Assessment is  
[
being developed. The parties included Blueberry, the Ministry of Energy and Mines,  
the Oil and Gas Commission, and the Ministry of Forests. The lack of interim  
measures to address these concerns was identified as a barrier to the successful  
implementation of the Regional Strategic Environmental Assessment.  
[
1224] Further set out in the recitals, “The parties are committed to developing  
improved management and relationships regarding [petroleum natural gas]  
development with this agreement on [interim measures] as the first step leading to  
collaboratively developed recommendations for management responses for longer-  
term improvements to managing [petroleum natural gas] developments which  
eliminates the need for [interim measures].” The objective for Area 2 is to restrict  
new (anthropogenic) surface disturbances, and to prohibit them in Areas 1 and 3.  
[
1225] Sean Curry of the Oil and Gas Commission described the agreement as  
identifying mechanisms to reduce the amount of new surface disturbance from oil  
and gas activities in three different areas, and to create a group identified as the “flex  
team” that would be involved in reviewing applications to the Oil and Gas  
Commission. Applications that could result in new surface disturbance that did not  
meet a specific criteria would be subject to a 4-to-1 restoration offset in Areas 1 and  
3
. This meant that proponents would be required to restore four times the amount  
disturbed, i.e., if 10 hectares would be disturbed by an activity, the proponent would  
be required to restore 40 hectares.  
[
1226] Once the agreement was signed and implementation was underway, a  
dispute arose as to whether the 4-to-1 offset also applied in Area 2, which is the  
area surrounding Blueberry’s reserves. Despite a dispute resolution process, this  
was not resolved, and in June 2019 the Oil and Gas Commission and the Ministry of  
Energy and Mines withdrew from the agreement. Sean Curry said, however, that the  
provisions with respect to offsets in Areas 1 and 3 continue to be implemented and  
Yahey v. British Columbia  
Page 341  
“the vast majority of the agreement has been moved to different forms other than the  
flex team which doesn’t exist anymore.”  
[
1227] Chris Pasztor of the Ministry of Energy and Mines confirmed that the Tenure  
Branch defers all tenure requests within Areas 1 and 3. He said that based on the  
agreement, “we turned Areas 1 and 3 into No Disposition Areas.” However, he also  
confirmed Area 2 is almost completely encompassed by active tenure, while Areas 1  
and 3 have far fewer active tenures.  
[
1228] I will deal with this later as part of my analysis.  
Tenures: The Ministry of Energy and Mines  
1229] In most areas of BC, the Provincial Crown owns the subsurface petroleum  
4
.
[
and natural gas resources. The Province grants oil and gas companies the right to  
explore, develop and produce oil and gas resources by granting rights to  
geographically specific areas through subsurface tenures. In exchange for these  
rights, the Province collects fees and royalties from the tenure holders.  
[
1230] The Ministry of Energy and Mines is responsible for the management of  
Crown-owned petroleum and natural gas resources in BC. This Ministry issues sub-  
surface petroleum and natural gas tenures under the authority of the Petroleum and  
Natural Gas Act, R.S.B.C. 1996, c. 361, and associated regulations.  
[
1231] In this case, Chris Pasztor provided testimony regarding the Province’s  
management of oil and gas resources. Mr. Pasztor is both the Director of Petroleum  
Lands and the Executive Director of the Tenure Branch within the Ministry of Energy  
and Mines’ Oil and Gas Division. As the Director of Petroleum Lands, Mr. Pasztor is  
the statutory decision maker in charge of tenure disposition.  
[
1232] As Mr. Pasztor testified, “…over the past ten years, most of the oil and gas  
industry within British Columbia has been targeting the Montney Shale Basin, and so  
because of that there are less and less Montney Shale rights that are available for  
sale,” from which I conclude most have been tenured.  
 
Yahey v. British Columbia  
Page 342  
[
1233] This is confirmed in a Ministry of Forests information note prepared for the  
Provincial Northeast Strategy Committee, dated May 22, 2014. This note is  
illuminating, as it sets out the overall context of development in northeastern BC:  
ISSUE: Treaty 8 interest in the advancement of regional strategic  
environmental assessments (RSEAs) in Northeast BC.  
BACKGROUND:  
In 2009, the Ministers of the Canadian Council of Ministers of the  
Environment (CCME) published a report outlining the principles and guidance  
for undertaking a Regional Strategic Environmental Assessment (RSEA)  
process. CCME defines an RSEA as: A process designed to systematically  
assess the potential environmental effects, including cumulative effects, of  
alternate strategic initiatives, policies, plans or programs for a particular  
region.  
(
emphasis in original)  
[
1234] As part of the discussion portion of that information note, the fact that virtually  
all Crown land within the proposed northeastern area was fully tenured was set out.  
At page 2 the information note reads:  
…
RSEA can only work if there are alternative options available which  
suggests that there must be significant crown resources that are not tenured.  
The rate of development of crown owned resources is controlled through the  
disposition of resource tenures. Once crown resource tenures have been  
sold, alternative options are significantly reduced and the market forces of  
supply and demand tend to dictate the rate of extraction. As such, there are  
no opportunities in Northeast region that would trigger an RSEA. Virtually all  
of the Crown land within the proposed Northeast RSEA study area is fully  
tenured. The development of viable alternative options would be extremely  
limited to what could be achieved through the various regulatory processes.  
(
emphasis added)  
[
1235] The perspective of the Ministry of Forests is set out in a response portion of  
the information note, which said in part:  
In 2011, the Province developed its BC Jobs plan. The plan is focused on  
creating long term jobs through increased resource extraction particularly in  
the oil and gas, mining and forest industries. The thrust of the 2014 Throne  
speech was a reiteration of the Jobs Plan and a commitment to stick to the  
plan. The export of liquefied natural gas (LNG) is the most significant element  
of the plan and all aspects of LNG development have the focused attention  
and priority of the Premier and Cabinet.  
Yahey v. British Columbia  
Page 343  
A recommendation to implement an RSEA in B.C. particularly in Northeast  
region would be in direct opposition to the Jobs Plan. It would also likely be  
viewed as an attempt to increase investor uncertainty for LNG development,  
create time delays, and pit communities, First Nations, industries and  
companies as well as other stakeholder interests against each other.  
Possible identification of alternatives to resource development would also be  
extremely limited without reacquiring tenures and rights.  
(
emphasis added)  
[
1236] This establishes some context to the oil and gas development in BC during  
pertinent times which impacted on the Blueberry Claim Area.  
a)  
The Tenuring Process  
[
1237] The tenuring process involves several steps:  
a) First, industry proponents make a request that the Province, via the Crown  
Sales Team of the Tenure Branch of the Ministry of Energy and Mines,  
advertise particular tenure rights for sale.  
b) The Crown Sales Team determines whether the rights are available for  
disposition.  
c) If rights are available, the Crown Sales Team conducts a “critical  
information analysis” to identify legal and non-legal land use designations,  
values and rights that overlap with or are nearby the requested parcel.  
d) A pre-tenure referral process then begins, including consultation and  
engagement with First Nations, local governments, landowners, and other  
provincial agencies.  
e) The Director of Petroleum Lands (a position currently held by Mr. Pasztor)  
reviews information from the critical information analysis and the pre-  
tenure referral process, and decides whether to post the requested tenure  
rights for sale. The Director may defer, reconfigure, deny, or grant the  
request for sale and/or may apply caveats to the tenures.  
f) Tenure rights are then posted for sale and bids are accepted.  
Yahey v. British Columbia  
Page 344  
[
1238] The Province says it has temporarily paused grants of tenure since March  
020, due to the COVID-19 pandemic.  
2
b)  
Consideration of Treaty Rights  
[
1239] Mr. Pasztor testified that in managing subsurface tenures, the Tenure Branch  
seeks to ensure, inter alia, that the Province is meeting its obligations to First  
Nations and advancing reconciliation.  
[
1240] The Province alleges that it considers surface values at all stages of the  
tenure review and referral process: in the availability of the rights for disposition, the  
critical information analysis, pre-tenure referral and consultation, and the decision-  
making process. However, when pressed, Mr. Pasztor admitted that the Tenure  
Branch essentially did not believe a tenure grant could impact treaty rights because  
it does not authorize surface activities. This is reflected in many communications  
from the Tenure Branch to Blueberry when Blueberry raised concerns.  
[
1241] Mr. Pasztor testified to several methods the Tenure Branch uses to manage  
impacts on wildlife and treaty rights.  
i.  
No Disposition Areas  
[
1242] No Disposition Areas provide protection for some areas of land; Mr. Pasztor  
explained that once an area has been declared, no tenure can be disposed of inside  
it. According to the Province, the establishment of a No Disposition Area is a  
landscape-level strategic decision.  
[
1243] Mr. Pasztor gave examples of several No Disposition Areas established in  
consideration of treaty rights. For example, a total of 364,393 hectares inside the  
Blueberry Claim Area were designated as No Disposition Areas in connection with  
the Oil and Gas Interim Measures Agreement, and 35,467 hectares were designated  
within the Claim Area in relation to a government-to-government agreement with  
Salteau First Nation. Several hundred thousand hectares of No Disposition Areas  
were also established inside of Blueberry’s Consultation Areas A, B and C in  
Yahey v. British Columbia  
Page 345  
connection with a caribou recovery partnership between the Province and two other  
First Nations.  
[
1244] As of July 2020, there were approximately 638,159 hectares of No Disposition  
Areas inside the Blueberry Claim Area. However, as will be discussed below, these  
areas are temporary, and of little effect given the majority of subsurface tenures in  
the Blueberry Claim Area have already been granted.  
ii.  
Deferred Parcels  
[
1245] Mr. Pasztor also testified that the Province addresses treaty rights by  
deferring tenure requests. The Ministry of Energy and Mines may defer a tenure  
parcel for an indefinite period in response to issues raised during the critical  
information analysis or pre-tenure referral process. Mr. Pasztor testified that the  
Ministry of Energy and Mines frequently defers tenure requests on a parcel-by-  
parcel basis in consideration of First Nations’ interests and the potential impact of  
disposition on treaty rights.  
[
1246] Further, there are some automatic deferral areas – identified by First Nations  
as critical to the practice of their treaty rights – in which tenure requests are  
automatically deferred for months or years to support further discussions with First  
Nations about the exercise of treaty rights in these areas. There are some automatic  
deferral areas for Blueberry. For example, Mr. Pasztor testified that in 2015, after  
Blueberry commenced this litigation and identified “Critical Areas,” the Ministry of  
Energy and Mines agreed to defer all requests for new tenures in these areas. As of  
July 2020, these deferrals covered a total of 126,000 hectares within the Blueberry  
Claim Area. Mr. Pasztor also noted that the Ministry of Energy and Mines is currently  
deferring tenures in areas identified by Blueberry as “Protection and Restoration  
Zones,” based on a map Blueberry provided to the Ministry in 2018..  
iii.  
Withdrawn or Reconfigured Tenure Requests  
[
1247] A requesting party may withdraw their tenure request at any point prior to  
disposition. Mr. Pasztor testified that proponents regularly withdraw requests for  
Yahey v. British Columbia  
Page 346  
deferred parcels. He noted that since 2014, proponents had withdrawn 282 tenure  
requests within the Blueberry Claim Area, including at least one example where he  
said a proponent withdrew a tenure request because it overlapped with a No  
Disposition Area established in response to Blueberry’s concerns.  
[
1248] Requests may also be reconfigured, i.e., the number or location of requested  
parcels may be modified. Both the requesting party and the Ministry of Energy and  
Mines may reconfigure the tenure request at any time prior to disposition. Mr.  
Pasztor testified that reconfiguration may occur to avoid or minimize potential  
impacts to treaty rights or wildlife, and that they are “quite often” reconfigured to  
avoid First Nations’ concerns. Mr. Pasztor provided one example of such a  
reconfiguration: in 2017, a party requested two parcels, one of which overlapped  
with a Blueberry Treaty Land Entitlement Resource Review Area; Mr. Pasztor noted  
that the request for the parcel overlapping the Resource Review Area was  
withdrawn, leaving only the remaining parcel up for consideration.  
iv.  
Critical Information Analysis  
[
1249] Mr. Pasztor testified about the steps taken in the critical information analysis.  
This process involves mapping out the surface location of the requested parcels,  
and overlaying it with data from provincial databases. The overlays include land  
designations, prior development in the area, known First Nations’ cultural areas, and  
traplines. Information from this stage is used to determine the scope of pre-tenure  
referrals. Mr. Pasztor noted that during the referral process, the Tenure Branch  
would send the overlays to the First Nation, including information on prior  
development in the area.  
[
1250] Types of land designations included in the analysis include parks and  
protected areas, Indian Reserves, and several Nation-specific designations for  
various First Nations (some of which overlap the Blueberry Claim Area). Several  
wildlife land designations are included, such as Ungulate Winter Ranges and Wildlife  
Habitat Areas.  
Yahey v. British Columbia  
Page 347  
[
1251] As noted earlier, specific to Blueberry, the Ministry of Energy and Mines also  
has designations for “Critical Areas,” which are automatic deferral areas, and Interim  
Measures Areas 1, 2 and 3, as established in the Interim Measures Agreement for  
Petroleum and Natural Gas. While the Agreement is no longer in effect, the Ministry  
still follows this protocol.  
v.  
Pre-tenure Referral Process  
[
1252] Mr. Pasztor said provincial consultation with First Nations occurs during the  
pre-tenure referral process. The information gathered during the critical information  
analysis is used for an initial impact assessment regarding the impact of any  
proposed tenure on a First Nation’s treaty rights.  
vi.  
Mitigation of Impacts  
[
1253] Mr. Pasztor also said the Ministry of Energy and Mines uses information  
gathered during the consultation process to develop options for mitigating potential  
impacts on treaty rights.  
[
1254] The Ministry of Energy and Mines’ says its primary approach to mitigation is  
to avoid potential impacts from the outset by establishing No Disposition Areas.  
However, as Mr. Pasztor testified, they may also mitigate in other ways, including by  
deferring tenure requests, reconfiguring parcel requests, or deciding not to post a  
parcel for sale.  
[
1255] The Ministry of Energy and Mines also relies on caveats to mitigate potential  
impacts on treaty rights. A caveat is a notice placed on a tenure that is intended to  
provide information to the tenure-holder, guide engagement between the tenure  
holder and First Nations, and inform applications to the Oil and Gas Commission  
regarding permit activities.  
vii.  
Tenure Sale Decisions  
[
1256] Before making a decision regarding the sale of tenure, Mr. Pasztor meets with  
the Crown Sales Team and the Pre-tenure Referral Team to review and discuss the  
Yahey v. British Columbia  
Page 348  
information gathered during the application process. Each parcel is assessed as  
high, medium or low risk depending on a variety of factors, including First Nations’  
interests, wildlife values, and cumulative effects assessments. The cumulative  
effects assessment is based on the Area Based Analysis, which is discussed at  
length below.  
[
1257] Mr. Pasztor then decides whether to defer, reconfigure, post or not post the  
requested parcels for sale.  
[
1258] Once tenure is granted, the tenure holder is obliged to develop the land in  
accordance with the Petroleum and Natural Gas Act. If they fail to meet these  
obligations within a defined time frame, the Ministry of Energy and Mines cancels the  
tenure and the rights revert to the Crown.  
[
1259] According to Mr. Pasztor, tenure cancellation is fairly common, and from 2014  
to 2020, more tenures were cancelled in the Blueberry Claim Area than granted.  
[
1260] I note, however, as the vast majority of the Blueberry Claim Area is already  
tenured for oil and gas development, this latter comment is not surprising.  
5
.
Permitting: The BC Oil and Gas Commission  
[
1261] The BC Oil and Gas Commission is a regulatory agency formed under the Oil  
and Gas Activities Act, S.B.C. 2008, c. 36. The Commission is responsible for  
regulating oil and gas activities in the Province, including exploration, production,  
pipeline transportation, and reclamation. The Oil and Gas Commission also holds  
authority over activities related to petroleum and natural gas development under  
other specified enactments, such as the Forest Act, R.S.B.C. 1996, c. 157; the  
Water Sustainability Act, S.B.C. 2014, c. 15 and the Heritage Conservation Act,  
R.S.B.C. 1996, c. 187. The Oil and Gas Commission is responsible for ensuring that  
proponents conduct their oil and gas activities in accordance with the terms and  
conditions of permits and applicable regulations.  
 
Yahey v. British Columbia  
Page 349  
[
1262] Land use orders also guide the Oil and Gas Commission via general orders  
and policy directives from other government agencies.  
[
1263] In its “Activity Application Manual” (the “Application Manual”) the Oil and Gas  
Commission outlines its role as follows:  
The Commission’s core roles include reviewing and assessing applications  
for industry activity, consulting with First Nations, ensuring industry complies  
with provincial legislation and cooperating with partner agencies.  
[
1264] The Application Manual further describes the Oil and Gas Commission as a  
consolidated single-window authority” which:  
“
…
provides not only a one-stop place for all oil and gas and associated  
activity requirements, but a consistent application, decision, regulatory and  
compliance authority. Stakeholders work with one agency; therefore serving  
the public interest by having an all-encompassing review process for oil and  
gas activities.  
[
1265] Section 4 of the Oil and Gas Activities Act, S.B.C. 2008, c. 36 requires that  
the Oil and Gas Commission manage its permit application process in the public  
interest, “having regard to the environmental, economic and social effects and in a  
manner that encourages the participation of First Nations.” However, there are  
significant gaps in the Commission’s process, particularly in the use of its much-  
touted Area Based Analysis tool as a purported way to address cumulative effects.  
[
1266] With respect to Blueberry, the Oil and Gas Commission has segmented  
Blueberry’s territory into three zones, each of which has a different consultation  
level. According to Ms. Pyle, Zone A is the area surrounding their reserves and what  
the Commission believes is the “core” of their territory. Applications that fall within  
Zone A receive a “normal” level of consultation. Zones B and C, which are further  
out, attract a lower level of consultation.  
[
1267] Two representatives from the BC Oil and Gas Commission testified at trial:  
James O’Hanley (Vice President of Applications), and Sean Curry (Vice President of  
Operational Policy and Environment).  
Yahey v. British Columbia  
Page 350  
a)  
Oil and Gas Commission Objectives and Values  
[
1268] Mr. Curry testified that the Oil and Gas Commission is a “policy taker, not a  
policy maker.” In other words, the Oil and Gas Commission takes direction from the  
government on the values to consider in managing the land base. One of the  
primary ways government provides this direction is through the Environmental  
Protection and Management Regulation, B.C. Reg. 200/2010.  
[
1269] The Environmental Protection and Management Regulation has four broad  
parts: definitions; provisions setting out the government’s environmental objectives;  
operator requirements; and a series of provisions allowing various ministers to  
identify certain features on the land base. The Oil and Gas Commission’s  
Environmental Protection and Management Guideline contains detailed guidance for  
industry and Oil and Gas Commission staff regarding the requirements found in the  
Environmental Protection and Management Regulation. The Guideline also contains  
Planning and Operational Measures for various environmental values, including  
riparian values and Old Growth Management Areas.  
[
1270] Mr. Curry testified that these Planning and Operational Measures provide  
applicants with the list of government objectives and guidelines they must address in  
the application process (detailed further below). The “planning” component gives  
guidance on how to plan the activities – for example, to avoid certain ecological  
features where possible. The “operations” component provides guidance on how  
applicants should actually conduct an activity – for example, timing their operations  
to minimize environmental impacts. If an applicant proposes something not in line  
with these Planning and Operational Measures, they must submit a rationale  
explaining why they are unable to follow the prescribed measures.  
[
1271] The Environmental Protection and Management Regulation also guides  
permit issuance and post-permit activity through the “material adverse effect” test  
embedded in the regulation. Under the Environmental Protection and Management  
Regulation, no activity can be located on a riparian feature, or in an Old Growth  
Yahey v. British Columbia  
Page 351  
Management Area, Ungulate Winter Range or Wildlife Habitat Area, unless it will not  
have a “material adverse effect.” This is a two-part test which considers, first,  
whether the activity in question will have a “material” impact on the value – in Mr.  
Curry’s words, whether it will be “significant, of consequence”; and, second, whether  
that impact will be “adverse” – in Mr. Curry’s words, “detrimental or harmful” to the  
value.  
[
1272] On this basis, however, despite the alleged protections afforded by these  
designations, oil and gas activity can occur in these protected areas.  
[
1273] Mr. Curry testified that the Oil and Gas Commission also uses the coarse  
filter/fine filter management method. In brief, this method uses two categories of  
regulatory “tools” in conjunction with one another to manage ecosystems and  
individual species. Coarse filter tools work at a landscape level. Mr. Curry testified  
that coarse filter management groups together species and habitats that respond  
similarly to similar management efforts, and then applies management strategies  
that are expected to assist all of them. Some designated areas, like Old Growth  
Management Areas and Riparian Reserves, are coarse filter tools. These areas are  
supposed to provide broad-strokes protection over, for example, an entire riparian  
area. The Oil and Gas Commission has referred to coarse filter management as a  
“logical and practical approach to conserve and manage the vast majority of species  
occurring in BC, because ecosystems are comprised of more species than can  
reasonably be managed individually.”  
[
1274] Conversely, fine filter tools target individual species and unique landscape  
features or habitats. Fine filter tools work in conjunction with coarse filter tools; these  
tools are designed to catch the finer concerns that may fall through the cracks in the  
coarse filter approach. For example, where a specific ecological feature is  
disproportionately important to the conservation of a particular species. Fine filter  
tools include Ungulate Winter Ranges, which target critical habitat for a specific  
ungulate species like caribou.  
Yahey v. British Columbia  
Page 352  
[
1275] In short, a coarse filter tool applies one strategy to target multiple species,  
habitats, or a whole landscape. A fine filter tool uses one strategy to target an  
individual species, habitat, or ecological feature.  
b)  
The Application Process  
[
1276] Mr. O’Hanley testified about the permit application process at the Oil and Gas  
Commission. Applications go through three broad stages: pre-application,  
application review, and decision-maker review.  
[
1277] Applicants are required to take several pre-application steps, including  
securing tenure and meeting the requirements of the Consultation and Notification  
Regulation, B.C. Reg. 279/2010. Though it is “not required,” applicants are  
“encouraged to engage First Nations prior to submitting an application.”  
[
1278] Under the Consultation and Notification Regulation, applicants are required to  
consult in advance with all fee simple landowners and defined “rights holders” within  
a prescribed distance of a proposed project (for example, 1,000 to 1,800 metres for  
an oil or gas well), as well as any First Nation whose reserve is located within the  
prescribed distance. “Rights holders” includes those with grazing licenses, guide  
outfitting certificates, and registered traplines. Under s. 13 of the Regulation,  
applicants are required to provide consultees with detailed information on the  
proposed activity.  
[
1279] The application itself must contain a variety of details. Applicants submit a set  
of maps and plans illustrating the location and extent of planned activities, and, per  
the Oil and Gas Activity Application Manual, they are required to plan projects to  
minimize disturbances where possible.  
[
1280] Upon receipt, the Oil and Gas Commission reviews the application. At this  
stage, Oil and Gas Commission staff carry out a variety of technical reviews, and  
consult with First Nations on the proposed activities.  
Yahey v. British Columbia  
Page 353  
[
1281] As part of this assessment, decision makers rely heavily on a tool developed  
by the Oil and Gas Commission called Area Based Analysis (also referred to as the  
ABA”), which the Commission says considers cumulative effects. It has been  
described as an analytical framework or “decision support tool.”  
“
[
1282] Mr. Curry testified that the Area Based Analysis contains information on the  
total footprint of industrial disturbances in northeastern BC. Mr. Curry stated that  
when a permit application comes in, the Oil and Gas Commission uses its Area  
Based Analysis to calculate the total area of disturbance, including the incremental  
disturbance from the proposed application. The Oil and Gas Commission then  
compares the total disturbance to a series of environmental “values” – for example,  
the amount of old forest in an area – resulting in a calculation of the proposed  
activity’s impact on these values. Where a threshold is overrun, the Commission  
may take further action, such as requesting additional information from the applicant.  
[
1283] Mr. O’Hanley described the Area Based Analysis a decision support tool for  
addressing cumulative impacts of oil and gas development in northeastern BC.  
However, as noted above, the Oil and Gas Commission repeatedly referred  
Blueberry to this tool as the primary lens through which the Commission would  
address such concerns. In fact, in internal communications regarding the Province’s  
Cumulative Effects Framework Interim Policy, the Director of Regulations of the Oil  
and Gas Commission expressed the view that the Commission was “ahead of the  
curve by virtue of the ABA.”  
[
1284] Furthermore, as noted by Sean Curry in an email dated June 29, 2015:  
BFRN may be asking for an alternative, that we have been clear that ABA is  
the tool we would be using, in conjunction with consultation and ongoing  
permitting processes…  
[
1285] The Area Based Analysis was originally intended to consider nine “values”:  
1
2
. Old Forest  
. Hydro-Riparian Ecosystems  
Yahey v. British Columbia  
Page 354  
3
4
5
6
7
8
9
. Water Quantity  
. High-Priority Wildlife Habitat  
. Private Land Values  
. Cultural Heritage Values  
. Water Quality  
. Air Quality  
. Groundwater  
[
1286] As of its launch in 2015, however, the Area Based Analysis only actively  
considered two factors: Old Forest and Riparian Reserve Zones. The Oil and Gas  
Commission has slowly phased in additional values over time. At present, four  
values are included: Old Forest, Riparian Reserve Zones, Designated Wildlife Areas,  
and Old Growth Management Areas.  
[
1287] The Area Based Analysis tool however, suffers from significant shortcomings,  
which will be discussed further below.  
[
1288] Mr. O’Hanley testified that as part of the application review, a Natural  
Resource Officer also generally conducts a land and habitat review. This is also  
meant to provide assessment and management of cumulative effects. The review  
uses overlays and mapping programs to review various data layers, which include  
existing and authorized forestry and oil and gas activities. Where impacts to wildlife  
habitat are expected, the review staff apply the Province’s Environmental Mitigation  
Policy (discussed below) to assess whether those impacts can be avoided,  
minimized, mitigated, or restored. However, nowhere in the application manual is a  
question about “wildlife habitat.” Rather the “land and habitat” review appears to only  
rely on legally protected designations.  
[
1289] Mr. O’Hanley also agreed that the Oil and Gas Commission has never turned  
down an application on the basis of impact on habitat, and he agreed the Oil and  
Gas Commission did not have any specific thresholds as to how much development  
is allowable in moose habitat. He also noted that if treaty rights became an issue in  
Yahey v. British Columbia  
Page 355  
an application, he would have to seek legal advice on that point. Further critique on  
this point will be offered later, in my analysis.  
[
1290] Mr. Curry testified that where no wildlife habitat features have been officially  
identified under s. 26 of the Environmental Protection and Management Regulation,  
Oil and Gas Commission policy requires that the Commission consider these  
features during the application review process. The Province provided at least one  
example of a mineral lick that was identified during the review process; the  
proponent accommodated a 100-metre set-back/buffer using an irregularly shaped  
well pad.  
[
1291] Throughout the application process, the Oil and Gas Commission says it  
remains in contact with the applicant, seeking clarification, revisions, and additional  
information where needed. Where necessary, proponents may revise their  
applications.  
[
1292] During the application review stage, Oil and Gas Commission consultation  
staff provide a referral package to each First Nation identified through their  
Application Management System, which includes a copy of the entire application.  
Where there is no consultation agreement in place between the Oil and Gas  
Commission and a First Nation – like Blueberry – consultation is conducted using  
the Provincial Interim Consultation Procedure. Consultation “levels” are determined  
based on what the Oil and Gas Commission predicts the impact will be on each First  
Nation’s rights, with varying response deadlines.  
[
1293] The possible consultation levels are: information only, notification with  
opportunity to comment, normal, and deep. A fairly complex set of criteria are  
applied to determine the consultation level, which depends on the type of  
development, its size and scope, and which area it falls inside. At the end of the day,  
these criteria are all ways to quantitatively (as opposed to qualitatively) assess the  
potential impacts on Blueberry’s treaty rights. The higher the consultation level, the  
longer the initial response window, from zero days for “Information Only” to 30  
Yahey v. British Columbia  
Page 356  
business days for “Deep” consultations. While he provided no specifics, Mr.  
O’Hanley made the general statement that the Commission regularly extends  
deadlines at the request of First Nations.  
[
1294] Mr. O’Hanley said the Oil and Gas Commission also makes use of two data  
layers specifically related to First Nations issues, which include information on  
known First Nations values, plus confidential consultation and engagement  
information that the Oil and Gas Commission has collected over time. These data  
layers are spatial, and identify “areas of sensitivity” and other potentially important  
locations for First Nations. While “archeological features” are referenced, there is  
little information on what is actually contained in these data layers. They appear to  
represent a database of locations, but further details are unclear.  
[
1295] Finally, as a result of this application review process, Mr. O’Hanley noted  
mitigation measures dealing with outstanding concerns from the First Nation may be  
proposed. However, as will become evident, that is essentially the extent of any  
measures offered to deal with Blueberry concerns. Given the volume of applications  
and the scale of development in the Blueberry Claim Area, by its very nature  
“mitigation” alone means cumulative impacts are not being effectively considered.  
Critically, the Oil and Gas Commission has never turned down an application  
because of impacts on treaty rights, habitat issues, or cumulative effects.  
[
1296] Once the Oil and Gas Commission has completed the applicable  
consultations and reviews, the decision-maker reviews the entire package. They can  
approve it as is, approve with conditions, refuse it, or defer the decision. Notably  
however, the Oil and Gas Commission has only turned down one project in its  
history, in 2009. During the period Blueberry has consistently been raising concerns  
about cumulative effects in its territory, the Oil and Gas Commission has never  
refused an application.  
[
1297] Mr. O’Hanley testified that in practice, approved permits are subject to  
conditions (in essence mitigation measures), which may include various notification  
Yahey v. British Columbia  
Page 357  
obligations, environmental protection measures, archaeological protections, and  
more.  
6
.
Remediation and Reclamation at the Oil and Gas  
Commission  
[
1298] As part of its evidence, the Province also set out the relatively recent  
remediation and reclamation initiatives of the Oil and Gas Commission, of which I  
will provide a brief summary.  
[
1299] In May 2019, the Oil and Gas Commission introduced what it called a  
Comprehensive Liability Management Plan, comprised of three components: liability  
management; improving the rate of inactive site restoration, and addressing orphan  
sites.  
[
1300] In May 2020, the Province entered into a Memorandum of Understanding  
“Restoration Memorandum”) with two petroleum industry associations, which  
(
provides for expected funding of at least $1 million annually for restoration activities  
in northeastern BC. Its focus is on “legacy” oil and gas features, like seismic lines  
not otherwise subject to legal restoration requirements.  
[
1301] The federal government has also recently pledged significant funds to support  
restoration and reclamation in BC, of which the Province has allocated:  
a) $15 million to the Oil and Gas Commission for use in reclaiming orphan  
sites, and  
b) $5 million to address legacy impacts from old oil and gas developments, to  
be administered under the Restoration Memorandum.  
[
1302] As previously noted, in June 2018, Blueberry entered into an Interim  
Measures Agreement with the Oil and Gas Commission, the Ministry of Forests, and  
the Ministry of Energy and Mines. The Agreement designated three Critical Areas –  
Area 1, Area 2 and Area 3. Development in Areas 1 and 3 required a 4-to-1  
restoration offset by proponents. However, the Oil and Gas Commission withdrew  
 
Yahey v. British Columbia  
Page 358  
from the agreement in June 2019, when the parties were unable to resolve disputes  
as to whether Area 2 was also subject to this restoration offset requirement. Per Ms.  
Pyle’s testimony, Area 2 is the area more immediately surrounding Blueberry’s  
reserves, which has already been subject to intensive development.  
[
1303] The Oil and Gas Commission gives wells an “orphan” designation where the  
operator is insolvent or cannot be located. Such sites can then be remediated using  
the industry-funded Orphan Site Reclamation Fund. According to the Oil and Gas  
Commission’s Orphan Site Reclamation Fund Annual Report: 2017/18 and 2018/19,  
and “[b]arring any unforeseen increases in the orphan population,” their current  
plans and programs will allow the Commission to complete restoration work on  
orphan sites within 10 years of their designation.  
[
1304] Mr. Curry testified that in 2016 there was a significant increase in orphan  
wells as a result of Terra Energy’s bankruptcy, from roughly 45 to an estimated 356  
orphan wells at the time of his testimony. Mr. Curry noted that once a well is  
designated as an orphan, it remains on the Province’s list of orphan wells  
indefinitely, even after it has been reclaimed.  
[
1305] In discussions between Blueberry and the Province, Blueberry has identified  
0 orphan sites as priority sites for restoration. Mr. Curry testified that the Oil and  
1
Gas Commission and Blueberry had visited nine of the 10 sites together, and noted  
that they will address these priority sites (as well as those identified by other Treaty  
8
First Nations) ahead of other sites.  
[
1306] In 2019, the new Dormancy and Shutdown Regulation, B.C. Reg. 112/2019  
was introduced; it sets timelines for the restoration of dormant oil and gas wells.  
[
1307] “Dormant” wells are those that fall below a certain activity threshold (720  
active hours per year) for five consecutive years. Dormant wells are assigned to  
various categories depending on their current or anticipated dormancy date, and  
proponents must comply with specific restoration timelines based on a well’s  
Yahey v. British Columbia  
Page 359  
category. Based on the current inventory of inactive well sites in northeastern BC,  
the Province anticipates that 10,000-11,000 of these sites will be restored by 2036.  
[
1308] The Dormancy and Shutdown Regulation also allows the Oil and Gas  
Commission to designate well sites as “priority sites,” which requires the company to  
restore within five years. Mr. Curry noted there are three of these priority sites in the  
Blueberry Claim Area, all near Pink Mountain.  
7
.
Issues with the Province’s Oil and Gas Regime  
[
1309] The Plaintiffs laid out a variety of issues with the Province’s oil and gas  
regime; I have addressed these issues in detail below.  
[
1310] Ultimately, the Plaintiffs submit that neither the Ministry of Energy and Mines  
nor the Oil and Gas Commission has any mechanism to properly consider  
cumulative effects or treaty rights. They point to significant shortcomings in the Area  
Based Analysis, which the Province has arguably presented as the primary tool to  
assess and address cumulative impacts and treaty rights in oil and gas  
development.  
[
1311] The thrust of Blueberry’s submissions on this issue is that the Ministry of  
Energy and Mines and the Oil and Gas Commission are like two ships passing in the  
night: the Ministry of Energy and Mines believes the Oil and Gas Commission will  
thoroughly assess and address cumulative impacts in its permitting process, while  
the Oil and Gas Commission believes that tenuring decisions are already reflective,  
to some degree, of a strategic approval of development in that area.  
a)  
Tenuring at the Ministry of Energy and Mines  
[
1312] Blueberry submits that the Ministry of Energy and Mines issues tenures with  
essentially no assessment of cumulative effects or the impact of any likely surface  
disturbance on treaty rights.  
 
