Lexpert Special Editions

18 LEXPERT | 2018/19 | WWW.LEXPERT.CA In the exploration and development of Canadian natural resources, Indigenous communities can be particularly affected. According to e Mining Association of Canada's most recent Facts and Figures of the Canadian Mining Industry, most of Canada's 1,200 Indigenous communities are located "within 200 kilometres of approximately 180 producing mines and more than 2,500 active exploration prop- erties." As a result, project proponents are seeking ways to obtain sup- port for their projects by mitigating and addressing potential impacts and by ensuring Indigenous communities benefit from the opportu- nities these projects create. Impact benefit agreements ("IBAs") between industrial propo- nents and Indigenous groups are an important way for proponents to address regulatory risks and for Indigenous groups to benefit from industrial development in their traditional areas. Because IBAs may contain commercially sensitive information such as financial contri- butions, employment commitments and contracting commitments, they are typically considered to be confidential as between the propo- nent and the Indigenous group. But what happens when the Indigenous group files a claim against a government for allowing industrial development to infringe on its Aboriginal or treaty rights under section 35 of the Constitution Act, 1982? Is the fact that the Indigenous group has entered into IBAs rel- evant to the litigation? If so, do the IBAs need to be produced along with other relevant documents for the purposes of the litigation? A January 2018 decision from the BC Supreme Court, Yahey v. British Columbia, 2018 BCSC 123 ("Yahey"), says they are relevant, and do have to be produced. is is a very significant decision for proponents who have entered into IBAs and who wish to preserve the confiden- tiality of those IBAs. The Blueberry River Treaty Infringement Litigation e decision arises out of litigation commenced by the Blueberry River First Nations ("Blueberry River") against the Province of Brit- ish Columbia. Blueberry River has sued the Province for allowing in- dustrial development to infringe its rights under Treaty 8 and, among other things, is seeking a permanent injunction against allowing fur- ther industrial development. (Blueberry River applied, twice, for an interim injunction to prevent further industrial development pend- ing trial, but they were denied an injunction both times.) e trial was originally scheduled to commence in March 2018, but has since been adjourned. As part of the disclosure process— which is aimed at discovery of documents that may be relevant to the litigation—the Province asked Blueberry River to disclose agree- ments with industrial proponents. When Blueberry River refused, the Province applied to court for an order requiring Blueberry River to produce the agreements. is led to the decision released on Janu- ary 25, 2018, by the BC Supreme Court. The Province's Application for Production of Agreements with Industrial Developers e Province's application for production of agreements with indus- trial developers, including mining companies, contained an applica- tion for disclosure, where the Province asked that Blueberry River be ordered to produce (among other things) IBAs, requests for capacity funding and receipt of capacity funding from proponents, revenue sharing agreements with industrial proponents, memoranda of un- derstanding with industrial proponents, cooperation agreements with industrial proponents and agreements or arrangements with industrial proponents about training and education programs. e Province took the position that these documents were relevant to the litigation because they relate to the Province's defence that Blueberry River benefited from and acquiesced to industrial develop- ment; they speak to the nature of the change foreshadowed by Treaty 8 and how the Province has managed that change honourably; and they relate to Blueberry River's pleading that industrial development has caused a breach of their treaty rights. Blueberry River opposed production of the agreements on the grounds (among others) that benefiting from industrial development was not a defence to their treaty right infringement claim. The Court's Decision on Production of Agreements In Yahey, the Court held that certain documents must be disclosed, even though the Province's defence claim that Blueberry River acqui- The Impact of Disclosure of Private Impact Benefit Agreements by John Olynyk, Keith Bergner and Lana Shipley

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