Grand Chief Stewart Phillip is among the First Nations leaders demanding a halt to Site C construction (D. Gillis)
BC Hydro is intent on bulldozing ahead with Site C Dam construction in the coming weeks, despite seven different federal and provincial court cases currently in progress over the $9 Billion proposed project. That attitude is rubbing First Nations leaders the wrong way.
Hydro above the law?
The First Nations Leadership Council, comprised of the three big provincial First Nations bodies – the Union of BC Indian Chiefs, the First Nations Summit and the BC Assembly of First Nations – came out swinging Thursday in defence of the Treaty 8 First Nations whose land would be flooded by the dam.
“The provincial government seems to have tunnel vision when it comes to building this project. Pushing ahead with construction activities at this time is premature and dishonourable,” said Robert Phillips of the First Nations Summit political executive.
[quote]All citizens of BC should be deeply concerned; by denying the Treaty 8 First Nations their day in court, the government is making an outright statement that they are above democratic rights and the judicial system. This approach is unacceptable and an affront to the cultivation of constructive government-to-government relations between the provincial government and BC First Nations.[/quote]
Dawson Creek councillor: lawsuits are like a lien
The statement comes on the heels of a 30-day notice from BC Hydro that work on the project could commence as soon as July 6, regardless of multiple ongoing court cases. The revelation baffled Dawson Creek Councillor Charlie Parslow, who confronted Site C Community Relations Manager David Conway at a recent council meeting. Conway told council he expects these cases “will be ongoing through the early stages of construction.”
According to the Alaska Highway News, “Parslow said he was ‘shocked’ that BC Hydro is not waiting on the outcomes before putting shovels in the ground.”
“I would have thought it’s like buying a house,” he told the local paper.
[quote]You don’t own it until there’s been some research on whether the title is clear, that there are no liens against it. In my naivety I thought these lawsuits were like a lien against a property. I thought it would be an impediment to them clearing land and blocking rivers.[/quote]
Hydro, province up to their necks in lawsuits
Two of the cases are being brought against the dam are by local farmers and landowners, while another pair are on behalf BC Treaty 8 First Nations, with their Alberta Treaty 8 neighbours pursuing their own federal and provincial cases. A final case, brought by the Blueberry River First Nation of northeast BC, is a wide-ranging challenge based on broken treaty promises which threatens all future development in the region.
Crown shut down
A recent attempt by the federal crown to gut key provisions from the BC Treaty 8 case was rejected by the court. The next phase of that case goes to court this summer, after Hydro’s planned construction start.
Scarring the land and relationships
“The provocative activities that the BC government is recklessly trying to advance are irreversible, and will leave an irreparable and permanent scar on the land,” said UBCIC President Grand Chief Stewart Phillip.
[quote]These deliberate actions will also indefinitely scar BC’s relationships with First Nations. If construction begins, it will be understood as a clear message that this government has absolutely no respect for the Treaty 8 First Nation people, and is blatantly disregarding constitutionally recognized Aboriginal Title, Rights, and Treaty Rights. Further, rushing ahead of the courts to build this project is an irresponsible and negligent use of tax dollars.[/quote]
The BC Treaty 8 First Nations leading these court actions are currently in the midst of a funding drive to support their legal activities. They have already raised over $50,000 towards these efforts, while their farmer neighbours raised well over $200,000 over the past year.
Tahltan First Nations and supporters peacefully occupying a Fortune Minerals drill (Beyond Boarding)
Recent events in Canada have shown not only that change is possible, but that people won’t stand for having corporate interests put before their own.
When plummeting oil prices late last year threw Alberta into financial crisis, people rightly asked, “Where’s the money?” They could see that an oil producer like Norway was able to weather the price drop thanks to forward planning, higher costs to industry to exploit resources and an oil fund worth close to $1 trillion! Leading up to the election, the government that ran Alberta for 44 years refused to consider raising industry taxes or reviewing royalty rates, instead offering a budget with new taxes, fees and levies for citizens, along with service cuts.
Alberta does the unthinkable
The people of Alberta then did what was once thought impossible: they gave the NDP a strong majority. Almost half the NDP members elected were women, giving Alberta the highest percentage of women ever in a Canadian provincial or federal government.
PEI follows suit
On the other side of the country, voters in Prince Edward Island followed B.C. provincially and Canada federally and elected their first Green Party member, as well as Canada’s second openly gay premier. Remember, homosexuality was illegal in Canada until 1969!