Yahey v. British Columbia  
Page 360  
[
1313] Blueberry produced examples of Initial Impact Assessments for several  
parcels that had been proposed for tenuring. With respect to Blueberry’s treaty  
rights, they simply state that “[Blueberry’s] exercise of treaty rights on this parcel  
includes the potential for wildlife, vegetation and cultural values,” a standard phrase  
which, in Blueberry’s submission, does not demonstrate a nuanced or parcel-specific  
assessment of the impacts on their treaty rights. The Province noted, however, that  
these initial assessments occur prior to consultation and are not reflective of a final  
assessment. Further, at least some additional parcel-specific information is provided,  
including Ungulate Winter Range and Wildlife Habitat Area overlap information.  
[
1314] As the Province notes, the Oil and Gas Commission gathers more information  
through the various application stages, which they may use to inform mitigation  
measures or a deferral decision. However, there was a dearth of evidence on how  
the Commission actually considers this information with respect to cumulative  
effects. There were no policy documents detailing acceptable impact thresholds, nor  
any formalized guidance on how the Commission uses information on cumulative  
effects in making a mitigation or deferral decision.  
[
1315] With the exception of No Disposition Areas, the Ministry of Energy and Mines  
admittedly addresses most treaty rights concerns through the use of caveats  
discussed below) or by “deferring” tenure requests rather than simply denying them.  
(
Mr. Pasztor testified that although deferred parcels may remain on the deferred list  
for many years, the expectation is that “deferral” is temporary.  
i.  
No Disposition Areas  
[
1316] The Province relies on the designation of No Disposition Areas, which prohibit  
subsurface tenure dispositions, “to support government strategic direction” in  
response to Blueberry’s concerns.  
[
1317] As noted above, a total of 638,393 hectares of No Disposition Areas currently  
exist within the Blueberry Claim Area, including 364,393 hectares within the Interim  
Yahey v. British Columbia  
Page 361  
Measures Agreement Areas 1 and 3. The Province noted that they continue to  
prevent disposition in these areas despite the expiration of the Agreement.  
[
1318] The plaintiffs pointed out however that the No Disposition Areas in Areas 1  
and 3 have little effect, as demand for tenure in these areas is low. Despite  
Blueberry’s efforts, the Province has refused to agree to the same protections in  
Area 2, where the demand for tenure is high.  
ii.  
Resource Review Areas  
[
1319] In addition, the Province points out that Resource Review Areas, which  
prevent the Ministry from disposing of tenure within a particular area, protect  
33,839 hectors of land within the Blueberry Claim Area. These have been  
2
established for a number of reasons, including to support treaty land entitlement  
claims, government-to-government agreements with other First Nations, and the  
caribou management program.  
[
1320] Resource Review Areas, however, are a policy tool, not a legal designation.  
They essentially function as interim protection for a number of objectives, including  
Blueberry’s treaty land entitlement claims. Mr. Pasztor stated that he is not aware of  
the Oil and Gas Commission ever turning down a permit because of a Resource  
Review Area.  
[
1321] As noted earlier, deferrals over these areas are temporary, and therefore do  
not offer any substantive legal protection.  
iii.  
Tenure Branch does not think tenures impact  
treaty rights  
[
1322] The Plaintiffs also pointed to evidence that the Tenure Branch does not  
consider the granting of tenure to be capable of infringing on treaty rights, since such  
a grant does not authorize any surface activities. For example, at trial, Mr. Pasztor  
noted that they did not consider “infringement” but only “potential impacts” as “the  
decision to dispose tenure is purely subsurface-related and doesn’t result in any  
Yahey v. British Columbia  
Page 362  
immediate physical impact to the land base.” Mr. Pasztor was unable to clearly  
articulate how he factored treaty rights into his decisions on whether to grant tenure  
in a given area, given that the Ministry of Energy and Mines is of the view that it is  
only disposing of subsurface rights with no guarantee of development.  
[
1323] As another example, on April 20, 2015, Blueberry wrote to the Tenure Branch  
to oppose a tenure grant in a number of critical areas, including a Caribou Ungulate  
Winter Range in Chinchaga herd territory. With respect to the proposed tenures,  
Blueberry pointed out that:  
Today, Blueberry faces an unprecedented crisis. The cumulative effects of  
the thousands of wells, roads, pipelines, gas plants, clear cuts, dams,  
transmission lines, water approvals and other developments authorized by  
the provincial government are destroying our land and threatening our  
traditional way of life. There are very few places left for us to exercise our  
rights under Treaty No. 8, including our rights to hunt, fish, and trap. The  
disturbance of huge parts of our territory, combined with the displacement of  
our families from their preferred areas, makes it very difficult to continue our  
way of life and pass our culture onto younger generations. Indeed,  
disturbance of our territory is so extensive that we no longer have the ability  
to meaningfully practice the rights promised to us under Treaty No. 8. This is  
a grave situation.  
[
[
1324] In a May 7, 2015 email to Norma Pyle, Blueberry was told:  
MNGD [the Ministry of Natural Gas Development] has concluded that the  
disposition of these parcels does not infringe on BRFN’s treaty rights since  
any tenures issued will not authorize any activities.  
1325] Numerous Tenure Branch emails and letters were presented where the  
Tenure Branch repeatedly stated this after receiving input from Blueberry. In an  
August 6, 2015 email to Norma Pyle from Bill Adair, a senior advisor in the Tenure  
Branch, Blueberry was told:  
As you know, any tenures issued by [the Ministry of Natural Gas  
Development] do not authorize surface activities. Should a permit for oil and  
gas activities be applied for in the future that has the potential to impact  
[
Blueberry’s] Treaty Rights, the Oil and Gas Commission will conduct further  
consultation with [Blueberry]. As a result [the Ministry] intends to offer the  
bulleted parcels for disposition.  
Yahey v. British Columbia  
Page 363  
[
1326] This view was pervasive throughout the Tenure Branch. After outlining how  
the Province recognizes the importance of assessing and managing the cumulative  
effects of resource development in northeastern BC, Richard Bader, Senior First  
Nations Consultant with the Tenure Branch, concluded a June 2015 letter by noting  
that the disposition of a particular parcel “does not infringe on [Blueberry’s] Treaty  
Rights for the reasons outlined above and because any tenures issued will not  
authorize oil and gas activities. As you know, [Blueberry] will be consulted on any  
applications for oil and gas activities with the potential to impact [Blueberry’s] treaty  
rights.” The parcel was therefore offered for disposition.  
[
1327] The same view was reflected in a letter dated November 7, 2016 from Bill  
Adair, Senior Advisor, Upstream Development Division of the Ministry of Natural Gas  
and Development (now the Ministry of Energy and Mines). Mr. Adair noted that  
“numerous topic areas” were “outside the scope and mandate” of the Ministry. He  
suggested that Blueberry refer to correspondence from others in the government,  
and listed the Ministry of Environment; the Ministry of Forests; the Oil and Gas  
Commission; the Ministry of Aboriginal Relations and Reconciliation; and various  
other individuals associated with these ministries.  
[
1328] In addition, Mr. Pasztor confirmed that despite the known and acknowledged  
risk of extirpation of the Chinchaga caribou, the Ministry of Energy and Mines  
continues to issue tenure in this area.  
[
1329] As a whole, the evidence demonstrated that the Tenure Branch is of the view  
that its sale of tenure rights in the Blueberry Claim Area did not affect treaty rights,  
and that it was up to others to take care of that concern.  
[
1330] This evidence – particularly the 2015 emails from Tenure Branch – read like  
the Joseph Heller novel, Catch-22. The Oxford Dictionary describes this as “a  
dilemma or difficult circumstance from which there is no escape because of mutually  
conflicting or dependent conditions.” In this case Blueberry was constantly told by  
one department or another to take its difficulties or dilemma elsewhere as someone  
Yahey v. British Columbia  
Page 364  
else would deal with it. That in fact never happened clearly creating a frustrating  
Catch-22 situation.  
iv.  
Caveats  
[
1331] The Plaintiffs contend that at the tenuring stage, the only real mechanism for  
the consideration and protection of treaty rights are the caveats that might be placed  
on a tenure. The Ministry of Energy and Mines routinely uses caveats to “address”  
Blueberry’s concerns before posting parcels for sale. However, any protection  
derived from these caveats is weak, if not non-existent.  
[
1332] On the evidence, caveats have no impact on Oil and Gas Commission  
decision making. Mr. Pasztor agreed that the Ministry of Energy and Mines does not  
monitor, inquire, or even purport to know whether the Oil and Gas Commission  
grants development permits, nor whether they consider the caveats on tenure when  
doing so.  
[
1333] Moreover, at the Oil and Gas Commission level, evidence suggests that  
caveats are essentially meaningless. Mr. Pasztor admitted that caveats are not  
legally binding, and he was unaware of any evidence that the Oil and Gas  
Commission actually uses them. As the Plaintiffs pointed out, neither of the Oil and  
Gas Commission witnesses referred to tenure caveats at any point in their  
testimony.  
b)  
Permitting at the Oil and Gas Commission  
[
1334] Blueberry notes that the Ministry of Energy and Mines defers the real  
substance of the treaty rights and cumulative effects analysis to the Oil and Gas  
Commission, on the assumption that the Oil and Gas Commission will assess and  
regulate surface development. However, Blueberry argues that the Oil and Gas  
Commission is failing to discharge this burden in a way that considers cumulative  
impacts. Further, Blueberry has experienced significant difficulties with the  
administration of the permitting process, which hampers meaningful dialogue  
between Blueberry and the Oil and Gas Commission on these issues.  
Yahey v. British Columbia  
Page 365  
i.  
Administration of the Permitting Process  
[
1335] The regulatory framework around oil and gas at a surface level appears to set  
out some tools to consider cumulative impacts and treaty rights. The picture the  
Province has painted however, is not consistent with reality. A review of this  
framework demonstrates fundamental flaws created by the tools and revealed by the  
reality of Blueberry’s experience with the process.  
[
1336] In her testimony, Ms. Pyle identified a number of consistent problems with the  
permitting application process. First, she noted that the application does not reveal  
the true character, scale or scope of the project. The application may identify a  
request for one well, with a note that other wells may be built in the same area later.  
However, the application does not provide information on the number of wells that  
may be drilled going forward or when they may be drilled. Importantly, the Oil and  
Gas Commission assesses each of the subsequent wells separately using an  
“information only” consultation process rather than the deeper consultation for the  
original application. A project may therefore be divided into multiple subsequent  
applications with an “information only” process which, as Ms. Pyle noted, frustrates  
meaningful consultation on the project as a whole.  
[
1337] In addition, an application may not be described fully. By way of example,  
Ms. Pyle described an August 28, 2016 application by Painted Pony, which indicated  
it was an application for a “Wellsite, Access road and Borrow pit.” However, it soon  
became apparent that the applicant planned to build a processing facility on the site  
and was seeking approval to clear the site for that purpose.  
[
1338] Ultimately, as Ms. Pyle noted in her letter of October 28, 2016 to Adam Kamp,  
First Nations Officer of the Oil and Gas Commission:  
Blueberry remains very concerned with the OGC’s fragmented approach to  
consultation on this Application. The OGC is seeking to divide this project into  
two components: the clearing of the land and the construction and operation  
of the hydrocarbon processing facility (“the Facility”). In spite of the OGC  
knowing that the Proponent plans on building the Facility on the cleared site  
to process the gas produced from the wells on its wellpad and surrounding  
areas, it is attempting to consult only on the proposed clearing. This approach  
Yahey v. British Columbia  
Page 366  
amounts to project splitting, and it is frustrating meaningful consultation on  
this Application because we can never discuss with the OGC the full range  
and scope of potential impacts from the proponent’s plan to build this facility.  
Further, we are concerned that, if the OGC approves the clearing, it will then  
use those approved impacts to justify construction of the Facility and its  
incremental impacts to our lands and animals.  
[
1339] This application also contains a useful demonstration on how the Oil and Gas  
Commission uses its Area Based Analysis tool (discussed further below) to assess  
cumulative impacts. As per the Oil and Gas Commission’s application process, the  
proponents hired a consultant – Highmark Environmental Services Ltd. – to run the  
Area Based Analysis tool for the proposed project. Highmark Environmental  
produced a report to this end, dated July 4, 2016. The application site was in the  
Cameron River area.  
[
1340] The conclusion segment for that report stated there was “no indication in any  
of the spatial data…that this project would have an adverse effect or contribute to  
the cumulative effects on the [listed resources].” The listed resources included:  
existing old forest; Old Growth Management Areas; “the distance to watercourses”;  
riparian areas; “location of water wells”; community watersheds; and water quality,  
as well as various wetland features (like swamps and marshes) and land use  
designations. However, Ms. Pyle noted that the analysis made no mention of the  
seven tributaries of the Cameron River and Blair Creek that the access road would  
cross, nor did it make any reference to the low-lying wet areas surrounding the  
development, which she testified were important for animals and plants that  
Blueberry members use in exercising their treaty rights. A moose lick was depicted  
in the appendices, but the Area Based Analysis portion contained no mention of this  
feature, either.  
[
1341] Ms. Pyle also noted there are no guidelines in place to address the impacts of  
industrial noise on wildlife. She testified that some noise is both disruptive and  
constant, like a pump jack. When Blueberry raised this issue, the Oil and Gas  
Commission’s response was to refer them to a residential noise guideline. As Ms.  
Yahey v. British Columbia  
Page 367  
Pyle notes, this guideline only applies to nearby residences – of which there were  
none – it protects people, not animals.  
[
1342] When Blueberry has raised the impacts of an application on animal habitat,  
the Oil and Gas Commission references Section 6 of the Environmental Protection  
and Management Regulation, where protection may be provided for “proposed or  
established ungulate winter range; wildlife habitat features; core caribou habitat; old  
growth management areas or wildlife retention areas.” However, if none of these  
designated areas overlap with the application area, the Oil and Gas Commission  
does not recognize an impact on wildlife habitat – even if Blueberry identifies the  
area as a critical area of concern – on the basis that it is inconsistent with the  
government objectives under s. 6 of the Regulation.  
[
1343] The apparent sole consideration of non-designated wildlife habitat is under  
the Environmental Protection and Management Regulation, s. 6(b), which states that  
the Oil and Gas Commission is obligated to carry out oil and gas activities “at a time  
and in a manner that does not result in physical disturbance to high priority wildlife.”  
On cross examination, Mr. Curry confirmed that the Oil and Gas Commission  
interpreted this obligation as being only with respect to the timing of activities – for  
example, by avoiding disturbances during sensitive moose calving season. As Ms.  
Pyle pointed out, once the calving season is over, the disturbance then occurs. The  
reality is that, going forward, the habitat is destroyed and the sensitive calving area  
needed for the future is gone.  
[
1344] Blueberry consistently raised the above concerns in response to individual  
permit applications. In the face of repeated requests from Blueberry to consider the  
cumulative impacts of a specific application, Oil and Gas Commission staff  
eventually responded:  
In addition to direct participation in the development of the ABA, the best  
opportunity for Blueberry to assist the Commission in assessing and  
addressing the cumulative impacts question is through discussion of project-  
specific concerns with respect to proposed oil and gas activity.  
Yahey v. British Columbia  
Page 368  
Note that the Commission gave this suggestion as a way of dismissing Blueberry’s  
project-specific concerns about cumulative effects. In some examples reviewed at  
trial, the Commission offered to consider project-specific concerns if Blueberry would  
provide them, ignoring the fact that Blueberry had already done so, repeatedly, in  
the immediately preceding correspondence. Ms. Pyle testified that this was a  
common theme in correspondence around permit applications.  
[
1345] Ms. Pyle reviewed a number of permit applications provided by the Oil and  
Gas Commission to Blueberry. In her capacity as Director, she was responsible for  
supervising Blueberry’s Lands and Resource Department and responding to  
referrals about proposed development in the territory, including oil and gas  
development. Ms. Pyle testified that Blueberry receives hundreds of these referrals  
annually, and that she probably sent a response regarding 15 to 20 such referrals  
each day.  
[
1346] Mr. Curry indicated that the Commission regularly grants deadline extensions  
for the responses. In contrast, Ms. Pyle indicated they normally request a response  
within five working days of receiving the application. I prefer Ms. Pyle’s testimony on  
this point, as she was directly involved in the difficulties of responding to these  
numerous applications; Mr. Curry was not.  
[
1347] As an example, Ms. Pyle referred to a weekly status report put together by  
the Oil and Gas Commission in December 2016. She indicated that Blueberry’s  
Lands and Resource Department was overwhelmed by the number of applications  
they were required to respond to at this time, with only three staff. The weekly status  
report listed 45 active Zone A referrals (being those closest to Blueberry’s core  
territory), but Blueberry also had to respond to Zones B and C. Ms. Pyle said this  
was a sliver of what the department had to consult and respond to at the time. In  
addition to these referrals, the Blueberry Lands and Resource Department was  
responding to the Silverberry expansion and dealing with the Environmental  
Protection Agency; all referrals associated with the Site C dam; and two  
Yahey v. British Columbia  
Page 369  
amendments to the six-year Forestry Operating Schedule: one amendment sought  
by Canfor to log the Beaton burn, and one sought by West Fraser out of Chetwynd.  
[
1348] In June 2019 the Oil and Gas Commission implemented an Interim  
Consultation Procedure and timeline protocol that provided a longer timeline for the  
initial response to applications, but very little evidence was provided on this point. If  
anything, it confirms the need to address the issue that Ms. Pyle identified in her  
testimony.  
ii.  
Area Based Analysis  
[
1349] It is evident the Area Based Analysis has been heavily relied on by the Oil  
and Gas Commission in response to Blueberry’s concerns. As noted earlier, to  
assess the impact of a proposed activity, Area Based Analysis calculates the total  
area of industrial disturbance in northeastern BC, and then adds the incremental  
disturbance expected from the proposed activity. It essentially asks, “What will the  
total disturbance in this area be, including this new disturbance?” The tool then  
compares that total disturbance number to a set of thresholds based on various  
environmental “values” or “indicators.” For example, one indicator is “Old Forest.” If  
the total disturbance would decrease the amount of old forest below a certain  
threshold, the Area Based Analysis tool would sound the proverbial alarm, triggering  
an assessment by the Oil and Gas Commission. As will be discussed further below,  
surpassing a threshold does not actually stop development and has no substantive  
effect.  
[
1350] Although it has been in development since 2013, and was initially  
implemented in 2015, Area Based Analysis still only addresses a small grouping of  
issues. At the time of its inception, the Area Based Analysis only considered two  
environmental values: Old Forest and Riparian Reserves. The Oil and Gas  
Commission has slowly added new values; at present, there are only four values in  
use. In the interim, the Commission continues to issue permits.  
Yahey v. British Columbia  
Page 370  
[
1351] This limited list of values means that the Area Based Analysis does not  
address what Blueberry – and to some extent, the Province’s own scientists – say  
are key cumulative effects metrics, including:  
a) buffers or zones of influence surrounding disturbances, despite an  
abundance of credible scientific evidence that these buffers are useful in  
estimating and assessing actual cumulative impacts;  
b) the actual impacts of development (as opposed to simply the disturbance  
footprint);  
c) any future planned development;  
d) the level of relative importance of tracked features or values (i.e. whether  
a given stream or forested area is critical habitat);  
e) the concentration of development in any given area versus the average  
level of development across the Natural Disturbance Unit;  
f) linear disturbance density, fragmentation, connectivity, or interior forest  
metrics; or  
g) most forestry impacts, including readily-anticipated forestry development  
in the areas in question.  
[
1352] Notably, there is no direct measure in the Area Based Analysis to assess or  
protect treaty rights. At various points, Blueberry suggested linear disturbance  
density as a possible treaty rights indicator. Mr. Curry was asked about the Oil and  
Gas Commission’s decision to use total disturbance instead of linear disturbance in  
the face of this request, but provided little or no explanation.  
[
1353] There are also a number of issues with the chosen indicators or values and  
with the Area Based Analysis’ thresholds or “triggers” for disturbance levels. The Oil  
and Gas Commission did not consult Blueberry when determining these thresholds.  
Yahey v. British Columbia  
Page 371  
[
1354] First, and most importantly, there is no real consequence to a threshold being  
reached. Mr. Curry testified that triggers result only in the proponent and the Oil and  
Gas Commission collecting more information and conducting additional reviews.  
There is no “hard stop” if a threshold is reached. There is no bar on further  
development. There do not appear to be any concrete consequences to an Area  
Based Analysis threshold being overrun.  
[
1355] Furthermore, with respect to Old Forest, the thresholds are set based on  
Natural Disturbance Units: massive tracts of land, which are too coarse and large to  
be of any help to the plaintiffs in combatting cumulative effects. Nearly the entire  
Blueberry Claim Area is contained within a single Disturbance Unit – the Boreal  
Plains Natural Disturbance Unit– which comprises roughly eight million hectares of  
land. This is more than twice the size of the Claim Area itself, and may be many  
times the size of an individual watershed. This can be compared to other  
management units – for example, Wildlife Management Units – which are far smaller  
and allow for more granular management.  
[
1356] The following map, which is Exhibit 73, illustrates the size disparity:  
Yahey v. British Columbia  
Page 372  
Exhibit 73: Natural Disturbance Units for NE British Columbia, Schedule 1 Notice of BRFN  
Civil Claim.  
[
1357] Mr. Curry testified that the Oil and Gas Commission chose the Natural  
Disturbance Unit based on research by Craig DeLong, the former regional ecologist  
for northeastern BC. Mr. DeLong originally designed these units to provide forestry  
harvesting recommendations based on natural disturbance patterns in each unit. For  
example, Mr. DeLong’s management recommendations include maintaining large  
old forest reserves, or harvesting trees in irregularly-shaped patches to match the  
shape of natural disturbances, like forest fires, and maintaining a composition of  
Yahey v. British Columbia  
Page 373  
forest ages (for example: new growth, old forest) roughly in line with the natural  
landscape. As part of this research, he determined a guideline natural range for “old  
forest” inside of each unit.  
[
1358] Mr. DeLong’s management theory is laid out in a 2011 report for the Ministry  
of Forests entitled “Land Units and Benchmarks for Developing Natural Disturbance-  
based Forest Management Guidance for Northeastern British Columbia.” Natural  
Disturbance Units were not designed to address oil and gas development, nor  
cumulative effects. Critically, the report sets out a number of recommended  
strategies to be used in conjunction with each other. The Oil and Gas Commission,  
like the Ministry of Forests, has selected only one factor (the percentage of old  
forest) and does not use the combination of strategies or factors recommended in  
the report.  
[
1359] Further, the Area Based Analysis threshold for Old Forest (17%) is set as an  
average across the entire Natural Disturbance Unit. This means it does not account  
for the intensity of development in any given area, including the Blueberry Claim  
Area.  
[
1360] By way of illustration, Plaintiffs’ counsel pointed out that the threshold or  
trigger” for the amount of Old Forest – i.e., the point at which the Area Based  
“
Analysis would “sound the alarm” on the Old Forest value – would not be triggered  
even if every single Old Forest tree in the Blueberry Claim Area were cut down.  
[
1361] That the Oil and Gas Commission chose such a low threshold only  
compounds the problem: 17% is at the lowest end of the natural range. Mr.  
DeLong’s research – upon which the threshold is based – specified that a natural  
level of Old Forest in the Boreal Plains Natural Disturbance Unit was somewhere  
between 17-33%. In addition, the lack of any consideration of buffers or zones of  
influence means the Area Based Analysis underestimates actual disturbance levels  
in the forest. Mr. Curry admitted that when choosing to use Natural Disturbance  
Yahey v. British Columbia  
Page 374  
Units for the Old Forest indicator, he did not consider when, if ever, the trigger was  
likely to be surpassed.  
[
1362] Moreover, with respect to concentration, much of the planned development in  
the Montney Play is concentrated in the North Montney area, which overlaps with  
Wildlife Management Units 7-34, 7-44 and 7-45 – areas that are central to Blueberry.  
Because the Area Based Analysis measures impacts on Old Forest at the Natural  
Disturbance Unit scale, significant development could occur in what Blueberry  
describes as its “core territory” without triggering an assessment, which only  
measures the average across the Natural Disturbance Unit. Similar concerns are  
relevant to the Riparian Reserve Zones indicator given the size of water  
management basins.  
[
1363] Finally on this point, the Old Forest value does not track the “internal,”  
functional” or “effective” forest that is needed for effective wildlife habitat. More will  
be said about that later in these reasons.  
“
[
1364] The Riparian Reserve Zones indicator tracks only a small subset of the  
Blueberry Claim Area. It tracks only large streams, not small ones, and applies to  
only a small strip of land surrounding each riparian feature (between 10-50 metres).  
Riparian Reserve Zones cover only a small percentage of each water management  
basin, and, much like the Old Forest indicator, the threshold is applied against too  
coarse of an area. In this case, the threshold measures the entire water  
management basin rather than against particular streams or waterways. As the  
plaintiffs pointed out, this means the disturbance for any individual stream could  
greatly exceed the threshold 5% disturbance rate without triggering the Area Based  
Analysis indicator.  
[
1365] In addition, as the Plaintiffs point out, the two more recently implemented  
values, Designated Wildlife and Old Growth Management Areas, have very little  
application to the Blueberry Claim Area.  
Yahey v. British Columbia  
Page 375  
[
1366] The Oil and Gas Commission implemented the “Designated Wildlife” value in  
017. It monitors only those areas which have been designated as wildlife habitat  
2
under legal orders (i.e., as Wildlife Habitat Areas and Ungulate Winter Ranges), of  
which there are almost none in the Blueberry Claim Area. There are very few of  
these lands in the Blueberry Claim Area, and as moose are not a protected species,  
their habitat will not be designated as a Wildlife Habitat Area. Provincial policy limits  
on the use of Ungulate Winter Ranges and Wildlife Habitat Areas make it unlikely  
the Province will meaningfully expand these designated lands within the Blueberry  
Claim Area.  
[
1367] The Oil and Gas Commission is aware there are very little to none of these  
designations in Blueberry territory. Despite this knowledge, the Oil and Gas  
Commission has consistently and in rote fashion responded to Blueberry’s concerns  
by referring it to the Area Based Analysis, which relies in part upon these  
designations.  
[
1368] The Plaintiffs engaged Dr. Rachel Holt to review the Area Based Analysis  
framework. Dr. Holt testified as a fact witness in this trial, including on the factual  
underpinnings of the Area Based Analysis. She was not tendered as an expert  
witness and was not asked to provide an expert opinion, and as such I have not  
considered Dr. Holt’s testimony as that of an expert. Rather, Dr. Holt testified about  
actions she has taken at Blueberry’s request to address issues Blueberry raised  
concerning impacts on its territory. Dr. Holt testified about the report she authored at  
Blueberry’s request detailing a number of issues with the Area Based Analysis  
framework. Blueberry provided the Oil and Gas Commission with that report in 2016  
as part of identifying its concerns.  
[
1369] At trial, Dr. Holt went through the Area Based Analysis report for the  
Blueberry River watershed, which appears on the Oil and Gas Commission’s  
website, to highlight some of the critiques she and Blueberry provided to the  
Commission. As Mr. Curry acknowledged in his testimony, in communications with  
the Oil and Gas Commission, Blueberry repeatedly requested that the Commission  
Yahey v. British Columbia  
Page 376  
use the watershed scale – or even the scale of their territory – for its old forest  
indicator.  
[
1370] Dr. Holt noted the issues with the landscape scale on which the Area Based  
Analysis’ values are measured:  
A: … And I literally was originally very confused by how the status for each  
watershed could be classified as normal for old forest when I’m looking at an  
image of the Lower Beatton River, in this case, where most of it is private  
land, agriculture. There is no forest on most of it. And a very small  
percentage of the remaining forest is old forest. You can see the very small  
scattered forest fragments here.  
And I – I literally did not understand how – how that was being reported on.  
So I was puzzled, and then I looked at it in more detail and started to  
understand that in one part of their information they report on the very large –  
on the very, very large Natural Disturbance Unit, but they provide an output  
for every watershed as though that reflected the condition of old forest in that  
watershed.  
And the reason that – so I became familiar with this in this level of detail when  
I wrote the Land Stewardship Framework for Blueberry. And the reason it  
concerned me and I wrote in that report was that the [Area Based Analysis ]–  
the [Commission] was telling Blueberry that the [Area Based Analysis] was an  
effective tool for making sure that permits weren’t allowed to just go ahead  
because this tool would somehow protect the values that the nation was  
concerned about. And on a human scale or a wildlife scale or an ecosystem  
scale I pointed out in that technical review that it’s not helpful to either people  
or animals if there is old forest a very long way away. It matters on the scale  
of watersheds.  
And I was confused about it because the [Commission] themselves  
developed these watershed as their own reporting unit because they are a –  
and I had heard this from them directly – that because they are an  
appropriate scale to report on. And yet when I delved into it I realized that  
they were not reporting at this scale.  
…
When I looked into the details, they were not reporting at the scale of the  
watershed. They are – they are showing a map of the watershed but  
reporting on the old forest over a very large area…[t]he Natural Disturbance  
Unit.  
So even though there’s no – so the [Area Based Analysis] tool has a trigger  
that suggests concern about old forest less than 17 percent. They have set  
an old forest target of 17 percent. This watershed has about 1 percent of old  
forest in it yet the [Area Based Analysis] tool concludes that the old forest  
status here is normal. Which is why I wrote in the Land Stewardship  
Framework that I was concerned about the potential effectiveness of that tool  
for looking at and responding to the value of old forest.  
Yahey v. British Columbia  
Page 377  
[
1371] This reality was demonstrated by a review of the Oil and Gas Commission’s  
own documentary evidence.  
[
1372] Dr. Holt also noted that the Area Based Analysis report excludes private land  
which may well have been developed or converted to agricultural land – from its  
–
calculations. These habitat changes are not factored into the assessment of a  
watershed’s overall disturbance level.  
[
1373] Parenthetically, I take these comments to be a statement of fact, i.e. that  
while the Oil and Gas Commission references watersheds in its reports, it uses the  
much larger Natural Disturbance Unit measure for assessing old forest, and  
excludes private land from its calculations; and furthermore that Blueberry and Dr.  
Holt alerted the Oil and Gas Commission to the fact that this was an issue.  
[
1374] On March 14, 2016, Blueberry forwarded correspondence to the Oil and Gas  
Commission setting out some of its concerns with respect to the Area Based  
Analysis. In that correspondence Blueberry expressed that:  
a) the values the Area Based Analysis considered at the time (old growth  
forest and riparian zones) are not acceptable proxies for treaty rights;  
b) the disturbance thresholds set by the Oil and Gas Commission have no  
relationship with Blueberry’s interests and practices, nor was Blueberry  
involved in defining them;  
c) the large Natural Disturbance Units employed by the Area Based Analysis,  
such as the Boreal Plains Unit, have no relationship with the much smaller  
areas in which Blueberry members try to exercise their rights. This means  
the Area Based Analysis “dilutes and grossly understates” the  
concentrated impacts that actually occur on the areas and the values that  
matter to the treaty rights; and,  
d) the Oil and Gas Commission has abdicated its regulatory responsibility for  
managing and assessing cumulative impacts by trying to make oil and gas  
industry proponents responsible for applying the Area Based Analysis,  
Yahey v. British Columbia  
Page 378  
notwithstanding its known fundamental defects, the strong incentives  
these proponents have to understate their impacts, and the Commission’s  
limited ability to oversee and/or evaluate industries assessments.  
[
1375] The Area Based Analysis is at the heart of the Oil and Gas Commission’s  
cumulative impacts analysis. Although the defendants suggested that cumulative  
impacts assessment is embedded into the Oil and Gas Commission’s permitting  
process more broadly, internal communications between Oil and Gas Commission  
staff make it clear that the Area Based Analysis is used as the primary tool in this  
regard. In fact, Mr. Curry stated in a 2015 email regarding BRFN’s ongoing requests  
that the Oil and Gas Commission more directly assess cumulative effects on treaty  
rights:  
[
[
Blueberry] may be asking for an alternative, but we have been clear that  
Area Based Analysis] is the tool we will be utilizing, in conjunction with  
consultation and ongoing permitting processes.  
[
1376] Mr. Curry then asked about meetings to engage with Blueberry on how to  
improve the Area Based Analysis. Alicia Jung, first Nations Liaison Officer for the Oil  
and Gas Commission, responded to Mr. Curry by saying:  
During the April 17th and May 5th meetings it was agreed that [Area Based  
Analysis] would be a separate discussion however there were no  
commitments from [Blueberry] or [the Oil and Gas Commission] to follow-up  
and book a separate discussion. As you know, every letter we send includes  
an offer to meet separately to discuss [Area Based Analysis]. We have not  
proposed any dates as [Blueberry] has not expressed any interest in taking  
us up on that offer. The only interest they have expressed is for an  
assessment of cumulative impacts on Treaty rights and a plan to restore  
impacts to Treaty rights. We have been focused on continuing discussions on  
the files.  
(
emphasis added)  
[
1377] What is notable about this exchange is the Oil and Gas Commission’s refusal  
to consider any of Blueberry’s suggestions or propose alternatives to properly  
address Blueberry’s concerns.  
Yahey v. British Columbia  
Page 379  
[
1378] Further, in response to such requests, the Oil and Gas Commission  
eventually refused to discuss cumulative effects with Blueberry at all, and by way of  
response consistently pushed Blueberry’s representatives to talk directly to Mr.  
Curry regarding the Area Based Analysis. Mr. Curry agreed at trial that the  
Commission did not intend the Area Based Analysis to act as a single,  
comprehensive cumulative impacts assessment tool. However, he also testified:  
Q: Did you understand that you, on behalf of the [Oil and Gas Commission]  
and the Crown, had an obligation to develop an effective approach to  
cumulative impacts, to respect their treaty rights?  
A: Well, it’s my understanding that our approach to assessing cumulative  
impacts was with area-based analysis. We hadn’t defined what treaty rights  
were; how they would be measured, we didn’t have a value.  
[
1379] Overall, and despite the regulators’ demonstrated reliance on it, Area Based  
Analysis is deeply flawed as a cumulative effects or treaty rights consideration tool.  
iii.  
Permit Review Outside of the Area Based  
Analysis  
[
1380] In addition to the Area Based Analysis, the Oil and Gas Commission  
considers designated land areas – including Ungulate Winter Ranges, Wildlife  
Habitat Areas, and Old Growth Management Areas – which are subject to the  
“material adverse effects” test described above, which stems from the Environmental  
Protection and Management Regulation. However, as Blueberry notes, this implies  
that development can and will continue in designated areas provided the decision  
makers believe it to fall below the “material adverse effect” threshold on a permit-by-  
permit basis. Mr. O’Hanley testified that in terms of Old Growth Management Areas,  
they have interpreted this to allow up to 5% disturbance in each area.  
[
1381] Perhaps even more telling, Cultural Heritage Resources – an indicator which  
the Oil and Gas Commission has not yet implemented – are also a designated value  
under the Environmental Protection and Management Regulation. The Oil and Gas  
Commission is thus required to consider whether a proposed activity might have a  
“material adverse effect” on Cultural Heritage Resources when issuing permits. The  
Yahey v. British Columbia  
Page 380  
Environmental Protection and Management defines “cultural heritage resources” as  
including, inter alia, sites that are subject to a treaty right (in treaty areas) and those  
that are “the focus of a traditional use by an aboriginal people…” (in non-treaty  
areas). When Mr. Curry was taken to relevant sections of the Environmental  
Protection and Management Regulation during cross-examination, he appeared to  
realize for the first time that unlike Ungulate Winter Ranges, Old Growth  
Management Areas and Wildlife Habitat Areas, Cultural Heritage Resources do not  
need to be designated by a minister. This means that protecting Cultural Heritage  
Resources is an existing and ongoing Oil and Gas Commission obligation. He  
admitted the Oil and Gas Commission has no process in place to protect Cultural  
Heritage Resources, which include treaty rights, and have developed no definition  
for what counts as a Cultural Heritage Resource.  
[
1382] The Province noted that even beyond the Area Based Analysis and these  
designated areas, a wide array of information is collected and put before the  
decision maker, including maps overlaid with various data layers detailing  
disturbances, other active developments in forestry and oil and gas, and wildlife  
habitat.  
[
1383] However, the Oil and Gas Commission’s “consideration” of various maps and  
data layers means only that the Oil and Gas Commission decision makers may be  
aware of the extent of development in the area, including forestry activities and  
cutblocks. There are no disclosed thresholds associated with this information,  
against which the decision maker may assess cumulative impacts. There was no  
evidence of a standardized use of these maps, besides that they are put in front of  
the Oil and Gas Commission decision maker at some point. Recall that the Area  
Based Analysis assesses disturbances for its limited list of “values” on various  
disparate scales (e.g., Natural Disturbance Units and watersheds), none of which  
directly correspond to Blueberry’s territory. As a result, it is clear that there is no  
formal process as part of the Oil and Gas Commission’s permitting process to  
Yahey v. British Columbia  
Page 381  
consider the cumulative footprint of disturbances for the Blueberry Claim Area or  
how the impacts of those disturbances may interact.  
[
1384] The Oil and Gas Commission’s Policy on Decision-Making Considerations  
provides specific direction with respect to the application of the Government’s  
Environmental Mitigation Policy:  
Government’s Environmental Mitigation Policy (EMP) was established in  
2014 and was originally drafted to assist with addressing significant  
environmental impacts from large projects. It was expanded to include  
consideration of environmental impact mitigation in all decision making but  
with a number of important qualifications. The EMP does not convey legal  
authority and must be applied in accordance with the relevant legislation. It is  
ultimately up to the decision maker, in accordance with their legislative  
authority, to decide where and what type / amount of mitigation to apply. The  
EMP applies a hierarchy in deciding on the type of mitigation to apply and  
encourages all feasible measures to be considered at one level before  
moving on to the next. That mitigation hierarchy is as follows:  
a) avoid impacts on environmental values and associated  
components.  
b) minimize impacts on environmental values and associated  
components.  
c) restore on-site the environmental values and associated  
components that have been impacted.  
d) offset impacts on environmental values and associated  
components.  
Given the Commission’s legal authorities in [the Oil and Gas  
Activities Act] and the requirements in [the Environmental  
Protection and Management Regulation] sections 6 and 7(a), the  
mitigation hierarchy cannot be fully applied for the following  
reasons:  
e) [Environmental Protection and Management Regulation]  
sections 6(a), (b), (d) and 7(a) do not provide authority to mandate  
avoidance of the identified environmental values, instead they  
state that impacts are acceptable, until a material adverse effect  
occurs.  
f) Some on site restoration (or mitigation) can be addressed in  
decision making through permit conditions (OGAA s25), other key  
environmental restoration requirements are required under the  
[
Environmental Protection and Management Regulation] and [Oil  
and Gas Activities Act], and these aren’t part of decision making  
under sections 25, 31(7) and 32(5) of the [Oil and Gas Activities  
Act].  
Yahey v. British Columbia  
Page 382  
g) The Commission does not have legal authority to require the  
offsetting in terms in item d above.  
(
emphasis added)  
[
1385] As reflected in the above Oil and Gas commission’s Policy, the government’s  
environmental policy is modified in effect to allow oil and gas development to  
proceed despite its impacts on the environment. It is evident from this policy manual  
that what might be considered environmental protections in other areas are not  
applied in the same fashion to areas in which oil and gas development occurs,  
including Blueberry’s traditional territory. Indeed Mr. O’Hanley testified that while the  
Environmental Mitigation Policy provides for restoration offsets, the oil and gas  
decision makers don’t have the legal authority to order such restoration until the  
supporting regulations of the amended Oil and Gas Activities Act are completed and  
come into force.  
iv.  
Disconnect Between the Tenures Branch and  
the Oil and Gas Commission  
[
1386] Finally, as mentioned above, there appears to be a significant disconnect  
between the Ministry of Energy and Mines and the Oil and Gas Commission  
regarding the Oil and Gas Commission’s role in assessing cumulative impacts and  
protecting treaty rights.  
[
1387] With respect to the Tenure Branch’s tenuring decisions, Mr. O’Hanley (at the  
Oil and Gas Commission) stated:  
[
I]n situations where tenure has been granted, going back to the  
Commission’s decision test which is a public interest and balancing test, the  
granting of tenure we would see as at least a signal from government  
representing the public interest, that the tenured area is a candidate for  
development. So we wouldn’t then turn around and say that we wouldn’t  
assess development proposals, because it is an area that has been identified  
as potentially developable.  
(
emphasis added)  
[
1388] However, the Tenure Branch decision maker, Mr. Pasztor, did not seem to be  
aware that the Oil and Gas Commission has taken tenure grants as any kind of  
Yahey v. British Columbia  
Page 383  
strategic signal regarding potential development. As noted above, the Ministry of  
Energy and Mines largely defers the obligation to protect treaty rights to the Oil and  
Gas Commission as the body that actually authorizes surface activities.  
[
1389] Conversely, the Oil and Gas Commission witnesses testified that they did not  
have the power to impose limits on development to protect treaty rights from  
cumulative impacts. There are no written thresholds at the Oil and Gas Commission  
for cumulative impacts, nor is there any written guidance on how much development  
or disturbance is too much for a given area. The Oil and Gas Commission has noted  
in a letter of May 2015 to Blueberry that while it considers potential future increases  
in development, it would ultimately rely on “other processes being initiated by the  
Province to address the level of development.”  
[
1390] In addition, Mr. O’Hanley testified that if an Oil and Gas Commission decision-  
maker wanted to protect treaty rights or wildlife habitat, they could not do so at their  
own discretion; they would have to elevate the decision to a higher authority. He  
noted that Oil and Gas Commission decision-makers are required to elevate any  
“unusual” decisions, which would include the decision to reject a permit due to  
cumulative impacts or to reject based on the infringement of treaty rights.  
[
1391] It is telling that the Oil and Gas Commission has never denied a permit due to  
anticipated impacts on the Plaintiffs’ treaty rights, nor based on cumulative impacts  
to those rights. To reiterate, the Commission considers it “unusual” to reject a permit  
for treaty rights infringement – so unusual that decision makers believe they have no  
discretion to reject on this basis without seeking approval from a higher authority.  
[
1392] This disconnect between the Ministry of Energy and Mines and the Oil and  
Gas Commission is illustrative: both appear to consider the other as an assessor of  
cumulative impacts on treaty rights. This issue was further magnified in Mr. Curry’s  
and to some degree Mr. O’Hanley’s testimony. Mr. Curry, in particular, frequently  
responded to direct questions regarding the Oil and Gas Commission’s  
consideration of treaty rights or cumulative effects as being the purview of  
Yahey v. British Columbia  
Page 384  
“government,” often with an implication that the Oil and Gas Commission was  
awaiting direction from another source before implementing any protections.  
[
1393] I note that the Province, both in argument and via their witnesses, had a  
tendency to point to an ever-expanding pool of decision-making bodies as evidence  
that cumulative effects and/or treaty rights are being considered, without concretely  
describing how these issues are being addressed.  
c)  
Restoration and Reclamation Issues  
[
1394] As the plaintiffs note, the Province’s oil and gas reclamation plans may be  
judged on their efficacy and timeliness.  
[
1395] Many of the reclamation measures the Province presented during this case  
were initiated on the eve of or, in some cases, during trial. There is consequently  
little evidence of their efficacy. As the Plaintiffs submit, these recent reclamation  
programs go more to the question of remedy than of prior infringement.  
[
1396] The evidence shows that significant funds are required to restore the existing  
oil and gas disturbances in northeastern BC, including in the Blueberry Claim Area.  
By Oil and Gas Commission’s own estimates, restoring existing seismic lines in  
northeastern BC will cost somewhere in the range of $500 million.  
[
1397] With respect to the Reclamation Memorandum, the $1 million in annual funds  
will be split between a number of initiatives and First Nations. The Court received no  
evidence of how the funds will be allocated, or how much will go to restoration inside  
the Blueberry Claim Area. At the time of Mr. Curry’s testimony, the Province had not  
yet engaged with any Treaty 8 First Nations regarding the restoration work to be  
undertaken pursuant to the Restoration Memorandum, although he expressed an  
intention to do so.  
[
1398] There is a similar issue, on a larger scale, with the federal funding – it is  
unclear how much of this will go toward the Blueberry Claim Area or if it will be of  
benefit to Blueberry’s treaty rights. The Defendant did not proffer evidence of how  
Yahey v. British Columbia  
Page 385  
much damage these funds will restore within the Blueberry Claim Area, nor how long  
recovery will take after the restoration efforts are complete. Further, as the Plaintiffs  
pointed out, these federal funds will be used for “dormant” well sites, which  
proponents are already legally obligated to restore under the Dormancy and  
Shutdown Regulation.  
[
1399] Critically, contemporary restoration efforts have a long lead time. Even if the  
Province undertakes aggressive restoration efforts in the present day, the effects  
may not be seen for many years. Depending on the disturbance type and the  
ecosystem, complete restoration may take up to a century. For example, with  
respect to seismic lines and roads, Mr. Pasztor confirmed that linear features are not  
“restored” by the Province’s definition until 35 years post-disturbance for upland  
habitat, or at least 100 years for lowland habitat.  
[
1400] The manner in which restoration is carried out presents further problems.  
Section 19 of the Environmental Protection and Management Regulation requires  
the use of “ecologically suitable species” for the restoration of operating areas of  
Crown land. However, oil and gas proponents have generally used a non-native  
seed mix called “timothy clover” to re-plant on seismic lines. Blueberry considers this  
an invasive species, which negatively impacts biodiversity.  
[
1401] Mr. Curry did testify that the Oil and Gas Commission is still clarifying what  
constitute ecologically suitable species. As a result of discussions with First Nations,  
including Blueberry, they have provided guidance to industry that certain “invasive  
and persistent” species – including timothy clover – are not suitable for reclamation  
on Crown land, as they may reduce plant community diversity and hinder the natural  
revegetation process.  
[
1402] Mr. Curry also noted that proponents are “encouraged” to engage with local  
First Nations when developing reclamation plans, including when choosing  
reclamation plant species. There is some evidence that proponents do engage in  
this work. For example, Ms. Nicole Deyell, Senior Vice President of Development for  
Yahey v. British Columbia  
Page 386  
PETRONAS Energy Canada Ltd. (an oil and gas proponent, and the largest tenure  
holder in the Blueberry Claim Area), testified that her company has been working  
with Blueberry on a number of reclamation sites in the Blueberry Claim Area.  
[
1403] Parenthetically, there does appear to be some positive progress on  
PETRONAS’s part. They committed to collaborating with Blueberry on the planning  
process for the reclamation program, and reclamation work has already begun.  
PETRONAS also increased its 2019 reclamation budget in response to concerns  
from Blueberry about the effects of their proposed developments.  
8
.
Conclusions with Respect to Oil and Gas Regulation  
[
1404] In sum, the Province has no substantive measures in place to protect the  
Blueberry Claim Area against cumulative impacts from oil and gas development. The  
Province also scarcely considers treaty rights in its oil and gas regime.  
[
1405] As noted earlier, I find there is a significant disconnect between the tenuring  
and permitting decision makers, such that each believes the other considers treaty  
rights and/or cumulative effects to a greater degree than they actually do. This  
disconnect has created a gap through which Blueberry’s rights have fallen.  
[
1406] Tenure caveats are not legally binding. They have no effect on Oil and Gas  
Commission decision making and proponents are not bound to follow them. The  
Ministry of Energy and Mines does not follow up to see if proponents or the  
Commission are using their caveats in any way. They primarily defer to the Oil and  
Gas Commission to consider treaty rights and cumulative effects.  
[
1407] Deferrals and Resource Review Areas are temporary and, as the Plaintiffs  
noted, there is no indication how long they will remain in place – they may well end  
the moment this litigation concludes. The Province has also refused to designate  
tenure “No Disposition Areas” in areas where the demand for tenure is highest and  
critical to Blueberry.  
 
