Category Archives: First Nations

Premier's Tsilhqot'in meeting a sign of real change for BC

Rafe: Premier’s Tsilhqot’in meeting a sign of real change for BC?

Premier's Tsilhqot'in meeting a sign of real change for BC
Tsilhqot’in Chief Roger William and Premier Christy Clark meeting in Vancouver today (Damien Gillis

This is the story of change.

Premier Christy Clark is to be congratulated for going to the Nemiah Valley and meeting with the Tsilhqot’in First Nation leaders about their position on land claims now that they have won a landmark Supreme Court of Canada decision.

It is easy to say “about time”, except that same criticism could be applied to several premiers, going back years. I believe this is the first time a BC premier could have made such a visit and that we all had to have a very big wake up call before such a commitment was possible.

Move significant for all British Columbians

There is no question that this signals quite a change in the attitude of the current government. It also, however, signals quite a change for the people of British Columbia.

I can only relate my own experience – which I have done – which was a long, slow epiphany from the attitude I started out with as a boy in British Columbia to what I have now.

They didn’t teach us this stuff in school

I grew up in a very traditional background in the 30s and 40s. I’m not going to relate now what our attitude towards “Indians” was because it would be insulting. Suffice it to say we had no understanding whatsoever of the aboriginal peoples of British Columbia.

This is not surprising when you consider that we learned absolutely nothing about aboriginals when we went to school. That’s not quite true, we learned all sorts about aboriginal peoples in Ontario – the Algonquins, Iroquois, Huron and so on. That’s because we all used Eastern textbooks. As to the Haida, the Shuswap, or Musqueam, we were totally ignorant.

My ignorance carried on until very recent times. My observations tell me, however, that I did very little other than reflect the views of other British Columbias who were, like me, moving – at a glacial pace, perhaps – towards a better understanding of what aboriginal peoples stood for and what they meant to our overall community.

Series of legal victories changed the game

Much of the learning process came with pails of cold water from the court system. Decision after decision taught us what the Constitution of Canada plainly said but we did not believe. Many of us did not like what we originally heard.

In my own case, I can say that the light went on and I realized that it didn’t much matter what any of us might have wished the Constitution said, we had to live with it as it was. As time went on it became pretty clear to me and I’m sure to many others that we ought to be respectful of the Constitution because it was in fact right, where we had been wrong.

We simply took the land

As I thought about it, it was not rocket science. The Europeans had come to British Columbia and simply taken the land that they found, created their own land registry system – and Bob’s your uncle. That this was not satisfactory ought to of occurred to us a long time ago but didn’t. It all seemed so right. We had conquered them, hadn’t we?

In fact we hadn’t, and even if we had, modern international law does not regard conquest as the end of the matter. In any event, the laws we as Europeans had made bound us  to adjust our views and recognize native title.

We have reached this point where we must adjust and we must make accommodations. We have no choice but to accept the fact we cannot do as we please with native land or disputed land. And that, in my view, is as it should be. That premier Clark has recognized this and is making moves towards establishing lines of communication is a very good thing.

Mount Polley a game-changer too

There has been another companion change which I have seen in my lifetime and it’s been a very subtle one. Not long ago, Premier Clark, after the Mount Polley disaster, flew over the lake and made the idiotic statement that she would make it pretty again.

Perhaps that wasn’t so idiotic after all because she probably touched a nerve with all of us. Impossible though it may be to change the topography of the area, we all felt the loss of the beauty concurrent with the dam disaster. Perhaps we couldn’t do anything about it and maybe it was silly to pretend we could, but we very much wanted it cleaned up and we were angry about our loss.

People starting to care

For most of my life, industry has been able to move in and tote up the value of the area in terms of timber, minerals, and so on, and the value of the beauty of the area was not part of the equation. We never thought we could quantify a beautiful mountain, lovely lake, or a gorgeous ocean shore. Those things were there, they were ours, but they were not quantifiable in terms of monetary value. As a consequence we simply accepted the fact that they would be impaired or destroyed. We didn’t like it, but we had no choice.

That has slowly but surely changed. I live in Howe Sound and the people of my area are appalled at what may happen to us if there is an LNG plant in Squamish, the trees of Gambier island destroyed or a rock quarry goes into the mouth of McNab Creek. It is not just the traditional concerns that are being expressed – it is the aesthetic values that are front and centre and being expressed in strong terms.