Tahltan beat back coal mines
In my home province, after a long struggle by elders and families of the Tahltan Klabona Keepers, the B.C. government bought 61 coal licences from Fortune Minerals and Posco Canada in the Klappan and Sacred Headwaters, putting a halt to controversial development in an ecologically and culturally significant area that is home to the Tahltan people and forms the headwaters of the Skeena, Stikine and Nass rivers. The Tahltan and the province have agreed to work on a long-term management plan for the area.
Lax Kw’alaams turn down a billion dollars for LNG
On the same night as Alberta’s election, people of the Lax Kw’alaams band of the Tsimshian First Nation met to consider an offer by Malaysian state-owned energy company Petronas of $1 billion over 40 years to build a liquefied natural gas export terminal on Lelu Island near Prince Rupert, at the other end of the Skeena River, an estuary that provides crucial habitat for salmon and other life. The 181 people attending unanimously opposed the offer. Two nights later in Prince Rupert, band members also stood unanimously against the proposal.
The message is clear: integrity, the environment and human health are more important than money. Gerald Amos, a Haisla First Nation member and community relations director for the Headwaters Initiative, said the federal Prince Rupert Port Authority’s decision to locate the facility on Lelu Island also demonstrated a failure to properly consult with First Nations. “By the time they get around to consulting with us, the boat’s already built and they just want to know what colour to paint it,” he said.
Koch acknowledges climate change
On a broader scale, change is occurring around the serious threat of climate change. Even well-known deniers, including U.S. oil billionaire Charles Koch, now admit climate change is real and caused in part by CO2 emissions. But they argue it isn’t and won’t be dangerous, so we shouldn’t worry. Most people are smart enough to see through their constantly changing, anti-science, pro-fossil-fuel propaganda, though, and are demanding government and industry action.
Location of proposed Site C Dam (photo: Damien Gillis)
The federal government struck out in court Friday in its attempt to gut key passages of a Treaty 8 First Nations Judicial Review into the environmental certificate for Site C Dam.
After 3 hours of arguments on the crown’s motion to strike, brought with the support of the province, the presiding Prothonotary Lafreniere not only threw out the government’s argument – which he called “a very rare request” – but ordered costs be paid to the First Nation plaintiff. The decision presents another legal roadblock to the $9 Billion dam, on which the BC Liberal government and proponent BC Hydro intended to break ground this summer. The federal judicial review is now slated to be heard in July, with the nation’s key argument of rights infringement by the dam fully before the court. The Judicial Review is being brought jointly by West Moberly First Nations, the Prophet River First Nation, McLeod Lake Indian Band, and Doig River First Nation.
The right to be heard
At issue in Friday’s hearing was a highly technical but significant debate over whether a Judicial Review is equipped to deal with an Aboriginal rights-based argument. Both the crown and province maintained that in the past, the courts have refused to hear such arguments in a Judicial Review – referring them instead to full-on trials. The First Nation argues that the environmental review process and subsequent decisions by governments to award Site C its certificates failed to consider the infringement of its treaty rights to hunt, fish and trap on the land – unimpeded by development.
The crown countered that the matter of rights infringement falls outside of the scope of the environmental review – parameters that the government deliberately hardwired into the terms of reference for the Joint Review Panel. In other words, both the federal and provincial governments ensured that the questions of rights infringement never enter into the JRP hearings – even though the panel readily acknowledged the project would have adverse impacts on First Nations throughout the region.
“Put it to bed”
The crown argued that the plaintiff’s evidence and legal standing was “so utterly devoid of merit and hopeless that…it should be struck out and put to bed early on.”
Prothonotary Lafreniere disagreed. During the hearing, he challenged the crown’s argument that the rights issue couldn’t be adjudicated by a Judicial Review:
[quote]Why can’t you argue that in the hearing?…I’m very concerned about bringing a motion to throw them out before getting a fair hearing.[/quote]
Counsel: Govt totally ignored First Nations’ rights
In her clients’ defense, Lead Counsel Allisun Rana drew attention to the government’s carefully contemplated refusal to address meaningfully the Nation’s rights. While the JRP’s hands were tied from dealing directly with rights infringement – a loaded legal notion that goes deeper than merely observing adverse impacts – the government was supposed to consider the evidence gathered and deal with the rights issue later, before issuing its decision. It chose not to, whatsoever – a revelation that only came to to light through this recent motion to strike. Even the plaintiff seemed surprised to learn that no consideration was given at any point to the infringement by the dam on First Nations’ treaty rights.
