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Court decision begins to play out in B.C.’s northern gas patch

BC Supreme Court ruling giving tiny First Nation virtual veto on new industrial development over 38,300 square kilometres came into force on January 1, 2022

A first-of-its-kind victory for Indigenous People’s rights last summer has ushered in a new era of uncertainty for development in northeastern B.C. with a score of new projects put on hold as negotiations with a small First Nations continue.

The landmark ruling June 29 by BC Supreme Court found that the province had breached its obligations under Treaty 8 by allowing forestry, natural gas extraction and other development in the area covered by the treaty without the approval of Blueberry River First Nations (BRFN).

“The province may not continue to authorize activities that breach the promises included in the treaty … or that unjustifiably infringe Blueberry’s exercise of its treaty rights,” the decision read.

The province was given six months to work out an arrangement with BRFN to improve provincial land management and permitting processes to recognize and respect BRFN’s treaty rights.

But as of December 29, 2021, scant progress had been made, creating uncertainties for local businesses.

“The lack of certainty caused by the court’s decision and these negotiations have made it difficult for companies to plan for what’s ahead in northeast B.C.,” said Justin McKinnon, president of the Fort St. John Chamber of Commerce and operations manager at Petron Communications Ltd., which provides communications services to the oil patch.

An initial agreement announced in October established a $65 million fund for BRFN to undertake activities to heal the land, creating jobs for its 200 members and business opportunities for service providers in the northeast region. These activities included land, road and seismic restoration in the Montney basin, the heart of B.C.’s natural gas industry. The fund also includes $30 million allocated for “cultural areas,” land management and wildlife preservation.

The agreement gave a green light to 195 forestry, oil and gas projects that were permitted or authorized prior to the court decision.

However, 20 projects that involve development activities in areas of high cultural importance were put on hold pending further negotiation and agreements with BRFN.

BRFN declined comment on the negotiations, referring instead to a joint statement former Chief Marvin Yahey and B.C. Indigenous Relations and Reconciliation Minister Murray Rankin issued December 29.

“We recognize that this court decision has significant implications in the region, and that it has caused uncertainty for workers and local communities,” the statement says. “Our shared goal is to establish sustainability and certainty for the benefit of everyone who lives and works here, in the service of securing a positive future for everyone in northeast British Columbia.”

Acknowledging the uncertainty created for local communities, Yahey and Rankin pledged to seek input from industry, local governments and residents as negotiations continued.


But several factors are complicating negotiations.

Judy Desjarlais replaced Yahey as chief following BRFN council elections in January. She was set to take office in February. The change in leadership delayed the negotiation process but isn’t in itself negative for the liquefied natural gas industry (LNG).

Desjarlais’s career includes serving as president of Top Notch Oilfield Contracting Ltd. She is an adviser to the Indigenous Resource Network (IRN), established in 2020 for Indigenous people who want to utilize their resources while managing their land.

“Our vision is to connect with Indigenous people that seek to utilize their resources and to manage their land in a way that is sustainable, respectful and that helps them to thrive,” she told the Fort St. John Chamber of Commerce shortly after IRN’s launch.

The province prioritizing reconciliation with Indigenous Peoples, and a court decision that requires it to respect its treaty obligations and change how it handles permitting processes, will have ramifications for updates to the Fort St. John Land and Resource Management Plan. The plan has been the blueprint for engagement with First Nations with respect to development since 1997.

The plan covers 46,000 square kilometres within the Fort St. John timber supply area and overlaps with the more than 38,300 square kilometres subject to last summer’s court decision. Preliminary consultations regarding plan updates started in 2019 and government-to-government discussions between the province and local First Nations continue, but no new initiatives have taken place since last summer’s court decision.

A presentation in April 2021 anticipates the court’s decision, noting that the new land use plan would “aim to ensure that Treaty 8 First Nations are full participants in decision-making matters that may affect their Treaty Rights.”

The shift would integrate land use planning with B.C.’s reconciliation framework, moving from limited engagement to full partnerships with First Nation governments.

The impact on business investment is hard to tell. Fort St. John economic development staff did not respond to a request for comment on the decision.

“The natural gas and oil industry has built a positive working relationship with the Blueberry River First Nation and other First Nations of Treaty 8 and we expect that to continue for years to come,” said Brad Herald, vice-president, Western Canada operations, with the Canadian Association of Petroleum Producers (CAPP), while noting that any delay would jeopardize planning for 2022.

“The longer it takes to reach a resolution, the more difficult it is for companies to make their investment decisions,” he said. “CAPP and our members encourage the province to reach an agreement with the Blueberry as soon as practical so producers with operations in the area can start to plan their activities and budgets for 2022 and beyond.”