Yahey v. British Columbia  
Page 387  
[
1408] The Oil and Gas Commission’s permitting process is equally fraught. Permit  
applications are sent to Blueberry with very little information about planned future  
development, which means projects may be much larger than originally disclosed,  
and future permits are pushed through at a lower consultation level. The sheer  
volume of permits Blueberry receives and the timelines for response stand in the  
way of meaningful engagement. In addition, the many identical template letters sent  
to Blueberry in response to their concerns demonstrate perfunctory conduct.  
[
1409] Further, the permitting process relies on the Area Based Analysis to manage  
cumulative effects, however, this tool:  
a) does not directly consider treaty rights;  
b) currently considers only four of the nine intended values; and,  
c) sets thresholds that are unlikely to provide any meaningful protection for  
the Blueberry Claim Area, because:  
i. they measure disturbance on too coarse of a scale;  
ii. they are set too low; and/or  
iii. they are largely inapplicable to the Blueberry Claim Area.  
[
1410] Moreover, surpassing a trigger results only in further reporting requirements  
so even if a threshold is reached, development does not have to stop.  
[
1411] Other avenues for protection against cumulative effects have similar issues.  
The Oil and Gas Commission has never considered Cultural Heritage Resources in  
its permitting process. The Province has only recently made steps toward  
restoration, a process that will take decades to bear fruit. The Province’s land use  
designations provide very limited – and non-binding – protection (further detailed  
under the Wildlife Management section of this judgment).  
[
1412] Across the substantial volume of evidence led on the Province’s oil and gas  
regime, the dominant theme was that the Province – via the Oil and Gas  
Yahey v. British Columbia  
Page 388  
Commission – had no response to Blueberry’s concerns about cumulative effects  
except to refer them to the Area Based Analysis; or to ask them to wait for more  
comprehensive forthcoming cumulative effects initiatives. Those initiatives may be  
years in the making. In the meantime, the Province continues to approve  
development permits at a substantial rate – hundreds each year, by Ms. Pyle’s  
testimony. While matters may be paused or slowed down during the COVID-19  
pandemic, that situation may well return.  
[
1413] Finally, the evidence shows that the Province has not only been remiss in  
addressing cumulative effects and the impacts of development on treaty rights, but  
that it has been actively encouraging the aggressive development of the Blueberry  
Claim Area through specific royalty programs (including for marginal wells) and Jobs  
Plan policies.  
[
1414] As has been set out in the earlier section dealing with disturbance on the  
land, oil and gas development has contributed significantly to anthropogenic  
disturbance in the Blueberry Claim Area, with its resultant adverse impacts on  
habitat and wildlife. The disturbance on the land, which has impacted and resulted in  
the inability for Blueberry to meaningfully exercise its treaty rights, has been fostered  
by the Province’s regulatory regime.  
[
1415] Overall, the Province’s oil and gas regime provides very little protection  
against cumulative effects, and barely considers treaty rights. While new initiatives  
are underway, the analysis of whether the Province has diligently implemented the  
treaty requires an assessment of whether existing processes are adequate to protect  
treaty rights. That assessment reveals they are not.  
[
1416] Delay in dealing with these matters and the continuation of the status quo has  
benefitted the Province. While interim measures can be helpful, they are only so if  
permanent measures are developed in a timely way. In the end, these processes are  
at the discretion of the Province and its agencies, with no clear ability for Blueberry  
to enforce its treaty rights. That has to change. The Province has been on notice for  
Yahey v. British Columbia  
Page 389  
years – at least since 2012 – regarding these issues. In the meantime, adverse  
impacts on Blueberry’s territory continue to accumulate, fundamentally eroding the  
Treaty promise.  
[
1417] While the Province has made some recent efforts, particularly in the Regional  
Strategic Environmental Assessment process, these initiatives have no definitive  
timelines and are ultimately discretionary. The Province continues to have all the  
power, and ultimately little incentive to change the status quo. There is a clear need  
for timely, definitive, enforceable legal commitments that recognize and  
accommodate Blueberry’s treaty rights. The delay in implementing such legally  
enforceable commitments must therefore come to an end.  
D.  
Forestry Management  
[
1418] The management of BC’s forests falls under the responsibility of the Ministry  
of Forests, Lands and Natural Resources Operations and Rural Development  
previously defined in these reasons as “Ministry of Forests”). The Ministry of  
(
Forest’s approach to forest management divides the province into three geographic  
areas: the north, the south, and the coast. These areas are then subdivided into  
regions, and within that, resource districts. The forest resources in each resource  
district are further divided into Timber Supply Areas (also referred to as “TSAs”)  
under s. 7 of the Forest Act.  
[
1419] The Blueberry Claim Area falls within the Peace Natural Resource District,  
which is a subset of the northeast region. The majority of the Blueberry Claim Area  
is within the Fort St. John Timber Supply Area, which covers approximately 4.6  
million hectares. (Recall that the Blueberry Claim Area is approximately 3.8 million  
hectares.) The Fort St. John Timber Supply Area is bounded by the Peace River on  
the south, the Alberta border on the east, and the height of the Rocky Mountains on  
the west. The portion of the Blueberry Claim Area that is south of the Peace River is  
within the Dawson Creek Timber Supply Area.  
 
Yahey v. British Columbia  
Page 390  
The location of the Blueberry Claim Area in relation to these timber supply areas can  
be seen on Exhibit 99, Tab 1, which is reproduced below.  
Exhibit 99, Tab 1: Map titled Blueberry River First Nation & Overlapping Timber Supply Areas,  
dated November 14, 2019.  
[
1420] Within the Ministry of Forests there are a number of different forestry related  
decision makers, tasked with making either higher level strategic decisions or  
operational decisions.  
Yahey v. British Columbia  
Page 391  
[
1421] The Chief Forester of British Columbia is responsible for setting the Allowable  
Annual Cut (also referred to as the “AAC”), which is the maximum volume of timber  
that may be harvested per year within a timber supply area. The Chief Forester’s  
jurisdiction in setting the Allowable Annual Cut is prescribed by legislation.  
[
1422] Setting the Allowable Annual Cut is one of the primary strategic decisions,  
and it frames or affects many of the operational decisions that follow it. The other  
important strategic decision – though not one made by the Chief Forester – is  
zoning. Zoning is set in the applicable land and resource management plan.  
[
1423] The Fort St. John Land and Resource Management Plan was approved by  
Cabinet in 1997. The Land and Resource Management Plan establishes, among  
other things, resource management zones. Importantly, it establishes an “enhanced  
resource development” zone that covers approximately a quarter of the Blueberry  
Claim Area.  
[
1424] Of note, the Fort St. John Land and Resource Management Plan describes  
the enhanced resource development provincial land use category at page 30 as  
including lands:  
with existing or with future potential suitability, for intensive resource  
development with due consideration to the management of other resource  
values;  
where a high priority has been designated for a special or combined  
resource management emphasis (such a high intensity forest  
management regime or range management emphasis); and,  
where investment in resource development and enhancement are  
encouraged in full compliance with the existing regulatory regime.  
[
1425] In most of BC, timber harvest is managed under the Forest and Range  
Practices Act, and the Forest Planning and Practices Regulation. However, timber  
Yahey v. British Columbia  
Page 392  
harvest in the Fort St. John Timber Supply Area is governed by the Fort St. John  
Pilot Project Regulation, B.C. Reg. 278/2001.  
[
1426] Under the Fort St. John Pilot Project Regulation, unlike in the rest of BC,  
forestry companies (referred to as “participants”) are responsible for preparing a  
Sustainable Forest Management Plan (also referred to as an “SFMP”) and  
associated Forest Operations Schedules (or “FOS”). The Sustainable Forest  
Management Plan sets out the objectives and targets for forestry activities in the  
Fort St. John Timber Supply Area. The Forest Operations Schedules (which are in  
place for six-year periods) set out anticipated harvest and road building activities.  
The Sustainable Forest Management Plan must be approved by the Ministry of  
Forests’ Regional Executive Director for the Northeast Region (a position held by  
Karrilyn Vince) and the Director of Resource Management for the Northeast Region  
(a position held by Chris Addison in pertinent times), neither of whom testified at  
trial.  
[
1427] When a participant wants to start harvesting, it applies to the Ministry of  
Forests for the appropriate permits. Determining whether or not to grant the  
requested permits are operational decisions made by the district managers. Greg  
Van Dolah is the District Manager for the Peace Natural Resource District. Mark Van  
Tassel is the Resource Manager for that district, and has also acted as District  
Manager. Both testified at trial.  
1
.
Parties’ Positions  
[
1428] Blueberry argues that the Province’s forestry regime is built upon the  
fundamental goal of maximizing harvest and replacing all the natural forests with  
crop plantations that will create efficiencies for the next harvest cycle.  
[
1429] It says that the operational decisions district and resource managers are  
empowered to make, all connect to higher level plans and processes that have  
already zoned much of the Blueberry Claim Area for high intensity forestry.  
 
Yahey v. British Columbia  
Page 393  
[
1430] Blueberry also raises concerns about decision makers lacking authority to  
manage cumulative effects, or take into account impacts on the exercise of treaty  
rights. Blueberry points out that, at the end of the day, it is the forestry companies  
(i.e., “participants” per the Fort St. John Pilot Project Regulation) who hold much of  
the power regarding what cutblocks to harvest, how and when.  
[
1431] In response, the Province argues that the forestry legislation, regulations and  
policies in place protect various social, ecological and environmental values,  
including those associated with the practice of treaty rights. The Province points, in  
particular, to the Chief Forester’s imposition of a geographic partition to limit the  
amount of harvesting that can take place within the “core” of the Blueberry Claim  
Area.  
[
1432] At a surface level, imposing a partition appears to address a number of  
Blueberry’s concerns and specifically those relating to overharvesting in the core of  
their territory; however, as discussed later, this is not the case.  
[
1433] The Province also notes that all First Nations whose territories are within the  
Fort St. John Timber Supply Area have opportunities to provide input on the  
Sustainable Forest Management Plan and Forest Operations Schedules, and are  
also consulted about specific permits. The Province is critical of Blueberry’s  
engagement in consultation regarding forestry decisions to date, and alleges  
Blueberry has not provided the site-specific information the Province and  
participants need in order to mitigate impacts of forestry activities on the exercise of  
their rights.  
[
1434] The Province says that, in essence, Blueberry disagrees with the way in  
which the Province is managing impacts, and the Province again reminds the Court  
that this is not a commission of inquiry into the policy choices the Province has made  
respecting forest management or the management of industrial development more  
broadly. The Province notes that difficult questions about how to manage cumulative  
Yahey v. British Columbia  
Page 394  
effects are best addressed through collaborative, multi-party processes, such as the  
Regional Strategic Environmental Assessment process.  
[
1435] In the sections below I will review in greater detail the various tools used to  
manage forestry in the Blueberry Claim Area, and will consider the parties’  
arguments about whether these tools, and the forestry management regime more  
broadly, allow for the effective consideration of cumulative effects and impacts on  
treaty rights.  
2
.
Allowable Annual Cut  
[
1436] Under s. 8 of the Forest Act, it is the Chief Forester of British Columbia, a  
position currently held by Dianne Nichols, who must determine the Allowable Annual  
Cut for a timber supply area. The process by which the Allowable Annual Cut is  
determined by the Chief Forester is referred to as the Timber Supply Review  
process.  
[
1437] Setting the Allowable Annual Cut is a strategic-level decision that creates the  
general contours for other forestry management tools. Because the Allowable  
Annual Cut sets the maximum level of harvest per year in the Fort St. John Timber  
Supply Area, it forms a “baseline” of sorts for the activities undertaken as part of the  
Fort St. John Pilot Project, and directly impacts the creation of the Sustainable  
Forest Management Plan and Forest Operations Schedules.  
[
1438] Forest tenures are the contractual agreement between the Province and  
participants to harvest Crown timber and construct roads, among other things, on  
the land base. Forest licences, and other types of forest tenure documents, identify  
the participants’ Allowable Annual Cut (i.e., the maximum amount they are allowed  
to harvest under that specific tenure annually). Participants are required to manage  
their Allowable Annual Cut under a five-year total volume, but any one year may be  
over or under the Allowable Annual Cut. Participants pay the Province a stumpage  
fee when they harvest timber from Crown land. The amount of stumpage paid is  
 
Yahey v. British Columbia  
Page 395  
based on the timber volumes, species and grades reported. Stumpage is usually  
expressed as dollars per cubic metre.  
[
1439] Generally, the Chief Forester must determine the Allowable Annual Cut at  
least once every 10 years. However, prior to the Chief Forester’s 2018 decision, the  
Allowable Annual Cut for the Fort St. John Timber Supply Area had not been  
considered since 2003.  
[
1440] Section 8(8) of the Forest Act sets out the factors the Chief Forester must  
consider in determining the Allowable Annual Cut.  
8
(8) In determining an allowable annual cut under subsection (1) the chief  
forester, despite anything to the contrary in an agreement listed in section 12,  
must consider  
(
a) the rate of timber production that may be sustained on the area,  
taking into account  
(
i) the composition of the forest and its  
expected rate of growth on the area,  
(
ii) the expected time that it will take the forest  
to become re-established on the area following  
denudation,  
(
iii) silviculture treatments to be applied to the  
area,  
(
iv) the standard of timber utilization and the  
allowance for decay, waste and breakage  
expected to be applied with respect to timber  
harvesting on the area,  
(
v) the constraints on the amount of timber  
produced from the area that reasonably can be  
expected by use of the area for purposes other  
than timber production, and  
(
vi) any other information that, in the chief  
forester’s opinion, relates to the capability of the  
area to produce timber,  
(
b) the short and long term implications to British Columbia of  
alternative rates of timber harvesting from the area,  
(
c) [Repealed 2003-31-2.],  
(
d) the economic and social objectives of the government, as  
expressed by the minister, for the area, for the general region  
and for British Columbia, and  
Yahey v. British Columbia  
Page 396  
(
e) abnormal infestations in and devastations of, and major  
salvage programs planned for, timber on the area.  
(
emphasis added)  
[
1441] The Province pointed out that one of the documents relevant to s. 8(8)(d) and  
the consideration of “economic and social objectives of the government” in the Chief  
Forester’s most recent determination was a letter from the Minister directing her to  
consider reconciliation objectives, the UN Declaration on the Rights of Indigenous  
Peoples and concerns related to cumulative effects.  
[
1442] The Chief Forester’s jurisdiction is however circumscribed by her mandate.  
This is limited to ensuring the economic sustainability of the timber harvesting land  
base.  
[
1443] As noted above, the Allowable Annual Cut is determined through the Timber  
Supply Review process. That process involves creation of a data package, a  
discussion paper, and ultimately the Chief Forester’s Rationale for Timber Supply  
Review Determination (“Rationale”).  
[
1444] The creation of the timber harvesting land base data package is an important  
first step in determining the Allowable Annual Cut. The timber harvesting land base  
is calculated by starting with the gross Timber Supply Area (which for the Fort St.  
John Timber Supply Area is 4.6 million hectares), and deducting all lands that are  
not part of the Crown Forest Land Base (i.e., non-forested lands, private lands,  
federal lands, First Nation lands) and then deducting from the Crown Forest Land  
Base any lands that are not commercially harvestable (i.e., roads, wildlife habitat  
areas, ungulate winter ranges, or areas containing non-merchantable tree species  
such as black spruce, birch and larch).  
[
1445] The timber harvesting land base is the area used to model long-term  
sustainable forestry yields. Importantly, all of the timber harvesting land base is  
assumed to be harvestable, and a base case is determined accordingly. The base  
case is a “harvest projection.” It is based on current performance with respect to the  
Yahey v. British Columbia  
Page 397  
status of forest land, forest management practices, timber growth and yield. It  
attempts to avoid excessive changes or future timber shortages.  
[
1446] In the base case referred to in the Allowable Annual Cut determination, the  
critical assumption is that, over time, all of the areas of the timber harvesting land  
base will be harvested and turned into managed forests, and logged again.  
[
1447] The Fort St. John TSA Timber Supply Analysis Discussion Paper dated  
November 2016, and which is prepared by the Ministry’s Forest Analysis and  
Inventory Branch, describes the forecasting process as follows at pages 11-12:  
For most AAC [Allowable Annual Cut] determinations, a timber supply  
analysis is carried out using three categories of information: land base  
inventory, timber growth and yield, and management practices. Using this  
information and a computer model, a series of timber supply forecasts are  
produced to reflect different starting harvest levels, rates of decrease or  
increase, and potential trade-offs between short- and long-term harvest  
levels.  
From a range of possible forecasts, one is chosen which attempts to avoid  
both excessive changes from decade to decade and significant timber  
shortages in the future, while ensuring the long-term productivity of forest  
lands. This is known as the ‘base case’ forecast and forms the basis for  
comparison when assessing the effects of uncertainty of the information  
modelled on timber supply. The base case is designed to reflect current  
management practices.  
…
Due to the existence of uncertainty in the timber supply analysis, additional  
forecasts are usually prepared to test the effect of changing some of the  
assumptions or data used in the base case. These harvest forecasts are  
referred to as ‘sensitivity analyses’. Both the base case and sensitivity  
analyses are prepared using a computer model that projects the future  
availability of timber for harvesting based on the growth of the forest and the  
level of harvesting, while staying within the legal land-use objectives  
established by the provincial government.  
.
..  
The base case forecast (Figure 6) shows a harvest level of 2,115,000 cubic  
metres per year…  
[
1448] First Nations are consulted during the Timber Supply Review process on both  
the data package and the discussion paper.  
Yahey v. British Columbia  
Page 398  
[
1449] The Chief Forester considers the information collected throughout the Timber  
Supply Review process, including the base case modelling analysis and, exercising  
her professional opinion and discretion, makes her final Allowable Annual Cut  
determination, which is set out in the Rationale.  
[
1450] As noted, the Allowable Annual Cut is determined based on the current  
condition of the landscape and does not speculate on future land uses. Any changes  
to the land base that occur after the Timber Supply Review process is completed are  
considered as part of the next Timber Supply Review process, which occurs ten  
years later.  
[
1451] While future changes to land use cannot be directly considered, the Chief  
Forester may run a sensitivity analysis to determine how potential future changes  
may affect the Allowable Annual Cut determination in the short and long term. If the  
modelled Allowable Annual Cut base case shows that it is sensitive to changes, the  
Chief Forester may consider this in her final discretionary determination.  
[
1452] In setting the Allowable Annual Cut, the Chief Forester can also consider  
recommendations from any completed assessments done under the Cumulative  
Effects Framework.  
[
1453] For example, in the 2019 Allowable Annual Cut determination for the  
neighbouring Fort Nelson Timber Supply Area, the Deputy Chief Forester sought to  
consider two indicator values from the grizzly bear current conditions report that was  
released in 2019, specifically “core security” and “road density.” (This report was the  
first assessment completed under the Cumulative Effects Framework, which is  
discussed in greater detail below.) However, the Deputy Chief Forester found that  
this assessment report did not provide any “direction on the management of grizzly  
bears” and he therefore could not apply the information it contained to his  
determination. In effect, he was not able to draw any direction from this completed  
assessment report.  
Yahey v. British Columbia  
Page 399  
[
1454] The Chief Forester can only consider cumulative effects information that  
relates to her statutory authority. She cannot institute new management regimes. If  
cumulative effects information highlights issues that require attention through land  
use planning or otherwise, she will pass that information on to those responsible.  
[
1455] At pages 7-8 of her Rationale, the Chief Forester states:  
Treaty rights or Aboriginal Interests that may be impacted by AAC decisions  
will be addressed consistent with the scope of authority granted to the chief  
forester under Section 8 of the Forest Act. When information is brought  
forward that is outside of the chief forester’s scope of statutory authority, this  
information will be forwarded to the appropriate decision makers for their  
consideration. Specific considerations identified by First Nations in relation to  
their treaty rights or Aboriginal Interests that could have implications for the  
AAC determination are addressed in the various sections of this rationale  
where it is within the statutory scope of the determination.  
…
With respect to cumulative effects, I must interpret related information  
according to my statutory authority. As emphasized above, the chief forester  
is authorized only to make decisions on allowable harvest levels, not to  
change or institute new management regimes for which other statutory  
decision makers have specific authority. However, cumulative effects  
information can highlight important issues and uncertainties in need of  
resolution through land use planning, which I can note and pass on to those  
responsible for such planning. Information on cumulative effect can also  
support considerations related to Aboriginal interests and treaty rights.  
[
1456] I note this is yet another example, as set out in the earlier section dealing with  
the oil and gas regulatory framework, of a persistent problem in Provincial  
governmental processes of one decision-maker pointing to another decision-maker  
to take into account treaty rights and cumulative effects.  
[
1457] Finally, the Chief Forester has the power to establish a geographic or tree  
species specific partition within the Timber Supply Area in order to ensure the long-  
term objective, being a sustainable harvest supply. A partition is not legally binding,  
but participants are monitored on their conformance with the partition and, if they are  
not conforming, the Minister can order a legally binding partition under s. 75.02 of  
the Forest Act.  
Yahey v. British Columbia  
Page 400  
[
1458] Blueberry received copies of the data package and discussion paper  
produced as part of the Timber Supply Review process, and provided comments to  
the Chief Forester. Of note is Blueberry’s November 29, 2017 letter to the Chief  
Forester.  
[
1459] The Court will review this letter in some detail as it raises issues relevant to  
this case. As was repeatedly emphasized by counsel for the Province, in these  
proceedings Blueberry has not applied for judicial review of any particular decisions  
–
forestry or otherwise – and the full consultation record for the myriad of decisions  
made by the Ministry of Forests is not before the Court. The letter is not, however,  
being used to assess the adequacy of consultation during the Timber Supply Review  
process, but rather as an example of the types of concerns Blueberry has repeatedly  
raised regarding forest management and what it sees as overharvesting in its  
territory.  
[
1460] In the November 29, 2017 letter, Blueberry set out its concerns regarding  
forestry in the Fort St. John Timber Supply Area, and with how the Allowable Annual  
Cut is determined. These concerns included that the Allowable Annual Cut:  
a) is set on management objectives that disproportionately harvest from the  
core of Blueberry’s territory. In this regard, Blueberry noted that the Fort  
St. John Land and Resource Management Plan targets the core of its  
territory as an enhanced resource development zone available for high  
intensity forest management;  
b) is set on the basis that timber is taken from the whole of the Timber  
Supply Area, when the reality is that the majority of harvest happens in a  
core area that is at the heart of Blueberry’s territory; and,  
c) does not include or take into account significant forest clearing from oil  
and gas activities.  
[
1461] In its letter, Blueberry also noted that too much timber was being left on site  
as waste, meaning that more land than necessary was being cleared. Blueberry also  
Yahey v. British Columbia  
Page 401  
noted its concerns that too many new cutblocks were being cleared adjacent to  
existing clearcuts, and that this appeared to be happening to a greater extent in  
Blueberry’s territory than in the rest of the region.  
[
1462] In May 2018, the Chief Forester released her Rationale, determining the  
Allowable Annual Cut for the Fort St. John Timber Supply Area. The document  
provides an “accounting of the factors” she considered and the rationale she  
employed in making her determination.  
[
1463] The Rationale includes a history of the Allowable Annual Cut for this Timber  
Supply Area. In 1989 the Allowable Annual Cut was set at 1.8 million cubic metres,  
in 1996 it was increased to just over 2 million cubic metres, and in 2003 it was set at  
2
,115,000 cubic metres and included a partition of 1,200,000 cubic metres per year  
for coniferous-leading stands, and 915,000 cubic metres per year for deciduous-  
leading stands.  
[
1464] In her May 2018 determination, the Chief Forester set the “new” Allowable  
Annual Cut at the same volume as had been set 15 years earlier, namely 2,115,000  
cubic metres. The Allowable Annual Cut was geographically partitioned to limit the  
amount of harvest from the ‘core’ area. As discussed earlier and as reflected in one  
of the maps included in this judgment, the ‘core’ area was noted as consisting of the  
Blueberry, Kobes, Halfway, Lower Beatton, and the southern portion of the Tommy  
Lakes landscape units. The partition provides as follows:  
1. Coniferous species: a maximum of 1,200,000 cubic metres for coniferous  
species of which no more than 672,000 cubic metres may be harvested from  
the ‘core’ area. Within the core area spruce should comprise no more than 50  
percent of the conifer volume; and  
2. Deciduous species: a maximum of 915,000 cubic metres for deciduous  
species of which, no more than 512,000 cubic metres may be harvested from  
the ‘core’ area.  
[
1465] As will be commented on later, this partition was not, as argued by the  
Province, set as a response to Blueberry’s concerns about the exercise of its treaty  
rights.  
Yahey v. British Columbia  
Page 402  
[
1466] The Chief Forester did not reduce the total harvesting land base to account  
for future forestry roads. She noted district staff indicated participants regularly use  
existing oil and gas features and therefore it was assumed that areas of future  
harvesting would be accessible using existing roads. Nor did she reduce the timber  
harvesting land base to account for seismic activity. She noted that while future  
forest depletion due to seismic activity was likely, estimates of their extent were not  
modelled in the base case. Instead, a sensitivity analysis was conducted to estimate  
the impact on timber supply of under-estimating the total harvesting land base. She  
found that even if the timber harvest land base was reduced by 10%, there was no  
impact to the short-term timber supply, and only a minimal impact to the long-term  
timber supply.  
[
1467] A review of the Chief Forester’s Rationale revealed a number of points  
reflecting both her limited jurisdiction and her expectation that there would be  
collaboration between staff and various government departments and stakeholders.  
[
1468] First, the Chief Forester repeatedly noted what was within and beyond the  
scope of her authority under s. 8 of the Forest Act. Second, many of the comments  
made by Blueberry in its November 29, 2017 letter were not directly responded to,  
but were directed to regional staff and staff of other ministries to implement, address,  
or encourage others to assist with. And third, an examination of the reasons for the  
partition suggests that this was not done in response to Blueberry’s concerns about  
over-harvesting in the southern and central part of the Timber Supply Area and  
associated concerns about biodiversity, but rather to manage long-term timber  
supply.  
[
1469] The Chief Forester noted Blueberry’s concern about too much wood waste  
being left and burned on site was beyond her scope of authority. That said, she  
noted she expected district staff and licensees to work together to use this fibre  
rather than leave it or burn it, and referred to the Forestry and Fibre Action Plan, and  
to ways of making this fibre available to secondary users.  
Yahey v. British Columbia  
Page 403  
[
1470] With respect to biodiversity, habitat management and the salvage of areas  
affected by wildfire or forest health issues, the Chief Forester noted she expects  
Ministry staff to collaborate with participants and First Nations where there is a  
planned salvage to ensure all landscape level biodiversity values have been  
adequately considered, as this is outside the scope of setting the Allowable Annual  
Cut or establishing a partition.  
[
1471] Similarly, she noted that concerns raised by Blueberry about adjacency were  
outside the scope of her authority. She referred to the Sustainable Forest  
Management Plan and how she expected participants, monitored by staff, to show  
how they are meeting the objectives therein with respect to the location of proposed  
cutblocks.  
[
1472] The concept of adjacency requires a brief explanation. Forest practices in BC  
generally recognize that a cutblock that is adjacent to a previously harvested  
cutblock may only be harvested if the adjacent cutblock is “greened-up” – that is, the  
stand has met required height, stocking and block coverage requirements.  
Adjacency rules, however, do not apply in the Fort St. John Timber Supply Area.  
Section 97 of the Fort St. John Pilot Project Regulations provides that a participant  
may harvest a cutblock that is adjacent to a previously harvested cutblock that is not  
greened-up, if certain requirements are met.  
[
1473] In the “implementation” section of her Rationale, the Chief Forester  
encouraged” staff, other agencies (such as the Oil and Gas Commission) and  
“
participants (where appropriate) to support the work and studies she noted therein.  
In particular, she noted she expected information sharing on oil and gas related  
infrastructure and road development. This, she noted, would ensure that the  
information base used more accurately represents what is occurring on the land  
base.  
[
1474] The idea of expectation and encouragement was a theme in a number of  
areas. She expected First Nations, participants and staff to work together to spatially  
Yahey v. British Columbia  
Page 404  
identify opportunities for old growth management and areas for cultural heritage  
protection. She expected better tracking of the locations of wildlife tree patches. She  
noted that the Peace-Liard Moose Management Plan was in its final stages and  
requested that staff work with First Nations to finalize it.  
[
1475] Importantly, the Chief Forester’s decisions, except for the ability to impose a  
geographic partition, are not spatial. Once a geographic partition is granted, the  
authorizations or cutting permits are dealt with at the district level, by Mr. Van Dolah  
or Mr. Van Tassel in the Peace Natural Resource District. I will deal with this later.  
[
1476] Although the Province argued that the partition was ordered in specific  
response to concerns raised by Blueberry, the evidence established the partition  
was not set as a result of Blueberry’s concerns, but rather to ensure the economic  
sustainability of the timber harvest land base. The establishment of such a partition  
may have collateral effects on protecting wildlife habitat, however, as noted, the  
dominant purpose of, and the legal authority for creating such a partition, is to  
manage long-term timber supply. Mr. Van Tassel stated the partition was directed at  
more evenly distributing the harvest of forest timber resources across the Timber  
Supply Area and the timber harvesting land base.  
[
1477] I agree therefore, that the partition was not established for the protection of  
wildlife habitat. The evidence indicated this was outside the purview of the Chief  
Forester. For example, Mr. Atmo Prasad, a manager in the Forest Analysis and  
Inventory Branch of the Ministry of Forests noted in correspondence that “the  
application of a timber supply partition for the purpose of establishing a wildlife  
management requirement is not within the authority of the Chief Forester.”  
[
1478] The August 23, 2016 letter from Mr. Prasad, helps to contextualize the figures  
relied on in the Rationale, including the concentration of harvest in the Fort St. John  
Timber Supply Area.  
[
1479] Mr. Prasad noted the majority of the harvesting areas in the Fort St John  
Timber Supply Area are located in the central and southern parts. In particular,  
Yahey v. British Columbia  
Page 405  
harvest has been concentrated in the Blueberry, Kobes, Halfway and Lower Beatton  
landscape units. Mr. Prasad’s letter confirmed that the amount of harvesting in the  
Blueberry landscape unit is nearly double the amount of harvesting in proportion to  
the timber harvesting land base. The letter provides as follows at pages 3-4:  
Tables 1 and 2 summarize the information prepared to further assess the  
distribution of harvesting in the TSA [Timber Supply Area] in relation to the  
THLB [Timber Harvesting Land Base]. Table 1 shows the percentage of the  
total THLB area in each landscape unit and the percentage of the total THLB  
harvested in each landscape unit. For example, 28.7 percent of all of the  
THLB in the TSA occurs in the Blueberry Landscape Unit; whereas, 55.3  
percent of the all of the THLB harvested in the TSA occurs in this landscape  
unit. The ratio of these two values indicates whether harvesting in a  
landscape unit has been proportional to its contribution to the total THLB. For  
example, the Blueberry Landscape Unit has a ratio of 1.9 (55.3 percent /28.7  
percent), while the Tommy Lakes Landscape Unit has a ratio of 0.6 (10.5  
percent / 18.3 percent). These results indicate that, to date, a higher  
proportion of the THLB available within the Blueberry Landscape Unit has  
been harvested than in the Tommy Lakes Landscape Unit.  
[
1480] Tables 1 and 2 of Mr. Prasad’s letter note the following:  
Yahey v. British Columbia  
Page 406  
[
1481] Furthermore, the effectiveness of the geographic partition to assist with what  
Blueberry sees as overharvesting in the landscape units making up the ‘core’ area is  
weak. The partition establishes that, for coniferous species, a maximum of 672,000  
cubic metres may be harvested from the ‘core’ area. The harvest rate for the  
Blueberry Landscape Unit could therefore likely be continued. The actual number  
fixed by the Chief Forester and allowed to be harvested may not assist Blueberry or  
change anything. Rather a change is required to the Sustainable Forest  
Management Plan, which requires a change to the Forest Operation Schedule. Mr.  
Van Tassel confirmed there are no specific harvesting partitions identified within the  
Sustainable Forest Management Plan by landscape units.  
3
.
Fort St. John Land and Resource Management Plan  
[
1482] The Fort St. John Land and Resource Management Plan is considered a  
higher level plan, and plays an important role in the strategic-level governance of  
forestry in the Blueberry Claim Area. Mr. Van Dolah testified that the Land and  
Resource Management Plan was “broadly the foundation” of the Sustainable Forest  
Management Plan, and “definitely influenced” forestry operations. The Sustainable  
Forest Management Plan and Forest Operations Schedule must be consistent with  
the Land and Resource Management Plan.  
[
1483] As noted above, the Fort St. John Land and Resource Management Plan was  
originally developed in the 1990s and approved by Cabinet in 1997. First Nations in  
the region were invited to participate in this planning process, but declined to do so.  
[
1484] The Fort St. John Land and Resource Management Plan divided the planning  
area into five broad categories or zones: agriculture/settlement (12%), enhanced  
 
