Unravelling B.C.’s landmark legislation on Indigenous rights

If passed, the new law will make B.C. the first government in Canada to codify the United Nations Declaration on the Rights of Indigenous Peoples. Once implemented, it will significantly alter the way major resource projects are approached on Indigenous territories

BC UNDRIP legislation The Narwhal
From left to right: Terry Teegee, regional chief of the B.C. Assembly of First Nations, Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, and his wife, Joan Phillip, a notable environmental and Indigenous rights advocate. Photo: Province of B.C. / Flickr

With a wavering voice, Premier John Horgan spoke to the historic moment as the landmark Bill 41 was introduced in the legislature on Thursday.

“It is truly a great honour to stand in this chamber alongside Indigenous elders, leaders and people to introduce this bill,” the Premier said.

“I’m determined to walk a path of reconciliation.”

“We can have a better future than our past.”

What is UNDRIP and what does it mean for Canada?

Set out in 46 Articles, the declaration calls on state governments to engage with Indigenous nations, communities and cultures in such a way that bolsters the preservation of traditional territories and ways of life.

“It has the capacity to be transformative,” said Merle Alexander, legal counsel for the B.C. Assembly of First Nations and member and hereditary chief of Kitasoo Xai’xais First Nation. “The challenge will be: how do we implement it?”

Alexander, who co-drafted the legislation, said the act is designed to be a framework for reconciliation.

“The potential of this legislation is to create a new baseline,” Alexander told The Narwhal.

“When you enable government to enter into consent-based agreements, it could radically shift almost all government relationships.”

A new era of mutual consent

A major question about B.C.’s incorporation of UNDRIP centres around the question of “free, prior and informed consent” and whether or not it amounts to granting Indigenous peoples the power to veto projects that affect traditional territories.

“Nowhere in the act, nowhere in the declaration, do the words ‘veto’ ever come up. For the first part, it’s fear-mongering,” Alexander said.

Article 32 of UNDRIP grants Indigenous peoples “the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”

It also says governments “shall consult and cooperate in good faith” with Indigenous peoples through their own representative institutions, in order to obtain their free and informed consent prior to the approval of “any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

But Alexander said it isn’t an accurate framing of the issue to say UNDRIP will essentially grant nations the power to override government and industry.

“Veto is about overriding jurisdiction and overruling governments, whereas consent is about agreement and coming together and working through problems and finding solutions,” he said.

“In some ways consent and veto are polar opposites to each other.”

Major projects — including the Site C dam, the Trans Mountain pipeline expansion and extensive fracking operations in northeastern B.C. — have been widely criticised for being approved by government without the “free, prior and informed consent” of affected Indigenous communities and nations.

First Nation communities regularly find themselves in the position of waging legal battles against projects after they are approved, when major impacts to land and traditional practices can no longer be prevented.

From the legislature floor, Terry Teegee, regional chief of the B.C. Assembly of First Nations, spoke directly to the claim the new legislation will in effect give Indigenous peoples ‘veto powers.’

“To bring this to a hard point, some people will oppose this law because of their fears of what an era of mutual consent means. There is fear in the idea of sharing power and jurisdiction. I want to say strongly and clearly here this declaration law is not about providing any government with veto rights.”

“Consent is about agreement. It is a process to achieving and maintaining agreement … about respecting our laws as equals and as partners,” Teegee said.

“Consent is the future and most simply put, it’s about coming together as governments, as people seeking to find common ground. Although consultation law has empowered many First Nations in B.C., it has done little to create legal certainty.”

Too often the Crown does not engage in good faith consultation and negotiations and First Nations are turning to the courts to resolve these issues, Teegee said.

“One of the greatest uncertainties for project development in B.C. is not knowing if a project has the consent of affected First Nations. Laws that are co-developed … will deliver economic, legal certainty and predictability in this province.”

Teegee said the province has come a long way in respecting Indigenous self-determination and decision-making in recent years, pointing to very recent but ultimately rejected plan to turn a sacred lake in Tsilhqot’in territory into a tailings pond for a mine.

