Treaty Rights, The “Taking Up” Clause, and Cumulative Effects: Understanding the Landmark Yahey Case

Summary

Upon signing Treaty 8, Indigenous signatories were promised that their way of life would not be interfered with by Crown conduct. However, explicitly within the written text of Treaty 8 is the “taking up” clause which gives the government authority to “take up” treaty lands for various purposes. Industrial developments that are authorized through the provincial government’s power to “take up” treaty land often results in harmful cumulative effects that make it hard (or impossible) for Indigenous Peoples to exercise their treaty rights. In the landmark Yahey case, the Court ruled for the first time that the cumulative effects caused by industrial development can amount to an infringement of treaty rights. This blog post aims to unpack the law surrounding “taking up” lands, how Yahey modifies the law, and the implications of the Yahey decision for Aboriginal groups, industry, and Crown decision-makers.

What is Treaty 8?

Treaty 8 was signed on June 21, 1899, by the Crown and First Nations of the Lesser Slave Lake area. It is a treaty within the meaning of section 35 of the Constitution Act, 1982, which recognizes and affirms the “existing aboriginal and treaty right of the aboriginal peoples of Canada.” 

The treaty covers over 840,000 kilometres of land and is home to 39 First Nation communities, making it the largest treaty by land area in the history of Canada. Treaty 8 territory covers the areas of Northern Alberta, Northwestern Saskatchewan, Northeastern British Columbia, and the Southwest portion of the Northwest Territories.

Treaty 8 is a “territorial” or “land-cession treaty.” Although the name implies that Indigenous parties intended to cede (or abandon) their land rights, this is not the case. This was certainly the intention of the settler signatories. They wanted to facilitate settlement of the West and thus the treaty was negotiated on behalf of the Canadian government with the intention to take over the rights to Aboriginal traditional territories.

Indigenous people of this area did not share the same intentions in negotiating Treaty 8. In negotiating the treaty, they sought protection of their people and livelihood after being faced with periods of starvation in the 19th century. Indigenous signatories wanted to maintain their rights to hunt and fish and did not want any forced interference with their way of life. The Indigenous signatories agreed to the treaty based on a number of oral promises that they would be able to continue their way of life based on hunting, trapping, and fishing. For the Indigenous signatories to Treaty 8, this was the most important promise in the treaty.

Treaty 8: The Taking Up Provision

The written text of Treaty 8 contains promises from the Crown that the Indigenous signatories shall “have the right to pursue their usual vocations of hunting, trapping and fishing.” However, this promise is subject to the Crown’s ability to take up tracts of land from time to time for settlement, mining, lumbering, trading, or other purposes.

In essence, this clause creates the rule that the Indigenous Nations have treaty rights to hunt and fish on their traditional territory except in areas where those lands have been taken up. Indigenous people can pursue their usual vocations subject to the land being taken up from time to time for mining, lumbering, and other purposes. Simply put, Treaty 8 entitles the Crown to “take up” lands at the expense of Aboriginal treaty harvesting rights without necessarily infringing those rights.

Who has the authority to “take up lands”?

The Supreme Court of Canada in Grassy Narrows ruled that the provinces have the constitutional authority to take up lands. Therefore, both the provincial and federal governments have the authority to “take up lands” under Treaty 8.

What does it really mean to “take up” lands?

The Court in Badger clarified that land under Treaty 8 is deemed to be “taken up,” and thus Indigenous treaty rights do not apply, when it is subject to such a use that is “visibly incompatible” with the exercise of those rights.  

For the use to be “visibly incompatible” we must consider what Indigenous Peoples would have thought to be “visibly incompatible” at the time the treaty was negotiated. For example, the Court in Badger found that Treaty 8 Indigenous Peoples at the time would understand the lands to be taken up for settlement when buildings or fences were erected, land was put into crops, or farm or domestic animals were present.

 Are there limits to the taking up of land?

In taking up land, the government must act in a way that is consistent with the honour of the Crown. The honour of the Crown is a principle that gives rise to different duties in different circumstances. It is based on the idea that when the government (acting on behalf of the Crown) does anything, they must do it in a way that considers Indigenous Peoples. In the case of taking up land, when the provincial or federal governments plan to take up lands, they must exercise their power in a way that is consistent with Treaty 8. This means that the Crown must take up lands in a way that is consistent with their treaty obligation to protect Indigenous rights to hunt, fish, trap, and maintain their way of life.

When does the government’s “taking up” of land constitute an infringement of treaty rights?

In the specific context of taking up land, Mikisew set out the test for infringement: whether the Crown has taken up so much land that “no meaningful right” to hunt, fish, or trap remains.

The test set out in Mikisew is very harsh. To require “no meaningful right” to remain in order for there to be an infringement upends the terms of Treaty 8. It creates a very high standard that Indigenous claimants must meet to prove that their treaty rights have been infringed. This test prioritizes the Crown’s ability to take up lands over the promise made to Indigenous people that their rights to hunt, fish, and trap would continue. As we will see, the Court in Yahey modifies this test to make it easier to find an infringement of treaty rights.