Yahey v. British Columbia  
Page 407  
resource development (20%), general resource development (46%), special  
management (14%), major river corridors (4%) and protected areas (4%). As noted  
earlier, zoning an area for “enhanced resource development” means the lands have  
potential suitability for intensive resource development, that a high priority has been  
designated for a special or combined resource management emphasis (such as high  
intensity forest management regime or range management emphasis), and that  
investments in resource development and enhancement are encouraged. In these  
enhanced resource development zones, biodiversity is given a lesser value.  
[
1485] The Land and Resource Management Plan has very substantial ripple effects  
for the Sustainable Forest Management Plan process as it provides the strategic  
direction in terms of which landscape units in the region are priorities for resource  
development, and which areas have a higher priority for biodiversity conservation.  
[
1486] In her testimony, Ms. Pyle expressed Blueberry’s concern about the  
Province’s “intensive forest management” approach, the “high intensity forest  
management” zone, and the level of harvesting in the core of Blueberry’s territory as  
follows. She noted that, from her perspective, intensive forest management simply  
means “intensive clearcut, intensive reforestation, intensive herbicide application.”  
She stated “it will take generations for it [the forests] to ever come back in terms of  
biodiversity, in terms of the materials that our members extracted from those  
forests.”  
[
1487] Ms. Pyle continued to testify as follows:  
Q:…Are you able to explain what a high intensity forest management  
designation means?  
A: Well, my meaning as it relates to clearcutting it just means all the logging  
happens in there in that landscape unit. That it’s the go-to place for timber  
harvesting and reforestation, planting of trees and getting those trees to free  
growing, eventually will become a timber supply for – in the future for the  
licensee.  
So high intensity forest management means heavy clearcut, plant, herbicide,  
plant again, herbicide. And that’s what it means to us.  
[
1488] Ms. Pyle went on:  
Yahey v. British Columbia  
Page 408  
…
And, you know, I just – I always had the question of, you know, how long  
can an area be designated as high intensity. And I always had that question  
on these levels that they designate to our core. And I – in meeting with the  
Province I ask that: Well, okay, how long is a pilot project going to be a pilot,  
how long is intensive forest management areas going to be designated as  
intensive. At some point you’re going to run out. I mean it’s not forever. It’s  
limited.  
And you look at the Yahey trapline, I mean, it is decimated. Very, very minor  
place left. I mean, one of the family members trapped on there – well, I think  
last year they did portions of it, but it was such a small area he said I don’t  
even need a skidoo to go check my traps anymore, I just walk.  
So an area that would take him normally you go – cabins are placed in  
certain areas so that can travel from one cabin to the next, and that’s how  
they make their rounds when they’re trapping on the trapline. And he had  
been trying to do that. He tries do that every year. I mean, it’s just what’s in  
him to do it. And last year he said I don’t even need my skidoo, because he  
had just one little small patch to trap on.  
And that’s what we’re witnessing and that’s the problem. So last winter the  
last portion of that area was logged out from a woodlot owned by the  
manager of the licensee. And it didn’t matter that our member, who since  
passed on, had traps in that area. We had to go find them. We, being the  
members of Blueberry, had to go and try and locate his traps. They had been  
logged out.  
4
.
Fort St. John Pilot Project  
[
1489] As noted above, timber harvesting in the Fort St. John Timber Supply Area is  
governed by the Fort St. John Pilot Project Regulation. The Fort St. John pilot  
project and the Fort St. John Pilot Project Regulation originated in 2001, when the  
Province was exploring different models of forestry management in order to reform  
the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 that was in  
place at the time.  
[
1490] The Fort St. John Pilot Project Regulation sought to set out a vision of what  
the desired management of a particular forest landscape would look like, and then  
develop a set of values and indicators which described the desired “result” in terms  
of forest management. In the Fort St. John pilot project, values, objectives, indicators  
and targets for forestry activities are set out in a document referred to as a  
Sustainable Forest Management Plan.  
 
Yahey v. British Columbia  
Page 409  
[
1491] So long as the values set out in the Sustainable Forest Management Plan  
were maintained, the participants (i.e., companies doing the harvesting in the Timber  
Supply Area) would be relatively free to plan and manage their operations as they  
saw fit and in accordance with the Forest Operations Schedules they developed.  
[
1492] Forest Operations Schedules are a collection of maps and analysis that  
identify all harvesting and road development contemplated in a Sustainable Forest  
Management Plan for a six year period. In these schedules, participants are required  
to propose blocks to harvest and model those blocks to the end of the six year  
period to assess what would happen to the various values identified within the  
Sustainable Forest Management Plan.  
[
1493] In other words, the Sustainable Forest Management Plan identifies the values  
and targets, and the Forest Operations Schedule sets out how those are going to be  
achieved through primary forest activities such as harvesting and road construction.  
These tools are discussed in greater detail below.  
a)  
Sustainable Forest Management Plan  
[
1494] The Sustainable Forest Management Plan is the process through which the  
Fort St. John Pilot Project Regulation implements its “results-based” management.  
The goal of results-based management is to decide on a series of values that  
represent different biodiversity and forest management objectives and then reverse-  
engineer the Sustainable Forest Management Plan and the Forest Operations  
Schedules in order to maintain those priority values on the landscape. This is done  
by identifying indicators (i.e., measure to assess progress toward an objective) and  
setting targets (i.e., the commitments to achieve the identified objectives).  
[
1495] Indicators for some values may be assessed over the entire Timber Supply  
Area, whereas others may be assessed at a smaller scale. Certain indicators are  
legal indicators” which come from legislation, regulation or policy sources. Other  
indicators are “non-legal indicators” which are akin to forestry best practices.  
“
Yahey v. British Columbia  
Page 410  
[
1496] Under s. 34 of the Fort St. John Pilot Project Regulation, participants are  
jointly responsible for the development and implementation of a Sustainable Forest  
Management Plan and associated Forest Operations Schedules. The participants in  
the pilot project are Canfor, BC Timber Sales, and a variety of other smaller  
companies including Chetwynd Mechanical Pulp Inc., Cameron River Logistics.,  
Louisiana-Pacific Canada Ltd., Peace Valley OSB, and Dunne-za LP.  
[
1497] Sub-section 35(1) of the Fort St. John Pilot Project Regulation provides that  
the Sustainable Forest Management Plan must address the entire pilot project area,  
and must be consistent with Schedule A and any “higher level plan” in effect in the  
area. The pilot project area (which is referred to in the Sustainable Forest  
Management Plan as the defined forest area or “DFA”) covers approximately 4.1  
million hectares within the greater Fort St. John Timber Supply Area.  
[
1498] As discussed, the key higher level plan (or strategic plan) applying to the pilot  
project area, and with which the Sustainable Forest Management Plan must be  
consistent, is the Fort St. John Land and Resource Management Plan. Schedule A  
of the Fort St. John Pilot Project Regulation includes a detailed table that mirrors the  
zones established in the Fort St. John Land and Resource Management Plan.  
[
1499] In accordance with s. 35(2) of the Fort St. John Pilot Project Regulation, the  
Sustainable Forest Management Plan must include “landscape level” strategies for  
timber harvesting; road access management; patch size, seral distribution and  
adjacency; riparian management; visual quality management; forest health  
management; and range and forage management. It may also include strategies for  
reforestation, biodiversity management, water quality management, forest  
protection, and other issues.  
[
1500] As per section 39(1) of the Fort St. John Pilot Project Regulation, the regional  
manager and regional director approve the Sustainable Forest Management Plan if  
they are satisfied that it is (a) consistent with the Fort St. John Pilot Project  
Regulation, (b) consistent with the preamble to the Forest and Range Practices Act,  
Yahey v. British Columbia  
Page 411  
(c) provides at least equivalent protection for forest resources and resource features  
as provided by the Forest and Range Practices Act and its regulations and (d)  
adequately manages and conserves the forest resources in the pilot project area.  
[
1501] If the decision makers are not satisfied that the Sustainable Forest  
Management Plan meets the requirements of s. 39(1), s. 39(2) gives the regional  
manager and regional director the discretion to approve only portions of the plan or  
make the approval of the plan subject to conditions.  
[
1502] Sustainable Forest Management Plan #3 was prepared by Canfor and BC  
Timber Sales, and approved with conditions by the Regional Executive Director and  
the Director of Resource Management, Northeast Forest Region (Ms. Vince and Mr.  
Addison) on May 4, 2018. It is a 775-page document (including appendices) that is  
based on the previous plan, which was approved in 2010. Significantly, the evidence  
showed that very little in the overall scope and layout of the plan changed between  
the second and third versions. In particular, the preface to Sustainable Forest  
Management Plan #3 notes that only “very minor revisions” were made between the  
second and third versions.  
[
1503] Part 6.0 of the Sustainable Forest Management Plan #3 states:  
forest managers are often challenged with implementing on-the-ground  
…
practices and knowing whether or not the overall strategic objectives have  
been met. To overcome this uncertainty, SFMP’s [Sustainable Forest  
Management Plans] establish one or more performance measures  
(
indicators) for each objective. One or more targets are then identified for  
each indicator. This is a fundamental difference between SFMP’s and other  
strategic plans that exist throughout the Province.  
[
1504] At trial, Mr. Van Tassel testified about Part 6 of the Sustainable Forest  
Management Plan, which sets out the values, objectives, indicators and targets for  
which participants manage. His testimony focussed on the following indicators:  
forest types (6.1), seral stages (6.2), patch size (6.3), coarse woody debris volume  
(
6.6), riparian reserves (6.7), wildlife tree patches (6.9), permanent access structures  
6.24), peak flow index (6.43), and maintenance of wildlife and fisheries habitat  
(
Yahey v. British Columbia  
Page 412  
values (6.56). For each of these indicators, Mr. Van Tassel explained how it was tied  
to the objective, and discussed the scale over which the indicators and targets would  
be measured.  
[
1505] In these reasons I do not discuss all of these indicators in depth, but I do note  
that certain indicators, such as “forest types” – which speaks to maintaining a  
distribution of deciduous, deciduous leading mixed wood, conifer leading mixed  
wood and conifer leading stands, and has the objective of maintaining the diversity  
and pattern of communities and ecosystems within a natural range – are measured  
at the landscape unit level (i.e., areas of approximately 100,000 hectares). Other  
indicators, such as “seral stages” or “patch sizes” are measured at the level of  
natural disturbance unit.  
[
1506] As discussed earlier, natural disturbance units (also referred to as “NDUs”)  
are very large areas. In particular, the Boreal Plains Natural Disturbance Unit is  
approximately twice the size of the Fort. St. John Timber Supply Area, and the  
Blueberry Claim Area is subsumed within it. Managing at this very broad level could  
result in significant impacts at the landscape unit level, as Blueberry points out.  
[
1507] The rationale for managing on the basis of the Boreal Plains Natural  
Disturbance Unit stems from the work of provincial ecologist S. Craig DeLong. In  
011, Mr. DeLong released a Technical Report entitled Land Units and Benchmarks  
2
for Developing Natural Disturbance-based Forest Management Guidance for  
Northeastern British Columbia. As I understand, the impetus for this work was  
recognition that earlier forest management policies and guidelines were setting  
somewhat arbitrary limits for allowable patch sizes and harvest amounts. Limits were  
often stated for things such as block size, species composition, and stand density.  
Although well meaning and easily administered, these practices resulted in  
landscape scale patterns bearing little similarity to those created by natural  
disturbance dynamics (such as wildfires).  
Yahey v. British Columbia  
Page 413  
[
1508] The idea behind Mr. DeLong’s 2011 work was to adopt forest management  
practices that approximated the natural range of variability, such as having irregular  
boundaries of harvest openings to increase edges, and leaving behind structure  
from the previous stand. The Sustainable Forest Management Plan relies on  
DeLong’s work in setting some of the indicators and targets.  
[
1509] One of the issues canvassed in cross-examination with both Mr. Van Dolah  
and Mr. Van Tassel was the fact that the Sustainable Forest Management Plan does  
not contain an indicator for treaty rights. Mr. Van Tassel testified that indicator 6.56  
(“maintenance of wildlife and fisheries habitat values”) was an “overall composite  
indicator” that had “linkage to the exercise of treaty rights under Treaty No. 8 to hunt,  
fish and trap.” Mr. Van Dolah testified that the Sustainable Forest Management Plan  
had no indicator for treaty rights because neither the courts nor First Nations had  
provided the information or advice needed to create such an indicator. Instead, Mr.  
Van Dolah testified that he sought to manage for treaty rights by having First Nations  
identify the values of interest such that potential impacts from forestry could be  
mitigated.  
[
1510] Mr. Van Dolah repeatedly stated that what he requires from First Nations, and  
Blueberry in particular, in order to manage in a way to take into account their treaty  
rights is specific information about the particular locations where rights are  
exercised. He expressed some frustration that Blueberry had not, in his view,  
provided him with the site specific information he sought, but instead provided  
traditional use studies that buffered specific locations where rights were exercised by  
2
50 to 1000 metres to protect the confidentiality of the information.  
[
1511] Furthermore, the assumption underlying the Sustainable Forest Management  
Plan with regard to the exercise of Treaty rights bears note. At page 325, it states:  
The DFA [Defined Forest Area to which the pilot project and Sustainable Forest  
“
Management Plan applies] is within the larger area of Treaty 8 of 1899, which  
established hunting, fishing and trapping as treaty rights for the local aboriginal First  
Nations communities. The rights as such are available across the treaty area and  
Yahey v. British Columbia  
Page 414  
have no site specificity or quantum…” (emphasis added). In addition, Mr. Van Tassel  
expressed the view that First Nations who signed or adhered to Treaty 8 have the  
right to hunt throughout the entire Treaty 8 territory. This implies that while Ministry  
staff frequently ask Blueberry for more specific information about the exercise of  
their rights, in particular for potential mitigation purposes, they are also of the view  
that these rights can be exercised elsewhere throughout Treaty 8 territory.  
[
1512] Throughout this trial Blueberry has vigorously sought to show that its rights do  
have site specificity – they are exercised within the Blueberry Claim Area, which  
itself has core and peripheral areas. Each of the community members who testified  
at trial testified about the specific places within the territory where they hunted,  
trapped and fished. Blueberry was willing, in this case, to provide this kind of site  
specific evidence. At the same time, however, concerns have been expressed about  
the confidentiality of information provided by members who did not testify at trial.  
[
1513] The level of specificity sought by decision makers, however, seems only to be  
used to mitigate specific impacts, and disregards Blueberry’s larger concerns about  
the overall (or landscape level) impacts forestry is having on the exercise of their  
rights. While it may be possible, for example, for the Ministry of Forests to persuade  
a participant to alter the location of a cutblock in order to create a buffer around a  
particular trail, these individual mitigation efforts do not address Blueberry’s larger  
concerns about overharvesting in the core of their territory and the lack of  
mechanisms to address concerns about the cumulative impact of forestry and other  
industrial development on the exercise of their treaty rights.  
[
1514] As the provincial forestry decision makers appear to operate with the  
understanding that Blueberry and other adherents to Treaty 8 are at liberty to hunt,  
fish and trap throughout the territory, Blueberry’s concerns about the level of  
harvesting within the core of the Blueberry Claim Area are not addressed and are  
dismissed too easily.  
Yahey v. British Columbia  
Page 415  
[
1515] Because the Sustainable Forest Management Plan must be consistent with  
the Land and Resource Management Plan, landscape units that are designated  
under the latter plan as being part of an “enhanced resource development zone” are  
considered “high intensity forest management” landscape units in the Sustainable  
Forest Management Plan, and timber production targets are on the high end, with  
biodiversity targets correspondingly on the lower end of the spectrum. The objective  
for these high intensity landscape units is to manage for a sustainable long term  
timber supply, with less focus on biodiversity objectives.  
[
1516] As an example of how zoning for enhanced resource development or high  
intensity forestry can affect the indicators used to assess performance in meeting  
objectives, counsel for Blueberry took Mr. Van Tassel in cross-examination to  
indicator 6.26 in the Sustainable Forest Management Plan #3, which deals with  
salvage of fire damaged timber. Under the Plan, for high intensity areas, there is an  
emphasis on harvesting fire damaged timber for economic value. In lower intensity  
zones, however, there would be an emphasis on protecting it for its biodiversity  
values, and therefore leaving it to decompose and create wildlife habitat.  
[
1517] While the Province argued that with respect to the recent fires (i.e., Beatton  
Burn and Tommy Lakes) Blueberry’s concerns were taken into account, Blueberry  
wanted the important Beatton Burn Area to be left to regenerate naturally. At the end  
of the day, Canfor logged about 10% of the area out of what is said was concerns for  
safety, economics, having road access to this area, and wildlife. While some of that  
was true, the dominant reason was economics. Canfor would not have done salvage  
logging in this area if it was not economically feasible to do so.  
[
1518] As can be seen, the zoning established in the land use planning process that  
occurred in the mid-1990s is carried through to the Sustainable Forest Management  
Plans that are approved today. That zoning pre-determines the kinds of forestry  
practices that will be used in any given area. Fundamentally, those forestry practices  
emphasize the harvesting and economic value of the timber supply.  
Yahey v. British Columbia  
Page 416  
[
1519] It is recognized that providing for connectivity in key habitat areas supports  
ecosystem functions and the habitat needs of a variety of local species. There is a  
real concern that the indicators used in the Sustainable Forest Management Plan do  
not manage for the protection of habitat features, and importantly, connectivity.  
[
1520] In cross-examination, Mr. Van Tassel and Mr. Van Dolah confirmed that the  
Sustainable Forest Management Plans that have been in place for nearly two  
decades did not and do not have a specific indicator for forest connectivity. In  
addition, Mr. Van Dolah said, unlike other districts, adjacency rules do not apply in  
the Fort St. John Timber supply area. Mr. Van Dolah also confirmed that the  
Sustainable Forest Management Plan does not contain an indicator for large intact  
forest, but agreed it would be a good idea for it to contain such. Mr. Van Tassel also  
made it clear in his testimony that direct protection of wildlife and populations of  
wildlife is not within the scope of the Sustainable Forest Management Plan.  
[
1521] First Nations are invited to review and comment on a proposed Sustainable  
Forest Management Plan through the public advisory group established by the Fort  
St. John Pilot Project Regulation, and are consulted during the approval process.  
Blueberry did not participate in the development of the first or second Sustainable  
Forest Management Plans, but did provide significant feedback on the third version.  
While this is not a consultation case, it is helpful to review the feedback provided by  
Blueberry as an example of the concerns they raised.  
[
1522] In a letter dated December 21, 2016, Blueberry set out its concerns with  
respect to the draft Sustainable Forest Management Plan #3. The concerns raised  
were based on a high-level review of the draft Sustainable Forest Management Plan,  
with attention to how well it maintained ecological function and protected treaty  
rights.  
[
1523] Blueberry noted that while the plan purported to be about “sustainable” forest  
management, under this plan the heart of its territory would continue to be subject to  
high intensity forestry. It criticized the Plan for not acknowledging that treaty rights  
Yahey v. British Columbia  
Page 417  
require additional consideration over and above biophysical attributes on the  
landscape, and for not containing any treaty rights indicators. It noted that the Plan  
did not take into account the current condition of the landscape, and that it  
suggested dated strategies that were no longer appropriate given the cumulative  
impacts. It also noted that spatial planning for key forest values (such as old forest)  
had still not been undertaken.  
[
1524] Further, Blueberry noted that while the intention of the pilot project may have  
been to distribute risk across the broader region, the planning decisions had not  
followed a key tenet of sustainable ecosystem management: ensuring an adequate  
amount of all representative ecosystems were protected first and foremost.  
Blueberry noted that “less than 1% of the boreal plains natural region – which  
comprises the majority of the SFMP planning unit – falls within protected areas.”  
[
1525] In its written submissions, Blueberry echoed these concerns. It noted that the  
Sustainable Forest Management Plan is plainly not a cumulative effects  
management tool and is not capable of or aimed at protecting its treaty rights from  
cumulative impacts of development in the Blueberry Claim Area. Among other  
things, it encourages large clearcuts without regard to wildlife habitat needs;  
provides no management for connectivity, fragmentation or old forest patch size;  
does not assess or track impacts of other industries; and does not set limits or  
thresholds (beyond those included in the Allowable Annual Cut) on the amount of  
logging that can occur in specific areas.  
[
1526] On May 4, 2018, the Regional Executive Director and the Director of  
Resource Management for the Northeast Region wrote to Canfor and BC Timber  
Sales approving the Sustainable Forest Management Plan #3, with certain  
conditions. These included conditions that:  
a) the plan be amended within a year to take into account the Chief  
Forester’s Allowable Annual Cut and timber supply review determinations;  
Yahey v. British Columbia  
Page 418  
b) an additional indicator be developed to ensure a balanced distribution of  
harvest activities across the Timber Supply Area;  
c) an additional indicator be developed to focus on improving the utilization  
of timber resources;  
d) an amendment to the patch size, seral stage distribution, and adjacency  
strategy and associated indicators be submitted within two years;  
e) there be specific targets for old forest retention areas to reserve them from  
harvest, and that these be developed spatially;  
f) the plan be reviewed in the context of maintaining fur-bearer habitat; and,  
g) indicators and targets be reviewed and revised to consider the  
requirement for forest connectivity and reduce linear disturbance  
throughout the landscape.  
[
1527] In addition, the approval letter noted that there were processes underway,  
including the Regional Strategic Environmental Assessment process, that may result  
in the establishment of new higher level plans that affect the objectives, indicators  
and targets within the Sustainable Forest Management Plan. If the Sustainable  
Forest Management Plan is inconsistent with any new higher level plans, it would  
need to be amended and undergo appropriate consultation.  
[
1528] Canfor sought and, in May 2019, obtained an extension to meet the  
conditions set out in the approval letter. Blueberry was not consulted on the granting  
of this extension. The remaining conditions were due to be addressed by May 2020,  
but the evidence at the time of Mr. Van Tassel’s testimony was that had not  
occurred.  
[
1529] It therefore appears that notwithstanding Blueberry’s detailed concerns and  
the Province’s attempt to have some of them addressed by the participants through  
an amendment to the Sustainable Forest Management Plan, changes have not been  
made.  
Yahey v. British Columbia  
Page 419  
[
1530] It is striking that – in the context of Blueberry raising issues of cumulative  
impacts at all governmental levels since at least 2012 – when Blueberry provided  
detailed input in 2016 and requested changes to the Sustainable Forest  
Management Plan #3, the Plan was approved two years later with almost no change  
from Sustainable Forest Management Plan #1, which was approved in 2010.  
b)  
Forest Operations Schedule  
[
1531] As noted above, the Forest Operations Schedule identifies all the proposed  
harvesting and road construction activities for a six-year period. The Forest  
Operations Schedule does not, however, identify when each cutblock will be  
harvested within the six-year period; that information is set out in annual harvest  
plans. Applications by participants for cutting permits (also referred to as harvest  
authorizations) must be consistent with the Forest Operations Schedule.  
[
1532] The Forest Operations Schedule translates the Sustainable Forest  
Management Plan into an actual on the ground plan for forestry operations. The  
Sustainable Forest Management Plan is in essence theoretical until actual cutblocks  
and roads are identified by the participants in the Forest Operations Schedule.  
[
1533] Under s. 45 of the Fort St. John Pilot Project Regulation, once a Sustainable  
Forest Management Plan has been approved, participants may prepare a Forest  
Operations Schedule and submit it to the District Manager. If a participant intends to  
apply for a permit to harvest timber or construct a road, it must have submitted a  
Forest Operations Schedule that complies with s. 45 and was made available for  
public review and comment.  
[
1534] The Forest Operations Schedule itself is not approved by the Province.  
Approvals only happen for each of the proposed activities under the Forest  
Operations Schedule for their stand-level authorizations. In other words, any  
application for a harvesting or road permit must be consistent with the cutblocks and  
roads identified within the Forest Operations Schedule.  
Yahey v. British Columbia  
Page 420  
[
1535] Forest Operations Schedules can also be amended within the six-year period,  
however, public review and comment are required for major amendments. This was  
the situation in 2016 when it was decided Canfor could do a salvage operation  
following the Beatton Burn, and this was added to Forest Operations Schedule #2.  
[
1536] The main purpose of the Forest Operations Schedule is for the participants to  
show how their planned activities will impact the various indicator values that are  
identified within the Sustainable Forest Management Plan. Certain indicator values  
within the Sustainable Forest Management Plan link to the location, size and values  
of other blocks within the Forest Operations Schedule.  
[
1537] Ms. Pyle described the Forest Operation Schedules as providing “too much  
information and not enough at the same time.” On August 28, 2019 she testified as  
follows:  
A: …what I mean is that six years’ worth of logging is around 3,000 hectares  
of clearcut, and so just the sheer amount of activity that’s being proposed is a  
lot. However, the way it’s presented it’s a mere plan. So when they’re  
developing the forest operating schedule they may identify a piece of timber  
that they will outline –  
Q: You mean a block or an area of timber?  
A: Yeah. An area of timber that they will outline and this is what we get to  
look at. And we’re supposed to make a decision on whether or not this is  
going to impact our treaty right. The problem is you don’t know exactly where  
it is. The boundary can move in or out 250 metres, or maybe it’s too – it’s  
going to shrink a lot and maybe all this area isn’t going to be logged for  
whatever reason. Maybe it’s not the type of timber they wanted or ...  
So when you go out there to look at these blocks where they’re supposed to  
log it’s hard for – it’s difficult – I mean, for someone experienced that knows  
how to read these maps they can go find them. They put it in their GPS and  
they will have an idea. For our members and our staff to go out and look for  
these, it was very difficult for them to find the exact location. So to have an  
idea of where it was, because these blocks -- these boundaries are not  
ribboned yet because the licensee at that point has just identified a piece of  
timber that they say they’re going to log at some point from year one to year  
six. The best they can do is say well, access constraints will cause us to log it  
in the winter or in the summer. That’s the information we get.  
So it’s too little information. And that’s why we always wanted to see the  
permit because at the end of the day then we can see how it’s actually going  
to be, how it’s going to look.  
Yahey v. British Columbia  
Page 421  
And so it never really tell you when you look at it –well, I’ll just say that there’s  
just not enough information.  
[
1538] The most recent Forest Operations Schedule (#3) was submitted to the  
Province in October 2017.  
[
1539] The current Forest Operations Schedule, both in section 2.0 and in Table 6,  
identifies what was referred to in the evidence as “old forest retention areas” or “old  
forest management areas.” Table 6 in the Forest Operations Schedule indicates  
that, upon completion of the harvesting activities proposed in this Forest Operations  
Schedule, within the Boreal Plains Natural Disturbance Unit, a target of 16% of the  
area containing conifer trees older than 140 years would be retained. In 2025, the  
target would be 20% retention. Table 6 shows approximately 45,000 hectares of old  
forest within the Blueberry landscape unit.  
[
1540] It must be recalled that the Boreal Plains Natural Disturbance Unit is a  
massive tract of land that encompasses approximately 8 million hectares. It takes in  
nearly all of the Blueberry Claim Area, and extends north all the way to the border  
with Yukon, as well as south of the Peace River. Targeting the retention of 16% of  
the old forest in this large area does not guarantee that old forest within the  
Blueberry Claim Area will be retained.  
[
1541] These so called “old forest management areas” are identified by the  
participants for planning purposes – they are not legal designations. In addition,  
these old forest management areas are non-spatial, in that they can be shifted  
around. It is therefore important to distinguish them from Old Growth Management  
Areas which are legally protected spatial areas which have to be declared under the  
Forest and Range Practices Act.  
[
1542] In cross-examination, Mr. Van Dolah agreed that the 45,000 hectare figure  
shown in Table 6 representing old growth in the Blueberry landscape unit could,  
hypothetically, be made up of 4,500 one-hectare areas of fragmented forest, or one  
4
5,000 hectare parcel, or anywhere in between.  
Yahey v. British Columbia  
Page 422  
[
1543] Moreover, just because an area has been designated as an old forest  
management area does not mean it is actually composed of old forest. The Fort St.  
John Timber Supply Area has been divided into 53 distinct operating areas to  
facilitate operational planning and mapping, and 53 maps are appended to the  
Forest Operations Schedule. In cross-examination, Mr. Van Dolah testified about the  
places listed by the participants on the 53 maps as being “old forest.”  
[
1544] The evidence demonstrated that many areas are not old forest in a region  
that is characterized as “Old Forest” on the legend set out by the company. In  
addition, certain areas that are clearly old forest adjacent to some of these areas are  
left out of the designated old forest areas. Ultimately Mr. Van Dolah agreed with  
respect to the South Blueberry region in question that there is very little old forest  
within that boundary. Included within the boundary are oil and gas facilities, roads,  
younger forest and a number of other features.  
[
1545] Furthermore, the Old Growth Management Areas that are legally protected in  
the Dawson Creek Timber Supply Area are designated as rotating. This means that  
even under the spatial model, at some point in time they will be harvested. Mr. Van  
Dolah testified that old growth management areas do not have as much protection  
as a legal designation of a wildlife habitat area or an ungulate winter range. The “old  
forest management areas” in the Forest Operations Schedule will not reduce the  
Allowable Annual Cut, as the assumption is one day they will be harvested.  
[
1546] The Forest Operations Schedule and any amendments made to it are  
referred to affected First Nations. The results of this engagement and changes made  
as a result of engagement is forwarded to the Province. As a result of engagement  
licensees may voluntarily drop cutblocks, change cutblock boundaries, establish  
buffers around identified features or establish new wildlife tree patches or machine-  
free zones. If the results of engagement raise any site specific concerns they may be  
considered by the Province at the stand-level permitting stage.  
Yahey v. British Columbia  
Page 423  
5
.
Stand Level Permits  
[
1547] When a participant wishes to proceed with actual forestry operations on the  
ground, such as harvesting or using a road for a forestry purpose, they need to apply  
for certain authorizations and permits from the Ministry of Forests. These types of  
operational permits have been described in the evidence as “stand-level” permits  
meaning that the permits are geographically specific to each cutblock/stand being  
harvested.  
[
1548] Stand-level permits must be consistent with the current Sustainable Forest  
Management Plan, Forest Operations Schedule and legal orders such as Ungulate  
Winter Ranges or Wildlife Habitat Areas.  
[
1549] At this permitting level, the decision maker will conduct a “statusing” exercise  
using GIS to look for other overlapping tenures or land uses such as oil and gas  
activity or legal orders such as Ungulate Winter Ranges or Wildlife Habitat Areas.  
Ministry staff will also consult with First Nations and some mitigation can occur at the  
stand level as a result of comments or concerns brought forward in this consultation  
process. Mitigation at the stand level may include placement of wildlife tree patches,  
visual screening, working with licensees to maintain browse species, modifying  
cutblock boundaries, and adjusting the timing of harvest activities.  
[
1550] Stand-level permits are the final approval needed for forest licensees to begin  
forestry operations. While these permits rely on, and must be consistent with higher-  
level plans and regulations, these stand-level decisions are the only time the Ministry  
of Forests is giving explicit permission to harvest timber or conduct forestry  
operations in a specified area. These permits are where the rubber hits the road.  
[
1551] Stand-level permits are approved by the district manager (s. 23 of Fort St.  
John Pilot Project Regulation). Mr. Van Dolah is the District Manager for the Peace  
Natural Resource District and regularly makes such decisions. Mr. Van Tassel is the  
Resource Manager but has also made such decisions as Acting District Manager in  
the past.  
 