Companies have never understood this nor have the governments that they run. If you were to speak to somebody like the big-mouth easterner, Joe Oliver, minister of finance, who is always flapping on about how BC must accept these desecrations, you would see an indifference to such things as the beautiful mountains, lovely oceans, lakes and so on. That simply does not compute in the minds of people like Oliver, nor the prime minister. These are just not factors to be considered.

Corporations will have to face change

It is much different with the people and changing every day. While Enbridge and Kinder Morgan are stunned at the attitude of people towards their trees and rivers, they and their client governments will have to change. They will have to change because people have changed and insist that those changes they recognized.

People change – perhaps “evolve” is a better word. British Columbians have altered their views on questions of aboriginal peoples and the quantifying of our beautiful surroundings which, just as timber and minerals, have a value. Those changes are new and permanent.

The governments and industry are going to have to adjust to that.

Lead lawyer in Tsilhqot’in Williams Case presents alternate history of BC (from 2008):

To the ends of the Arctic

To the ends of the Arctic: The new frontier of extreme energy


To the ends of the Arctic

By David Lavallee

Documentary filmmaker David Lavallee recently journeyed to Canada’s Arctic for his forthcoming film, To the Ends of the Earth, which drills deep into the modern age of extreme energy. Plans to open the arctic to seismic testing are a source of growing controversy.

“Nanook”, our guide Bryan Simonee says while scanning the ice floe edge. Nanook, nanook. I’ve heard that word before – my brain struggles with recall of its meaning. I know about five words in Inuktituk and this is the 6th. Nanook…nanook of the north? Doesn’t it mean polar bear?

Indeed it does, and this particular one is at about 50 metres and closing, drawn to our camp by the smell of boiled seal soup. A large male. “Uh, is your rifle nearby?” I ask nervously. Simonee’s rifle is already in his capable hands, and he seems mildly annoyed at this curious 1200 pound animal, a highly skilled and highly adapted predator. He walks towards it and growls something in Inuktituk. It pauses, then begins marching sideways instead.

Not satisfied with its slow retreat, Simonee aims his vintage Lee Enfield above its head and fires a warning shot. It stops, looks at us with mild concern and then saunters off with a look that says, “ok FINE then, have it your way.” I breathe a sigh of relief and Bryan says to me:

[quote]Yes, you see, the danger is real.


Extreme energy coming to Canadian Arctic?

Photo: David Lavallee
Photo: David Lavallee

The danger to the Arctic is indeed real, and that is why I’m here. I’m on location shooting my upcoming feature documentary, “To the Ends of the Earth”. This film focuses on our geographical and geological ends of the earth exploration for the last remaining reserves of oil and gas and the economic/environmental consequences of this new energy age. My goal with this film is to begin a conversation I believe we sorely need: what it means to live in an age in which we witness the rise of extreme energy.

Extreme energy is in its infancy in the Arctic, but there is no question that without sustained opposition and visionary thinking to create alternatives, world oil demand will force a final offensive into the most pristine and brutal environment known to humankind – those nether regions of the cryosphere (i.e. ice covered) areas north of the Arctic Circle.

No country for vegetarians

The impending gold rush starts with seismic testing, and that is what has the residents of Clyde River and Pond Inlet concerned. The subsistence hunting culture on Baffin Island dates back 4,000 years, and the advent of modern technologies, such as snowmobiles and high powered rifles, has facilitated that culture, not changed it.

Hunting is more than sport here, it is a way of life and food source for many in an area where a bag of grapes or red peppers could cost up to $20. Vegetarianism is not a realistic option up here, a place where the nearest tree is about 2,000 km away and vegetable gardens have perhaps a one-month out of twelve chance of producing anything, with constant risk of freezing. Tomatoes here? Good luck. “Vegetarian is an-other word for ‘bad hunter’,” said one of there folks we encountered. Free range organic meat is on the menu for sure though – we all enjoy a natvik Bryan shoots and butchers right there on the ice. Now I know what seal tastes like – the texture of beef but the taste of sushi.


