Vaughn Palmer: Negotiated deal with Blueberry First Nation was heralded as a milestone, but it’s fallen apart and the chief was ousted
VICTORIA — Premier David Eby earned accolades two years ago when he concluded a $350 million deal to settle litigation over treaty rights with the Blueberry River First Nations in northeastern B.C.
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“I’ve always believed that negotiation, rather than litigation is the way forward for achieving reconciliation and strengthening vital government-to-government relationships,” said the premier by news release.
The settlement package included $87.5 million in financial payments over three years to Blueberry River, on top an earlier $65 million as a preliminary settlement.
The province provided a $200 million restoration fund to support “healing of the land” in Indigenous territory after “decades of industrial disturbance,” for forestry and natural gas development.
Plus, there were restrictions on future development, a joint approval process, commitments to wildlife co-management, and opportunities for Blueberry River to secure a share of future timber and natural gas revenues.
“I never dreamed of this moment,” said Chief Judy Desjarlais. “There is no longer business as usual when it comes to doing projected plans within our territory.”
Said the premier: “This historic agreement not only brings more predictability for the region and local economy, but it helps ensure that we are operating on the land in partnership to ensure sustainability for future generations.”
“History-making” was the watch word of the day and not without reason. Industry, business and community leaders all praised the agreement as a turn-the-page moment in Crown-Indigenous relations when the terms were announced in January 2023.
Unfortunately, the province’s relationship with Blueberry River has since unravelled, spawning another round of litigation.
The deal was a response to a June 2021 B.C. Supreme Court decision. Justice Emily Burke found that the province had breached Blueberry River’s rights under Treaty 8, an 1899 agreement covering eight First Nations in Northeastern B.C.
The judge found that there was not enough undisturbed land left to allow Blueberry River’s 600 or so members to exercise of their treaty rights to hunt, fish, trap and pursue their traditional way of life.
She ordered B.C. to cease logging and natural gas development on traditional Blueberry Nation lands until it negotiated a consent agreement.
The usual response would have been for the province to appeal. Try to weaken the settlement. Improve negotiating room. Argue that the infringement was justifiable because of the wider benefits to the provincial economy.
But Eby, then the attorney general, announced the province would instead proceed to the negotiating table.
“Negotiation rather than litigation is the primary forum for achieving reconciliation of the Crown-Indigenous relationship,” he said, departing from the common practice of successive B.C. governments of every political stripe.
The two sides reached a preliminary agreement in October 2021 and announced the final framework a year and three months later.
The first signs of trouble emerged in the fall of 2023. Two other Treaty 8 nations, Doig River and Halfway River, challenged the agreement, saying it infringed on their rights.
The province and Blueberry River continued to work on expanding their agreement. At the end of May this year, they announced a detailed land use plan covering 530 square kilometres over two watersheds northwest of Fort St. John
The terms covered land restoration and protection for hunting, fishing, trapping, sacred sites and the Indigenous culture and way of life. Trade-offs included “limited petroleum and natural gas development under new rules and conditions.”
Chief Desjarlais praised the agreement as an example of “responsible resource development” and hailed the New Democrats as well.
“The government has proven, since we first started this journey, that they would capture the vision of our people and honour it,” she said.
But a little over a month later, some Blueberry River members challenged the plan in court, alleging it had been achieved through private meetings involving the chief, without the approval of the elected council or its legal representatives.
“The approach taken by the province is an affront to the dignity of our people, respect for governance and right of self-determination as a First Nation, including pursuant to the UN Declaration on the Rights of Indigenous Peoples,” protested Coun. Shelley Gauthier.
Then in September, Gauthier and three other councillors combined to oust Desjarlais as chief. A lengthy statement accused her of acting unilaterally to approve natural gas permits in an area of cultural significance, without the consent of council.
Desjarlais fought back in Federal Court. Her filing accuses her rivals of procedural errors, improper resort to in camera proceedings and breach of privacy by reading her emails.
Neither set of allegations has been tested in court. But the Desjarlais filing details a dozen related legal proceedings in recent years, suggesting that the Blueberry River council is to some degree dysfunctional.
Bad news for the petroleum sector, with many drilling permits held up by the Blueberry River infighting. I’m told that when the LNG Canada terminal comes online in Kitimat next year, it may have to rely on natural gas piped in from Alberta, which won’t pay royalties to B.C.
Bad news for David Eby, too. He staked his credibility and a lot of public money on making progress with Blueberry River, only to have the agreement blow up in his face.