The crown’s own consultation report on Site C contained a clearly-stipulated responsibility for the government to deal with rights infringement issues – as reflected in the report’s consultation schematic. Only later, without the nation’s knowledge, did the crown alter the language in the schematic to say “determining impacts” instead of “infringement“. Legally speaking, this one word makes all the difference as it speaks specifically to the breaking of legal promises made in Treaty 8 of 1899.
“[My clients] had a good faith belief that the governor in council would consider infringement and were led to believe that by the agency,” Rana told the court.
[quote]If the project is an infringement on First Nations’ rights and the governor in council approved it, then that’s a constitutional issue…that is a matter that needs to be heard before a full hearing.[/quote]
A big decision
Land impacted by Site C Dam (Wilderness Committee / Google Maps)
While the crown argued that the plaintiff is “trying to go through the back door” in raising issues at a Judicial Review which both governments have clearly sought to keep off the table, the court disagreed. “It’s good to have this behind us,” said Rana on Friday’s decision, “so we can focus on the Judicial Review.”
The decision, just one in a long list of legal developments currently surrounding the controversial dam, is another troubling sign for governments which seem in a real hurry to get construction underway.
Perhaps that’s because they can feel the judicial sands shifting beneath their feet. And like quicksand, the harder they struggle, the deeper they may find themselves stuck.
Herring gillnet boats outside Kitasu Bay before giving up on this year’s fishery (Tavish Campbell/Pacific Wild)
This is the untold story behind one of the most heated standoffs over fish which the BC coast has ever witnessed – the recent clash between the Department of Fisheries and Oceans (DFO) and the Heiltsuk Nation over the central coast herring fishery. After spending the better part of two weeks amid the conflict in Bella Bella and surrounding areas, I feel the convoluted affair – and its complex ecological, cultural and political implications – merits a deeper analysis.
Falling on deaf ears: Heiltsuk leaders plead their case to gillnet fishermen – to no avail (Tavish Campbell/Pacific Wild)
On the surface, the reason the gillnet fleet left the central coast this past week, without the herring it had come for, is simple: There weren’t enough fish to sustain a commercial fishery – which is precisely what the local Heiltsuk Nation and independent scientists had been warning DFO all along. But don’t expect the hapless regulator to admit this obvious fact. Instead, it held onto the idea of a gillnet fishery to the bitter end.
Even after the fleet had pulled up stakes, DFO refused to bow to First Nations’ demands and formally close the fishery in Area 7. Only through emails to reporters much later did they finally acknowledge it was closed.
Caught on tape
A radio transmission from one gillnet captain to his counterparts, recorded by Pacific Wild – a conservation organization that has been documenting the central coast fishery – tells the tale. The conversation occurred on the herring grounds outside of Kitasu Bay, where the gillnetters had been granted an opening by DFO but simply couldn’t justify dropping their nets for a lack of fish. Here’s what the captain told his fellow fishermen:
[quote]It’s starting to cost everybody a bunch of money and if there’s no sizeable body of fish anywhere other than Higgins – I mean if you don’t see anything outside there, it ain’t gonna materialize out of nowhere now. You know, if there’s nothing sizeable then maybe we should all put our heads together and decide whether we want to continue this bullshit or pack it in.[/quote]
And that is precisely what they wound up doing soon thereafter (East Higgins – in the Heiltsuk’s declared Area 7 no-go zone would not prove to have the herring necessary for a fishery, despite remaining on the table, according to DFO, right to the end of this saga). But the boats did not leave because DFO told them to – this is an important distinction. As this transmission reflects, they left because there was simply no point carrying on.
> Listen to gilllnet fisherman’s communication – April 1, 2015:
Seiners clear out fishery
Industry voices may counter that there were fish in a few places kept off-limits by DFO and First Nations, but that’s an unfair criticism. For a several week period, all of Area 8 and virtually all of areas 6 and 7 – with a few tiny exemptions ultimately made for traditional Heiltsuk and Kistasoo/Xaixais food fish spots, such as Kitasu Bay – were open for fishing. It is a sad commentary on the state of the herring fishery that its success hinges on a single bay.
The fact of the matter is the seine fleet that took approximately 680 tonnes in an unannounced fishery in Spiller Channel essentially hoovered up what few viable fish there were (herring need to be of a certain size – roughly 20-plus centimetres in length – in order for the roe to be worthwhile). Even the seiners couldn’t achieve their own quota. In the wake of that fishery, nothing was left for the gillnetters, not to mention the Heiltsuk’s traditional fishery, which will likely suffer too.
For years, the Heiltsuk, backed by independent scientists, had been warning DFO about the lack of abundant stocks – to no avail. And when the department opened the sneak fishery in Spiller on March 22, it set off a bitter conflict that led the Heiltsuk to occupy the fisheries office near Bella Bella one week later.