It is this subsistence hunting culture that is clashing today with big oil interests who would drill in the Arctic. In the National Energy Board hearings it became clear there would be opposition from locals due to the impacts of seismic on the food chain, or what they would call “country food”.

It all starts with seismic

The so-called regulator held hearings into seismic applications by various companies, who would do the seismic work then sell the data to oil companies. But locals are concerned about the process of consultation and the lack of information from the proponent about seismic and the potential for massive oil spills in such a fragile ecosystem. Indeed they should be – British Columbians and Canadians who watched for several years the NEB process regarding the Northern Gateway saw intense opposition. They poured their hearts out in presentation after presentation with some 96% opposed, only to watch the Harper government approve the pipeline anyways. Perhaps the people of Pond Inlet and Clyde River already know what we southerners have come to learn: that NEB processes to ‘regulate’ oil companies are like kindergarten – everyone passes.

In an interview in Clyde Rive, Jerry Natanine told us:

[quote]Seismic testing is the chief concern at the moment. The impacts will go all the way up and down the food chain.[/quote]

Indeed, there is evidence to support this. An article published in Elsevier, a science journal, questions the impact of seismic testing on narwhals in particular. Narwhal are a food source for the Inuit and are an animal highly dependent on its echolocation capabilities to find its way to the breathing holes in the ice it needs to avoid drowning. The underwater world, especially in winter, is a chaotic, dark and jumbled mess of ice blocks – if ever there was an animal that depended on its sense of hearing it is the narwhal.

As an example, Jerry tells us about a narwhal entrapment north of Pond Inlet in 2008. Locals had rushed to the aid of the beleaguered creatures, all 500 of which were using the same breathing hole to avoid drowning. As they pulled the dead creatures out and attempted to punch new holes in the ice for them they noticed a curious thing:

[quote]They had just migrated from Greenland, where they had actively been doing seismic testing- we think that’s why there was that blood in their ears.[/quote]

Shell’s early foray into Arctic proves a comedy of errors

After seismic testing is complete, gold rush fever sets in. Oil Speculators and their petroleum geologists pour over the data and buy parcels to establish their claims to black gold, under the ice, at the ends of the earth. With the short season, 3 months at best, it can take up to two years to drill an exploratory well only.

The Shell drilling rig that ran aground, The Kulluk (Greenpeace photo)
The Shell drilling rig that ran aground, The Kulluk (Greenpeace photo)

A number of years and a few billion dollars ago, Shell International launched a program to drill in the Arctic, in the Chuckchi Sea off Alaska. Numerous incidents plagued its operations- a fire on one of their ships, an emergency evacuation as several millions tonnes of ice came rushing at an exploratory well which had to pull up stakes, another ship that slipped anchor in Dutch Harbour, AK, and the piece de resistance, the crashing of the Shell Kulluk on the rocks of Kodiak Island, AK, on New Year’s eve 2012.

Since the 2010 Gulf Of Mexico incident, the US Regulator has demanded of those who would drill in the Arctic certain safety precautions such as an Arctic Containment System (ACS) that could theoretically mop up spills in between icebergs. We interviewed Tod Guiton, a local resident of Bellingham (with an apartment overlooking the port) who had been watching Shell fail at this as well – one of the early tests of their containment dome ended up with it being “crushed like a beer can”.

What about growth?

A key focus of society is the environmentally pristine nature of the Arctic and the need to preserve it as such. Indeed this is of critical importance, but is this the only cause for concern? Our interview with Richard Heinberg, author of the book The End of Growth, gave me something else to think about:

[quote]Capital is fleeing big oil right now – it is getting increasingly difficult to fund large scale projects because as we venture into unknown territory (i.e. the Arctic) the chances of success are diminishing. And since there is only so much capital to go around, to spend our last dollars on these foolhardy projects seems like the road to collapse.[/quote]

Whatever dollars go to oil to fund their operations, are societal resources not available to us for transition-ing to clean energy.

Promise of jobs lures some Inuit

Not all the locals of Pond Inlet are convinced that seismic exploration is bad, however. The day after the polar bear incident Simonee and I are discussing the future of Canada’s Arctic and he surprises me by saying: “Seismic could be ok if it’s done right”. Having seen the large pay-cheques of his friends working in the local Mary River iron mine, it is tempting to succumb to the large of black gold as well. But as of 2014, with Shell pulling out of the Arctic, at least temporarily in order to staunch the hemorraghing of investor money, it’s an open question whether it’ll ever happen at all.