The task of adhering to the principles of UNDRIP presents a unique case in provinces such as B.C., where the vast majority of the landscape is considered unceded Indigenous territory, meaning treaties haven’t been signed.

Unceded land in B.C. is often referred to as Crown land, although that designation can be misleading because much of the province falls within traditional territories that have not been ceded but have not been claimed under title rights (as in the case of the Tsilhqot’in Nation).

Map of Canada, showing treaties. Map: Native-land.ca

Major clashes over natural resource projects, such as recent blockades to prevent the construction of the Coastal GasLink pipeline on traditional Wet’suwet’en territory, occur on unceded lands where Indigenous peoples have been guaranteed the right to fish, hunt and practice their traditional ways of life in perpetuity.

Forest management a natural place to start

Jack Woodward, an Aboriginal rights lawyer who served as legal counsel on the landmark Tsilhqot’in title case, said while Aboriginal rights and treaty rights are governed by the constitution, the province can look for ways to support reconciliation within its own jurisdiction.

He pointed to the way old-growth forests are being managed by BC Timber Sales, saying it is a matter of policy, not legislation.

Old-growth forests are a valuable heritage resource for First Nations because they contain the last archaeological record of pre-contact through culturally modified trees, Woodward said.

“That’s what UNDRIP speaks to and what’s referred to in the proposed legislation but the actual process on the ground is what is going to matter and they’re going to have to give way to make significant change.”

An enormous, freshly fallen western redcedar in a BC Timber Sales-issued cutblock in the Nahmint Valley near Port Alberni. The Nahmint Valley is in traditional territories of the Hupacasath and Tseshaht First Nations. Last year, the Hupacasath sent an open letter calling on the provincial government to halt old-growth logging in the Nahmint and work collaboratively with the band to protect the area’s old growth and, especially, the biggest trees and monumental cedars. Photo: TJ Watt

Alexander said the process of prioritizing where to start on UNDRIP implementation will begin now, but he agrees forestry is a logical place for improvement.

“It does make sense that forestry might be a very tangible and smart place to start,” he said. “The Jenga game has sorta collapsed a bit on forestry and it needs to be re-built.” MORE

 

Alberta oilsands mine in public interest despite ‘significant adverse’ effects: panel

In a colonial neoliberal system economic development always is given priority over human rights and earth rights. We need to change everything.

An oil worker holds raw sand bitumen near Fort McMurray, on July 9, 2008.An oil worker holds raw sand bitumen near Fort McMurray, on July 9, 2008. THE CANADIAN PRESS/Jeff McIntosh

A federal-provincial panel says a proposed northeastern Alberta oilsands mine would be in the public interest, even though it would likely significantly harm the environment and Indigenous people.

Vancouver-based Teck Resources Ltd. aims to build the $20.6-billion Frontier mine near Wood Buffalo National Park in two phases.

READ MORE: UNESCO gives Canada new deadline to preserve Wood Buffalo National Park

Its total capacity would be 260,000 barrels of oil a day. More than 290 square kilometres of land would be disturbed.

Teck has said it aims to start producing oil in 2026, with the mine lasting for more than four decades.

“While the panel has concluded that the project is in the public interest, project and cumulative effects to key environmental parameters and on the asserted rights, use of lands and resources for traditional purposes, and culture of Indigenous communities have weighed heavily in the panel’s assessment,” said the report released Thursday.

It said the project would likely result in significant adverse effects to wetlands, old-growth forests and biodiversity, as well as to Indigenous people in the area.

“The proposed mitigation measures have not been proven to be effective or to fully mitigate project effects on the environment or on Indigenous rights, use of lands and resources, and culture.”

READ MORE: Mikisew Cree First Nation official says Frontier oilsands mine deal includes vote on future development

The panel’s report includes several dozen recommended conditions for Teck and the federal and provincial governments.

They include mitigating harm to wildlife, monitoring pollutants and taking feedback from nearby First Nations into account.