As the days passed, a pattern emerged: DFO assured media they were in “discussions” with the Heiltsuk, but conference call after conference call failed to yield a solution. DFO would not bend and close Area 7.
The “Doctrine of Priority”
Herring spawning (Tavish Campbell/Pacific Wild)
Now, a word about the complex world of herring fisheries. There are multiple types of herring fisheries on the central coast, each with different implications for conservation and informed by a landmark Supreme Court case called the Gladstone Decision of 1996. What that case essentially found is that the Heiltsuk had been engaged in their own commercial herring fishery since before contact and therefore maintain those rights today. It also established a “doctrine of priority” which laid out the order in which fish should be allocated by DFO.
The first priority is conservation, followed by the aboriginal right to food, social and ceremonial fish (FSC), then an aboriginal commercial fishery, and finally, after all those needs have been satisfied – and only if the stocks are healthy enough to justify it – a non-aboriginal commercial fishery.
DFO ignores the courts
Those who would seek to racialize the issue do so out of ignorance. To suggest that the Heiltsuk occupation of the DFO office and vow to stop the gillnet fishery “by any means necessary” is somehow lawless behaviour is inherently hypocritical. The Heiltsuk position is in fact entirely in line with the laws and jurisprudence of Canada – it is DFO which disrespected these institutions.
The Gladstone Decision is very clear about the allocation of fishing rights. The Heiltsuk, based on the historical record and the Constitution Act have first dibs. That’s not a value judgment – it’s a fact. In applying wrong-headed forecasting models to the fishery and ignoring Heiltsuk rights, DFO pitted aboriginal and non-aboriginal fishermen against each other, then stood back and did nothing to rectify the mess of their own making.
A different kettle of fish
Heiltsuk fisherman Jordan Wilson pulls in some unique spawn on hemlock roe (Ian McAllister/Pacific Wild)
There’s also a big difference between the commercial seine and gillnet fisheries and the traditional way the Heiltsuk do their food and commercial fisheries. The non-aboriginal commercial fishery is a “kill fishery”. The target in all cases is the precious roe – not so much the fish itself, which is used for pet food, bait or fish farm feed. Both seiners and gillnets scoop up the whole herring just for the roe. At one time this held immense value in Japanese fish markets for sushi. But today, prices are a fraction of what they once were, as the market is sitting on a huge backlog of frozen roe.
By contrast, the Heiltsuk employ a technique called spawn on kelp (SOK) for their FSC and commercial fisheries. Heiltsuk fishermen and families attach kelp to long lines and buoys and set them amidst the herring spawn. Some of the billions of eggs lain by the small fish deposit on the kelp and are then harvested. Another more boutique method involves tying hemlock boughs off the shoreline into the water, where herring roe also collects (my personal favourite, with the added bouquet of the forest).
The big difference is that with the SOK fishery, the herring aren’t killed, and swim free to spawn another day – making this a more sustainable fishery amidst depleted stocks.
DFO’s fuzzy math
Retired DFO herring scientist Dr. Ron Tanasichuk
In a typical healthy year, central coast First Nations would be allocated around 1750 tonnes of herring, with the non-aboriginal commercial fishery receiving something on the same order. But if there aren’t enough fish, then the commercial fishery is supposed to be closed and the Heiltsuk may even see their own allocation pared back for conservation purposes. According to retired DFO herring scientist Dr. Ron Tanasichuk, that’s precisely what should have happened this year.
Tanasichuk explained to me how DFO arbitrarily doubles its herring counts from the previous season, resulting in the over-allocation of fish:
[quote]The forecasting methodology that DFO uses now for central coast herring is actually quite flawed…DFO’s forecasts are likely twice as much as they should be.[/quote]
Numbers set in stone
The Heiltsuk presented Dr. Tanasichuk’s alternate calculations to DFO in a last-ditch meeting with Regional Director General Sue Farlinger this past Tuesday, but to no avail. Another problem with the department’s forecasting is that it’s set in stone once determined in September for the following year’s fishery. There is no mechanism by which to adapt allocations based on in-season soundings and observations from the actual fishery as it’s happening. Typical bureaucratic nonsense.
Dr. Tanisichuk’s alternate modelling predicted just over 14,000 tonnes of herring on the central coast this year (10% of which are available for a fishery) – about half of DFO’s forecasting. And guess what? Based on averaging out in-season soundings, he appears to have been right on the money. But this meant nothing to DFO.