Yahey v. British Columbia  
Page 424  
[
1552] Mr. Van Tassel testified that if a stand-level authorization is consistent with  
the Sustainable Forest Management Plan, the Forest Operations Schedule, legal  
orders in place, and consultation has been completed to the satisfaction of the  
statutory decision maker, the authorization will likely proceed forward as an approval  
decision.  
[
1553] While consultation is said to occur with First Nations on all stand-level  
authorizations and permits, the concerns that can be addressed by decision makers  
at the stand-level are specific to concerns raised about the actual cutblock location  
and features that may be protected within or in the vicinity of that cutblock. This is  
the kind of site-specific information the Ministry of Forests seeks from Blueberry.  
Broader landscape-level concerns about, for example, wildlife habitat, connectivity  
corridors, intensity of harvest in particular areas, are not addressed.  
[
1554] Mr. Van Tassel testified that he has never refused a stand-level harvest  
authorization on the basis of a breach of treaty rights, but he has sought legal advice  
on the issue. Mr. Van Tassel has never not issued a cutting permit.  
[
1555] Mr. Van Dolah’s testimony was similar, in that he hasn’t turned down a  
harvest authorization on the basis of an “allegation of treaty rights” or concerns  
about insufficient wildlife habitat. He also distinguished strategic decision-making  
from the operational decisions in which he is involved. He testified as follows:  
Q: And what I understand from your evidence is to turn down a project  
because of the impact on moose habitat and Blueberry Treaty 8 rights would  
be a strategic decision?  
A: It would happen at a – that conversation would definitely happen at a  
strategic level.  
Q: Which doesn’t involve you? You don’t make those decisions?  
A: It involves me as much as we do make recommendations to, within  
wildlife, for example, the Sustainable Forest Management Plan, for example, I  
make recommendations to the decision makers from a habitat perspective.  
But overall you’re correct in terms of the decision.  
Q: So if it’s a cutblock-level application… that doesn’t offend the SFMP and it  
is listed in the Forest Operations Schedule …you’re limited to putting some  
sort of mitigation measure on it?  
Yahey v. British Columbia  
Page 425  
A: So I manage – we manage those values through mitigation.  
Q: And you’re not able to turn down a project, a cutblock-level project,  
because of impact on Blueberry’s treaty rights based on allegations that  
there’s not enough moose habitat left?  
A: So an allegation of treaty rights, I would agree with that statement.  
[
1556] As previously noted, the focus appears to be on site-specific mitigation  
measures  
[
1557] Some more recent progress has been made by the Ministry of Forests in  
engaging with Blueberry, particularly through Mr. Van Dolah’s efforts. Mr. Van Dolah  
testified that he has been attempting a more collaborative approach with Blueberry.  
In early December 2017, Mr. Van Dolah attended a meeting in Vancouver that  
included the Regional Strategic Environmental Assessment project team involved in  
the Methods Pilot.  
[
1558] An RSEA Forestry Interim Measures Agreement between Blueberry, Canfor,  
BC Timber Sales and the Ministry of Forests was signed on June 16, 2018. It was to  
be in place for 2 years and created a “Flexibility Team” (or “Flex Team”) to ensure  
that Blueberry has an opportunity to collaborate in the planning of the harvest  
schedules.  
[
1559] In late November 2019, the Flex Team met to discuss how to coordinate the  
work that needed to be completed by the Methods Pilot, and that which was to be  
delivered as a product of the RSEA Forestry Interim Measures Agreement – in other  
words, an implementation plan.  
[
1560] Part of the implementation plan is the development of management  
recommendations. The boundaries would identify specific areas of management.  
[
1561] The status of the RSEA Forestry Interim Measure Agreement and its  
connection to the Methods Pilot in mid-2020 was, however, not entirely clear on the  
evidence. While the Province says it remains in effect, some of the evidence  
suggested that Blueberry would not be renewing or extending the agreement until  
Yahey v. British Columbia  
Page 426  
this litigation was complete. In addition, as per clause 4, the agreement is predicated  
upon the Fort St. John mills not running out of timber.  
6
.
Conclusions with respect to the Province’s Forestry  
Regime  
[
1562] I agree with the argument Blueberry has made about the flaws with the  
Province’s forestry management regime. I find that the Province’s forestry regime is  
built upon the fundamental goal of maximizing harvest and replacing all the natural  
forests with crop plantations that will create efficiencies for the next harvest cycle.  
[
1563] I also find that the operational decisions of district and resource managers are  
connected to higher level plans and processes that have already zoned much of the  
Blueberry Claim Area for high intensity forestry.  
[
1564] Finally, I find that decision makers lack authority to manage cumulative  
effects, or take into account impacts on the exercise of treaty rights. As Blueberry  
points out that, at the end of the day, it is the forestry companies (i.e., “participants”  
per the Fort St. John Pilot Project Regulation) who hold much of the power regarding  
what cutblocks to harvest, how and when.  
[
1565] The forestry evidence in this case revealed that there is a lack of effective  
provincial tools to deal with treaty rights and the amount of harvest in the Blueberry  
landscape unit, and other areas making up the ‘core’ of the Fort St. John Timber  
Supply Area and the heart of Blueberry’s territory.  
[
1566] The Province appears to have direct control over only two of the identified  
tools discussed above to manage harvest in the Fort St. John Timber Supply Area –  
the setting of the Allowable Annual Cut, and approval of individual cutting permits.  
The remainder appear to be, largely, in the control of the companies/participants  
who harvest the forest.  
[
1567] The Chief Forester simply establishes the timber harvesting land base  
applying strict parameters and assumptions. Her decisions are made on the critical  
 
Yahey v. British Columbia  
Page 427  
assumption that over time, all of the timber harvesting land base will be logged and  
turned into managed forest which is logged again. In her Rationale setting the  
Allowable Annual Cut, at pages 40-41, the Chief Forester comments that she does  
not have the general statutory authority to address the cumulative impacts Blueberry  
has identified, and she refers that concern and others to Ministry staff, including Mr.  
Van Tassel and Mr. Van Dolah at the district level.  
[
1568] As I noted earlier, the Chief Forester can only consider cumulative effects  
information that relates to her statutory authority. She cannot institute new  
management regimes. If cumulative effects information highlights issues that require  
attention through land use planning or otherwise, she will pass that information on to  
those responsible.  
[
1569] Ultimately, the Chief Forester’s Rationale acknowledges a variety of  
concerns, but refers these for “Ministry staff to deal with.” In cross-examination, Mr.  
Van Dolah indicated he anticipated these concerns may be considered as part of a  
review of the Land and Resource Management Plan and in the RSEA process. Once  
considered, they may be taken into account in the next timber supply review which  
would occur in 10 years. Such a lengthy timeline is significant and once again  
demonstrates Blueberry’s concerns that the issues it raises are not realistically taken  
into account or addressed. Instead, they appear to consistently be moved down the  
road to yet another process.  
[
1570] In addition, Ministry staff such as Mr. Van Dolah and Mr. Van Tassel, do not  
believe they have the authority to deal with the kinds of issues Blueberry has been  
raising – issues including lack of connectivity, fragmentation of forests, intensity of  
harvest in the core of their territory, depleted wildlife habitat – all of which,  
cumulatively, are impacting the exercise of their treaty rights. Their review and  
approval process focuses on whether any particular harvest authorization is  
consistent with the Sustainable Forest Management Plan and Forest Operations  
Schedule and whether any identified impacts on the ground can be mitigated in a  
site-specific way. Their lens is not on landscape level issues.  
Yahey v. British Columbia  
Page 428  
[
1571] As Mr. Van Tassel said, there are no specific harvesting partitions identified  
within the sustainable Forest Management Plan by landscape units. He indicated  
we have requested an amendment to the timber harvesting strategies to be  
“
consistent with the partition, and again those are in the works and would still need to  
go through consultation.”  
[
1572] All this reflects the persistent problem of one government decision maker  
pointing to another government decision maker as being responsible for taking into  
account treaty rights and cumulative effects. While there was some evidence of  
various provincial committees in the northeast region that dealt with “operations” and  
“strategy,” none of this evidence established any coordinated approach to the  
regulatory decision-making process.  
[
1573] The Province says harvesting within the “core” of Blueberry area is now  
limited by a number of factors including the Forestry Interim Measure Agreement  
with Blueberry, still in effect; the fact that much of the “core” is deciduous, and no  
longer targeted for harvest due to the relatively recent shutdown of a mill (Peace  
Valley Oriented Strand Board Plant) and the establishment of spatial Old Forest  
Management Areas. This, however, demonstrates the problem. As has been  
evidenced in these proceedings, the Province can withdraw from “interim” measures  
agreements (and has), the Plant could re-open any time, and while Old Growth  
Management Areas are legally enforceable, Old Forest Management Areas are not.  
These factors or initiatives referenced by the Province rely on the goodwill of the  
individuals involved – none limit or prevent harvesting going forward.  
[
1574] At the end of the day, it is clear that the Province manages the land and forest  
harvest through a Land and Resource Management Plan that directs the industrial  
footprint, the use of Sustainable Forest Management Plans, Forest Operations  
Schedules, and through the individual road and harvest authorizations. The Fort St.  
John Land and Resource Plan designates the heart of Blueberry’s territory as an  
enhanced development zone essentially directing all development decisions with this  
fundamental proposition being determinative.  
Yahey v. British Columbia  
Page 429  
[
1575] Many of the indicators included in the Sustainable Forest Management Plan  
appear to be managed on the basis of the Timber Supply Area (and occasionally on  
the basis of the even larger Boreal Plains Natural Disturbance Unit) and, for the  
most part, not on the basis of Landscape Units. In addition, biodiversity  
considerations are listed as low due to the enhanced resource development  
designation. Given the scale of management, it is difficult to be responsive to the  
kinds of concerns Blueberry is raising about the impacts of forestry in its territory.  
Indeed, the scale of management appears to be contrary to the legal principle that  
Blueberry members are entitled to exercise their rights in their traditional territory.  
[
1576] Extensive and intensive forestry ought not to proceed in the Blueberry Claim  
Area based on the mistaken belief that Blueberry’s rights are not site specific and  
can instead be exercised throughout the treaty area. In contrast, when it comes to  
authorizing particular road and harvest permits, however, the Province manages at  
such a site specific level that Blueberry’s broader concerns go unaddressed.  
[
1577] The evidence also establishes that the Blueberry landscape unit is harvested  
at twice the level of many other landscape units – likely as it is close to the mills and  
therefore it is more cost effective for participants. The Province, however, has not  
taken this into account over the years, as the Sustainable Forest Management Plan  
and the Forest Operations Schedule do not manage for all indicators at that  
landscape unit level.  
[
1578] The participants create the Forest Operations Schedules and choose the  
blocks in which to harvest. While Mr. Van Tassel says the Province consults at the  
individual authorization level for harvest and roads, as long as the request is  
consistent with the Sustainable Forest Management Plan and the Forest Operations  
Schedule, authorization is granted. Everything operational, however, comes back to  
the Sustainable Forest Management Plan.  
[
1579] As noted by Blueberry, three successive Sustainable Forest Management  
Plans have designated the Blueberry, Halfway, Kobe and Tommy Lakes Landscape  
Yahey v. British Columbia  
Page 430  
Units as the “high intensity” forestry zones since 2001. These landscape units  
surround the Blueberry community and contain many of their important hunting and  
trapping areas.  
[
1580] The Sustainable Forest Management Plans describes the timber objective in  
those areas as “enhance timber harvesting and a sustainable long-term timber  
supply” consistent with “high intensity forest management regimes.” In conjunction  
with this the “predominate biological diversity emphasis” is described as “low.” This  
reality has existed since 2001 with participants and decision makers following this  
direction since that time.  
[
1581] Mr. Van Dolah and Mr. Van Tassel emphasized that their main way of  
managing to take into account impacts to treaty rights was to have First Nations,  
including Blueberry, note the values that are culturally important to them, identify  
them in a site-specific way, and propose ways to mitigate impacts on those values.  
Once identified, the Ministry of Forests would seek to have potential impacts to  
those values mitigated. This may mean, for example, having participants alter the  
boundaries of their proposed cutblocks or set up buffers around traplines or cabins.  
Mr. Van Dolah said he tries to use his powers of persuasion with participants to  
encourage them to apply the mitigation measures First Nations propose, but those  
suggestions are not binding.  
[
1582] Mr. Van Tassel testified that he has never not issued a cutting permit on the  
basis of concerns about impacts on treaty rights. While he said this was because of  
mitigation measures put in place, so it has never arisen, that is belied by the  
previous injunction applications to stop harvest in cutblocks, and indeed by this  
lawsuit which says that impacts to treaty rights have not been mitigated.  
[
1583] Mr. Van Dolah acknowledged that harvest was concentrating in the core area  
and the Ministry of Forests had asked participants to move to the periphery, but they  
had not done so. While he and his staff had prepared the data package for the Chief  
Forester and made a recommendation to the Chief Forester with respect to this via  
Yahey v. British Columbia  
Page 431  
that data package, he agreed that he could not turn down harvest authorizations  
because of overharvesting based on concentration.  
[
1584] What is required is a change in the Sustainable Forest Management Plan and  
Forest Operations Schedule with more precise partitions for particular landscape  
units. Mr. Van Tassel indicated that there are no specific harvesting partitions  
identified within the Sustainable Forest Management Plan by landscape units. He  
indicated the Ministry of Forests had requested an amendment to the timber  
harvesting strategies within the Sustainable Forest Management Plan to be  
consistent with the partition. Those amendments are still outstanding.  
[
1585] Fundamentally however, as the Fort St. John Land and Resource  
Management Plan designates the Blueberry area as an enhanced resource  
development zone, until this is changed it is difficult to see how Blueberry treaty  
rights have been or will be protected. The present Sustainable Forest Management  
Plan # 3 established in 2018 is premised on the existing Land Resource  
Management Plan which has a number of areas in Blueberry territory that continue  
to be designed as high-intensity development. The term of the Plan is six years and  
the conditions associated with the Plan have yet to be implemented.  
[
1586] While it would be helpful for the parties to continue in a collaborative process  
to change forestry practices for the better, the implementation of legal tools that take  
into account Blueberry’s treaty rights in the Blueberry Claim Area, and that have  
legal effect, is critical.  
E.  
Cumulative Effects Framework  
[
1587] The Province defines cumulative effects as changes to environmental, social  
and economic values caused by the combined impact of past, present and potential  
future human activities and natural processes. The Province says it recognizes the  
need for a cohesive and coordinated approach to assessing cumulative effects and  
a systemic way of managing for cumulative effects. However, as the evidence from  
the last approximately ten years has shown, the Province has been slow to produce  
 
Yahey v. British Columbia  
Page 432  
the tools decision-makers need and has been hindered by a fragmented regulatory  
framework.  
[
1588] Dr. Jennifer Psyllakis, the Director of the Wildlife and Habitat Branch within  
the Ministry of Forests testified about the Province’s efforts to assess and manage  
cumulative effects. From 2014 to 2016, Dr. Psyllakis was the Manager of Land and  
Resource Use and was responsible for developing and overseeing policies and  
procedures for considering cumulative effects.  
1
.
History of the Province’s Consideration of Cumulative  
Effects  
[
1589] Dr. Psyllakis suggested that the Province first started considering cumulative  
effects (though not using that term) in the 1970s and referred to the Report of the  
Royal Commission on Forest Resources by Commissioner Peter Pearse. In 1992,  
the provincial Commission on Resources and Environment (also referred to as  
CORE) was established which led to the development and implementation of land  
use plans. Land use plans contain values that are important to British Columbians,  
and that can serve as a basis for balancing economic and environmental objectives  
and managing cumulative effects.  
[
1590] In the mid 2000s, the Forest Practices Board began having growing concerns  
about the cumulative effects of resource use on the BC land base. While in the past,  
forestry was the major activity to consider, that was no longer the case. In many  
parts of the province, forestry was but one of many human activities affecting the  
land – activities that were not regulated under the Forest and Range Practices Act.  
[
1591] In 2008, the Forest Practices Board began to investigate the issue, and  
undertook a cumulative effects assessment case study in the Kiskatinaw River  
watershed, looking specifically at the effects of resource development on drinking  
water, soil, and caribou habitat. This is an area in the southeast of the Blueberry  
Claim Area.  
 
Yahey v. British Columbia  
Page 433  
[
1592] In March of 2011, the Forest Practices Board released its special report  
entitled Cumulative Effects: From Assessment Towards Management. The Board  
noted that cumulative effects assessments were only done for major projects, such  
as mines and pipelines. It concluded that, under the land management processes  
then in place, there was no requirement to assess the cumulative effects of the  
“myriad of minor activities that are continually authorized on the land” and that “[t]he  
cumulative effect of natural resource development remains largely unknown and  
unmanaged.”  
[
1593] The Board noted that there were methods for assessing these effects but, to  
the extent that there is an issue, there was “no one to tell – there is no decision  
maker in the context of cumulative effects.”  
[
1594] As previously noted, Dr. Holt, was a member of the Forest Practices Board  
from 2008 to 2014, and also served as its Vice Chair from 2012 to 2014. She  
testified about what the Board meant by saying there is “no one to tell”:  
A: …what they’re suggesting is that you should do a broad scale strategic  
assessment for an area and look at all of those things together and then  
come up with recommendations about what to do about cumulative effects.  
But they’re pointing out at the end of that paragraph that you could do that  
work, it’s actually quite simple to do, but the way the Province is structured  
there is nobody that is in charge of making a decision at that scale.  
So the Province is still organized into silos of people who make different  
decisions; one person authorizes a cutblock and one person authorizes a well  
site. They’re not – they’re not together making – looking at the whole. So  
they’re pointing out that even if you had a really good management and  
analysis system, there’s nobody who would take the results of that and make  
a decision based on that information.  
Q: You mean a decision in respect of development of the land?  
A: That’s right. There’s nobody tasked with looking at the output from a broad  
scale cumulative effects analysis and deciding whether the next well or the  
next road or the next cutblock crosses some kind of line. That’s not how  
decision – decision-makers do their job in British Columbia.  
[
1595] The Forest Practices Board proposed a potential solution: embed and  
appropriately use cumulative effects assessment methods in a land management  
framework that is designed to meet the objectives society has for values on the land.  
Yahey v. British Columbia  
Page 434  
Dr. Holt noted that the cumulative effects assessments and analyses are relatively  
straightforward, but that what is lacking is a decision-making structure: “we haven’t  
got a management system that sets the limits and then responds to them in a  
management decision-making way.”  
[
1596] The Board recognized that deciding what people value is a social and political  
process, but that determining how those values are affected by human activities  
should be a scientific process. It also recognized that is difficult to examine the  
effects of activities on human values, and that indicators representing those values  
would likely be necessary. In order for those indicators to be useful, the cumulative  
effects assessment and land management framework would need specific and  
measurable objectives, and would need to include the notion of limits.  
2
.
Work on Development of the Cumulative Effects Framework  
[
1597] In or around 2010 the Province began working on the development of a  
cumulative effects framework. In particular, in April 2012, associate deputy ministers  
in the Ministry of Environment and Ministry of Forests signed off on a charter which  
provided direction for a project to develop a cumulative effects assessment  
framework for natural resource decision-making. The rationale for needing a  
cumulative effects assessment framework was noted as follows:  
The province of British Columbia continues to experience growth in many  
natural resource sectors, sometimes overlapping and requiring the same land  
base and resources. Activities and management practices that may have very  
little impact individually, can accumulate over time and across different  
sectors on the land base to have unintended outcomes on economic, social  
and environmental values of importance to British Columbians. As levels of  
development increase, there is increasing recognition of the need to assess  
and manage the potential cumulative effects of development in a manner that  
provides more reliable information and predictability, and facilitates quality  
proposals and timely, durable decisions.  
[
1598] One of the factors that created an impetus for developing a framework for  
assessing and managing cumulative effects was that First Nations were increasingly  
requesting that government consider the cumulative effects of development on their  
Aboriginal and treaty rights. Blueberry was one such First Nation writing in a March  
 
Yahey v. British Columbia  
Page 435  
1
9, 2012 letter to the Oil and Gas Commissioner that the Oil and Gas Commission  
has “stubbornly refused” to examine the associated cumulative effects of specific  
projects, and saying there was an urgent need for ongoing monitoring, assessment,  
and management of cumulative effects; suggesting this was being pushed past a  
tipping point.  
[
1599] The charter made specific reference to the Court of Appeal’s decision in West  
Moberly 2011, which confirmed that cumulative effects are not beyond the scope of  
consultation. The charter also noted the need for a common definition of cumulative  
effects and a common approach to the assessment and management of cumulative  
effects across the natural resource sector in BC.  
[
1600] In 2013 and 2014, the Province undertook some trials or pilot projects on a  
regional level to learn about the assessment of cumulative effects. One such trial  
took place in northeastern BC, in the South Peace region. During this time the  
Province was also engaging with the public, First Nations, stakeholders, and  
academics broadly on the development of the cumulative effects framework,  
including on identifying provincial and regional values, on cumulative effects  
assessments, management of cumulative effects, and discussing some of the  
proposed solutions.  
a)  
Auditor General’s 2015 Report  
[
1601] Between November 2013 and July 2014, the Auditor General conducted an  
audit of the Ministry of Forests’ progress on cumulative effects assessment and  
management. In May 2015, the Auditor General released a report entitled Managing  
the Cumulative Effects of Natural Resource Development in B.C.. The Auditor  
General’s conclusions on how the Province was doing on cumulative effects  
assessment and management were stark:  
a) government had not provided the Ministry of Forests with clear direction or  
powers necessary to manage cumulative effects when deciding on natural  
resource use;  
Yahey v. British Columbia  
Page 436  
b) the Ministry of Forests was not effectively considering or addressing  
cumulative effects in its decision-making, as demonstrated by activity in  
northwest BC; and,  
c) the Ministry of Forests was working to improve cumulative effects  
management by developing an assessment framework, but how  
government and natural resource ministries would use it to inform and  
support development decisions was not clear.  
[
1602] The Auditor General went on to state this was concerning because if the  
assessments are to be of value, they must inform and support decisions about if and  
how development should proceed.  
[
1603] In looking at the work done on cumulative effects at that time, the Auditor  
General noted that “[a]lthough values (factors identified as important to manage)  
have been established to guide natural resource management, these values [were]  
potentially dated or incomplete” and that “few ‘thresholds’ (levels at which values  
might be at risk and in need of appropriate management responses) [were] in place”  
(emphasis in original).  
[
1604] The Auditor General noted that the Ministry of Forests expected to complete  
province-wide implementation of a cumulative effects framework by 2021. This  
lengthy timeframe for full implementation meant that, in the interim, decisions about  
natural resource development would continue to be made without fully  
understanding the implications for values that are important to the province’s well-  
being.  
[
1605] The Province responded to the Auditor General’s report. It noted that its  
cumulative effects policy would have province-wide implementation by April 2016,  
not 2021 as the Auditor General suggested. It also pointed to a range of other tools,  
including statutes, land use designations, practice requirements to limit or mitigate  
impacts, the BC Oil and Gas Commission’s Area Based Analysis, and the  
Environmental Assessment Office’s requirement that proponents complete project-  
Yahey v. British Columbia  
Page 437  
scale cumulative effect assessments as various ways the Province was already  
managing cumulative effects.  
[
1606] In response to the Auditor General’s recommendation that the natural  
resource ministries and agencies be assigned clear roles and responsibilities for  
managing the cumulative effects of development activities on the land base, the  
Province noted that it had already established the Natural Resources Board, made  
up of deputy ministers from each natural resource sector agency and the Deputy  
Commissioner from the BC Oil and Gas Commission to oversee the full range of  
natural resource activities.  
[
1607] The Ministry of Forests also offered specific responses to the  
recommendations made by the Auditor General. In particular, it noted:  
a) it would be completing assessments for the first suite of values (forest  
biodiversity, aquatic ecosystems, grizzly bear, and moose) by summer to  
mid-fall 2015; and,  
b) it would be reviewing the cumulative effects assessment results and may  
develop recommendations to support operational-level decisions,  
strategic-level decisions, and impact assessments for Aboriginal and  
treaty rights.  
b)  
Cumulative Effects Interim Policy for the Natural  
Resource Sector  
[
1608] In November 2016, the Natural Resource Board “approved for  
implementation” the Cumulative Effects Framework Interim Policy for the Natural  
Resource Sector (this document has been referred to in these proceedings as “the  
Cumulative Effects Framework” or simply “the Framework”). “Implementation,” in this  
context, must be understood broadly. This did not mean that natural resource  
decision makers now had the information and tools necessary to take into account  
cumulative effects when making decisions about particular projects or resource  
uses. Instead, “implementation” meant the work of conducting assessments of the  
Yahey v. British Columbia  
Page 438  
status of the identified provincial values and developing a management framework  
began.  
[
1609] Dr. Psyllakis was the responsible manager for the development and  
finalization of the Framework. She described the steps involved in conducting a  
cumulative effects assessment under the Framework as follows.  
[
1610] First, identify “values.” Values are recognized as being important to British  
Columbians, and also being sensitive to cumulative effects. Dr. Psyllakis testified  
that the Province had selected certain values for which assessments would be done.  
These values are:  
a) forest biodiversity;  
b) aquatic ecosystems;  
c) grizzly bear; and,  
d) moose.  
[
1611] She testified that the selection of values had taken into account Aboriginal  
and treaty rights associated with hunting, trapping and fishing. It was believed that  
selecting forest biodiversity as a value would help inform opportunities for trapping,  
because many fur-bearing species are associated with an assessment of forest  
biodiversity. Aquatic ecosystems was selected as a value because it was believed  
this would provide context to assess the condition of and risks to fish resources.  
Moose and grizzly bears were selected as values because they were consistently  
identified throughout BC as a highly valued species for Indigenous people. The  
Framework also allows for additional regional values. For northeast BC, an  
additional value of peaceful enjoyment has been identified.  
[
1612] Second, develop an assessment protocol. This involves collecting information  
about the value, identifying indicators and benchmarks for each component, defining  
the assessment unit, and setting out assumptions and uncertainties.  
Yahey v. British Columbia  
Page 439  
[
1613] Third, assess the current condition of the value. This involves considering the  
trends. For example, is the population of grizzly bears or moose improving or  
declining? What might their future condition be? It also involves setting out expected  
outcomes and desired conditions, considering if the current management approach  
is sufficient, and validating the information collected.  
[
1614] The fourth step is to produce a current conditions report for each value that  
makes recommendations on how the information contained in the report can be  
incorporated into natural resource management systems and decision-making.  
3
.
Conclusions with respect to the Province’s Cumulative  
Effects Framework  
[
1615] Blueberry has argued that the Framework has not changed the Province’s  
approach to considering or managing cumulative impacts. First, it says that the  
Province has not truly implemented the Framework, in that assessments are still to  
be completed and management mechanisms are not in place. Second, it says that  
the Framework does not implement any limits on development, and therefore  
continues to manage based on existing legislation and policies.  
a)  
Lack of Cumulative Effects Assessments  
[
1616] The Framework states that available cumulative effects assessments should  
be considered by government decision-makers when reviewing applications for the  
use of land and natural resources that could affect those values. The assessment  
reports are intended to be a foundational source of information. The Province noted  
in response to the Auditor General’s report that the first suite of assessments for  
forest biodiversity (old forests and seral stage distribution), aquatic ecosystems,  
grizzly bear and moose were scheduled for completion by summer to mid-fall 2015.  
[
1617] The problem is that as of the summer of 2020, only one such assessment had  
been completed – for grizzly bears. The reports for forest biodiversity, aquatic  
ecosystems, and moose were, in 2020, still under development. Dr. Holt testified  
that, in or around 2011, she had been involved in making recommendations  
 
Yahey v. British Columbia  
Page 440  
regarding how to do an assessment of cumulative impacts on old growth. She had  
expected the assessment for old growth would have been released shortly  
thereafter. Instead, she saw multiple drafts of that assessment, but to her knowledge  
it was not finalized or released.  
[
1618] In addition, the one assessment that is available is difficult to use in decision-  
making. As indicated in the decision of the Deputy Chief Forester setting the annual  
allowable cut for the Fort Nelson Timber Supply Area, there was no guidance as to  
how to use the information contained in the grizzly bear assessment when making  
forestry decisions. He wrote: “it is difficult to extrapolate from this information  
potential implications to timber supply…”  
b)  
Lack of Thresholds and No New Legal Requirements  
[
1619] Blueberry’s more substantive complaint is that the Cumulative Effects  
Framework is fundamentally flawed as it does not set thresholds, alter existing  
decision-making processes, or create any new legal requirements.  
[
1620] Over the years, Blueberry has criticized the Province for not having a way to  
determine the acceptable “threshold” for development, or whether development has  
exceeded a “tipping point.” This was one of the reasons Blueberry hired Dr. Holt to  
prepare a Land Stewardship Framework. Dr. Holt testified as follows:  
…
to do effective Cumulative Effects Assessment and manage you have to  
model the value and then understand where the thresholds are, when are you  
going to start to be concerned.  
So people use the word thresholds in different ways, but… a threshold is a  
line beyond which you’re going to be concerned about the status of that  
value.  
And the British Columbia framework has not clearly identified those so we  
don’t have a system that is set up to effectively manage and find places  
where we’re concerned against going beyond this point.  
And so the Land Stewardship Framework suggests a strong need to do that  
work to put those things in place and so you know how well your land base is  
doing.  
Yahey v. British Columbia  
Page 441  
[
1621] The Framework does not refer to or set out “thresholds.” Instead it refers to  
components,” “benchmarks,” “indicators,” and “objectives.”  
“
[
1622] Dr. Psyllakis explained that, in the context of the Framework, an objective is  
the desired outcome or condition of the value.  
[
1623] Notably, the Framework does not establish or change any of the objectives  
that government has in place. Any changes to the objectives would be done through  
legislation, regulation, policy, or land use plans. Dr. Psyllakis confirmed this in cross-  
examination:  
Q: The Cumulative Effects Framework hadn’t at that time [in May 2014]  
established any thresholds for acceptable change, had it?  
A: No, it never does.  
[
1624] Nor does an objective prescribe what should occur in order to ensure it is  
met. The Cumulative Effects Framework states that if objectives are not being  
achieved, or if conditions are approaching a level where further development could  
put their achievement at risk, the management goal is to “enhance consistent and  
coordinated responses” to meet the objective.  
[
1625] The fact that the Framework has not altered legal requirements was  
confirmed in correspondence regarding the Framework from the Oil and Gas  
Commission and from the Ministry of Forests.  
[
1626] In February 2017, the Commissioner and Chief Executive Officer of the Oil  
and Gas Commission, Paul Jeakins, wrote to all staff about the Province’s  
Cumulative Effects Framework. He noted that the Framework supports and  
strengthens integrated resource management and defined the government’s  
approach to considering cumulative effects in natural resource decision-making.  
Importantly, he noted that the Framework did not create any new legal requirements:  
The CEF Interim Policy [i.e., Framework] does not provide new or alter  
existing statutory decision making for legislated authorities. It also does not  
create new legal requirements. The extent to which cumulative effects can be  
taken into account in decision-making ultimately varies depending upon the  
Yahey v. British Columbia  
Page 442  
existing legislative framework for each decision. The CEF builds on the  
existing Provincial Government’s Natural Resource Sector approach to  
managing multiple values on the land base and complements existing tools  
and processes such as land use plans, Forest and Range Evaluation  
Program monitoring, Multiple Resource Value Assessments, resource  
inventories, the Commission’s Area-based Analysis and the Environmental  
Assessment Office’s project-scale cumulative effects assessments. …  
[
1627] In July of 2017, the Northeast Region’s Regional Executive Director for the  
Ministry of Forests, Karrilyn Vince, wrote to her staff about the Framework. She  
indicated it was her expectation that all departments should be turning their minds to  
how cumulative effects considerations could fit within their “existing decision  
legal/policy frameworks” and assessing what tools and information will be required.  
[
1628] It is clear from the above, that the Cumulative Effects Framework and the  
guidance provided about it did not result in a paradigm shift in the way the Province  
was taking into account cumulative effects. It was largely business as usual, as  
applicable legislation and policy remained unchanged.  
[
1629] Ms. Vince also noted that in the northeast region there were “high  
expectations and time pressures” to demonstrate the management of cumulative  
effects, but that implementation of the Framework and “full integration into  
management” was anticipated “to take years to achieve.” The notion that it would  
take years to see full integration of the Framework was shared by Dr. Psyllakis in  
2
020.  
[
1630] This again demonstrates the problem of persistent delay that threads many of  
the Province’s actions and initiatives.  
F.  
Wildlife Management  
Land Designations  
1631] Land use designations are one of the primary tools the Province uses to  
1
.
[
manage and protect wildlife and their habitat. The Province makes these  
designations under a variety of legislative instruments, including the Forest and  
 
 
Yahey v. British Columbia  
Page 443  
Range Practices Act and the Oil and Gas Activities Act. Designation is generally  
intended to curtail or prevent certain types of development within the subject area.  
[
1632] These designations are also incorporated into various provincial decision-  
making steps, including:  
a) the Ministry of Energy and Mines’ Critical Information Analysis at the oil  
and gas tenuring stage;  
b) the Oil and Gas Commission’s and Area-Based Analysis at the oil and gas  
permitting stage; and,  
c) the Ministry of Forests stand-level permitting process.  
[
1633] The designations listed below are spatially designated – that is, designations  
are given to a specific unit of land at the behest of the Minister, rather than being  
created by a statutory definition of their features. For example, an Old Growth  
Management Area is not simply any area with a certain set of defined old-growth  
forest features, but rather a specific tract of land designated as such by a minister.  
a)  
Ungulate Winter Ranges and Wildlife Habitat Areas  
[
1634] The Province may designate Wildlife Habitat Areas and Ungulate Winter  
Ranges under either the Forest and Range Practices Act (forestry) or the Oil and  
Gas Activities Act (oil and gas).  
[
1635] Ungulate Winter Ranges are designed to protect winter habitat for various  
ungulates. The availability of suitable winter habitat is a limiting factor for caribou  
and moose. Wildlife Habitat Areas are likewise designed to protect critical habitat for  
the listed species.  
[
1636] There are two types of Wildlife Habitat Area and Ungulate Winter Range  
designations:  
a) No Harvest: If designated under the Forest and Range Practices Act, this  
designation prohibits removal of forest cover or construction of roads or  
Yahey v. British Columbia  
Page 444  
trails, though exemptions are available. If designated under the Oil and  
Gas Activities Act, operating areas are prohibited unless they will not have  
a “material adverse effect” (which test is described under the Oil & Gas  
segment of this judgment).  
b) Conditional Harvest: If designated under the Forest and Range Practices  
Act, some harvesting is allowed depending on area-specific general  
wildlife measures; the Province may grant exemptions. If designated  
under the Oil and Gas Activities Act, activities are subject to the “material  
adverse effect” test just as in No Harvest zones.  
[
1637] Regardless of whether an Ungulate Winter Range or Wildlife Habitat Area  
was designated under the Oil and Gas Activities Act, the Oil and Gas Commission  
does consider the designation as part of its permitting process.  
[
1638] A final important distinction: though an Ungulate Winter Range can be  
designated for a broad array of ungulates (including moose), Wildlife Habitat Areas  
are restricted to species at risk or species designated as “regionally important  
wildlife.” Moose do not fall under this designation.  
b)  
Old Growth Management Areas  
[
1639] As the name suggests, Old Growth Management Areas are designated areas  
designed to protect old growth forest. This habitat is important to a number of  
species, including ungulates like caribou and moose as well as furbearers like  
marten and fisher. Old Growth Management Areas may be designated under the  
Forest and Range Practices Act or the Oil and Gas Activities Act:  
a) If designated under the Oil and Gas Activities Act, operating areas are  
only allowed where they pass the no “material adverse effect” test with  
respect to old growth forest within the Old Growth Management Area. The  
Ministry of Forests has provided guidance that, for oil and gas activity in  
an Old Growth Management Area, “material adverse effect” should be  
interpreted as a 5% total disturbance for large Old Growth Management  
Yahey v. British Columbia  
Page 445  
Areas and 10% total disturbance for small ones (i.e. those less than 100  
ha). As such, provided an activity does not cause the total threshold of 5  
or 10% disturbance to be exceeded, it will not be considered to have a  
“material adverse effect.”  
b) If designated under the Forest and Range Practices Act, major licensees  
may undertake forest harvesting or road construction depending on the  
licensee’s Forest Stewardship Plan, though timber must generally be  
retained with only minor exceptions. The Province may grant exemptions.  
[
1640] Old Growth Management Areas may include “recruitment areas” which do not  
currently meet the old growth criteria (which varies from 80 to 120 years old based  
on the stand type).  
[
1641] Finally, Old Growth Management Areas are intended as “rotating reserves,”  
rather than strictly protected areas. Mr. Van Dolah noted they are harvested on  
roughly an 80-year cycle, at which point they are replaced with another Old Growth  
Management Area. In other words, the Old Growth Management Area will be rotated  
out at some point in time and no longer have the protection.  
c)  
Resource Review Areas  
[
1642] Resource Review Areas may be designated under the Petroleum and Natural  
Gas Act, R.S.B.C. 1996, c. 361. Designation results in no special constraints for  
forestry activities. For oil and gas, no new tenures may be issued inside of a  
Resource Review Area. However, this only precludes drilling or well operation; the  
Oil and Gas Commission may still permit other oil and gas-related surface activities.  
Further, they may only be designated in areas where tenures have not already been  
granted.  
d)  
Provincial Parks  
[
1643] Where an area has been designated as a Class A Provincial Park under the  
Parks Act, R.S.B.C. 1996, c. 344:  
Yahey v. British Columbia  
Page 446  
a) forest harvesting and road or trail construction are prohibited;  
b) oil and gas activities may be authorized if activities cause no surface  
disturbance, although research permits may be authorized; and,  
c) mining, renewable energy and recreational development are all prohibited,  
subject to the exception for research permits.  
[
[
1644] Motorized recreational activity, however, is allowed.  
e)  
Ecological Reserves  
1645] Ecological Reserves may be designated under the Ecological Reserve Act,  
R.S.B.C. 1996, c. 103. They afford a significant level of protection, prohibiting  
essentially all industrial activity.  
f)  
Efficacy of Designated Areas  
[
1646] As noted above, these designated areas are ostensibly intended to restrict  
development in critical wildlife habitat. The Province repeatedly referred to them as  
protected areas.” In discussing caribou habitat, they noted that “there  
“
are…significant protections that prevent future disturbance,” before listing the  
various parks, Ungulate Winter Ranges, Wildlife Habitat Areas, and Resource  
Review Areas which overlap with caribou territory.  
[
1647] However, as described above, the Province actually permits development, at  
least to some degree, in all of these designated “protected” areas. These  
designations may reduce industrial disturbance, but they do not necessarily prevent  
it.  
[
1648] In an Old Growth Management Area, oil and gas activity is permitted to  
disturb 5–10% of the land base, depending on the size of the area. This  
interpretation of the “material adverse effects” test by the Ministry of Forests makes  
no provision for the actual effect of the activity, but only for its spatial disturbance or  
physical footprint. A Resource Review Area only prevents the future granting of  
Yahey v. British Columbia  
Page 447  
tenure, but does not prevent the building of roads or pipelines (i.e. activities that do  
not require a tenure but only a permit).  
[
1649] In fact, even where an industrial activity is only permitted by specific  
exemption, development continues. In a 2017 federal-provincial report, it was  
determined that 206 forest harvesting authorizations, representing over 16,500  
hectares of land, were handed out inside of Forest and Range Practices Act  
designated “No Harvest” Ungulate Winter Ranges in the Narraway/Pine  
River/Quintette Local Population Units.  
[
1650] In many cases, the issue lies in the range of discretion afforded to decision-  
makers. Where development is prohibited, it is always prohibited “with exceptions,”  
which may be somewhat unclear. Consider the Forest and Range Practices Act  
Ungulate Winter Range and Wildlife Habitat Area “No Harvest” designations, which  
prohibit the construction of forestry roads except where it is “not practicable” to avoid  
constructing them. Where designated under the Oil and Gas Activities Act, some oil  
and gas drilling is still allowed.  
[
1651] Further, these tools apply differently to various industries depending on which  
enactment they were designated under – consider Ungulate Winter Ranges, Wildlife  
Habitat Areas and Old Growth Management Areas, as detailed above, which can be  
designated under either the Forest and Range Practices Act or the Oil and Gas  
Activities Act. Unless they are designated under both enactments, they may, for  
example, control forestry activity but not oil and gas activity.  
[
1652] There are further issues with the limited application of some of these  
designations. As noted, Wildlife Habitat Areas may only be designated for species at  
risk or “regionally important wildlife.” In Mr. Curry’s testimony, he noted that moose –  
a key species for Blueberry – do not fall under either of these designations, and as  
such, no Wildlife Habitat Area can be designated to protect them.  
[
1653] Most importantly, however, there are almost none of these designated areas  
in the Blueberry Claim Area.  
Yahey v. British Columbia  
Page 448  
[
1654] As noted above, the designations listed here are spatially defined; for  
example, not all “old growth” areas are Old Growth Management Areas. The  
evidence shows that very little of the Blueberry Claim Area falls within one of these  
protected zones. The 2016 Atlas calculates that only 1% of the Blueberry Claim Area  
is protected by parks, ecological reserves, or protected areas, compared to an  
approximate 15% provincial average (as of 2017).  
[
1655] There are very few Ungulate Winter Ranges or Wildlife Habitat Areas in the  
Blueberry Claim Area generally, and none in the water management basins  
surrounding the Blueberry reserve. There are no Ungulate Winter Ranges or Wildlife  
Habitat Areas for moose in the Fort St. John Timber Supply Area (i.e., north of the  
Peace River). There is a single Ungulate Winter Range south of the Peace River  
that falls within the Blueberry Claim Area (in the Dawson Creek Timber Supply  
Area), which includes moose. There are some Ungulate Winter Ranges and Wildlife  
Habitat Areas for caribou that overlap the Blueberry Claim Area; however, they  
appear mostly at the margins of the territory. Further, provincial policy is to limit the  
total restriction on harvesting arising from Wildlife Habitat Areas and Ungulate  
Winter Ranges to 1% of the provincial land base for forest and range activities.  
[
1656] There are no Old Growth Management Areas in the Fort St. John Timber  
Supply Area. There are some in the Dawson Creek Timber Supply Area which  
overlaps with the Blueberry Claim Area in the south, however, these areas are  
relatively far from the core of the Plaintiffs’ territory. In addition, as mentioned above,  
not all of an Old Growth Management Area is necessarily “old forest” habitat;  
significant portions may be “recruitment” habitat (i.e., young forest), and some may  
even be un-forested.  
[
1657] There are approximately 233,800 hectares of Resource Review Areas in the  
Blueberry Claim Area. A small amount (9,560 hectares) of these have been  
established based on Treaty Land Entitlements identified by Blueberry. More have  
been designated based on agreements with other Treaty 8 First Nations, or to  
protect caribou habitat. However, as mentioned, these areas exclusively protect  
Yahey v. British Columbia  
Page 449  
against drilling and well operation by oil and gas proponents; forestry and non-  
tenure-related oil and gas activities may still occur.  
[
1658] Class A Park designations likely provide the largest degree of protection, as  
this designation is supposed to prohibit essentially all industrial activity. However, as  
noted above:  
a) very little of the Blueberry Claim Area is protected by such a designation;  
and,  
b) the Province still permits some industrial development to occur inside of  
these parks.  
[
1659] In 2017, the Province commissioned a review of the various statutory tools for  
the protection of Southern Mountain Caribou, specifically looking for the strengths  
and weaknesses of each tool. The resulting report, entitled “A Review of Provincial  
Statutory Tools for Protecting Southern Mountain Caribou” was co-authored by Dr.  
Holt, who testified as a fact witness and explained the report at trial. The report rated  
the likely efficacy of each tool based on empirical data; with respect to those listed  
above, the ratings were as follows:  
a) Ecological Reserves: High, given the strong rules and good history of  
application;  
b) Class A Provincial Parks: Moderate to high, given strong rules (though the  
report notes that 10,299 ha of oil and gas activity had still been authorized  
in class A parks in the Narraway/Pine River/Quintette Local Population  
Unit study area);  
c) Protected Areas: Moderate, due to generally strong rules, excepting the  
allowance of motorized recreation and linear disturbances;  
d) Wildlife Habitat Areas and Ungulate Winter Ranges: Low to low/moderate  
(depending on whether a Conditional Harvest or No Harvest designation),  
given the high number of documented incursions into these zones as  
Yahey v. British Columbia  
Page 450  
allowed by the “if practicable” and “material adverse effects” tests. The low  
rating is also a result of the limited subset of industrial activities to which  
these designations apply;  
e) Old Growth Management Areas: Low, as they apply only to forestry, oil  
and gas activity (and not other industrial activity), and because they allow  
discretionary destruction of habitat; and,  
f) Resource Review Areas: Moderate to high, as they have the potential to  
limit future expansion of oil and gas tenure.  
[
1660] Although the report was authored with respect to southern mountain caribou,  
the critique of the various statutory tools was quite general, as it considered primarily  
the extent of development and room for discretion allowed by each tool. Dr. Holt  
discussed the report in her capacity as a factual witness. She noted that some of the  
largest “gaps” were in Ungulate Winter Ranges, Wildlife Habitat Areas, and Old  
Growth Management Areas.  
[
1661] As noted earlier, Dr. Holt did not testify as an expert and did not provide  
opinion evidence; both the report and her testimony were used only for the facts they  
contained (for example, empirical data on how much development had been allowed  
inside various designated areas). However, these facts are useful in assessing the  
efficacy of these land designations, both individually and as a whole.  
[
1662] Ultimately, the Province was unable to demonstrate effective tools existed to  
protect wildlife in the Blueberry Claim Area. Critically, a few of these legally  
designated protections exist in the Blueberry Claim Area, and many of the tools only  
limit and do not prevent industrial activity.  
2
.
Stewardship Programs  
[
1663] In addition to designated areas, there are a couple of species-specific  
stewardship programs relevant to the Blueberry Claim Area.  
 