As I watch the sun not really set at 2:00 am one morning, casting the world in golden purple rays of unimaginable beauty, I hope it never will.

David Lavallee is a Vancouver-based documentary filmmaker who directed the award-winning White Water, Black Gold and is now filming To the Ends of the Earth.

First Nation slams coverup of mercury poisoning report

First Nation slams coverup of mercury poisoning report

First Nation slams coverup of mercury poisoning report
Grassy Narrows First Nation member protests suspected mercury poisoning in 2013 (Kevin Konnyu / Flickr)

Updated July 29

By The Canadian Press

TORONTO – For years, the federal and provincial governments have known members of a northern Ontario First Nation suffered from mercury poisoning but failed to provide adequate compensation or health care, band members said Monday.

The Grassy Narrow First Nation said it has obtained an unreleased government report that found there is “no doubt” people in the community of roughly 1,600 near Kenora, Ont., suffered from mercury-related neurological disorders — something the band said officials have never formally acknowledged.

“The government has been sitting on this report since 2009,” Grassy Narrows Chief Roger Fobister Sr. said in a news conference in Toronto.

Meanwhile, the Mercury Disability Board, which includes both levels of government, “continues to overlook the sick people of Grassy Narrows,” Fobister said.

The report was commissioned by the board, which administers compensation for those whose health suffered as a result of mercury poisoning. The board could not immediately be reached for comment.

A spokesman for the Ontario Ministry of Aboriginal Affairs said members of Grassy Narrows sit on the board and would have reviewed the report when it was presented in 2010. The board also held an open house in the community to discuss the report, Scott Cavan said.

Both provincial and federal governments said they continue to work to address the issue of mercury contamination.

A spokeswoman for Aboriginal Affairs and Northern Development Canada said Ottawa has contributed more than $9 million in compensation to Grassy Narrows and Wabaseemoong First Nations for economic and social development initiatives.

Critics nonetheless called for the report to be publicly released.

“A coverup involving the poisoning of an entire community is not something you expect to hear about here in Ontario,” NDP Aboriginal Affairs critic Sarah Campbell said in a statement.

“The government owes it to residents to release any information they have about the issue, and to take concrete steps to address ongoing health, nutrition and environmental issues stemming from the industrial waste.”

Water around Grassy Narrows has been contaminated with mercury since a local paper mill dumped an estimated 10 tonnes of neurotoxins into the system between 1962 and 1970.

Grassy Narrows and the Wabaseemoong Independent Nations negotiated an out-of-court settlement with Ottawa, the province and two paper companies in the 1980s. The board was created as part of the settlement.

The report compared the board’s decisions in several cases with diagnoses made by Japanese experts on Minamata disease, a neurological syndrome caused by mercury poisoning, who examined the community between 1975 and 2004.

It found the board recognized only 38 per cent of the cases identified by the experts, noting the discrepancies “are due to different criteria used for evaluations.”

“The approach used by the Mercury Disability Board to assess whether or not an applicant has signs or symptoms consistent with mercury poisoning was designed based on the state of science and knowledge of the impact of mercury on human health in the 1980s,” it reads.

Judy Da Silva, a Grassy Narrows member and activist, said people are being turned away by the board and forced to file appeals, only to remain unsuccessful.

[quote]Everyone should have gotten automatic compensation forever. For us to go and beg for pennies is ridiculous.[/quote]

The band is calling for the government to formally apologize for allowing its people to suffer from mercury poisoning and step up compensation and care.

It also wants the government to clean up the water and block clearcutting projects that could exacerbate the situation.

The province established a mercury working group more than a year ago, but Da Silva, who is part of the group, said progress has stalled without participation from Ottawa.

Cavan said the group, which includes several provincial ministries as well as First Nations members, continues to meet and develop strategies to address mercury-related issues.

“They are researching economic development opportunities for the community, including commercial fishing and guiding with further discussions to take place later this summer,” he said, adding the group is also looking at educational opportunities for youth.