Better call Ottawa
Farlinger flew out to Bella Bella on March 30 for emergency meetings following the Heiltsuk seizure of the DFO office. By most accounts, she did her level best to advance their concerns, securing agreements with the Heiltsuk to improved stock assessments and cultural training for local officers. But as for the big issue over closing Area 7, Farlinger maintained she did not have the authority to make a decision – which only compounded Heiltsuk frustrations with the federal government.
“It is my intention to avoid at all costs a fishery in Area 7,” Farlinger told a gathering of upset Heiltsuk members outside the occupied fisheries office. Yet, she added:
[quote]I’m not in a position to unilaterally say, ‘No fishery will happen in Area 7.'[/quote]
Instead, she told the community that she spent hours on the phone to her higher-ups in Ottawa, who plainly wouldn’t budge.
And it shouldn’t. Herring are the building block of life on the BC coast. They need time to rebuild.
DFO should learn from this year’s herring fishery fiasco, start listening to scientists and working with the Heiltsuk to ensure a sustainable fishery for the future of herring and the ecosystems and coastal communities that depend on them.
Heiltsuk Nation members confront DFO officers at Denny Island coast guard station (Pacific Wild)
Updated 7 PM
Tensions continue to escalate on the waters of the Great Bear Rainforest over a highly controversial herring fishery, as members of the Heiltsuk Nation are now occupying the local DFO office in opposition to a planned gillnet opening.
A group of Heiltsuk youth, elders and chiefs paddled and boated this afternoon from Bella Bella to the coast guard station on nearby Denny Island – headquarters of DFO’s central coast operations – to deliver an eviction notice reminding local representatives that Area 7 is a no-go zone for a commercial herring fishery this year.
The delegation stripped DFO of a ceremonial paddle which had been given to local officers before in good faith. “You cannot have that,” youth leader Saul Brown told DFO representatives, “because you’re not here in a good way anymore.”
“You’re not conducting yourselves in a way that is sustainable for our future generations, so this is our children and youth saying, ‘We’re going to take that paddle back.'”
Following the demonstration, a conference call between Tribal Council leaders and DFO Regional Director General Sue Farlinger failed to yield a diplomatic solution to the ongoing conflict.
As of 6 PM, Heiltsuk Chief Councillor Marilyn Slett and Kelly Brown, Director of the Heiltsuk Integrated Resource Management Dept. had joined the occupation of DFO’s offices, where they plan to stay through the night.
DFO inciting physical confrontation: Brown
“DFO has forced us into a collision course with industry,” Chair of the Heiltsuk Economic Development Corporation Frank Brown explained over the phone from the occupied DFO office.
[quote]If they allow gillnets into Area 7, they’re basically condoning a physical confrontation.[/quote]
Heiltsuk youth leader Saul Brown takes back a ceremonial paddle from DFO officers (Colin Jones/facebook)
Today’s conflict follows a week of high tensions between the First Nation and DFO over the controversial herring fishery. Last Sunday, DFO angered the Heiltsuk by opening a seine fishery amid depleted herring stocks in Area 7 without informing them.
A Thursday press release from the nation vowed to stop a gillnet fishery “by any means necessary” after DFO refused to close the door to a subsequent gillnet fishery during talks with Heiltsuk leaders in Vancouver Wednesday.
The Heiltsuk have declared Area 7 a no-go zone to a commercial herring fishery due to concerns over the health of local stocks and allegations of flawed science by veteran scientists – including retired DFO herring specialist Dr. Ron Tanasichuk, who notes:
[quote]The forecasting methodology that DFO uses now for central coast herring is actually quite flawed…DFO’s forecasts are likely twice as much as they should be.[/quote]
With DFO digging in its heels, a gillnet opening could come within the next day, in which ase, “We will escalate from occupying the station to being out on the herring grounds,” said Frank Brown.
“We’ve done everything we can. We have to hold strong.”
Update: As of 6:30 PM, DFO is stating that a gillnet opening would likely take place to the north in Kitasu Bay, the territory of the Kitasoo/Xaixais Nation – who have also closed their territory and Area 6 to the fishery and stand in solidarity with their Heiltsuk neighbours.
Commercial seine boat in Spiller Channel (Pacific Wild)
Bella Bella, BC
A delegation of Heiltsuk First Nations and their supporters will be taking the central coast community’s concerns over a recent herring fishery in their territory to to the Jimmy Pattison-owned Canfisco processing plant in Vancouver this afternoon.
Pattison is the largest owner of commercial herring licences and boats in BC, many of which took part in a highly controversial herring seine opening on Sunday and Monday in Spiller Channel, near Bella Bella. Heiltsuk members were caught by off guard when DFO opened the commercial seine fishery Sunday night without advising them first. The community had declared its territory closed to the commercial herring kill fishery this year due to concerns of the health of the stock.