Yahey v. British Columbia  
Page 451  
a)  
Boreal Caribou Recovery Implementation Plan  
[
1664] There have been two versions of the Boreal Caribou Recovery  
Implementation Plan: one in 2011, and one in 2017, which has yet to be finalized  
“2017 Draft Boreal Caribou Recovery Implementation Plan”). Mr. Pasztor, who  
(
testified at trial, co-authored the 2011 Boreal Caribou Recovery Implementation  
Plan.  
[
1665] Implementation plans are designed to meet the Province’s obligations to  
manage or recover species at risk under the Accord for the Protection of Species at  
Risk in Canada and the Canada-British Columbia Agreement on Species at Risk.  
Although they contain what the Province considers to be the best available science,  
the measures contained therein represent a compromise between science and  
economics.  
[
1666] The overarching population goals for the 2011 Boreal Caribou Recovery  
Implementation Plan were to decrease the expected rate of decline in the Boreal  
Caribou population, and to significantly reduce the risk of Boreal Caribou extirpation  
in several ranges, including the Chinchaga, within 50 years.  
[
1667] Specific objectives for the specified ranges (including the Chinchaga)  
included:  
a) protecting sufficient habitat in the designated ranges to provide recovery  
opportunities within 50 years;  
b) undertaking restoration activities in several ranges, including Chinchaga;  
c) managing the size of the industrial footprint by protecting habitat and  
requiring practices which minimize surface disturbance;  
d) mitigating effects of industrial disturbance through predator control and fire  
suppression; and,  
e) monitoring the effectiveness of these management measures and  
modifying them accordingly.  
Yahey v. British Columbia  
Page 452  
[
1668] The 2011 Boreal Caribou Recovery Implementation Plan aimed to “maximize  
conservation efforts to benefit Boreal Caribou…while providing resource  
development opportunities.”  
[
1669] In 2017, after roughly two years of engagement around revisions to the 2011  
Plan, the Province made public its 2017 Draft Boreal Caribou Recovery  
Implementation Plan. It contained a number of changes compared to the 2011  
version, including more specific objectives regarding forestry and oil and gas  
development. Some of those objectives included:  
a) establishing a target of less than 6% early seral habitat in each Boreal  
Caribou range;  
b) prohibiting road building and forest harvesting in 15 of the 16 identified  
“core” areas, with the exception being the Chinchaga Range’s Milligan  
Core, where these activities would “be maintained” under current  
management practices;  
c) prohibiting the creation of new early seral forest in core ranges (with  
possible exceptions);  
d) requiring a net decrease in the density of linear features in core areas  
using habitat offsets (set at an initial 4:1 offset-to-development ratio). The  
2
initial targeted linear density was 2 km per km , excluding low-impact  
seismic lines;  
e) replacing existing Resource Review Areas with “better aligned RRAs over  
untenured portions of caribou core areas”; and,  
f) predator and wildlife management strategies.  
[
1670] The 2017 Draft Boreal Caribou Recovery Implementation Plan also contained  
slightly more ambitious population and habitat goals, namely: to maintain a positive  
habitat trend across each Boreal Caribou range, and to stabilize and achieve viable  
populations across each Boreal Caribou range.  
Yahey v. British Columbia  
Page 453  
[
1671] Despite these efforts, the Ministry of Environment has not yet finalized or  
adopted the plan.  
[
1672] The Province implemented some changes to the 2011 Boreal Caribou  
Recovery Implementation Plan due to concerns raised by Treaty 8 First Nations,  
including Blueberry. For example, Mr. Pasztor testified that in 2015, the Province  
expanded the existing Resource Review Areas from approximately 550,000  
hectares to roughly 1,000,000 hectares in the specified Boreal Caribou ranges, and  
“initiate[d] a process to amend the existing legal designations,” including Ungulate  
Winter Ranges and Wildlife Habitat Areas, to “make improvements and protect  
additional habitat.”  
b)  
Efficacy of the Boreal Caribou Recovery  
Implementation Plan  
[
1673] When the 2011 Boreal Caribou Recovery Implementation Plan was  
published, it was estimated there were roughly 1,300 Boreal Caribou remaining in  
northeastern BC. The 2017 Draft Boreal Caribou Recovery Implementation Plan  
estimated the population at a “minimum” of 728 individuals, despite measures taken  
in the interim, including the designation of Ungulate Winter Ranges and Wildlife  
Habitat Areas per the 2011 Boreal Caribou Recovery Implementation Plan.  
[
1674] At the time the 2011 Boreal Caribou Recovery Implementation Plan was  
implemented, over 75% of the Boreal Caribou range was already tenured and being  
developed for petroleum and natural gas. The 2011 Boreal Caribou Recovery  
Implementation Plan accepts a maximum disturbance threshold of 61%, above  
which point Boreal Caribou populations are expected to decline. It goes on to state:  
Given this, and not accounting for future petroleum and natural gas activities  
planned within the Boreal Caribou range, the population is likely to continue  
to decline.  
[
1675] The 2011 Boreal Caribou Recovery Implementation Plan cited studies noting  
that even a “full moratorium” on oil and gas development would not be enough to  
halt the decline. However, germane to this case, modelling contained in the report  
Yahey v. British Columbia  
Page 454  
did note that a full moratorium on development would reduce the probability of  
extirpation (within 50 years) for the Chinchaga to only 2.8%. As justification for failing  
to proceed with such a moratorium, the 2011 Boreal Caribou Recovery  
Implementation Plan cites the “important and significant revenue stream” flowing  
from petroleum and natural gas development.  
[
1676] Mr. Pasztor, the co-author of the 2011 Boreal Caribou Recovery  
Implementation Plan, acknowledged in a briefing note dated November 20, 2013  
that the plan “allows for the destruction of critical habitat in excess of what is  
required to support caribou recovery under the federal recovery strategy.” At trial, he  
noted that the federal strategy was based purely on science, whereas the provincial  
strategy was based on a combination of science and socio-economic interests.  
[
1677] The Province deemed habitat restoration an “essential” activity in the 2011  
Boreal Caribou Recovery Implementation Plan, originally targeted to begin in the fall  
of 2011. However, no evidence has been presented that this restoration has been  
carried out. Mr. Pasztor could not say whether it has ever occurred, and the funding  
has only recently been made available.  
[
1678] The updated 2017 Draft Boreal Caribou Recovery Implementation Plan has  
further potential efficacy issues, despite an array of revisions.  
[
1679] The plan proposes to establish “temporary” Resource Review Areas only over  
untenured portions of Boreal Caribou core areas,” which would defer tenure sales in  
“
these cores for a “specified length of time” while other strategies are developed.  
However, as mentioned above, even at the time of the 2011 Boreal Caribou  
Recovery Implementation Plan, over 75% of the broader Boreal Caribou range was  
already tenured, limiting the application of these Resource Review Areas. Further,  
Resource Review Areas themselves only protect against drilling and well-based  
activities, but do not protect against surface-disturbance-only activities.  
[
1680] This 2017 Caribou Recovery Plan specifically targeted linear disturbances  
and early seral habitat (created by both natural and industrial disturbance) as critical  
Yahey v. British Columbia  
Page 455  
habitat risks for Boreal Caribou. However, the plan’s proposed target of 2 km of  
2
linear density per km is in excess of their own cited evidence on the subject. The  
2
017 Draft Boreal Caribou Recovery Implementation Plan notes that linear densities  
2
in excess of 1.2 km per km put Boreal Caribou at risk of decline, and that a density  
2
of 1 km per km is required for stable or increasing populations.  
[
1681] Further, the plan purports to achieve a net decrease in linear density using  
habitat restoration offsets, i.e., by restoring previously disturbed areas in exchange  
for allowing new disturbance. However, as the Plaintiffs note, the efficacy of this  
strategy may be limited by the significant time it takes for restoration efforts to  
achieve their desired effect. As the 2017 Draft Boreal Caribou Recovery  
Implementation Plan acknowledges, it may take 35 to 100 years (for upland and  
lowland habitat, respectively) for linear disturbances to be fully restored. Moreover,  
restoration activities apparently have yet to begin; in the meantime, the Province  
continues to permit forestry and oil and gas development in Boreal Caribou ranges,  
even in designated Ungulate Winter Ranges and Wildlife Habitat Areas.  
[
1682] More specific to the Plaintiffs, whose territory overlaps with the Chinchaga  
range, the 2011 Boreal Caribou Recovery Implementation Plan and 2017 Draft  
Boreal Caribou Recovery Implementation Plan both authorize continued forestry  
activities in the Chinchaga’s Milligan Core. The plan authorizes this despite the fact  
that – per Mr. Simpson’s testimony – forestry has a “very significant impact on  
habitat” which “makes it virtually unusable for caribou.”  
[
1683] While I make no final conclusions on this point, the Province has not  
demonstrated that its caribou-specific stewardship plans provide effective protection  
for these caribou populations in the Blueberry Claim Area.  
c)  
The Peace-Liard Moose Management Plan and RSEA  
Moose Working Group  
[
1684] The Province has developed a province-wide Cumulative Effects Framework  
Interim Assessment Protocol for moose in British Columbia, which describes general  
Yahey v. British Columbia  
Page 456  
strategies the Province will use to conserve moose values. This interim protocol  
notes that moose are a “high-value resource,” and further states:  
Moose are a wide-ranging species, and they depend upon multiple, well-  
connected and functioning habitat with properly functioning ecosystem  
processes. As such, moose are susceptible to cumulative impacts on their  
habitat and their populations from extensive land use activities and  
disturbances. As a species that can tolerate, and may even benefit from,  
some human activities on the landscape, moose-human interactions are  
common and complex.  
[
1685] In 2013, the Province began work on the Peace-Liard Moose Management  
Plan to implement the provincial framework regionally in northeastern BC. The  
purpose of the plan was to support the sustainable management of moose in the  
Northeast Region and to ensure the priority right of Treaty 8 and First Nations are  
maintained with respect to moose.  
[
1686] In 2016, the (former) Director of Resource Management at the Ministry of  
Forests, Mr. Addison, noted that the Peace-Liard Moose Management Plan was not  
an “operational level plan” but rather “a larger framework that will lead out to a multi-  
faceted approach to enhancing our documented knowledge and management for  
moose in the Peace-Liard area.” The Province intended it as a “guiding document”  
rather than an action plan. I take this to mean the plan did not actually outline any  
concrete operational measures, but was instead a conceptual framework upon which  
the Province could base its operational measures. In letters between Blueberry and  
the Ministry of Forests, the Province explained that they wished to develop an  
operational plan in collaboration with First Nations, rather than having the Province  
develop such measures unilaterally. Blueberry participated in some of the technical  
meetings for the Peace-Liard Moose Management Plan.  
[
1687] The plan outlined five management “levers” or variables that affect moose  
populations: habitat management; population management; health and monitoring;  
compliance and enforcement; and hunting regulations. In letters to Blueberry, the  
Province noted that it intended these levers to “encompass complex issues such as  
the cumulative effects of habitat disturbance in relation to moose.” That said, in  
Yahey v. British Columbia  
Page 457  
correspondence relating to the plan, the Province disagreed that cumulative effects  
were to blame for the decline of moose in parts of the Blueberry Claim Area, and  
cited their belief that natural resource development had a “generally positive” effect  
on moose populations.  
[
1688] Mr. Van Dolah testified that a draft version of the Peace-Liard Moose  
Management Plan was completed, and, consistent with the Chief Forester’s  
comments, that it was awaiting provincial sign-off.  
[
1689] Mr. Van Dolah testified that by the time he assumed the role of District  
Manager for the Peace Natural Resource District in July 2018, work on the Peace-  
Liard Moose Management Plan had “gone quiet” as the Province prioritized other  
initiatives. Mr. Van Dolah was told the plan was essentially a loose end.  
[
1690] Mr. Van Dolah provided the draft plan to the Regional Strategic  
Environmental Assessment Moose Working Group in hopes they could adopt or  
adapt it for use under that program. He believed it provided a good framework for  
moose management, and that providing the plan to the Regional Strategic  
Environmental Assessment group would facilitate its use in operational planning.  
[
1691] Mr. Van Dolah testified that the plan was not halted so much as it was rolled  
into the more “streamlined” Regional Strategic Environmental Assessment project.  
This new project also allowed for joint consultation with all relevant First Nations,  
rather than the prior piecemeal approach. He testified that Blueberry and other First  
Nations were supportive of the consolidation.  
[
1692] Today, the Province is still developing moose-specific protection initiatives  
under the Regional Strategic Environmental Assessment project, with oversight by  
the Moose Working Group. The Moose Working Group is a collaboration between  
the Province, Treaty 8 First Nations, and industry proponents.  
[
1693] The Moose Working Group commissioned a private company, Madrone  
Environmental Services Ltd., to create a Habitat Effectiveness Model (the “Madrone  
Yahey v. British Columbia  
Page 458  
Model”). Their preliminary modelling is laid out in a report dated July 16, 2019 (the  
Madrone Report”). The Madrone Model is designed as “a tool to inform moose  
“
management at the Wildlife Management Unit level… specifically as an indicator of  
where effective habitat may be lacking for moose.” The Madrone Report describes  
the objective as:  
…
to assess factors that may be downgrading suitable habitat and to explore  
how it may be impacting moose populations.  
[
1694] Mr. Van Dolah described the Madrone Model as “critical work” required to “fill  
in and meet the objectives within the Peace-Liard moose management plan.” He  
testified that it contained “very, very important information,” as it would allow the  
Province to actually target a certain population of moose in a specific area. In this  
way, Mr. Van Dolah reasoned that the Province could consult with First Nations on  
where, exactly, they wanted to be able to harvest moose, and encourage moose  
populations in those areas.  
[
1695] At the time of Mr. Van Dolah’s testimony, the Madrone Model was still in  
development. The Madrone Report only provides habitat modelling for three Wildlife  
Management Units within the Fort St. John Timber Supply Area (including unit 7-45,  
at the core of the Blueberry Claim Area).  
d)  
Efficacy of the Peace-Liard Moose Management Plan  
and RSEA Moose Working Group  
[
1696] The Peace-Laird Moose Management Plan never received a Provincial sign-  
off and was never implemented. There has been no explanation as to why it wasn’t  
signed off. The plan appears to have been subsumed by the Regional Strategic  
Environmental Assessment project.  
[
1697] That said, and as noted above, the Peace-Liard Moose Management Plan  
was a framework rather than an operational plan. Its development spanned several  
years before it was ultimately folded into another project. In the meantime, there is  
no evidence that operation-level decision makers considered the Peace-Liard Moose  
Yahey v. British Columbia  
Page 459  
Management Plan, or in some cases, that they considered moose habitat at all. For  
example, the Chief Forester indicated she would not (or could not) address moose  
habitat under the Allowable Annual Cut until and unless the then-forthcoming Peace-  
Liard Moose Management Plan directed her to do so. In the Rationale for Allowable  
Annual Cut Determination for the Fort St. John Timber Supply Area (May 10, 2018),  
she stated:  
I recognize that current wildlife habitat area reductions do not specify  
requirements for moose. However, finalization of the Peace-Liard Moose  
Management Plan may result in changes to the legal objectives which can be  
factored in future [Allowable Annual Cut] determinations. Meanwhile,  
consistent with my Guiding Principles, I will not speculate on potential land  
use changes.  
[
1698] The Chief Forester also noted that the Peace-Liard Moose Management Plan  
was “in the final stages of sign-off with implementation pending.” However, as noted  
above, this plan was never put into effect.  
[
1699] Although the work might not have been lost, folding it into the Regional  
Strategic Environmental Assessment project means use of the plan is delayed  
pending completion of this new project. Mr. Van Dolah agreed on cross-examination  
that the key step of identifying critical moose habitat has been deferred to the  
Regional Strategic Environmental Assessment initiative. He agreed that, if the  
Province had approved the Peace-Liard Moose Management Plan before it was  
rolled into the new initiative, statutory decision makers (like the Chief Forester)  
would currently be applying it in their decision-making process.  
[
1700] Moose protection initiatives are still being developed under the Regional  
Strategic Environmental Assessment project. Mr. Van Dolah noted that the Madrone  
Model is not yet in use. At the time of his testimony, modelling had only been  
completed for a portion of the Blueberry Claim Area. I also note that this modelling  
does not consider a variety of cumulative effects factors, including seismic lines or  
herbicides.  
Yahey v. British Columbia  
Page 460  
[
1701] It goes without saying that a plan that has not been implemented, and which  
is not considered in any decision-making process, cannot protect moose habitat.  
This plan was specifically mentioned by the Chief Forester as ready to go and simply  
awaiting sign off when it disappeared in 2018. There is no real explanation as to why  
no one signed off on it. Rather, it appears to be incorporated into another process,  
reflecting a pattern of delay and hand-off rather than addressing the issue at hand.  
3
.
Hunting Regulations  
[
1702] In addition to testifying about the cumulative effects framework, Dr. Psyllakis  
testified in her capacity as the Director of the Wildlife Branch of the Ministry of  
Forests. She is a statutory decision maker with several roles and responsibilities,  
including several which lead into the decision on the Allowable Annual Harvest of  
each species, i.e. how many animals may be harvested by resident and non-resident  
hunters.  
[
1703] Dr. Psyllakis testified that the Ministry of Forests aims to manage wildlife  
populations conservatively. She stated that their goal is to manage hunting to ensure  
population balance (i.e., that “harvested” animals are replaced by new animals). She  
testified that the Province determines the Annual Allowable Harvest (how many  
animals can be hunted) on a Game Management Zone scale (which is larger than a  
Wildlife Management Unit).  
[
1704] The Ministry of Forests uses a variety of tools to manage populations,  
including animal class restrictions (for example, limiting the harvest by age, sex, or  
other characteristics) and site and access restrictions. Dr. Psyllakis stated that  
species of high concern or “red-listed” species will not be harvested except as  
allowed through an accepted provincial recovery strategy, or as a legal entitlement  
for First Nations hunters. She testified that, other than restrictions for safety  
purposes, none of the restrictions apply to hunters exercising their Aboriginal or  
treaty rights.  
 
Yahey v. British Columbia  
Page 461  
[
1705] Dr. Psyllakis testified that First Nations are given priority hunting or “harvest”  
rights; their allocations are set aside before allowing for non-First Nations hunters.  
She testified that the policy hierarchy is, in order: conservation; First Nations’ food,  
social and ceremonial uses; resident hunters; and, finally, non-resident hunters.  
However, as the Plaintiffs pointed out, the Ministry of Forests has authorized  
“resident” hunters to harvest from the Pink Mountain caribou herd, despite the fact  
that Blueberry members have been voluntarily abstaining from caribou hunts out of  
concern for the species.  
[
1706] Dr. Psyllakis noted that the Harvest Allocation Policy also deals with  
accommodation measures for First Nations’ harvest allocations outside of “proven”  
hunting rights. Where a First Nation has such a claim, their rights will be  
accommodated by taking harvest amounts out of the resident/non-resident hunter  
allocations.  
[
1707] Dr. Psyllakis stated that First Nation hunters exercising their rights in  
traditional territories or treaty areas do not have to obtain a hunting license or  
species license.  
[
1708] It is informative to consider how changes to these regulations can be made to  
address Blueberry concerns. Mr. Van Dolah testified about a July 24, 2019 meeting  
between Blueberry and the Ministry of Forests regarding collaboration on moose  
hunting regulations and a potential government-to-government agreement on such.  
Blueberry made a number of requests, including for a 20 kilometre area closure  
around Pink Mountain for conservation purposes (though they were willing to  
compromise and accept a 5 kilometre closure). The meeting resulted in joint  
recommendations on proposed changes to these regulations, which were passed on  
to Dr. Psyllakis.  
[
1709] However, Mr. Van Dolah noted that Dr. Psyllakis would have to review the  
proposed amendments and then make a recommendation to the Minister regarding  
Yahey v. British Columbia  
Page 462  
implementation. By the time of Dr. Psyllakis’s testimony in June of 2020, only some  
of the proposed changes had been accepted.  
4
.
Conclusions on Wildlife Management  
[
1710] Based on the above, there are clear gaps in the Province’s wildlife  
management regime within the Blueberry Claim Area. In particular:  
a) there are very few designated areas within the Blueberry Claim Area;  
b) in any case, exceptions and discretionary room allow for development  
inside of every type of designated area;  
c) there are ultimately no “firm” thresholds or limits that actually inhibit  
development. While scientific thresholds are set out (for e.g. the 2011  
Boreal Caribou Recovery Implementation Plan notes a maximum  
disturbance threshold of 61% if trying to have species recover), the current  
level of disturbance already surpasses what acceptable; and,  
d) there is no direction as to what concrete steps should occur if a  
disturbance threshold is reached.  
[
1711] With respect to the Boreal Caribou Recovery Implementation Plan:  
a) the Province has failed to implement key aspects of the plan, including  
habitat restoration work;  
b) the plan allows for the destruction of critical habitat in excess of what is  
required to support caribou recovery under the federal recovery strategy,  
and even in excess of the Province’s own cited scientific evidence on the  
subject; and,  
c) the plan explicitly permits ongoing forestry activities in key caribou habitat  
within the Blueberry Claim Area, despite evidence that such activities are  
extremely detrimental to caribou.  
 
Yahey v. British Columbia  
Page 463  
[
1712] Regarding the moose-specific initiatives, it is enough to note that they are not  
yet operational, and statutory decision-makers are not yet factoring in either the  
Peace-Liard Moose Management Program or the Madrone Model into their  
decisions.  
[
1713] Overall, the Province has not demonstrated any substantive, concrete  
protections for wildlife or wildlife habitat within the Blueberry Claim Area.  
G.  
Conclusions on the Province’s Implementation of the Treaty  
Parties’ Positions  
1714] Ultimately, Blueberry argues that the scale of development in the Blueberry  
1
.
[
Claim Area goes well beyond what was contemplated at the time the Treaty was  
made, such that the Treaty – which promised that First Nations could continue their  
mode of life based on hunting, fishing and trapping on their lands, and which  
protected this way of life from forced interference – has been breached.  
[
1715] Relying on Manitoba Metis, Blueberry says the honour of the Crown applies  
and governs treaty implementation, and requires the Province to act in a way that  
accomplishes the intended purposes of the Treaty, and to diligently pursue its  
solemn obligations. It maintains that in the circumstances of this case, the Crown’s  
obligation to diligently and honourably implement the Treaty means the Province  
must (1) protect the rights and promises contained in the Treaty; and, (2) establish a  
framework to prevent and avoid infringement of those rights. In this case, Blueberry  
says by failing to diligently and honourably implement the Treaty promise, the  
Province has caused significant harm to the Plaintiffs’ treaty rights.  
[
1716] Blueberry says the Province has not acted diligently – or at all – to implement  
a regulatory structure to guide decision-making over the granting of tenure or use of  
resources within the Blueberry Claim Area or to deal with the taking up of lands. It  
says the Province has failed to protect the Blueberry Claim Area from the scale of  
industrial development present on the land and, moreover, has zoned the central  
watersheds Blueberry relies on for the highest intensity development.  
 
 
Yahey v. British Columbia  
Page 464  
[
1717] It says that the Province’s consultation efforts are procedural, and fail to  
engage in the fundamental question of how much development in the Blueberry  
Claim Area is too much. It says the Province pays “lip service” to its treaty rights,  
and has shown a pattern of re-directing Blueberry to an endless series of decision-  
makers, none of whom protect its treaty rights from the cumulative impacts of  
development. Meanwhile, development continues to be authorized and to proceed  
apace.  
[
1718] Blueberry says that the Province has been aware of its concerns about the  
cumulative effects of development in the Blueberry Claim Area and the impact to the  
exercise of its rights for a significant period of time. It notes that in 2003, the Oil and  
Gas Commission commissioned a study on cumulative effects, which looked at  
Blueberry’s territory as a case study. It notes that in 2011, the Forest Practices  
Board also did a cumulative effects case study in relation to the Kiskatinaw River  
watershed, in the southern portion of the Blueberry Claim Area. These studies  
showed the level of disturbance in parts of the Blueberry Claim Area increasing, and  
the quality of water and habitat decreasing. Yet, says Blueberry, the Province has  
failed to act.  
[
1719] Blueberry also highlights its own efforts, in particular those from around 2012  
onward, to bring its concerns regarding cumulative effects to the Province’s  
attention, to provide studies and data on the disturbance to the land base, and to  
provide solutions for how to proceed. Blueberry says that while the Province has  
recognized the issues Blueberry has raised are important, it has not taken any steps  
to do cumulative effects assessments in the Blueberry Claim Area specifically, to  
look at the impacts on Blueberry’s treaty rights, or to pause or halt development  
while this work is underway.  
[
1720] Blueberry says the Province’s inaction and delay breaches the Treaty, and  
the duty of honourable implementation. Moreover, Blueberry says the Province’s  
action and inaction rises to the level of constituting a breach of its fiduciary  
obligations.  
Yahey v. British Columbia  
Page 465  
[
1721] The Province says the Court’s focus should be on the question of  
infringement, and not on whether the Province’s existing processes for authorizing  
industrial development ensure that the taking up of land protects the meaningful  
exercise of harvesting rights.  
[
1722] In addition, the Province emphasizes that the honour of the Crown gives rise  
to a duty to consult, and it challenges the way in which Blueberry has approached  
the issue of consultation. The Province argues, first, that Blueberry has approached  
consultation from the premise that the Province was bound to prevent all activities  
that might harm or pose a risk to their rights. This approach, it says, is not grounded  
in the law. Second, the Province notes that Blueberry has not pursued judicial review  
proceedings of any particular authorization, and the Court does not have a complete  
record of the multiplicity of consultation process.  
[
1723] Finally, the Province says that on the facts of this case, Blueberry members  
are free to hunt, fish and trap, and they have not identified regulatory restraints  
prohibiting their exercise of rights.  
2
.
Analysis of the Province’s Honourable and Fiduciary  
Obligations  
a)  
Has the Province Honourably and Diligently  
Implemented the Treaty?  
[
1724] As noted by Blueberry, the law requires the Crown to act with diligence and  
integrity to implement, uphold and protect the purpose and promise of Treaty 8. The  
honour of the Crown is engaged by constitutional obligations and treaty promises  
(Manitoba Metis at paras. 69-71). In entering into Treaty 8, the Crown had an  
intention to create solemn and binding obligations. The Province does not dispute  
this. The meeting at Lesser Slave Lake in the summer of 1899 was a solemn affair  
attended by Treaty Commissioners as representatives of the Crown, the Chiefs and  
headmen of Indigenous Nations, and was witnessed by numerous observers. The  
Treaty was made for the overarching purpose of reconciling Aboriginal interests with  
Crown sovereignty. The honour of the Crown is engaged.  
 
