The decision of the British Columbia (BC) Supreme Court in Yahey v British Columbia (Yahey) was based on a finding that cumulative effects of industrial development breached BC Treaty 8 obligations. The remedy directed was for British Columbia to establish enforceable mechanisms to assess and manage such cumulative effects. Earlier this year, British Columbia entered into an agreement to undertake land and watershed planning as the primary response to the Court’s declarations.
Similar claims to Yahey have been made in many cases following the Supreme Court of Canada’s 2005 decision in Mikisew Cree that suggested the taking up clauses in historical treaties were subject to an implicit limit that sufficient lands had to remain available for the meaningful exercise of treaty rights. These claims continue to be made and are working their way through the courts in Alberta. The question to be determined is whether Alberta already has enforceable mechanisms in place to address the potential for cumulative effects on treaty rights. I think it does.
I have always considered the practice of energy, environmental and Indigenous law in Alberta to be a highly specialised form of land-use planning. Unlike Saskatchewan and British Columbia, decisions in Alberta regarding resource development have been delegated to independent, quasi-judicial decision-makers to be made in the public interest, taking into account potential impacts development could have on the rights of parties who may be affected.
The Alberta Energy Regulator (AER) and the Natural Resources Conservation Board (NRCB), require consultation with affected parties to resolve concerns they have regarding development. When their concerns cannot be addressed through consultation, they are entitled to have them resolved through a public hearing process. Both the AER and NRCB consider cumulative impacts and have found that, at a certain point, cumulative impacts can reach a threshold where projects could no longer be found to be in the public interest. This was the case for country residential landowners back in the 1990s, in what is now known as the Alberta Industrial Heartland, east of Edmonton. More recently, in the mining areas of the Alberta Oil Sands region, a series of AER decisions caused the province to develop a Regional Sustainability Development Strategy for the oil sands region, which has now been displaced by comprehensive, province-wide land-use and watershed planning under the Alberta Land Stewardship Act (ALSA, the Act). An example of the enforceability of these mechanisms in relation to Treaty 8 rights can be found in Fort McKay v Prosper, which we have previously commented on here. The case demonstrates an enforceable legal obligation of the AER to consider cumulative impacts on Treaty 8 rights when making public interest decisions and the importance of following through on the promise of land-use planning, through the development of sub-regional plans under ALSA. Alberta has been slow to deliver on the promise of land-use planning under ALSA. The Act applies to the development of both public and private lands, but the potential for land-use planning to affect private landowners in southern Alberta became a significant political issue making provincial governments reluctant to complete the ALSA land-use planning processes.
Going forward, provincial governments in Alberta may be wise to return to the land-use planning promise of ALSA. They may, indeed, have no choice but to do so. Just as plans for caribou recovery were forced on Alberta as a result of court decisions under federal species at risk legislation, the obligation to have enforceable mechanisms to assess and manage cumulative effects on the exercise of treaty rights should provide an incentive to complete regional land-use plans across the province, especially in those areas where Indigenous groups are claiming that cumulative effects from industrial development may be breaching their treaty rights.
For more information on this topic, please contact the author Bernie Roth.