A recent decision from the BC Supreme Court highlights the careful balancing act required when dealing with traditional knowledge (TK) information and impact benefit agreements (IBA’s). Both TK data and IBA’s are typically treated as confidential due to cultural sensitivity (TK data) and commercial concerns (IBA’s). Yet as Yahey v. British Columbia, 2018 BCSC 123 demonstrates, that confidentiality can be overridden by the requirements of the litigation process. TK researchers and IBA negotiators should be mindful of this case, and adopt practices that will reduce risk if these documents are disclosed in future court cases.
In March 2015 the Blueberry River First Nation filed a lawsuit against BC seeking damages for infringement of Blueberry River’s rights under Treaty 8 (for details of the claim, go here). The claim, in a nutshell, is that the cumulative effect of all the industrial development occurring in Blueberry River’s traditional territory deprives its members of a meaningful opportunity to exercise their rights. It is a novel and potentially precedent setting claim that, if successful, could put a brake on the rampant energy development occurring in northeast BC.
In 2018, months before the start of trial, BC applied to court for an order compelling Blueberry River to produce a wide range of documents. In general, a party to litigation is required to disclose relevant documents through what is known as the “discovery process”, and BC sought a wide ranging production order covering potentially hundreds of new documents. This note focuses on three categories of documents the court considered in its decision: 1) documents showing Blueberry River’s current and historical traditional use sites, including recordings and transcripts of TK and oral history interviews; 2) all studies and reports related to traditional use and impacts of industrial development on those uses, including draft reports; and 3) all agreements, such as IBA’s and term sheets, Blueberry River has with companies and industrial proponents.
Each category of documents raised unique issues. Dealing first with BC’s request for TK interview transcripts and recordings, a key issue was the prejudice such an order would have on Blueberry River’s future ability to participate in consultation processes. The court accepted that TK information from members is important to meaningful consultation, and the members generally have an expectation that the information will be kept confidential. An order for blanket disclosure of TK interviews would affect the willingness of members to participate in future interviews, thus undermining the constitutionally mandated process of consultation and accommodation. The probative value of the transcripts and recordings is also limited, unless the member interviewed is going to take the stand as a witness in the trial. In that case, the interview data may be helpful in assessing the witness’ credibility or accuracy. In the result, the court limited Blueberry River’s disclosure obligations to transcripts or recordings of prior interviews with witnesses Blueberry River plans to call at trial.
The court undertook a similar balancing act when considering BC’s request for disclosure of all land use reports, including unfinished drafts. Final land use reports are clearly relevant and should be disclosed, as they evidence the scope and nature of the treaty rights Blueberry River claims have been infringed. However, draft reports are unlikely to be fully accurate, and have little to no probative value. The court therefore limited its order to requiring production of final land use reports. It is important to note, however, that this ruling depended, in part, on the fact that the land use studies were not being tendered at trial as expert reports. If they were, different disclosure obligations would apply.
The court took a slightly broader approach to BC’s request for copies of IBA’s, term sheets and similar agreements with companies pursuing development in Blueberry River’s territory. BC’s defence includes the novel argument that Blueberry River has, through its agreements with proponents, agreed to many of the developments that have impacted its treaty rights. BC further argues that, if the court finds BC has unjustifiably infringed Blueberry River’s rights, any payments Blueberry River has received from companies should be offset against the damages claimed by Blueberry River. Given that these defences are at issue in the litigation, the court concluded that Blueberry River was required to produce its agreements with proponents over the preceding ten years.
Implications of this decision for TK interviews and IBA negotiations
Several lessons can be drawn from the Yahey decision. The most obvious one is that litigation impacts a First Nation’s ability to maintain control of its information. This should not dissuade Nations from pursuing remedies in court; however, it is a factor to be considered in choosing the type of proceeding and framing the issues.
More specifically, Yahey indicates that TK researchers may want to revisit how consent forms are drafted. Experienced TK researchers typically ask each person they interview to sign a form consenting to the use of the information. In Yahey, it appears that the consent form included an acknowledgement that the information may not be kept confidential. Nonetheless, the court accepted affidavit evidence from Blueberry River that confidentiality was key to the research process, and loss of confidentiality would imperil future TK research. TK researchers may therefore wish to review consent forms to address the following points:
- Include an assurance of confidentiality. This may not guarantee that the information is protected, but it will support future arguments resisting disclosure.
- Briefly describe why confidentiality is necessary (i.e. culturally sensitive information that requires protection). This will reinforce the point that confidentiality is key to the integrity of the researcher – interviewee relationship.
- Confirm that, notwithstanding the confidentiality limit, the information may need to be disclosed where required by law or for litigation purposes. The interviewee is entitled to know that his or her information may ultimately be disclosed, despite best efforts to keep it confidential.
Turning to land use plans and similar documents, Yahey indicates that these types of documents will generally need to be disclosed if they are relevant to the claims at issue in the case. It is therefore prudent to include a disclaimer in these reports to the effect that they are not exhaustive, they reflect the limited time, resources and purposes of the particular project or activity they were created for, and the information they contain will change and grow as time passes and further information is gathered. This will help reduce the risk of these reports being treated by governments or the court as definitive records of traditional use.
IBA’s and term sheets raise more difficult issues. Generally speaking, proponents negotiate IBA’s to obtain legal certainty. In early generations of IBA’s, this was often done through clauses requiring the First Nation to consent to the project. Yahey highlights the risk that such terms may come back to haunt a First Nation later, if a claim for infringement is filed and BC defends on the basis that any infringement that occurred was consented to by the Nation. IBA’s should therefore avoid the language of consent where feasible. Proponents do not, strictly speaking, require consent so much as they need assurances of non-opposition. IBA clauses can be carefully drafted to provide that assurance, while avoiding explicit consent terms that may affect future legal claims against the Crown. Similarly, IBA’s should avoid the language of “accommodation”. Accommodation is the Crown’s job, and IBA payments should not be characterized as accommodation. This will help manage the risk of these payments being relied on by the Crown as de facto compensation for infringements.
It remains to be seen how this information will be used in the trial of Blueberry River’s action. It will, in particular, be interesting to see how BC uses the IBA’s, and the extent to which the court is prepared to consider the implications of agreements with non-Crown third parties for the Crown’s duties and liabilities to aboriginal peoples.