Yahey v. British Columbia  
Page 466  
[
1725] Accordingly, the honour of the Crown requires the Province to interpret the  
Treaty in a purposive manner, and to act diligently to endeavour to fulfill the  
promises the Crown made, including and especially that the Indigenous signatories  
and adherents will continue to have the right to hunt, fish and trap in a meaningful  
way, and that there will be no forced interference with their way of life (Manitoba  
Metis at para. 75).  
[
1726] Clearly the promises contained in Treaty 8 differ in nature from the land grant  
contained in s. 31 of the Manitoba Act and considered by the Supreme Court of  
Canada in Manitoba Metis. Section 31 required clear and concrete actions – “the  
prompt and equitable transfer of the allotted public lands to the Métis children” (at  
para. 98) – so that it could meet the purpose for which it was designed, i.e., giving  
the Métis a head start over the expected influx of settlers. Time was of the essence,  
and a delay of over ten years in making the allotment substantially defeated its  
purpose.  
[
1727] In contrast, the protection of the rights to hunt, fish and trap and the promise  
that the Indigenous people could continue their modes of life free from forced  
interference did not necessarily require any immediate or concrete action.  
[
1728] At the time Blueberry adhered to Treaty 8 in 1900, and for several decades  
following, it remained able to hunt, fish and trap in a meaningful way and as part of  
its way of life as it had before the Treaty. However, as the pace of industrial  
development increased in the Blueberry Claim Area, the possibility arose that  
Blueberry’s rights would be impacted. As Justice Greckol of the Alberta Court of  
Appeal has pointed out, the promise made in Treaty 8 is “easy to fulfill initially but  
difficult to keep as time goes on and development increases” (Fort McKay at para.  
8
0, emphasis in original).  
[
1729] It is precisely because the promise is difficult to keep as development  
increases that the Province ought to have worked diligently to ensure appropriate  
measures were in place to protect the exercise of treaty rights and to respect treaty  
Yahey v. British Columbia  
Page 467  
rights before authorizing this level of industrial development in the Blueberry Claim  
Area.  
[
1730] The Province essentially argues there is a process in place to implement the  
Treaty, and to take into account and protect treaty rights – the consultation process  
and the Crown must consult prior to taking up land, per Mikisew. The Province  
–
also notes that it has been engaging with Blueberry on issues relating to forestry, oil  
and gas development, and the development of frameworks and regional processes  
to take into account cumulative effects.  
[
1731] The Province also points out, however, that this is not a consultation case, so  
the complete record is not before the Court. The Court therefore cannot and should  
not assess the adequacy of consultation in these matters. I agree that this case is  
not about consultation. It is, however, about whether the Crown has adequately and  
diligently implemented the Treaty that it agreed to with Blueberry, along with other  
Indigenous peoples. That is the focus of the analysis.  
[
1732] The Province has argued that if Blueberry was dissatisfied with the  
consultation that occurred in relation to any number of decisions, actions or projects,  
it ought to have applied for judicial review of those decisions or of the consultation  
processes generally. I do not accept that judicial review was Blueberry’s only option,  
or that it is barred from arguing in this action that the Province’s conduct in relation  
to a variety of decisions missed the mark.  
[
1733] It should be recalled that, after filing its Notice of Civil Claim, Blueberry did  
apply for judicial review of a decision made by the Minister of Natural Gas and  
Development to enter into a long term royalty agreement with an oil and gas  
company. In dismissing that application, Justice Skolrood referred to the  
comprehensive nature of the claims advanced in this action, and reasoned that  
Blueberry’s concern about the cumulative impacts of industrial development in their  
traditional territories and the absence of an overall planning mechanism to ensure  
the protection of their treaty rights was “best addressed” in this action (Blueberry  
Yahey v. British Columbia  
Page 468  
River First Nations v. British Columbia (Natural Gas Development), 2017 BCSC 540  
at paras. 83 - 84). I agree.  
[
1734] This claim is the appropriate place to consider the merits of Blueberry’s  
allegations that the Province has breached its honourable and fiduciary duties, and  
therefore breached the Treaty, in failing to address its concerns about the  
cumulative impacts of industrial development and failing to implement measures or  
mechanisms to protect their treaty rights.  
[
1735] The problem with the Province’s emphasis in this case that consultation is the  
route to protect treaty rights, is that despite years of engagement, their processes  
have not resulted in a consequential way to assess the cumulative effects of  
development in the Blueberry Claim Area. The processes do not consider the  
impacts on the exercise of treaty rights or implement protections other than  
occasional site specific mitigation measures. The Province has long been on notice  
that a piece-meal project-by-project approach to consultation will not address  
Blueberry’s concerns. To date, there is a lack of mechanisms to meet and implement  
the substantive rights and obligations contained in the Treaty.  
[
1736] The Province rightly points out that the honour of the Crown speaks to how  
Crown obligations are to be fulfilled, and that the Court should consider its conduct  
as a whole, in the context of the case and ask whether it acted with diligence to  
pursue the fulfillment of the purposes of the obligation. I conclude on the evidence  
before me that it did not. As Blueberry points out, the Crown is to be held to its  
promise. As per Restoule at para. 567: “The duty of honour must find its application  
in concrete practices and in legally enforceable duties.”  
[
1737] The evidence in this case shows the Province has, for nearly twenty years,  
had information showing the significant level of disturbance within the Blueberry  
Claim Area, and that critical changes affecting Blueberry’s ability to meaningfully  
exercise its treaty rights were occurring. The Province therefore had reasonable and  
credible notice that its own actions and inactions were putting it in potential breach of  
Yahey v. British Columbia  
Page 469  
Treaty 8 by its failure to monitor cumulative impacts while continuing to permit and  
foster development in Blueberry’s traditional territory. It therefore failed to act with  
diligence to ensure that despite the taking up of land, it protects the meaningful  
exercise of treaty rights, and this has resulted in an infringement of Blueberry’s rights  
to hunt, fish and trap as part of their way of life.  
[
1738] As previously noted, in the early 2000s, the Oil and Gas Commission hired  
Salmo Consulting to undertake a case study looking at cumulative effects in a  
portion of what is here referred to as the Blueberry Claim Area. The study area was  
a 2,690 square kilometre area northeast of Wonowon, between the Alaska Highway  
to the south, and the Beatton River to the north. It appears to have been intended  
that this study, and others, would provide an over-arching strategy and approach for  
identifying, scoping, assessing and managing cumulative effects in northeastern BC.  
[
1739] The Oil and Gas Commission received the results of Salmo’s case study in  
003. The study showed, among other things, that in 1950, 79% of “core area”  
2
remained. By 1970 that percentage had dropped to 43%, and by 1998, only 15% of  
core area remained. The Salmo study noted that a “core area” is an area with  
minimal human impacts. Core areas are relatively undisturbed and are often sources  
for plant and animal populations or meta-populations, and are considered one of the  
most practical cumulative effects indicators. Agricultural clearing was also identified  
in the Salmo study as a significant activity in the region, with large areas of forest  
converted for grazing and forage.  
[
1740] Dr. Holt, in the Land Stewardship Framework she prepared at Blueberry’s  
request, said the Salmo study illustrates the “exponential increase in development  
from the 1950s to the late 1990s in a similar but not exactly same area as the  
Blueberry watershed.” At page 5 of the Land Stewardship Framework. Dr. Holt  
wrote:  
At the time it was written, the Salmo report (2003) noted that in the Blueberry  
Study area, the levels of linear development already exceeded thresholds  
that were estimated to affect ecological functioning. The landscape condition  
found in the late 1990s was suggested to result in around 73% of the study  
Yahey v. British Columbia  
Page 470  
area having a high aquatic hazard rating (Salmo 2003) and road densities  
already exceeded thresholds known to impact Grizzly bear population over  
65% of the watershed at the time. Today the level of development is  
considerably higher and this type of pervasive development is found  
throughout the territory.  
[
1741] These kinds of figures regarding the percentage of Blueberry’s central  
territory that was disturbed and the low level of undisturbed areas that remained  
would later come to the Province’s attention again through studies and atlases, and  
through the work of the Regional Strategic Environmental Assessment working  
group.  
[
1742] In 2011, the Forest Practices Board did a cumulative effects case study  
focussing on the Kiskatinaw River watershed, which is in the southern portion of the  
Blueberry Claim Area near Dawson Creek. This study looked specifically at the  
effects of resource development on drinking water, forest soil and winter habitat for  
caribou. The results noted that caribou had retreated south of the study area, as  
habitat quality had deteriorated because of increased human activity. As of 2011, all  
indicators of winter habitat quality for caribou had exceeded the limits of concern set  
out in the literature. It was noted that additional industrial disturbance would drive the  
indicators further from the limits set. The study also showed a concern for drinking  
water quality, and noted that additional development and drilling had the potential to  
cause withdrawals from the river to exceed limits of concern.  
[
1743] A year later, in 2012, Blueberry provided the Province with a report prepared  
by Management and Solutions in Environmental Science (“Management and  
Solutions”) looking at the effects of industrial disturbance on Blueberry’s traditional  
resources. Specifically, Management and Solutions did a time-series disturbance  
analysis for a portion of the Blueberry Claim Area (namely, an area the Oil and Gas  
Commission was at the time using as Blueberry’s Consultation Area). The  
Management and Solutions study showed that, at that time, 66% of the study area  
was disturbed as a result of the high density of linear industrial features and land  
clearing. At that level of disturbance, it was noted that wildlife could only persist at  
Yahey v. British Columbia  
Page 471  
very low densities. The report noted that the study area was approaching the point of  
maximum fragmentation, meaning there were questions as to whether the area  
could, in the future, maintain functional ecosystems needed for the continued  
practice of treaty rights.  
[
1744] Also in 2012, Blueberry provided the Province with the 2012 Atlas produced  
by Global Forest Watch. The 2012 Atlas covered an approximately 5.6 million  
hectare study area in northeastern BC, which included the Blueberry Claim Area as  
well as areas further west and south. The 2012 Atlas showed the changes from  
1
974 to 2010, and noted that when a 500 metre buffer was applied, nearly 70% of  
the study area had been “industrially-changed.”  
[
1745] From 2012 through to the filing of the Notice of Civil Claim that began this  
litigation, Blueberry’s leadership and technical staff wrote to the Province, including  
the Premier, raising their concerns about the cumulative effects of development in  
the Blueberry Claim Area, the accelerating pace of development, and the  
consequences for the exercise of their treaty rights. They requested protection of  
what they referred to as “critical areas” within their territory, and proposed designing  
a cumulative effects assessment process focused on the Blueberry Claim Area and  
their treaty rights. They withdrew from their Economic Benefits Agreement with the  
Province.  
[
1746] In the spring of 2016, a year after filing the Notice of Civil Claim giving rise to  
this action, Blueberry provided the Province with the 2016 Atlas and its Land  
Stewardship Framework. As discussed earlier, the 2016 Atlas showed that  
approximately three quarters of the Blueberry Claim Area was within 250 metres of  
an industrial disturbance, and Blueberry’s Land Stewardship Framework called for  
interim protections for certain areas while other cumulative effects processes were  
developed.  
Yahey v. British Columbia  
Page 472  
[
1747] Blueberry’s Land Stewardship Framework also outlined a process whereby  
the interests of Blueberry and resource development could co-exist. Norma Pyle  
pointed this out when she testified as follows:  
…
So all my years working on my – for my band as the lands manager, you  
know, I always had the perspective that if there was actual land management  
and planning done, that resource development could happen while  
maintaining and managing for treaty rights.  
I always had that idea in my mind. And, you know…when you look at the  
ecosystems and you place a value, for us we place values on certain  
ecosystems and, you know, we want those maintained. We want them to  
function.  
You know, when you look at a wetland, the wetland isn’t just a wetland sitting  
there. It has many influences on wildlife. Downstream you look at – you know,  
we look at something like Blueberry River. It starts in the wetland. All the  
tributaries start in the wetland. So over time when logging activities are  
allowed to log right up to these wetlands you see them decline.  
When those wetlands decline it has a negative effect on the water for those  
tributaries. And when you do this again and again, Blueberry River is  
shrinking. That’s without any water being extracted from it.  
That’s just – and so I always thought that if we could have a way to do it, it  
would – enable a way for these two things to exist: resource development,  
treaty rights. It would mean that in some very highly sensitive areas it would  
mean that development could only happen, if it could happen at all, you  
would have to tread very, very lightly.  
In my mind that’s what I was thinking about. And, you know, when you look at  
in my experience years and years ago I worked for a consultant. We collected  
ecological data for a forest company. And what that forest company did with  
that data we collected was that they built a management plan based on that  
ecology.  
So it drove how they would harvest, at what rate they would harvest, and how  
they would reforest it. And some of these areas in the foothills are very  
sensitive areas, and it would mean that no development could ever happen.  
There were areas in that forest management area where the ecology was so  
sensitive that they wouldn’t log in there.  
And this is what I had in my mind, because it existed elsewhere and it could  
exist – well, I don’t know that it could exist now just given all the development  
and fragmentation that has happened already. I don’t know that it could  
happen. But this is what I had in my mind. And Dr. Holt was able to help us  
and this is the result.  
Q: And did Blueberry submit the land stewardship framework to  
government?  
A: Yes.  
Yahey v. British Columbia  
Page 473  
Q: Did you discuss it with them?  
A: We shared it with them. We presented it to them and that was all.  
[
1748] Rather than engage specifically with any of this information set out above, the  
Province suggested that Blueberry engage with the Province on the development of  
a cumulative effects framework, through the Regional Strategic Environmental  
Assessment process, or with the Oil and Gas Commission through the Area Based  
Analysis tool.  
[
1749] I agree with the framing as set out in Blueberry’s submissions that the  
Province had a practice of deferring real engagement and referring Blueberry to  
processes that were fledgling and inoperative rather than dealing substantively with  
their concerns about further development being continuously authorized.  
[
1750] I find that the Province has, for approximately two decades, been aware that  
the cumulative effects of development in the northeast portion of BC were leading to  
changes in wildlife habitat and water quality that posed serious concerns, and that  
by the late 1990s much of the Blueberry Claim Area was being significantly impacted  
by industrial development. The Province has also, for at least a decade and likely  
more, had notice from Blueberry that it was concerned about the impacts of  
cumulative development in the Blueberry Claim Area, and on the exercise of their  
treaty rights. Despite having notice of Blueberry’s concerns, I find that the Province  
has failed to respond in a manner that upholds the honour of the Crown and the  
obligation to implement treaty promises.  
[
1751] I conclude that the existing processes for authorizing industrial development  
in the regulatory regime which the Province relies upon, do not ensure that the  
taking up of land protects the meaningful exercise of treaty rights. The provincial  
processes do not adequately consider treaty rights or cumulative effects and have  
contributed to the meaningful diminishment of Blueberry’s treaty rights to hunt, fish  
and trap when viewed within the way of life from which these rights arise and are  
grounded.  
Yahey v. British Columbia  
Page 474  
i.  
Oil and Gas  
[
1752] As noted earlier, with respect to oil and gas, the Ministry of Energy and Mines  
and the Oil and Gas Commission – the two bodies charged with issuing tenure and  
permits – lack effective mechanisms to take into account treaty rights and consider  
cumulative impacts to those rights.  
[
1753] Notably, the Ministry of Energy and Mines is of the view that its decisions to  
issue tenure do not and cannot impact treaty rights, since they are solely subsurface  
related. Despite this, it says that it does take into account treaty rights by, primarily,  
issuing caveats on tenure that identify concerns raised by First Nations. The  
evidence is clear that caveats are not binding and are not considered by the Oil and  
Gas Commission. Instead, the Oil and Gas Commission views tenure approval by  
the Ministry as a signal that oil and gas development can proceed. As set out earlier  
in these reasons, in the Court’s view, the tools used by the Ministry of Energy and  
Mines do not show it is considering treaty rights, let alone implementing measures to  
ensure that such rights are protected. Tools that it pointed to were either temporary  
or of no force and effect, and caveats were not taken into account by the Oil and  
Gas Commission.  
[
1754] The Oil and Gas Commission pointed to the Area Based Analysis as their  
primary tool for assessing cumulative effects. There are numerous problems with  
this tool as a mechanism for considering cumulative effects on the exercise of treaty  
rights.  
[
1755] First, Area Based Analysis is applied at the level of the Boreal Plains Natural  
Disturbance Unit, which is too large a scale to have sensitivity to the intensity of  
development within smaller areas that make up that unit, such as the core of the  
Blueberry Claim Area.  
[
1756] Second, Area Based Analysis currently only considers a few values, such as  
riparian reserves, old forest, and designated wildlife areas, and does not consider  
treaty rights as a value that can be measured or assessed.  
Yahey v. British Columbia  
Page 475  
[
1757] Initially, in 2014, the Oil and Gas Commission promised a system in which  
nine values would be considered. It commenced with one value in 2015, and six  
years later now only uses four. This cannot be considered a serious effort to  
consider treaty rights and concerns; particularly as it does not assign a value for  
treaty rights.  
[
1758] There is also a lack of guidance for decision makers on how to consider and  
address concerns regarding cumulative impacts on treaty rights, and how to ensure  
treaty rights are respected when exercising discretion.  
[
1759] Area Based Analysis does not contain meaningful or enforceable thresholds  
or triggers. Instead, meeting a threshold simply prompts the gathering of additional  
information, not stopping the proposed activity. In the Court’s view, the Area Based  
Analysis is not working as a way of ensuring that treaty rights are taken into account  
and protected.  
[
1760] Furthermore, the fact that the Oil and Gas Commission has never turned  
down an application because of concerns about habitat or cumulative effects on  
treaty rights is very telling, demonstrating that it does not take these values seriously  
or seek to exercise its discretion in a way that is cognizant and respectful of treaty  
rights. Its primary focus is the development of resources.  
[
1761] Finally, as reflected by Ms. Pyle’s testimony, the number of applications by  
proponents to the Oil and Gas Commission that it requests Blueberry respond to and  
deal with can easily overwhelm Blueberry’s small lands management department. At  
the same time Blueberry was also responding to a number of other major initiatives  
in the territory including referrals associate with the Site C dam and a major  
amendment to the Forestry Operations Schedule.  
ii.  
Forestry Management  
[
1762] With respect to forestry, as noted earlier, the Province’s regime to regulate  
forestry harvest is focused on the economic value of timber and is premised on  
Yahey v. British Columbia  
Page 476  
maximizing timber harvest. The authority of the Chief Forester in setting the  
Allowable Annual Cut, for example, is limited to ensuring the economic sustainability  
of the timber harvesting land base. Ultimately, the evidence established the entire  
Timber Harvesting Land Base is intended to be harvested – it constitutes the land  
where timber harvesting is considered both available and economically feasible.  
[
1763] As reflected earlier, forestry in BC is a very hierarchal management system,  
meaning that certain higher level or strategic decisions set the parameters for  
forestry practices and management in the decades that follow. Since the late 1990s,  
the landscape units making up the core of the Blueberry Claim Area have been  
zoned in the Fort St. John Land and Resource Management Plan for enhanced  
resource development. This has meant that, ever since, much of Blueberry’s territory  
has been subject to high intensity forestry.  
[
1764] While the Province points to values set out in the Sustainable Forest  
Management Plan, that plan must follow existing zoning which at present, is zoned  
for enhanced resource development. This zoning impacts all forestry decisions in  
this area. The Sustainable Forest Management Plan includes various values,  
objectives, and indicators to which participants must manage, however, it does not  
contain values focused on treaty rights, the protection of wildlife habitat, or  
connectivity. Though some of the values were said to touch on these issues, I find  
for the reasons set out earlier, that the Sustainable Forest Management Plan is not  
aimed at protecting treaty rights and is not designed to take into account cumulative  
effects. It cannot be described as a tool through which the Province seeks to uphold  
or implement the rights protected by Treaty 8.  
[
1765] Significantly, while the Province pointed out that Blueberry did not participate  
in reviewing or commenting on the first and second Sustainable Forest Management  
Plans, when Blueberry did provide important comments on the most recent  
Sustainable Forest Management Plan #3, very little if any change was made. The  
large document is essentially identical to Sustainable Forest Management Plan #2,  
Yahey v. British Columbia  
Page 477  
despite the identification by Blueberry of a persistent lack of consideration of treaty  
rights in forest management.  
[
1766] The evidence from the District Manager and Resource Manager working in  
the Peace Natural Resource District was that they sought to consult with Blueberry  
on stand-level cutting permits and to address their concerns about the exercise of  
their treaty rights through mitigation. They were candid, however, that there was little  
ability to address concerns regarding treaty rights. If an application for a cutting  
permit was consistent with the Sustainable Forest Management Plan, the Forest  
Operations Schedule and higher level plans or legal orders, and the procedural  
aspects of consultation had been met, the authorization would likely proceed. Their  
exercise of discretion was circumscribed. Moreover, the evidence was that the  
District had never refused a harvest authorization on the basis of a breach of treaty  
rights.  
[
1767] Geoff Recknell of the Ministry of Aboriginal Relations and Reconciliation  
agreed in cross-examination that the consultation process directions from the  
Province were with respect to process only. There is no content or direction  
concerning upholding or implementing treaty rights. As noted in Ahousaht, the  
Crown must guard against unstructured discretion and provide a guide for the  
decision-maker.  
[
1768] In terms of addressing the concerns raised by Blueberry or other First Nations  
about the cumulative impacts of forestry on the exercise of their treaty rights, much  
of the evidence in this area showed that the Ministry of Forests sought to encourage  
or persuade participants (i.e., the forestry industry) to apply proposed mitigation  
measures and to collaborate with First Nations. A regulatory regime based on  
encouragement and persuasion, but ultimately without binding or effective measures  
to ensure that constitutionally protected rights are taken seriously, does not meet the  
test of diligence. While Mr. Baird, a witness for Canfor pointed out Canfor was  
following the rules and regulations and was implementing changes, he noted if  
Yahey v. British Columbia  
Page 478  
change was to be made, the Province needed to provide that direction via legal  
regulation or effect.  
[
1769] There was some suggestion in the evidence that changes to forestry  
management in northeastern BC may, eventually, come through work done at the  
Regional Strategic Environmental Assessment table, through changes to the Land  
and Resource Management Plan, or other processes. While that may be an  
encouraging sign, the Court cannot speculate on potential future changes. It can  
only assess the actions and inactions towards implementing the Treaty, based on  
the evidence before it.  
[
1770] Finally, one of the fundamental problems with these initiatives is the lack of a  
definitive timely deadline to undertake these changes and a means to ensure these  
changes are actually implemented with some force and effect. The concern is that  
these processes are taking years; even decades.  
iii.  
Cumulative Effects Framework  
[
1771] The Province argues that it has, and continues to, manage cumulative effects  
in good faith to ensure the continuing ability for Blueberry members to meaningfully  
exercise their treaty rights. It points to its implementation of its cumulative effects  
framework, and the work that preceded it.  
[
1772] The evidence is that the Province signed off on a charter that provided  
direction to develop a cumulative effects assessment framework in April of 2012.  
[
1773] It is clear that the process of developing a cumulative effects assessment that  
can apply to the whole of the province and be tailored to specific regions is a  
monumental task. While the Province, in various documents in evidence in these  
proceedings, contends that it is “implementing” its cumulative effects framework and  
policy, it is clear that there is much more work to do. Only one cumulative effects  
assessment report (i.e., the current conditions report for grizzly bear) has been  
Yahey v. British Columbia  
Page 479  
completed to date, and there is no guidance to natural resource decision makers as  
to how to take into account the information included in that report.  
[
1774] In addition, as Blueberry has repeatedly noted, the Province’s cumulative  
effects framework does not set out thresholds, or limits, beyond which decision  
makers will start being concerned about the status of a particular value, and take  
action. The Province notes that the use of objectives, essentially, serves the same  
purpose. Notably, the cumulative effects framework does not establish or change  
any objectives government currently has in place, and the objectives do not dictate  
appropriate management responses. The objectives currently in place have allowed  
for the Blueberry Claim Area to reach the state of disturbance that exists today.  
[
1775] The Court concludes that the Province has yet to implement a fully  
functioning regime whereby the cumulative effects of industrial development in the  
Blueberry Claim Area and the impacts to the exercise of treaty rights can be  
assessed and managed. It has been nearly ten years since the Province signed off  
on a charter to undertake this work. It is five years past the date when Province said  
(in response to the Auditor General’s report) that its cumulative effects policy would  
have province-wide implementation.  
[
1776] Meanwhile, development continues to proceed apace, notwithstanding some  
pauses due to the pandemic. It is critical that the Province have a way of assessing  
and managing the cumulative effects of development and, in particular, the effects  
on the exercise of Blueberry’s treaty rights. It cannot be said that this slow pace of  
developing and implementing a cumulative effects framework, along with the  
necessary assessment reports and management tools represents a diligent effort.  
iv.  
Wildlife Management  
[
1777] In terms of designated areas, as I have noted earlier, the Province has not  
demonstrated that Ungulate Winter Ranges, Wildlife Habitat Areas, Old Growth  
Management Areas, Resource Review Areas, or provincial parks are effective tools  
to protect wildlife in the Blueberry Claim Area. Moreover, few of these designated  
Yahey v. British Columbia  
Page 480  
areas exist in the Blueberry Claim Area and thus cannot be said to be ways by which  
the Province is protecting or implementing Blueberry’s treaty rights. Surprisingly, oil  
and gas development is allowed in some of these protected areas if the activity will  
not have a “material adverse effect” in what has been characterized as a designated  
legally protected area.  
[
1778] There was some evidence about the Province’s Peace-Liard Moose  
Management Plan, and its goal of ensuring the priority of Treaty 8 rights with respect  
to moose. However, this plan while completed, was never “signed off” or  
implemented, and work on moose management and the protection of moose habitat  
now seems to have shifted to the RSEA moose working group, whose work is still  
ongoing. Finally, I note the Caribou recovery initiatives have not been successful,  
with Caribou declining and some of these plans not yet finalized or adopted.  
v.  
Conclusions on Honourable and Diligent  
Implementation  
[
1779] Based on the whole of the evidence, I find a persistent pattern of redirection  
on the part of government officials in resource sectors, including oil and gas and  
forestry, as well as those involved in Indigenous relations, telling Blueberry that its  
concerns regarding the cumulative effects of development on the exercise of its  
treaty rights would be addressed elsewhere, at other tables, through other policies or  
frameworks. These repeated responses, many of which were clearly a template  
response, particularly, from the Tenure Branch and the Oil and Gas Commission,  
reflected conduct that can be considered perfunctory. I conclude this is conduct that  
“substantially frustrates the purposes of a solemn promise” (see Manitoba Metis at  
para. 82); in particular, it frustrates the essential promise of the Treaty.  
[
1780] In addition, while certain officials appeared sincere in recently trying to  
address these concerns, they candidly admitted they had no tools to do so. The best  
they could do was “mitigate” an adverse effect. They could not say no to a permit or  
activity based on an identified concern about impacts on the exercise of treaty rights.  
Yahey v. British Columbia  
Page 481  
That persistent reality has contributed to a compilation of adverse effects – or as is  
said – “death by a thousand cuts.”  
[
1781] The Province has not, to date, shown that it has an appropriate way of taking  
into account Blueberry’s treaty rights, assessing the cumulative impacts of  
development on the exercise of these rights, and developing a way to ensure that  
Blueberry can continue to exercise these rights in a manner consistent with their way  
of life, such that the promises made in Treaty 8 can be upheld, implemented and  
respected today.  
[
1782] The Province’s existing process for authorizing industrial development does  
not contain sufficient or in many cases, any guidance for discretionary decision  
makers, to ensure the taking up of lands by industrial development protects the  
meaningful exercise of treaty rights. Meanwhile, as pointed out by Blueberry, the  
Province has continued to promote intensive use and authorized development on a  
project-by-project basis without regard to the scale of cumulative impacts on  
Blueberry’s rights from forestry, oil and gas and other industries.  
[
1783] I find that the Province’s work on the development of a cumulative effects  
framework has been plagued by inordinate delay. Much of what the Auditor General  
said in 2015 regarding lack of progress on cumulative effects assessment and  
management remains true today. The Province has been unable to show that it is  
effectively considering or addressing cumulative effects in its decision-making.  
Current condition reports from the Regional Strategic Environmental Assessment  
process, whether finalized or in draft, are not currently being incorporated into  
decision-making and there is a lack of guidance for decision-makers as to how the  
various tools that are anticipated to emerge from the work on developing a  
cumulative effects framework are to be used. It is concerning that the Province has  
continued to proceed with authorizing resource use and extraction in the northeast of  
BC in the absence of these important tools.  
Yahey v. British Columbia  
Page 482  
[
1784] Furthermore, the Province has both zoned the core of Blueberry’s territory for  
enhanced resource development as per the Land and Resource Management Plan;  
and, subsidized the oil and gas industry to ensure it continues to develop when it  
might not otherwise via support for marginal and ultra marginal wells in the BC  
royalty program. The Province is therefore encouraging wells in areas that would not  
otherwise be economically viable as part of its royalty program. In addition, the  
Province’s infrastructure program is directly supporting roads and pipelines and  
there development in the area in order to increase provincial royalties.  
[
1785] As noted by Blueberry, the Crown has all the power in the relationship. When  
the Province and Blueberry cannot agree, the Province can proceed as it intends.  
Ultimately, however, by doing so on a persistent and consistent basis, the Province  
has failed in its obligation to diligently and honourably implement the Treaty. It  
cannot actively or passively allow the territory and wildlife to be drastically altered,  
fundamentally impacting Blueberry’s ability to carry on their mode of life and  
meaningfully exercise their rights, by authorizing development without proper  
measures in place to recognize and manage cumulative impacts and protect treaty  
rights.  
[
1786] I therefore conclude that the Province has breached its obligations to  
Blueberry under the Treaty in failing to act in accordance with the honour of the  
Crown to implement the Treaty promise that Blueberry’s rights to hunt, fish and trap  
would continue and that its mode of life would not be forcibly interfered with. The  
Province has failed to diligently implement the Treaty promise to protect the  
Plaintiffs’ treaty rights and ways of life from the cumulative impacts of development  
on the land.  
[
1787] In view of all the above, I agree, as Blueberry argued, that the Province has  
failed to:  
Yahey v. British Columbia  
Page 483  
a) develop processes to assess whether the ecological conditions in  
Blueberry’s traditional territories are sufficient to support Blueberry’s way  
of life;  
b) develop processes to assess or manage cumulative impacts to the  
ecosystems in Blueberry’s traditional territories and/or on their treaty  
rights;  
c) implement a regulatory regime or structure that will take into account and  
protect treaty rights, and that will guide decision-making for taking up  
lands or granting interests to lands and resources within Treaty 8; and,  
d) put in place sufficient interim measures to protect Blueberry’s treaty rights  
while these other processes are developed.  
b)  
Fiduciary Obligations  
[
1788] Blueberry has also sought a declaration that the Province breached its  
fiduciary obligations. The Plaintiffs have therefore invited the Court to consider  
whether the Province owes a fiduciary obligation to Blueberry and whether it has met  
this obligation. Blueberry says the rights to hunt, trap and fish were “transcribed in  
the Treaty in a simple form cognizable to the common law drafters.” I note at the  
outset that Blueberry has not argued this aspect of its claim with as much clarity as  
some of the other arguments it has advanced.  
[
1789] Blueberry indicated it intended to raise the issue of the Province’s fiduciary  
obligations and alleged breach in reply to the Province’s justification defence. The  
Province did not, however, provide a justification defence.  
[
1790] I will, however, in light of the pleadings, make some general comments on the  
Crown’s fiduciary obligations.  
[
1791] The Crown’s sui generis fiduciary relationship with Indigenous people is about  
protecting the interests of Indigenous people, especially when the level of Crown  
discretion or control leaves their interests vulnerable to government ineptitude or  
Yahey v. British Columbia  
Page 484  
misconduct. Since the Sparrow decision of 1990, the Supreme Court of Canada has  
recognized that the concept of the sui generis fiduciary duty includes the protection  
of Indigenous peoples’ pre-existing, and still existing, Aboriginal and treaty rights  
within s. 35 of the Constitution Act, 1982 (Sparrow at 1108; Wewaykum at paras. 78,  
8
0; Tsilhqot’in at paras. 12-13). Indigenous peoples’ interests in their constitutionally  
protected Aboriginal and treaty rights thus appear to presumptively attract the  
Crown’s fiduciary obligations (Wewaykum at paras. 79, 81).  
[
1792] Blueberry appears to rely on fiduciary obligations attaching, generally, to s. 35  
rights, as they have not otherwise set out with specificity the route by which the  
Province’s fiduciary obligations are said to arise. The Province points out that not  
every Crown-Indigenous relationship gives rise to fiduciary obligations, and that the  
sui generis fiduciary duty only arises when the Crown assumes discretionary control  
over a specific or cognizable Indian interest.  
[
1793] One way of understanding the interest at stake, and to which the Crown’s  
fiduciary duty attaches, is to focus on the historic rights to hunt, trap and fish that are  
set out in Treaty 8 and protected by s. 35. The Supreme Court of Canada has noted  
that rights under s. 35 “satisfy the requirement of an ‘independent legal interest’”  
(Williams Lake at para. 53, citing Sparrow and Guerin). This seems to be the  
cognizable interest relied on by Blueberry – being a pre-existing legal interest in  
exercising their hunting, trapping, and fishing rights in their territory.  
[
1794] I must now consider whether the Province has assumed or undertaken  
discretionary control in relation to Blueberry’s rights to hunt, trap and fish.  
[
1795] In 1899, the Treaty Commissioners (acting on behalf of the Crown) repeatedly  
promised the Indigenous people assembled at Lesser Slave Lake that their rights to  
hunt, fish and trap would be protected and that their way of life would not be  
interfered with. In addition, as a term of the Treaty, the Crown agreed to provide  
ammunition and twine to those peoples that preferred to continue hunting and fishing  
rather than turning to agricultural pursuits. In 1900, representatives of the Crown met  
Yahey v. British Columbia  
Page 485  
with Blueberry’s ancestors at Fort St. John and invited them to adhere to Treaty 8,  
confirming the promises made in 1899. In so doing, I find that the Crown undertook  
discretionary control in relation to Blueberry’s interest in continuing to hunt, trap and  
fish in its territory.  
[
1796] As is clear from Grassy Narrows, historical treaties are agreements with the  
Crown, and both levels of government are responsible for fulfilling treaty promises  
when acting within the division of powers under the Constitution (Grassy Narrows at  
para. 30).  
[
1797] The Province has the exclusive authority to take up provincial lands for  
forestry, mining, settlement and other exclusively provincial matters. In addition, the  
Province has broad discretion to deal with various natural resource related issues,  
and to develop and implement decision-making structures relating to such issues.  
For example, and as already discussed in detail, the Province puts in place wildlife  
management regimes, land use planning processes, forestry management regimes,  
and oil and gas permitting processes.  
[
1798] The Province is exercising discretionary control in relation to Blueberry’s  
treaty rights when it:  
a) exercises its power to take up lands in the Blueberry Claim Area;  
b) develops and implements natural resource decision-making structures that  
affect Blueberry’s exercise of its rights; and,  
c) makes individual natural resource decisions that affect the lands, water  
and wildlife Blueberry relies on for the exercise of their treaty rights.  
Blueberry is correspondingly vulnerable to the Province’s exercise of discretionary  
control.  
Yahey v. British Columbia  
Page 486  
[
1799] I therefore accept that Blueberry’s rights to hunt, fish and trap, which are  
contained within Treaty 8 and are protected by s. 35, attract the Crown’s fiduciary  
obligations.  
[
1800] The jurisprudence reviewed earlier recognizes that the Crown as a fiduciary  
is, at a minimum, required to act with loyalty, good faith in the discharge of its  
mandate, provide full disclosure appropriate to the subject matter, and to act with  
ordinary prudence with a view to the best interest of its Indigenous beneficiaries.  
While the Crown must meet this standard of conduct, it is not in breach of its  
fiduciary obligations if it fails to deliver any particular result.  
[
1801] The Province’s fiduciary duty (along with its duties arising from the honour of  
the Crown) should guide its actions prior to any infringement of treaty rights. This  
point was made in Grassy Narrows at paras. 50-51 where the Supreme Court of  
Canada noted that Ontario’s power to take up lands under Treaty 3 was not  
unconditional. In exercising its jurisdiction over the lands covered by Treaty 3,  
Ontario was bound and burdened by the honour of the Crown and was subject to  
fiduciary duties that exist when the Crown deals with Aboriginal interests. The Court  
noted that this means Indigenous harvesting rights over the land “must be  
respected” (at para. 51).  
[
1802] The usual place where the parties can discuss how to respect treaty rights  
and minimize any potential infringements, is in consultation. As I have noted above,  
consultation on a permit-by-permit basis has not served as an appropriate way of  
addressing Blueberry’s concerns about the cumulative impacts to the Blueberry  
Claim Area, and on the exercise of its treaty rights. In these circumstances, acting  
with good faith and ordinary prudence in relation to Blueberry’s treaty rights required  
the Province to use more than just the usual process.  
[
1803] This Court is mindful that the Crown, here the Province, wears many hats and  
represents many interests, some of which cannot help but be conflicting. The  
Province argued there is no presumption that the hunting, fishing and trapping rights  
Yahey v. British Columbia  
Page 487  
in Treaty 8 must, in every case and in all circumstances, be given priority over other  
interests. I agree, but that is not what Blueberry is seeking.  
[
1804] In these circumstances, I find that the Province’s fiduciary duty required that it  
act with good faith to seek to address Blueberry’s concerns regarding the cumulative  
impacts of development on the exercise of its treaty rights. That good faith must be,  
at a minimum, more than the adoption of unwavering, unreasonable positions, as  
per Justice Donald’s comments on the obligation of good faith in BCTF v. British  
Columbia, 2015 BCCA 184 at paras. 331-334 and 348. Justice Donald’s reasons  
were ultimately adopted by the Supreme Court of Canada (2016 SCC 49).  
[
1805] Acting with ordinary prudence in this case required that the Province  
investigate the concerns regarding cumulative impacts by developing processes to  
assess cumulative effects in Blueberry’s Claim Area and develop ways of managing  
and mitigating these effects. In the Court’s view, ordinary prudence would have  
required that the Province pause some development in Blueberry Claim Area, or key  
areas within the Blueberry Claim Area, pending the results of this work. Allowing  
development to proceed in the face of these substantial and well grounded concerns  
could not be said to be acting with good faith, loyalty, or ordinary prudence with a  
view to Blueberry’s best interests. Ordinary prudence requires long-term planning,  
looking ahead and considering the likely future effects of current decisions, as  
opposed to simply stubbornly “staying the course.”  
[
1806] Once again I note the Province has all the power in this situation. It is not an  
answer, when Blueberry raises concerns, to maintain the status quo indefinitely and  
indicate processes are in development to take care of these matters. Some limits,  
including reasonable time limits, must be employed to demonstrate good faith.  
[
1807] I note that the Province, both in argument and via their witnesses, had a  
tendency to point to an ever-expanding pool of decision-making bodies as evidence  
that cumulative effects and/or treaty rights are being considered, without concretely  
describing how these issues are being addressed. In this case, the multitude of  
Yahey v. British Columbia  
Page 488  
decision-makers has tended to show that Blueberry’s concerns fall through the  
cracks, not that they are being addressed in a comprehensive or coordinated  
manner.  
[
1808] In making these comments, the Court is not saying that the results of this  
work would, in every case and in every circumstance, result in Blueberry’s treaty  
rights having priority over other interests. As noted earlier, the Court is mindful that  
the Province “wears many hats.” If cumulative effects assessments are completed  
and management processes are established to ascertain ways for Blueberry’s rights  
to be upheld, development may continue. That is precisely what Blueberry’s Land  
Stewardship Framework suggests when it speaks about developing thresholds of  
acceptable change as guiding posts for further developments.  
c)  
Conclusions in Brief  
[
1809] I reiterate my conclusions set out in brief at the commencement of this  
judgment:  
Courts have noted that Treaty 8 is not a final blueprint. It established the  
beginning of an ongoing relationship. It was recognized that the relationship  
would be difficult to manage. The promises contained in Treaty 8 have  
become harder to keep as time has gone on, and the Court has been called  
upon to assist the parties in understanding their obligations under the Treaty.  
I find that Treaty 8 protects Blueberry’s way of life from forced interference,  
and protects their rights to hunt, trap and fish in their territory.  
I recognize that the Province has the power to take up lands. This power,  
however, is not infinite. The Province cannot take up so much land such that  
Blueberry can no longer meaningfully exercise its rights to hunt, trap and fish  
in a manner consistent with its way of life. The Province’s power to take up  
lands must be exercised in a way that upholds the promises and protections  
in the Treaty.  
Yahey v. British Columbia  
Page 489  
I find that the Province’s conduct over a period of many years – by allowing  
industrial development in Blueberry’s territory at an extensive scale without  
assessing the cumulative impacts of this development and ensuring that  
Blueberry would be able to continue meaningfully exercising its treaty rights in  
its territory – has breached the Treaty.  
I conclude that the extent of the lands taken up by the Province for industrial  
development (including the associated disturbances, impacts on wildlife, and  
impacts on Blueberry’s way of life), means there are no longer sufficient and  
appropriate lands in Blueberry’s territory to allow for the meaningful exercise  
by Blueberry of its treaty rights. The cumulative effects of industrial  
development authorized by the Province have significantly diminished the  
ability of Blueberry members to exercise their rights to hunt, fish and trap in  
their territory as part of their way of life and therefore constitute an  
infringement of their treaty rights. The Province has not justified this  
infringement.  
I find that, for at least a decade, the Province has had notice of Blueberry’s  
concerns about the cumulative effects of industrial development on the  
exercise of its treaty rights. Despite having notice of these legitimate  
concerns, the Province failed to respond in a manner that upholds the honour  
of the Crown and implements the promises contained in Treaty 8. The  
Province has also breached its fiduciary duty to Blueberry by causing and  
permitting the cumulative impacts of industrial development without protecting  
Blueberry’s treaty rights.  
The Province has not, to date, shown that it has an appropriate, enforceable  
way of taking into account Blueberry’s treaty rights or assessing the  
cumulative impacts of development on the meaningful exercise of these  
rights, or that it has developed ways to ensure that Blueberry can continue to  
exercise these rights in a manner consistent with its way of life. The  
Yahey v. British Columbia  
Page 490  
Province’s discretionary decision-making processes do not adequately  
consider cumulative effects and the impact on treaty rights.  
The rights, obligations and promises made in Treaty 8 must be respected,  
upheld, and implemented today. Time is of the essence. Relief will follow.  
IX.  
HAS THE PROVINCE JUSTIFIED THE INFRINGEMENT?  
A.  
Law  
[
1810] As set out earlier, once a First Nation establishes that its treaty rights have  
been infringed, the onus shifts to the Crown to justify the infringements on the basis  
of the Sparrow/Badger test (see Grassy Narrows at para. 53; Mikisew at para. 48).  
The justificatory standard has been recognized as placing a “heavy burden” on the  
Crown (Sparrow at 1119).  
[
1811] In Badger, at para. 82, Justice Cory reasoned it is “equally if not more  
important” to justify infringements of treaty rights as it is to justify infringements of  
Aboriginal rights. This was said to be because the rights granted to Indigenous  
peoples by treaties usually form an integral part of the consideration for the  
surrender of their lands.  
[
1812] In Sparrow, the Supreme Court of Canada held that legislation can infringe  
rights protected by s. 35 of the Constitution Act, 1982, but only if it passes a two-step  
justification analysis. The legislation must:  
a) further a “compelling and substantial” purpose; and,  
b) account for the priority of the infringed Aboriginal interest under the  
fiduciary obligation imposed on the Crown (see Sparrow at 1113-19;  
Tsilhqot’in at para. 13).  
[
1813] Chief Justice Dickson went on at 1119, to note that within the justification  
analysis, there are further questions or factors to be considered, depending on the  
circumstances:  
 