Retired DFO herring specialist Dr. Ron Tanasichuk concurs with the Heiltsuk’s concerns, noting:
[quote]The forecasting methodology that DFO uses now for central coast herring is actually quite flawed…DFO’s forecasts are likely twice as much as they should be.[/quote]
On that basis, Tanasichuk agrees there should have been no commercial fishery this year. “The stocks are in recovery,” said Heiltsuk legal services coordinator Carrie Humchitt during the opening in Spiller Channel, “but they haven’t reached a level of recovery that can allow this kind of fishing to occur.”
“Our community was misled,” noted Chief Counsellor Marilyn Slett on the manner in which DFO openend the fishery. “We weren’t treated in good faith by DFO.”
Now, as seiners begin delivering their cargo to Canfisco’s Vancouver dock, Heiltsuk members living in Vancouver will make their concerns known to the fishing giant. They are calling on supporters to join them at 3 pm today at Canfisco, on Vancouver’s downtown waterfront.
A parallel rally will be held in Bella Bella this afternoon as well.
“This action shows blatant disrespect of aboriginal rights by DFO and industry,” said Chief Councillor Marilyn Slett.
[quote]DFO provided inconsistent and misleading communications throughout the day and did not attempt meaningful consultation.[/quote]
The nation is also suggesting that DFO employed deceptive tactics to launch the fishery, waiting until commercial seine boats had their nets in the water before officially alerting the Heiltsuk by email that this year’s fishery – in the highly contested Area 7 – was going ahead.
Stocks not ready for commercial fishery
The Heiltsuk contend that low herring stocks do not justify a commerical fishery. “We must put conservation first. We have voluntarily suspended our community-owned commercial gillnet herring licenses for this season to allow stocks to rebuild, but DFO and industry are unwilling to follow suit,” said Kelly Brown, Director of the Heiltsuk Integrated Resource Management Department. Hereditary Chief Harvey Humchitt believes more time is needed for herring to rebound from a recent crash before reopening a commercial fishery. “We experienced the collapse of the herring twice over the past fifty years. These collapses are attributed to Western science,” noted Humchitt. “The herring are now beginning to recover.”
Their concerns are echoed by retired DFO herring specialist Ron Tanasichuk, who concurs that DFO is using flawed modelling to estimate the health of herring stocks. “With their current methods, DFO is essentially inflating estimates of herring on the Central Coast by double,” says Tanasichuk.
Constitutional issue
The nation’s right to a unique spawn on kelp (SOK) fishery – which doesn’t involve catching herring, but rather collecting roe lain on kelp – was cemented in the Gladstone Supreme Court decision.
“The Heiltsuk Nation views this opening as an unjustifiable infringement upon our right to our SOK fishery, a right which was won in the Supreme Court of Canada case R. v. Gladstone,” stated William Gladstone, chief negotiator of the Gladstone Reconciliation.
[quote]We cannot risk another collapse. Our future generations depend upon this resource for food, social and ceremonial purposes, as well as employment and spiritual and cultural wellness.[/quote]
The United Fishermen and Allied Workers’ Union is backing the Heiltsuk position, advising gillnet fishers not to fish the Central Coast.
RCMP boats have been stationed in the area since last week, in anticipation of tensions over the DFO opening. “Heiltsuk boats are on the water to protest as the Nation works toward achieving a peaceful resolution to the situation,” said a press release from the nation early this morning. “We may have lost this battle, but the war is far from over,” said Gladstone.
Two Yukon First Nations have won yet another landmark indigenous legal victory – this time against the local territorial government, over the vast Peel Watershed.
Thomas Berger explains Peel case to media in January 2014
The case was brought by famed Canadian legal figure Thomas Berger on behalf of Na-Cho Nyak Dun and Tr’ondëk Hwëchin nations – both of whom share traditional territory in the largely pristine northern Yukon watershed. The plaintiffs also included several conservation groups and individuals.
The battle stems from a land use planning process for the Peel that spanned half a decade of research before devolving into years of political meddling. With various mining and resource players beginning to show interest in the largely untouched watershed, the Peel Commission was struck in the early 2000’s to gather information on the region and weigh out development and conservations objectives.
After delivering its final recommendations in 2009, the Yukon government began a several-year process of additional changes to the plan – ultimately rendering it unrecognizable from the original.
Invoking its perceived authority to modify the plan, the government slashed the total protected areas from 80% of the Peel down to just 29%.
