Cumulative Effects of Industrial Development and Treaty 8 Infringements in Northeastern British Columbia: The Litigation Yahey v. BC (S151727) - Case Comment

• Author: Giuseppe Amatulli
• Position: Durham University, England
• Pages: 160-170

© 2022 Giuseppe Amatulli. This is an Open Access article distributed under the terms of the Creative Commons CC-BY

4.0 License. eISSN 2387-4562. https://arcticreview.no.

Citation: Giuseppe Amatulli. “Cumulative Effects of Industrial Development and Treaty 8 Infringements in Northeastern

British Columbia: The Litigation Yahey v. BC (S151727) – Case Comment” Arctic Review on Law and Politics,

Vol. 13, 2022, pp. 160–170. http://dx.doi.org/10.23865/arctic.v13.3802

Arctic Review on Law and Politics

Vol. 13, 2022, pp. 160–170

160

*Correspondence to: Giuseppe Amatulli, e-mail: giuseppe.amatulli@durham.ac.uk

Debates on Arctic Law and Politics

Cumulative Effects of Industrial

Development and Treaty 8

Infringements in Northeastern British

Columbia: The Litigation Yahey v. BC

(S151727) – Case Comment

Giuseppe Amatulli

Durham University, England

Abstract

On June 29, 2021, the BC Supreme Court issued the verdict of the Yahey v. Br itish Columbia

litigation (S151727). For the rst time in Canadian legal history, a First Nation Band (BRFN –

BlueBerry River First Nation) sued a provincial Government for the cumulative effects of industrial

development intertwined with Treaty 8 infr ingements. The proceeding lasted for six years (2015–

2021), with more than 160 days of trials and dozens of hours of afdavits sworn, and it resulted in

a ground-breaking verdict. The Court recognised that in authorising industrial development, the

Province had been unable to consider and deal with the cumulative impacts that projects had on the

traditional lifestyle of BRFN members, besides breaching its obligation to BRFN under Treaty 8.

This comment argues that by recognising that the Province cannot continue to authorise activi-

ties that breach Treaty 8 and Section 35 of the 1982 Constitution, the verdict may pave the way to

a real implementation of the FPIC (Free, Prior and Informed Consent) in the BC legal framework.

The ruling provides that the BC Government and the Band engage in meaningful consultation

and negotiation to enforce mechanisms to assess and manage cumulative effects on the BRFN

traditional territory. The parties were given six months to negotiate based on the litigation out-

comes. On October 7, 2021, a preliminary agreement between the BRFN and the BC Province

was signed. Important issues had been addressed throughout the trial. From condentiality and

the duty to consult in good faith to the constitutionality of Court hearing fees and the possibility to

obtain other kinds of injunctions until the trial; the outcomes of this litigation may well be consid-

ered as a milestone to advance the Canadian legal framework, further recognising essential rights

of Canadian Indigenous peoples in terms of Constitutional, social, and environmental justice.

Keywords: cumulative effects, Treaty 8, extractivism, First Nations, 1982 Canadian

Constitution, Section 35, Bill 41/DRIPA Act, FPIC