 
Yahey v. British Columbia  
Page 491  
These include the questions of whether there has been as little infringement  
as possible in order to effect the desired result; whether, in a situation of  
expropriation, fair compensation is available; and, whether the aboriginal  
group in question has been consulted with respect to the conservation  
measures being implemented...  
[
1814] Justification of infringements to treaty rights was discussed in Badger, where  
Justice Cory noted that a challenged limitation on treaty rights must, obviously, be  
considered within the context of the treaty itself (at para. 85). Following that, the  
Sparrow principles were to be applied, though those were not a complete catalogue  
or exhaustive list of factors, and others may also influence the result.  
[
1815] Subsequent Supreme Court of Canada decisions, looking primarily at  
infringements of Aboriginal rights (as in Gladstone) or Aboriginal title (as in  
Delgamuukw and Tsilhqot’in), as opposed to infringements of treaty rights, have  
noted that the framework for justifying infringements to s. 35 rights generally involves  
considering the following. First, whether the government has consulted and, if  
necessary, accommodated the Indigenous group. Second, whether the government  
has established a “compelling and substantial” government objective. Third, whether  
the government’s action is consistent with its fiduciary duty and the honour of the  
Crown (Tsilhqot’in at para. 77). This last step may involve considering the nature of  
the interest to which the Crown’s fiduciary attaches, whether the action is necessary  
to achieve the government’s objective, whether the government’s action was  
minimally impairing of the right, and whether the benefits expected to flow from the  
objective were not outweighed by their effects on the Indigenous interest (Tsilhqot’in  
at paras. 82, 87).  
[
1816] What constitutes a compelling and substantial objective is to be considered  
from the Indigenous perspective, as well as from the perspective of the broader  
public (Tsilhqot’in at para. 81). Such objectives are to be directed at recognition of  
the prior occupation of North America by Indigenous peoples, and reconciliation of  
this prior occupation with the assertion of Crown sovereignty (Gladstone at para. 72;  
Tsilhqot’in at paras. 81-82).  
Yahey v. British Columbia  
Page 492  
[
1817] In Badger, Justice Cory observed that the government did not lead evidence  
with respect to justifying s. 26(1) of the Wildlife Act and, in the absence of such  
evidence, it was not open the Supreme Court of Canada to supply its own  
justification (at para. 98). (I note, however, that Justice Cory did comment on the  
objectives of safety and conservation apparent in the licencing regime at issue,  
suggesting there was some evidence going to the first justification question of  
whether there is a valid legislative objective.) Justice Cory held that, with respect to  
Mr. Ominayak, s. 26(1) of the Wildlife Act constituted a prima facie infringement of his  
treaty right to hunt for food. The Court ordered a new trial so that the issue of  
justification may be addressed.  
[
1818] In Marshall, the Crown chose not to justify the discretionary licensing system  
at issue. The Supreme Court of Canada held that in the absence of any justification  
of the regulatory prohibitions, Mr. Marshall was entitled to an acquittal (at para. 66).  
The Court then answered the constitutional question noting that the regulatory  
prohibitions were inconsistent with Mr. Marshall’s treaty right and therefore of no  
force or effect or application to him, by virtue of s. 35(1) and 52 of the Constitution  
Act, 1982 (at paras. 64 and 67).  
[
1819] In Marshall #2, Justice Binnie confirmed that in the face of the Crown  
choosing not to seek to justify a regulatory regime, a rights holder would be allowed  
to exercise their right, notwithstanding the regime. He added that justification, and  
the merits of the government’s arguments, would depend on the facts. He also  
observed that accommodating treaty rights may best be resolved through  
consultation and negotiation, not through litigation:  
[
21] The fact the Crown elected not to try to justify a closed season on the eel  
fishery at issue in this case cannot be generalized, as the Coalition’s question  
implies, to a conclusion that closed seasons can never be imposed as part of  
the government’s regulation of the Mi’kmaq limited commercial “right to  
fish”. A “closed season” is clearly a potentially available management tool,  
but its application to treaty rights will have to be justified for conservation or  
other purposes. In the absence of such justification, an accused who  
establishes a treaty right is ordinarily allowed to exercise it...  
[
22] Resource conservation and management and allocation of the  
permissible catch inevitably raise matters of considerable complexity both for  
Yahey v. British Columbia  
Page 493  
Mi’kmaq peoples who seek to work for a living under the protection of the  
treaty right, and for governments who seek to justify the regulation of that  
treaty right. The factual context, as this case shows, is of great importance,  
and the merits of the government’s justification may vary from resource to  
resource, species to species, community to community and time to time. As  
this and other courts have pointed out on many occasions, the process of  
accommodation of the treaty right may best be resolved by consultation and  
negotiation of a modern agreement for participation in specified resources by  
the Mi’kmaq rather than by litigation. La Forest J. emphasized  
in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (a case cited in the  
September 17, 1999 majority decision), at para. 207:  
On a final note, I wish to emphasize that the best approach in these  
types of cases is a process of negotiation and reconciliation that  
properly considers the complex and competing interests at stake.  
[
23] The various governmental, aboriginal and other interests are not, of  
course, obliged to reach an agreement. In the absence of a mutually  
satisfactory solution, the courts will resolve the points of conflict as they arise  
case by case…  
[
1820] In Ahousaht, Justice Garson found that the cumulative effect of the federal  
Department of Fisheries and Oceans’ regulatory system infringed the Nuu-chah-  
nulth’s rights. She issued a declaration that the Fisheries Act and the regulations  
and policies thereunder prima facie infringed the Nuu-chah-nulth plaintiffs’ Aboriginal  
rights to fish and sell fish. The Court did not rule on Canada’s justification defence  
and did not make any declaration of unjustified infringement. Instead, it ordered the  
parties to consult and negotiate the manner in which the plaintiffs’ rights could be  
accommodated. If those consultations were unsuccessful after two years, Canada  
had leave to apply at a subsequent trial to tender further evidence on justification.  
That justification trial did ultimately proceed before Justice Humphries.  
B.  
Province’s Position  
[
1821] The Province did not, in final oral or written submissions, advance a justification  
defence. The Province has taken what can be characterized as an evolving and  
somewhat unclear approach to the question of justification in this case.  
[
1822] As noted earlier, the Province’s primary response to Blueberry’s claim is to  
deny that Blueberry’s treaty rights have been infringed and to deny that the Treaty  
has been breached. In the alternative, in its Response to Civil Claim filed on April 24,  
 
Yahey v. British Columbia  
Page 494  
2
015, the Province pleaded that such breaches or infringements were justified.  
Paragraph 23 of the Province’s Response to Civil Claim states:  
23. In response to paragraphs 27 and 28 of the Notice of Civil Claim, the  
Province denies that it has breached its obligations to the Plaintiffs under the  
Treaty or infringed the Plaintiffs’ Treaty rights and puts the Plaintiffs to the  
strict proof thereof. In the alternative, if the Province did breach its Treaty  
obligations or infringed the Plaintiffs’ Treaty rights, which is denied, such  
breaches or infringements were justified.  
(
emphasis added)  
[
1823] In addition, in Part 3 (Legal Basis) of its Response to Civil Claim, the Province  
cited portions of Mikisew stating that infringements of Treaty 8 must be justified  
according to the test set out in Sparrow.  
[
1824] Blueberry’s November 2, 2015 case plan proposal noted that this claim will  
require the Court to determine (1) whether there has been a prima facie infringement  
of the established treaty rights, and (2) whether that infringement is justified. The  
Province’s November 13, 2015 case plan proposal did not take issue with those two  
determinations being dealt with in this claim, and did not suggest a phased approach  
was required.  
[
1825] The Province’s February 28, 2018 Trial Brief states the following with respect  
to Issue C.2: “If the Plaintiffs’ [sic] can no longer meaningfully exercise their Treaty 8  
Rights…Has that infringement been justified?”  
The Province denies any infringement. If there has been an infringement it  
has been justified. Insofar as land use planning that permits development is  
concerned, Treaty 8 First Nations were invited to participate in the process  
leading to the development of the current land use plan, which includes areas  
protected from development and areas where development is allowed,  
subject to consultation. Insofar as specific developments are concerned,  
consultation and accommodation is required, as noted above. The Plaintiffs  
and other Treaty 8 First Nations are involved in development [footnote to Rio  
Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 at para. 34].  
The Plaintiffs have also participated, directly and indirectly, in revenue  
sharing and other economic benefits arising from industrial development  
within their traditional territories. From 2006-2014, the Plaintiffs participated in  
a number of agreements in which they agreed that industrial development  
activities did not amount to infringements. If any future industrial development  
is found by this Court to amount to an infringement, then it would be unfair to  
Yahey v. British Columbia  
Page 495  
hold that British Columbia has failed to justify that infringement without  
providing the parties the opportunity to consult or negotiate based upon the  
findings made, and, in the event of unsuccessful negotiations, the opportunity  
for British Columbia to adduce further evidence [footnote to Ahousaht Indian  
Band v. Canada, 2009 BCSC 1494 at paras. 869-873].  
[
1826] As is apparent from the extensive evidence in this trial and the findings of fact  
and analysis in this judgment, the evidence of the Province’s efforts with respect to  
land use planning or of the sufficiency of agreements to address Blueberry’s  
concerns and protect important areas has been found seriously wanting.  
[
1827] Blueberry, and the Court, for that matter, proceeded with the understanding  
that the parties would be adducing evidence and making arguments on all the issues  
raised in this case, including whether any potential infringements of treaty rights  
were justified.  
[
1828] In its later written and oral arguments in this case, the Province has taken the  
position that it could not justify any infringements of Blueberry’s treaty rights until,  
first, the scope of the rights were known, and, second, the specific infringements  
were identified. The Province argued that Blueberry had failed to clearly articulate its  
rights and was essentially asserting “a generalized right to a poorly defined ‘mode of  
life,’ which fails to account for the modern context.” In its closing submissions the  
Province noted that justification does not arise until there has been a finding of  
infringement, which is “why a justification defence is not being advanced at this  
time.”  
[
1829] The Province referred repeatedly to the “unsatisfactory” proceedings in  
Ahousaht where the court found that the entire regulatory regime infringed the  
plaintiffs’ Aboriginal rights to fish and sell fish, and gave the Crown two years to  
consult and negotiate a regulatory regime that recognized their rights and if there  
was no agreement, to justify the infringement in court. When the parties came back  
before Justice Humphries in the justification trial, she found that to proceed with the  
justification analysis she first needed to “interpret” the declaration relating to the  
right.  
Yahey v. British Columbia  
Page 496  
[
1830] The Province emphasized that specificity regarding the nature of the  
infringement is required in order for the Crown to seek to justify its actions. The  
Province underscored that previous cases have dealt with allegations of  
infringements arising from specific legislation or regulations, which though unwieldy  
if relating to the management of a fishery, are nonetheless more specified than the  
infringements alleged in this case which are said to arise from the cumulative effects  
of industrial development and the Province’s actions and inactions with respect to  
them.  
[
1831] In its oral reply, counsel for Blueberry emphasized that the Province pleaded  
justification, and its decision not to advance a justification defence was therefore  
suprising. Blueberry emphasized that much of the evidence led by the Province in  
this case was of the type that would be expected with respect to justification.  
Blueberry argued that if the Court found an infringement, there would be a  
substantial prejudice to Blueberry to find that it was anything other than an  
unjustified infringement.  
C.  
Analysis and Conclusions  
[
1832] I will deal first with the Province’s position that it could not advance a  
justification defence before the scope of the rights were known.  
[
1833] Treaty 8 rights are established and existing rights, not claimed or asserted  
rights (Mikisew 2018 at para. 138 (per Brown J., concurring); see also West Moberly  
011 at paras. 80, 129). They arise from exchanges between the Crown and  
2
Indigenous people. The promises are set out orally and in writing. The starting point  
is that the Indigenous people are entitled to what they have been granted in the  
Treaty. In the case of Treaty 8, there is a substantial amount of jurisprudence from  
this court and appellate courts as to the promises included therein and the scope of  
those rights.  
[
1834] The Province must be taken to know the promises the Crown made to  
Indigenous people, and which it is bound to uphold today. Ensuring those rights are  
 
Yahey v. British Columbia  
Page 497  
respected and upheld, or (in the alternative) ensuring that any infringements of those  
rights are justified, does not always need to await judicial determination on the  
specificity or scope of the rights. While some clarification may be needed or of  
assistance, to proceed on the basis that the treaty right is not known until the court  
determines what that right is, is unwieldy and ignores the reality of the written  
document, the known oral promises, the plentiful jurisprudence, and in this case the  
specifics set out by the Plaintiffs.  
[
1835] The Province relies on Justice McLachlin’s dissenting reasons in Marshall  
where she states that “[t]o proceed from a right undefined in scope or modern  
counterpart to the question of justification would be to render treaty rights inchoate  
and the justification of limitations impossible” (at para. 112). She refers to the right in  
that case as being referred to in “generalized abstraction” and needing instead to  
begin by defining the “core” of that right and seeking its modern counterpart.  
[
1836] Marshall did not deal, however, with the text or the oral promises contained  
within Treaty 8, which have been affirmed in previous Treaty 8 cases (see, for  
example, West Moberly 2011 at paras. 130-131). Moreover, in my view, at the time  
Mr. Marshall was charged with selling eels there was likely considerably more legal  
uncertainty regarding how to understand the rights reflected in the truckhouse clause  
in the peace and friendship treaties, than the rights and promises reflected in Treaty  
8
, which have been commented on extensively in the jurisprudence over the last 30  
years.  
[
1837] Furthermore and importantly, in this case, the pleadings, supplemented by  
the particulars, provided the Province with significant and sufficient information on  
the scope of the rights from Blueberry’s perspective. Paragraphs 19 to 23 of the  
Notice of Civil Claim set out what Blueberry referred to, collectively, as its “Treaty  
Rights.” These allegedly included the following promises, assurances and rights:  
a) there would be no forced interference with the Plaintiffs’ mode of life;  
Yahey v. British Columbia  
Page 498  
b) the same means of livelihood and patterns of economic activity would  
continue after the Treaty as before;  
c) they would be as free to hunt, trap and fish throughout their traditional  
territory as they had been before entering the Treaty;  
d) rights to undertake traditional and spiritual activities in their traditional  
territory;  
e) rights to travel throughout their traditional territory;  
f) rights to manage natural resources within their traditional territory;  
g) rights to gather various natural resources, including plants and berries in  
their traditional territory;  
h) rights of access to and protection and management of adequate quantities  
of clean and fresh water capable of sustaining life within and around their  
traditional territory; and,  
i) rights to engage in activities incidental to the exercise of rights under the  
Treaty including: rights to access the lands and waters necessary for  
hunting, trapping and fishing; rights to maintain adequate terrestrial and  
riparian habitat to support the activities of hunting, trapping and fishing;  
rights to maintain and access traplines and trapline infrastructure,  
including trails and cabins; and, rights to maintain and access teaching  
sites to pass on their traditional mode of life.  
[
1838] As discussed earlier in these reasons, in its Response to the Defendant’s  
Demand for Further and Better Particulars, Blueberry provided very comprehensive  
answers to the Province’s queries regarding, among other things: the cultural and  
economic activities they alleged can no longer be meaningfully pursued and where  
those activities were pursued; their traditional patterns of economic activity; and,  
their preferred means of exercising their treaty rights.  
Yahey v. British Columbia  
Page 499  
[
1839] More importantly, this is not a situation, as was the case in Ahousaht, where  
the First Nation was alleging its rights included a right to sell fish, and the  
government’s regime did not recognize such a commercial right (at para. 867). In  
that situation, Garson J. noted it could not be known whether and how the federal  
government would have managed the fishery if it had taken into account the  
plaintiffs’ constitutional rights to fish and sell that fish. It was for that reason that  
Canada was not in a position to justify infringements (at paras. 868-869).  
[
1840] Here, the Province has repeatedly said its regulatory regimes do recognize  
and take into account First Nations’ Treaty 8 rights to hunt, trap and fish throughout  
their traditional territories, so the suggestion that its regime cannot be justified until  
the scope of the rights has been delineated by the Court is circular and without  
merit.  
[
1841] In the Court’s view, no further specifics regarding the nature of the rights on  
which Blueberry was relying was required in order for the Province to bring forward  
evidence and prepare an argument seeking to justify any potential infringement. At  
the very least, this argument could have been based on Blueberry’s right to hunt,  
fish and trap throughout its traditional territory, which is the very right the Province  
says its regimes already recognize.  
[
1842] I now consider whether the Province needs to await determination from this  
Court on the nature of the infringement before it can seek to justify its regulatory  
regime and/or specific decisions it has made.  
[
1843] It is true that Blueberry’s civil claim is just as, if not more, “unwieldy” than that  
dealt with in Ahousaht. The allegations of infringement are not focused on one piece  
of legislation, let alone one regulatory regime. It is a cumulative impacts case. It  
alleges various kinds of activities, projects and developments the Province has  
authorized, including: oil and gas, forestry, mining, hydroelectric infrastructure, roads  
and other infrastructure, agricultural land clearing, land alienation and encumbrance  
and other industrial development have resulted in significant adverse impacts to the  
Yahey v. British Columbia  
Page 500  
lands, water, fish and wildlife, and to the exercise of Blueberry’s treaty rights. It also  
alleges that the Province has authorized these developments without regard to the  
potential cumulative effects and consequent adverse cumulative impacts on the  
exercise of treaty rights.  
[
1844] The Province was on notice that, to defend itself against this cumulative  
impacts case, it would need to show, among other things, that the industrial  
developments allegedly authorized by the Province were done pursuant to  
legislation that furthered a compelling and substantial purpose, that there was as  
little infringement as possible, that its actions were consistent with the honour of the  
Crown and its fiduciary duty, and that it was monitoring and taking into account  
cumulative effects of prior developments. Paragraphs 25, 29, and 30 of the  
Province’s Response to Civil Claim appear to advance some of these points.  
[
1845] Not only was the Province on notice through these proceedings, but the  
evidence establishes provincial agencies and ministries have been on notice through  
numerous correspondence and discussions with Blueberry representatives over  
many years. Blueberry’s correspondence to various provincial decision-makers  
identifies and makes clear that governmental processes authorizing development in  
their territory did not address Blueberry’s treaty rights or consider the cumulative  
impact of development on Blueberry’s territory.  
[
1846] The Province was also aware of the jurisprudence on justification, which  
considers the existence of a compelling and substantial objective for the infringing  
regime or statute, whether the Crown has properly prioritized Aboriginal rights and  
met its fiduciary obligations, whether there has been as little infringement as  
possible, and whether compensation was available.  
[
1847] The Province had an opportunity in the course of this trial to lead evidence on  
how it is managing to ensure that Blueberry’s treaty rights are respected and that the  
promises reflected in the Treaty are met. Each of the government representatives  
who testified at trial, including: Mr. Van Tassel, Mr. Van Dolah, Mr. Recknell, Dr.  
Yahey v. British Columbia  
Page 501  
Psyllakis, Mr. Pasztor, Mr. Curry and Mr. O’Hanley, testified about the ways their  
various government ministries or agencies sought to take into account treaty rights  
in their decision-making processes and consider cumulative effects. By my estimate,  
more than half of the evidence led by the Province was aimed at explaining the role  
of the various natural resource and development related ministries and agencies,  
examining the scope of their authority, and outlining their processes for becoming  
informed about Indigenous peoples’ rights and interests, and ensuring that concerns  
raised by Indigenous groups, including Blueberry, about the impacts of cumulative  
effects on the exercise of their treaty rights were considered.  
[
1848] In my view, this evidence was provided and tested for two purposes. First, it  
was led to support the Province’s argument that treaty rights have not been infringed  
and the Treaty has not been breached because the Province had considered  
potential impacts to the exercise of Blueberry’s treaty rights, and the Province is  
implementing processes to take into account cumulative effects. As I have already  
noted, I do not find that the evidence supports this argument, and instead conclude  
that Blueberry’s treaty rights have been infringed and the Treaty has been breached.  
[
1849] The evidence also had a secondary purpose, namely to show the interests  
government officials are having to balance when making decisions about either  
forestry, oil and gas development, or protection of wildlife habitat. The government  
witnesses spoke about, among other things, the objectives their regulatory regimes  
were seeking to uphold, the mandate letters they received from the Premier, and the  
“values” the various planning documents and processes seek to manage for. Some  
also referred to agreements entered into with Blueberry and amounts paid to  
Blueberry pursuant to those agreements. In my view, this is evidence relating to  
justification.  
[
1850] The trial was not bifurcated. The Province did not seek to sever the question  
of infringement from that of justification.  
Yahey v. British Columbia  
Page 502  
[
1851] I agree with Blueberry that it is surprising, given the pleadings, the evidence,  
and the fact that the issue of justification was not severed from the issue of  
infringement, that the Province did not argue justification.  
[
1852] Scarce judicial resources should not be used to have a trial of this length and  
magnitude proceed, only to allow the Province a further opportunity to advance both  
evidence and arguments in a later trial that it ought to have raised here. The  
Province had an opportunity to justify any potential infringement, and it made a  
strategic choice not to do so.  
[
1853] Throughout this lengthy trial, Blueberry has understood that the Province  
would defend itself, at least in part or in the alternative, on the basis of the  
infringements being justified. So too has the Court. Blueberry ought not to be  
prejudiced in obtaining relief in this case simply because the Province chose not to  
advance a defence.  
[
1854] Notwithstanding the Province’s primary position that Blueberry’s rights have  
not been infringed, and even without the benefit of the Court’s decision on  
infringement, it was open to the Province to advance a justification defence, even in  
the alternative. Indeed that appeared to be the Province’s approach in its Response  
to Civil Claim.  
[
1855] From my review of that evidence it would have, however, been difficult for the  
Province to justify the infringements of Blueberry’s treaty rights.  
[
1856] Much of the Province’s arguments with respect to consultation and the honour  
of the Crown are relevant to the justification analysis. My earlier conclusions apply  
here with equal force. The Province has not demonstrated it is acting in a manner  
that upholds the honour of the Crown or meets its fiduciary duties in relation to  
Blueberry’s treaty rights.  
[
1857] I conclude that the infringements set out earlier have not been justified by the  
Province.  
Yahey v. British Columbia  
Page 503  
[
1858] In the absence of justification, I turn now to remedy.  
X. RELIEF  
[
1859] Blueberry seeks various declarations relating to the breaches alleged in this  
case. In particular, Blueberry seeks:  
1. A declaration that, in causing and/or permitting the cumulative impacts of  
the Industrial Developments on the Plaintiffs’ Treaty Rights in their Traditional  
Territory, the Defendant has breached its obligations to the Plaintiffs under  
the Treaty;  
2. A declaration that the Defendant has infringed upon some or all of the  
Plaintiffs’ Treaty Rights by causing and/or permitting the cumulative impacts  
of the Industrial Developments on the Plaintiffs’ Treaty Rights in their  
Traditional Territory;  
3. A declaration that the Defendant may not lawfully continue to authorize  
activities that breach the promises made by the Crown to the Plaintiffs in the  
Treaty or that infringe the Treaty Rights;  
4. A declaration that the Defendant has breached its fiduciary obligations to  
the Plaintiffs by undertaking, causing and/or permitting some or all of the  
Industrial Developments within and adjacent to the Plaintiffs’ Traditional  
Territory;…  
[
1860] Blueberry also seeks interim and permanent injunctions restraining the  
Province from undertaking, causing and/or permitting activities that breach the  
Province’s obligations to Blueberry under the Treaty, infringe Blueberry’s treaty  
rights, or breach the Province’s fiduciary obligations to Blueberry. As reviewed  
earlier in these reasons, Blueberry’s earlier applications for interlocutory injunctions  
were dismissed in Yahey v. British Columbia, 2015 BCSC 1302 and Yahey 2017.  
[
1861] Blueberry’s arguments on remedies are brief. Essentially, Blueberry says the  
Court has an obligation to ensure that the constitutional law prevails, to give effect to  
s. 35 of the Constitution Act, 1982, and to address the unconstitutional harm. It says  
that, if an infringement is found, government should not be allowed to continue  
actions that are unconstitutional.  
[
1862] In particular, Blueberry says the Province should not be permitted to issue  
further permits in the Blueberry Claim Area until and unless it is established that  
 
Yahey v. British Columbia  
Page 504  
either the permit or authorization will not cause infringement, or the infringement is  
justified. Blueberry seeks to stop future authorizations, but not to quash or undo  
existing ones.  
[
1863] Blueberry says that a forward-looking prohibition on taking up lands or  
otherwise unjustifiably infringing its treaty rights would force the Province to act with  
diligence to establish enforceable regulatory measures to substantively protect its  
treaty rights before further takings can occur. It says the Province will need to sit  
down and negotiate in good faith with Blueberry to establish such a structure.  
[
1864] As noted, the Province takes issue with the lack of specificity in Blueberry’s  
claims. It says Blueberry has not defined the rights at stake in precise terms and has  
not specified with clarity what the alleged infringement is from.  
[
1865] The Province also says that Blueberry is seeking to impose a reverse onus,  
where future authorizations would be deemed infringements unless the Province  
establishes that they are not. It adds that Blueberry is seeking a veto over the  
regulatory framework that is to be developed to deal with future authorizations. It  
asks that existing collaborative processes that involve other Indigenous groups in  
addition to Blueberry be allowed to continue without the injection of a veto for  
Blueberry.  
[
1866] The Province says there should be no mandatory injunction issued against it.  
It points to the Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 11(2) and says that  
Blueberry has not established a high degree of probability that a specific harm will  
occur in the future to get the injunction sought.  
[
[
1867] I consider these points below.  
1868] The courts are the guardians of the Constitution and the duty of the judiciary  
is to ensure that the constitutional law prevails (Re Manitoba Language Rights,  
1985] 1 S.C.R. 721 at para. 48; Manitoba Metis at para. 140).  
[
Yahey v. British Columbia  
Page 505  
[
1869] The Supreme Court of Canada confirmed in Sparrow that s. 35 is protective  
and remedial. In accordance with the purposive approach to construing s. 35,  
remedies relating to Aboriginal and treaty rights should be sensitive to and advance  
the distinct purposes of Aboriginal rights, including the importance of treaty-making  
as an honourable form of reconciliation (K. Roach, Constitutional Remedies in  
Canada (2 ed.) (Toronto: Carswell, 2019) [Roach] at 15.140).  
[
1870] Declarations can be awarded whenever they are capable of having a practical  
effect or utility in resolving the issues in the case (Solosky v. The Queen, [1980] 1  
S.C.R. 821 at 833). Accordingly, a court looks at the practical value of the  
declaration when assessing if it should exercise its discretion to grant such a remedy  
(West Moberly 2020 at para. 310).  
[
1871] For a declaration to have practical utility, it must define or clarify some aspect  
of the parties’ rights (West Moberly 2020 at paras. 313 and 331). Declarations  
issued by the courts should not go beyond the case (Chartrand v. British Columbia  
(Forests, Lands and Natural Resource Operations), 2015 BCCA 345 at para. 62). In  
addition, declarations should not simply restate settled law (West Moberly 2020 at  
para. 317; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC  
1
2 at paras. 53 and 56).  
[
1872] Courts must determine the level of detail needed in a declaration. In some  
cases, a bare, broad or general declaration may be sufficient. In other cases more  
specificity may be required in order to facilitate negotiation and consensual  
resolution of disputes between the government and Indigenous people.  
[
1873] The level of specificity of declarations was one of the issues recently  
discussed by the Court of Appeal in Ahousaht Indian Band and Nation v. Canada  
Attorney General), 2021 BCCA 155 [Ahousaht 2021]. The Court of Appeal  
reasoned that, at best, “a court can provide legal guidance that will assist the parties  
and particularly the regulators)” to craft regulations that respect the rights at issue. It  
(
(
Yahey v. British Columbia  
Page 506  
recognized that specific areas of disagreement may have to be resolved in future  
applications or claims (at para. 158).  
[
1874] Declarations can be powerful tools in litigation involving governments as it is  
assumed that governments will comply with “both the letter and spirit of the  
declaration” (Roach at 15.1349 and 15.1253; see also Newfoundland and Labrador  
(Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC  
4
(per Justices Brown and Rowe in dissent at para. 248).  
[
1875] In this case, as will be seen below, I am of the view that a combination of  
broad declarations regarding the infringement of Blueberry’s treaty rights and breach  
of the Treaty, along with more specific declarations about what is required to remove  
the breaches of the Treaty and uphold Blueberry’s treaty rights is appropriate in  
order to guide the parties.  
[
1876] Blueberry has not sought a declaration regarding the scope of its rights under  
Treaty 8. Blueberry has, however, sought declarations regarding the Province’s  
breaches in relation to its “Treaty Rights” (Treaty Rights being a defined term in its  
Notice of Civil Claim).  
[
1877] A significant portion of the arguments in this case focussed on the scope of  
Blueberry’s treaty rights, including the oral promises made to the Indigenous people  
at the time the Treaty was entered into about having the same means of earning a  
livelihood after the Treaty as existed before it, being as free to hunt, trap and fish  
after the Treaty as they would be if they never entered into it, and that the Treaty  
would not lead to forced interference with their mode of life. My conclusions on the  
scope of the rights protected by Treaty 8 are set out earlier in these reasons. To  
recap, I have found that Treaty 8 protects Blueberry’s way of life from forced  
interference and protects their rights to hunt, trap and fish in their territory. My use of  
the term “treaty rights” in the declarations below reflects that conclusion.  
[
1878] Like the Ahousaht case, there is no single regulatory provision or decision at  
issue in these proceedings. It engages provincial regimes dealing with forestry, oil  
Yahey v. British Columbia  
Page 507  
and gas, wildlife management and also considers provincial efforts to develop  
mechanisms to take into account cumulative effects. It engages a multitude of  
authorizations for industrial development that, cumulatively, have impacted the  
territory on which Blueberry relies.  
[
1879] As Blueberry puts it in their reply submissions: “This is not a case where  
there is a single mechanism, or law that infringes the right – it is the cumulative  
effect of oil and gas and forestry authorizations in the context of existing private land,  
agricultural and hydro-electric authorizations, which result in the infringement…”  
Blueberry adds that it is the “accumulated effects of the discretionary decision-  
making” under various statutes that it says has led to the unjustified infringement of  
its rights. I agree.  
[
1880] I have concluded that the provincial regulatory regimes do not adequately  
consider treaty rights or the cumulative effects of industrial development.  
[
1881] I have found that it is the cumulative impacts from a range of provincially  
authorized industrial developments within the Blueberry Claim Area that have  
infringed Blueberry’s treaty rights and there are not sufficient and appropriate lands  
in Blueberry traditional territory to permit the meaningful exercise of their treaty  
rights. In addition, I have found that the Province had notice of these cumulative  
impacts on Blueberry’s exercise of its treaty rights. The lack of effective provincial  
regimes or processes for assessing, taking into account, and managing the  
cumulative effect of development on Blueberry’s exercise of its treaty rights  
breaches the Province’s obligations under the Treaty, including its honourable and  
fiduciary obligations to diligently implement the Crown’s solemn promises and its  
fiduciary obligations to act with loyalty, good faith, and with ordinary prudence with a  
view to Blueberry’s best interests in continuing their exercise of rights.  
[
1882] While the Province did not advance a justification defence, as noted, it had  
the opportunity to do so. Indeed much of its evidence as to land use and the  
Yahey v. British Columbia  
Page 508  
regulatory framework was led to show that the Province has ways to protect treaty  
rights and it said it invited Blueberry to participate in these processes.  
[
1883] The Province was on notice to argue justification and did not do so. While it  
noted in its trial brief that it would be unfair to hold that the Province has failed to  
justify any infringement without providing the parties the opportunity to negotiate or  
for the Province to adduce further evidence, I disagree. This trial was not bifurcated,  
and timelines and delay have been a pervasive problem during the regulatory  
process as evidenced by the Province’s responses over the years to Blueberry’s  
concerns. The Province has known for a significant period of time that its processes  
are at issue. Accordingly, these infringements have not been justified.  
[
1884] I therefore find that Blueberry is entitled to the following declarations  
regarding the Province’s actions and inactions as they relate to Blueberry’s treaty  
rights and the cumulative effects of industrial development on the exercise of those  
rights:  
1
. In causing and/or permitting the cumulative impacts of industrial development  
on Blueberry’s treaty rights, the Province has breached its obligation to  
Blueberry under Treaty 8, including its honourable and fiduciary obligations.  
The Province’s mechanisms for assessing and taking into account cumulative  
effects are lacking and have contributed to the breach of its obligations under  
Treaty 8; and,  
2
. The Province has taken up lands to such an extent that there are not  
sufficient and appropriate lands in the Blueberry Claim Area to allow for  
Blueberry’s meaningful exercise of their treaty rights. The Province has  
therefore unjustifiably infringed Blueberry’s treaty rights in permitting the  
cumulative impacts of industrial development to meaningfully diminish  
Blueberry’s exercise of its treaty rights in the Blueberry Claim Area.  
[
1885] Blueberry has also sought a declaration that the Province may not lawfully  
continue to authorize activities that breach the promises made by the Crown to  
Yahey v. British Columbia  
Page 509  
Blueberry in the Treaty or that infringe its treaty rights. In addition, it has sought a  
permanent injunction restraining the Province from undertaking, causing and/or  
permitting activities that breach the Province’s obligations to Blueberry under the  
Treaty, infringe Blueberry’s treaty rights, or breach the Province’s fiduciary  
obligations to Blueberry. This declaration and injunction appear aimed at the same  
result – stopping the Province from issuing further authorizations in breach of their  
obligations.  
[
1886] As legal commentators and jurists have noted, in many situations injunctions  
and declarations are functionally equivalent, and declarations are generally preferred  
and are well suited to provide relief against governments (Roach at 12.20, 12.30,  
1
2.110, 12.120, 12.260). Declaratory remedies allow governments to conceive of  
ways to satisfy the judicial declaration and help to maintain the balance in our  
democratic institutions (Roach at 12.260, 12.261).  
[
1887] While the Province is not immune from injunctive relief where a constitutional  
violation has been found (Doucet-Boudreau v. Nova Scotia (Minister of Education),  
003 SCC 62 at paras. 70-74 with respect to charter violations), in my view  
declaratory relief is preferable here.  
2
[
1888] I therefore issue further declarations as follows:  
3
. The Province may not continue to authorize activities that breach the  
promises included in the Treaty, including the Province’s honourable and  
fiduciary obligations associated with the Treaty, or that unjustifiably infringe  
Blueberry’s exercise of its treaty rights; and,  
4
. The parties must act with diligence to consult and negotiate for the purpose of  
establishing timely enforceable mechanisms to assess and manage the  
cumulative impact of industrial development on Blueberry’s treaty rights, and  
to ensure these constitutional rights are respected.  
Yahey v. British Columbia  
Page 510  
[
1889] Finally, the parties are at liberty to negotiate any further resolution or apply for  
further direction and/or clarification of the remedy.  
[
1890] The task ahead is complex and difficult, but the parties have shown some  
ability to work together on difficult issues in the past, and some of the work is already  
underway through other processes. The Court has provided some legal guidance as  
part of its analysis that may assist with the crafting of regulations and processes that  
respect the constitutionally protected rights at issue.  
[
1891] In view of this and the evidence of processes underway to address these  
concerns, I am prepared to suspend declaration #3 for 6 months while the parties  
expeditiously negotiate changes to the regulatory regime that recognize and respect  
treaty rights. While time is of the essence, the matter is complex. I expect the  
Province to comply with the direction that it not authorize activities in a way that  
infringes treaty rights; I recognize, however, that the parties may wish to address  
specifics as a result of this decision. The parties now have the opportunity to  
incorporate these rights more specifically in regulating the management of the land.  
[
1892] In view of the result, I am inclined to award costs to Blueberry. The parties,  
however, will have liberty to apply if that is necessary.  
[
1893] I close by thanking counsel and the parties for their exceptional hard work  
and thorough submissions, in what has been a difficult, challenging case of first  
instance. In June of 2020, because of COVID-19, this was also one of the first trials  
in British Columbia to move to a virtual format for the latter part of the evidence.  
Substantial credit must go to counsel who, with significant effort, agreed to and were  
part of the development of this remote format, ultimately enabling the matter to  
proceed.  
[
1894] In summary, I have granted the following declarations:  
1
. In causing and/or permitting the cumulative impacts of industrial development  
on Blueberry’s treaty rights, the Province has breached its obligation to  
Yahey v. British Columbia  
Page 511  
Blueberry under Treaty 8, including its honourable and fiduciary obligations.  
The Province’s mechanisms for assessing and taking into account cumulative  
effects are lacking and have contributed to the breach of its obligations under  
Treaty 8;  
2
. The Province has taken up lands to such an extent that there are not  
sufficient and appropriate lands in the Blueberry Claim Area to allow for  
Blueberry’s meaningful exercise of their treaty rights. The Province has  
therefore unjustifiably infringed Blueberry’s treaty rights in permitting the  
cumulative impacts of industrial development to meaningfully diminish  
Blueberry’s exercise of its treaty rights in the Blueberry Claim Area;  
3
4
. The Province may not continue to authorize activities that breach the  
promises included in the Treaty, including the Province’s honourable and  
fiduciary obligations associated with the Treaty, or that unjustifiably infringe  
Blueberry’s exercise of its treaty rights; and,  
. The parties must act with diligence to consult and negotiate for the purpose of  
establishing timely enforceable mechanisms to assess and manage the  
cumulative impact of industrial development on Blueberry’s treaty rights, and  
to ensure these constitutional rights are respected.  
[
1895] I have suspended declaration #3 for 6 months so that the parties may  
negotiate changes that recognize and respect Blueberry's treaty rights.  
A.  
Sealing Order  
[
1896] Blueberry provided a written application setting out the legal basis for seeking  
a sealing order over certain specified exhibits.  
[
[
1897] The parties also provided a consent order to address these matters.  
1898] The Court has recognized confidentiality and trust is central to the relationship  
between Blueberry and its members when those members are sharing traditional  
use information, that this information is important to the consultation process, and  
 
Yahey v. British Columbia  
Page 512  
that there is a public interest in protecting this constitutionally recognized process  
and avoiding harm to the reconciliation process. This is further supported by the  
constitutional protections afforded by s. 35.  
[
1899] I conclude that the public interest sought to be preserved by the sealing order  
is the public interest in the protection of Indigenous cultural and spiritual information  
including specific information about the locations for the exercise of treaty rights).  
(
This interest engages the integrity and dignity of Blueberry’s culture, and of  
Indigenous cultures more broadly.  
[
1900] I, therefore, grant the sealing order over certain exhibits in the latest terms  
agreed to by the parties. This will be issued as a separate order to this judgment.  
“Burke, J.”  


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