Lack of consultation
It was on this basis that the two First Nations and their conservation allies launched a legal challenge last January in the Yukon Supreme Court (see video below) – claiming infringement of their constitutional rights to be consulted and accommodated. Essentially, under their Final Agreements with the Crown, Yukon First Nations have the right to be consulted on land use planning, among other matters. The government’s proposed modifications to the Commission’s final recommendations were too broad and didn’t receive enough consultation, the court found.
“The Final Agreements give Yukon First Nations certain rights in their Traditional Territories in exchange for the release of their claims to it. This includes a right to participate in the management of public resources,” a media advisory from the courts explains.
[quote]Chapter 11 encourages the development of a common land use planning process that applies to both Settlement and Non-Settlement Land in the Traditional Territories of the First Nations…The Government chose to propose modifications to the Recommended Plan in February 2011. Of the five modifications proposed, two simply stated a preference for more balance and increased options for access. This level of detail was insufficient for Consultation and lacked any tangible or practical guidance for the Planning Commission.[/quote]
Court sends government back to the drawing board
The Peel Watershed’s Hart River (Marten Berkman)
The court ruling forces the government to go back and redo much of its constitutionally-required consultation, but with with certain important restrictions. Specifically, the proposed, vague clauses it wanted to insert into the process – enabling it to make sweeping changes to the development-versus-conservation balance – are a no-go this time around.
“The appropriate remedy is to return the matter to the point in the process where the error occurred,” said the court’s media advisory today. “This was at the stage of Consultation with respect to the Final Recommended Plan.”
“In the result, the January 2014 Government approved Peel Watershed Regional Land Use Plan is quashed.”
[quote]The Government of Yukon is required to hold final Consultations with the affected First Nations and affected communities under s. 11.6.3.2 of the Final Agreements, based on the modifications it proposed in sufficient detail at the earlier stage in the process. Any modifications to the Final Recommended Plan shall be limited to these proposed modifications…but not the stated preference for more balance and increased options for access.[/quote]
Public onside with protecting Peel
Ecotourism in the Peel Watershed plays an important role in the Yukon economy (Marten Berkman)
The court ruling reinforces a strong public will to protect the Peel, says Christina Macdonald of the Yukon Conservation Society – one of the co-plaintiffs in the case, along with the Canadian Parks and Wilderness Society.
“I feel like if I opened my window this morning at 9 AM when the decision was announced, I would have heard all of the Yukon cheering – along with our many supporters across Canada and around the world,” said Macdonald over the phone from her office in Whitehorse.
But the Yukon Government has made no bones about its preference to develop the region. “This remote area holds resources that have the potential to be of great value to Yukon’s economy, both now and in the future,” Yukon Minister of Energy, Mines and Resources Scott Kent said in a statement when the government’s version of the plan was released.
“We’re anticipating the government will appeal,” Macdonald responds, “but the people have spoken and now the courts have spoken, so why appeal? We won here and we’ll win again.”
Tahltan and Secwepemc First Nations and supporters celebrate at the BC Supreme Court (contributed)
BC First Nations added a small but potentially significant notch to their legal winning streak yesterday, with a temporary victory over Imperial Metals in BC Supreme Court.
The company was seeking an interlocutory injunction and enforcement order enabling it to have Tahltan Nation protesters immediately, forcibly removed from a blockade of Red Chris Mine – Imperial’s lastest venture, in northwest BC’s Sacred Headwaters.
Red Chris Mine under construction (Unuk River Post)
After hearing from the company’s lawyers and three First Nations women from the Tahltan and Secwepemc Nations, Justice Grauer refused to issue the injunction and enforcement order Imperial was seeking – instead issuing a non-permanent injunction, without the accompanying enforcement order. This means the blockade will likely remain in place until at least October 14, giving the defendants more time to respond to the temporary injunction.
The judge also agreed to a change of venue to Terrace court, allowing Tahltan elders from the region to participate in future proceedings.
Yet despite this history and the legal strength of First Nations, injunctions have become a commonplace tool for corporations to remove protestors and are rarely refused or watered down by the courts – so Justice Grauer’s ruling is a significant, if small departure from this pattern.
Said the Indigenous Network on Economies and Trade’s Arthur Manuel on the verdict:
[quote]Injunctions are one of Canada’s last colonial instruments used to dispossess Indigenous Peoples of their land but pressure from the grassroots community is causing the colonial government to retreat. Today’s decision puts the injunction in question as being a sure form of remedy for corporations like Imperial Metals acting with impunity and without consent.[/quote]
First Nations take on Imperial together
Kanahus Manuel addressing reporters
Manuel’s daughter Kanahus has been instrumental in confronting Imperial Metals over the environmental devastation of her traditional Secwepemc territory from the Mount Polley spill. She and other community members and supporters started a sacred fire and water monitoring program in the area and quickly offered their support to the Klabona Keepers in challenging the company’s tailings dam design at Red Chris.