But the panel also said there are economic benefits. Over the project’s expected lifespan, the federal government could expect to reap $12 billion in taxes and Alberta could rake in $55 billion, with another $3.5 billion in municipal property taxes, it said. SOURCE

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B.C. mining company seeks injunction that could set stage for showdown with First Nation

The Tsilhqot’in Nation is facing off with Taseko Mining company again. Here’s what you need to know

Located in the South Chilcotin area, Fish Lake is at the centre of a clash between Taseko Mines and the Tsilhqot'in First Nation community.

VANCOUVER — A festering dispute between a First Nation and Vancouver-based mining company is expected to ramp up again this week, after Indigenous attempts to appeal an exploratory mining permit were struck down by the BC Supreme Court last month.

The Tsilhqot’in Nation says it will continue to protect what it considers a sacred lake from devastating environmental and cultural heritage impacts and is calling for a safe resolution to prevent Taseko Mines Ltd. (TML) from drilling in the area.

On June 13, the company gave a two-week notice that it plans to begin exploratory drilling by Tuesday in an area west of Williams Lake at Teztan Biny — or Fish Lake — after the Supreme Court refused an appeal of a B.C. court ruling which allowed Taseko to proceed.

The nation said on Monday it will assemble for peaceful action to prevent the drilling program.

Tsilhqot’in Tribal Chairman Chief Joe Alphonse told Star Vancouver they are choosing to stage the protest in a safe place Tuesday where they can “control the environment” because of worries about a possible escalation in the conflict if citizens are left to vent their frustration individually.

This will be the latest confrontation in a legal battle extending almost 25 years between the Tsilhqot’in Nation and Taseko.

Here’s what you need to know ahead of Tuesday.

The dispute

Taseko has done exploration work in area for the last 20 years. In 2008, the company proposed the New Prosperity Mine — a $1.5 billion open-pit gold and copper mine roughly 125 kilometres north of Williams Lake in the heart of Tsilhquot’in territory. It would drain Fish Lake, turning it into a tailings pit.

The Tsilhqot’in Nation say the area is of immense spiritual, environmental and cultural significance, arguing Fish Lake is one of B.C.’s most productive wild trout lakes and the surrounding area is an active cultural school and sacred site.

The mine would be inside the nation’s traditional territory including 300,000 hectares of wilderness and wildlife habitat which is constitutionally protected, just outside of its title lands which stretch 1,900 square kilometres. It falls within the bounds the nation has constitutionally protected rights to hunt, fish and trap. MORE

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UPDATE:  Tsilhqot’in Nation stops Taseko Mines exploratory drilling
 

Tsilhqot’in Nation urges Taseko Mines to stop drilling plans before conflict grows

Nation said Teztan Biny area is of ‘profound cultural and spiritual importance’

Image result for Teztan Biny
A view of part of Teztan Biny (Fish Lake)

The Tsilhqot’in Nation is calling for a safe and peaceful resolution to prevent Taseko Mines Ltd. from doing exploratory drilling for its proposed New Prosperity Mine west of Williams Lake.

The conflict is the latest confrontation in a long legal battle between the Nation, which has declared title rights in the area and the mining company.

On June 13, Taseko gave two-week notice that it planned to begin its drilling program on Tuesday, July 2 in an area 125 kilometres southwest of Williams Lake at Teztan Biny (Fish Lake).

In a statement issued Tuesday, the Tsilhqot’in Nation said it wants TML to stand down on the drilling program and not bring machinery and personnel to the site. The nation is also asking the B.C. government to step up and help resolve the issue.

“The Tsilhqo’tin Nation opposes this drilling program as an imminent violation of its human rights under the United Nations Declaration on the Rights of Indigenous Peoples,” the statement noted.

Teztan Biny is located in traditional Tsilhqot’in territory and includes 300,000 hectares of wilderness and wildlife habitat. It is just outside of the 1,900 square kilometre area in which the TNG won title over in a historic 2014 Supreme Court of Canada ruling, but still within a broader area under land claim. MORE