Yahey v British Columbia: A Landmark Treaty Infringement Case 

Blueberry River First Nations is a signatory to Treaty 8 and has a large traditional territory located in Northeastern BC. Blueberry’s traditional territory has been “taken up” by the province of British Columbia over the course of the past 120 years. The land has been subject to extensive forestry, oil and gas exploration, and mining extraction developments resulting in significant environmental impacts.

Blueberry filed its claim in 2015, alleging that the meaningful exercise of its Treaty 8 rights to hunt, trap, and fish had been infringed by the cumulative effects of industrial activities and development authorized by the provincial Crown. Blueberry brought a claim that their treaty rights had been infringed.

The province defended the claim on the basis that (1) they had the express right to take up lands under Treaty 8 and (2) Blueberry River First Nations still maintained the ability to meaningfully exercise their rights within their territory.

Understanding Cumulative Effects

Cumulative effects refer to changes to the environment (and related social, cultural, and economic wellbeing) caused by the combined impact of past, present, and future human activity. Cumulative effects to the environment are the result of multiple activities whose direct impacts may be relatively minor, but in combination with others, are significant.

Because of the extensive development over a 120-year period, the landscape over which Blueberry is seeking to exercise its treaty rights is fundamentally altered. Between 84 and 91% of Blueberry claim area is within 500 metres of an industrial disturbance. This wide-scale industrialization has decimated caribous and moose populations to the point where they will never reach self-sustaining levels.

Prior to Yahey, cases in which First Nations have alleged infringements of their Aboriginal and treaty rights have focused on a single impact from a single project. Blueberry River First Nations alleges that it is not one single impact from one single project, but rather the cumulative effects form a range of provincially authorized activities that has resulted in significant adverse impacts on the meaningful exercise of their treaty rights. This is important because the impacts of development are NEVER singular. Impacts are almost always cumulative in nature.

Main Take-aways from Yahey

1. Treaty 8 protects the Blueberry River way of life from forced interference.

These rights were guaranteed by the written terms of Treaty 8 and further promises made by the Crown to the adherents of Treaty 8.

2. The BC government breached Treaty 8 through causing and permitting the cumulative impacts of industrial development on Blueberry’s traditional territory.

The cumulative effects that were caused by a number of provincially authorized activities (oil and gas, forestry, mining, etc.) amounted to a breach of Treaty 8. These activities caused significant adverse impacts on the meaningful exercise of Blueberry River’s treaty rights.

3. The Court in Yahey modifies the infringement test.

The test to determine if an infringement has occurred due to a government taking up is: whether there has been a significant or meaningful diminution of the rights when viewed with the way of life from which they arise or are grounded. Yahey modifies the Mikisew test for treaty infringement regarding the taking up of lands. This modification of the taking up leaving “no meaningful right” in Mikisew to the taking up creating a “significant or meaningful diminution” of treaty rights broadens the infringement analysis. Essentially, this new test should make it easier for an Indigenous party to prove that their treaty rights have been infringed by a government’s “taking up” of their land.

4. The BC government unjustifiably infringed Blueberry River’s treaty rights in permitting the cumulative effects of industrial development to meaningfully diminish Blueberry’s treaty rights.

Applying this test to the Blueberry River’s claim, the Court finds that the lands taken up by the BC provincial government rendered the remaining parts of the land insufficient to allow Blueberry River members to meaningfully exercise their rights to hunt, trap, and fish under Treaty 8. The cumulative effects from several discrete acts of Crown-authorized taking up “significantly and meaningfully” diminished the rights of the members of Blueberry First Nations.

5. The province of BC may not continue to authorize activities that breach Treaty 8 or that unjustifiably infringe Blueberry’s treaty rights

Going forward: Implications of the Yahey decision

The Yahey decision is likely to have important implications for Indigenous groups, the Crown, and industry.

1. Indigenous groups

Yahey created a new cumulative effects precedent: the cumulative effects of industrial development can amount to an infringement of treaty rights. This case has paved the way for future claims to come through arguing that the cumulative effects of authorized development in a particular territory infringed treaty rights. Focusing on cumulative effects of different development projects rather than the singular effect of a singular project is a much more holistic approach in assessing treaty infringement.

  The implications of this decision are unlikely to be confined solely to nations in Northeast British Columbia. First Nations in other parts of Treaty 8 in Alberta, Saskatchewan, and the Northwest Territories may rely on cumulative impacts due to a “taking up” of land as an infringement. Furthermore, “taking up clauses” are present in several other numbered treaties in Canada. Indigenous groups across Canada can use this decision to make arguments that their treaty rights were infringed due to the cumulative effects of development that stem from a government “taking up.”

2. Crown decision-making

The Yahey decision has broad implications for transforming Crown decision-making to account for the cumulative effects of development. If through the taking up of land the Crown creates cumulative effects that significantly and meaningfully diminish Indigenous treaty rights, this can be an infringement.

3. Industry

The decision should have a significant impact on industries involved in resource development, particularly in Treaty 8 territory. Although there are large sources of oil and gas still available within Treaty 8, the government and industry will have to assess how to move forward with such development in light of Yahey. Industry may be faced with new regulatory and cumulative effects assessment regimes when seeking to develop within Treaty 8 territory.