This concern is shared by others, including US-Canadian conservation group Rivers Without Borders. In a recent op-ed in these pages, RWB’s Tadzio Richards noted:
[quote]In 2013, a third party review was done of Imperial Metals’ engineering designs for their tailings pond at Red Chris. The independent review concluded there was no guarantee that Imperial Metal’s tailings pond would hold toxic wastewater from the mine. Despite this conclusion, construction at Red Chris has been allowed to continue, and the mine is currently scheduled to open in September of this year.[/quote]
Soon after writing this, the Klabona Keepers instituted an initial protest against Red Chris – stalling the mine’s opening. They backed down temporarily once Imperial offered the Tahltan increased oversight over the mine’s tailings pond design. But losing confidence in the new arrangement, the Klabona Keepers erected a new blockade on Sept. 29.
“An incredible victory”
On October 3, Imperial filed initial documents announcing injunction proceedings for 10 AM yesterday.
“The defendants, through their physical blockade and their conduct, are interfering with Red Chris’s use and enjoyment of property,” the filing claimed.
Yet Justice Grauer clearly didn’t feel the blockade needed to be removed with the same urgency Imperial had sought.
Said the Klabona Keepers in a statement following yesterday’s ruling:
[quote]Ultimately, this is an incredible victory – not only for the Klabona Keepers, but for all Indigenous Nations connected by the water and the salmon. [/quote]
First Nations have been protesting several Imperial Metals mines since Mount Polley (Photo: Facebook)
UPDATE:In a surprise ruling today,Justice Grauer refused to grant Imperial Metals an injunction against the Klabona Keepers’ blockade
Imperial Metals, the company behind the Mount Polley tailing pond disaster, is seeking an injunction today at the BC Supreme Court to forcibly remove Tahltan First Nations protestors from a blockade of the company’s newest project, Red Chris Mine.
In a media advisory this morning, the leaders of the Yuct Ne Senxiymetkwe Camp – established near Mount Polley mine by a group of local Secwepemc First Nations following the largest tailings pond spill in history – announced a protest of the injunction proceedings outside the Vancouver court house where they are being held.
The Mount Polley disaster inspired the Klabona Keepers, from Tahltan territory in northwest BC, to set up a blockade of Imperial’s yet-to-be-opened Red Chris Mine – over concerns about the company’s tailings pond design.
This concern is shared by others, including US-Canadian conservation group Rivers Without Borders. In a recent op-ed in these pages, RWB’s Tadzio Richards noted:
[quote]In 2013, a third party review was done of Imperial Metals’ engineering designs for their tailings pond at Red Chris. The independent review concluded there was no guarantee that Imperial Metal’s tailings pond would hold toxic wastewater from the mine. Despite this conclusion, construction at Red Chris has been allowed to continue, and the mine is currently scheduled to open in September of this year.[/quote]
Soon after writing this, the Klabona Keepers instituted an initial protest against Red Chris – stalling the mine’s opening. They backed down temporarily once Imperial offered the Tahltan increased oversight over the mine’s tailings pond design. But losing confidence in the new arrangement, the Klabona Keepers put up a new blockade on Sept. 29.
On October 3, Imperial filed initial documents announcing injunction proceedings for 10 AM today.
“The defendants, through their physical blockade and their conduct, are interfering with Red Chris’s use and enjoyment of property,” the documents claimed.
Imperial Vice President Steve Robertson acknowledged to the Terrace Standardover the weekend that the company will be seeing an injunction to break the blockade, noting, “We don’t think there is a good reason for [the current blockade]. We understand there are some outside forces that have come in that are very active on the blockade.”
Says Kanahus Manuel of the Yuct Ne Senxiymetkwe Camp near Mount Polley:
[quote]In light of the Tsilhqot’in case, injunctions must not and cannot be used as a tool to displace Indigenous Peoples from their homelands anymore.[/quote]
Supporting Manuel at a recent press conference in Vancouver on the lack of post-spill cleanup in the area, Grand Chief Stewart Phillip of the Union of BC Indian Chiefs declared, “We’re moving from the era of consultation to the era of consent,” putting governments and corporations on notice that First Nations are prepared to take a far more active role in protecting their territories from dangerous development.
