Victory for Blueberry River First Nation: Permit for Massive Seismic Exploration Surrendered

In late 1998, the Blueberry River First Nation celebrated a victory in the British Columbia Supreme Court. The First Nation had commenced a petition to strike down two permits issued by British Columbia to Remington Energy Ltd. These would permit the cutting of hundreds of kilometres of seismic lines - creating a grid of intersecting, pre-logged strips - through land where the Blueberry River First Nation exercises its aboriginal and treaty rights.

British Columbia issued these permits without engaging in any consultation with the Blueberry River First Nation. The Province left it to the energy company to consult with the First Nation. This, in the view of the Blueberry River First Nation, put the energy company into a position of conflict of interest and constituted a breach of fiduciary obligation owed by British Columbia to the First Nation.

The Blueberry River First Nation brought an interim stay application asking the Court to halt activity on the ground until the Petition could be heard. In Court, Remington offered to surrender its permits and reapply for new ones. British Columbia and Remington asked the Court to order that the consultation process take place within a four week time frame. Counsel for the First Nation noted that this time request was completely unrealistic and ultimately the company and British Columbia abandoned this position.

The Court ordered British Columbia and the Blueberry River First Nation to engage in good faith consultation with respect to any new permit applications brought by Remington:

I expect that those consultations will take place quickly and to the best ability of the parties. I recognize the difficulty that faces the Blueberry people with respect to gathering of information, and consultations, in my view, should take that matter into account. Good faith simply means, in my view, that all parties will do the best they can in the circumstances. And that should include the provision of relevant information that any of the parties have.

An intriguing issue in this case was the issue of a policy that the Ministry of Employment and Investment may have against consulting on matters outside of an eight kilometre radius of reserves. While the First Nation had been advised by British Columbia that such a policy existed, counsel for British Columbia did not confirm the existence of this policy in Court. Instead, he assured the Court that the Ministries would not invoke any such policy with respect to the new consultation process. Mr. Justice Williamson included, in his order, a requirement that neither the Ministry of Employment and Investment nor the Ministry of Forests shall rely on the "alleged policy against consulting on matters outside of an eight kilometre radius" with respect to the new consultation policy.

Whether or not there is such a policy remains a mystery. Certainly, if it exists, such a policy has no foundation at law.

The hearing resulted in an assurance by counsel for British Columbia that the Ministries would appoint new decision-makers in place of those who had issued the original permits. Given this commitment, Justice Williamson did not feel it necessary to make any order in this regard.

A final aspect of the decision was that the Order was made "without prejudice to the right of the petitioners o have the legality of the issuance of the permits reviewed in order to determine the civil liability of any of the parties". This Order left it open to the Blueberry River First Nation to sue for damages if they could establish that their aboriginal and treaty rights were infringed pursuant to an illegal permit.

The Blueberry River decision comes on the heels of another significant decision from Treaty 8 Territory. This is the Halfway River decision, upheld by the British Columbia Court of Appeal. In Halfway River, a cutting permit was struck down on numerous bases including a breach of duty of administrative fairness, a patently unreasonable error of fact, reasonable apprehension of bias, and unjustified infringement of the Treaty rights of the Halfway River First Nation.

The Blueberry River decision reinforces the requirement that the Province take aboriginal and Treaty rights seriously when making decisions in the resource sector.