Inuit, Greenpeace team up to battle Arctic seismic testing

Inuit, Greenpeace team up to battle Arctic seismic testing

Inuit, Greenpeace team to battle Arctic seismic testing
Greenpeace’s Les Stroud Les working with Inuit in Pond Inlet (Photo: Laura Bombier / Greenpeace)

By Lee-Anne Goodman, The Canadian Press

OTTAWA – Greenpeace and the Inuit have joined forces to protest Arctic seismic testing, warning that plans to gauge oil and gas reserves with high-intensity sound waves in Baffin Bay and the Davis Strait pose grave dangers to marine life.

Inuit activists are staging a protest Wednesday in Nunavut’s Clyde River, a tiny Baffin Island hamlet just above the Arctic Circle, a week after Greenpeace took their cause to the United Nations.

Inuit takes aim at Aglukkaq

An Inuit environmentalist also took aim at Environment Minister Leona Aglukkaq, a Nunavut MP, accusing the Conservative government of “cultural genocide” for its efforts to open up the Arctic to oil and gas exploration.

“We depend on these waters for food and the very existence of Inuit life depend on them,” said Niore Iqalukjuak in an open letter to Aglukkaq in the Nunatsiaq News.

[quote]We fear that what the Conservative government is doing is a cultural genocide and will end the Inuit way of life as we know it. … You are our representative. Speak up on our behalf.[/quote]

Aglukkaq’s office didn’t immediately respond to a request for comment on Iqalukjuak’s letter or on the protest being held in Clyde River.

Greenpeace, meantime, has thrown its support behind the community.

Greenpeace joins protest

“Proposed seismic testing activities in Baffin Bay will have severe impacts on marine life and traditional lifestyles of coastal indigenous peoples,” the organization’s Arctic campaigner, Farah Khan, said in a statement Tuesday.

[quote]We stand with the community of Clyde River in their efforts to uphold their rights and preserve their traditions.[/quote]

It was an apparent return of fire to Aglukkaq, who criticized Greenpeace this week by challenging the environmental group’s historical opposition to the seal hunt and alleging it’s merely using the Inuit to advance its own causes.

“The reality is that there are lots of environmental groups who say that they speak for and represent Inuit or aboriginal people, while at the same time they campaign against traditional ways of life like the seal hunt,” she told the Inuit Circumpolar Council general assembly in the Northwest Territories.

Strange bedfellows

Greenpeace and the Inuit indeed make strange bedfellows in their campaign against Arctic seismic testing, a contentious method for surveying oil and gas deposits under the ocean floor that can have extensive effects on marine life, including disrupting migration routes.


Greenpeace railed against the commercial seal hunt in the 1980s, and has since acknowledged their campaign had a detrimental impact on the Inuit.

“The consequences of that, though unintended, were far-reaching,” Joanna Kerr, executive director of Greenpeace Canada, said in a recent statement.

She added that the Inuit “take only what they need, and no more. They honour the animals, the land and the ocean.”

Greenpeace also recently drafted and adopted a policy, written with First Nations, in support of indigenous rights to a subsistence lifestyle.

In Tuesday’s statement, the organization chided Aglukkaq for failing to protect her homeland’s environment.

[quote]If Minister Aglukkaq acted as a steward for the Arctic environment — as an environment minister and chair of the Arctic Council should — then she would be listening to the concerns of northerners and acting on them.[/quote]

NEB opens up seismic testing

The National Energy Board, a federal government agency, recently announced it had given the green light to seismic testing in Baffin Bay and the Davis Strait despite protests from the mayor of Clyde River and other Inuit officials and elders. The testing will begin in the 2015 ice-free season.

According to the environmental group Oceans North Canada, Baffin Bay and the Davis Strait are home to an estimated 50,000 narwhals — most of the world’s population. The area is also home to bowhead whales, 116 species of fish and an estimated million seabirds.

Iqalukjuak made reference to the unexpected alliance between Greenpeace and the Inuit in his letter.

“Of all organizations or parties, Greenpeace has stepped up to help fund the court battle (against seismic testing). How embarrassing is that, eh? The very people that helped to destroy our seal industry here helping Inuit on a cause that they both believe,” he wrote.

Two legal challenges filed against Northern Gateway

Two legal challenges filed against Northern Gateway


Two legal challenges filed against Northern Gateway

By The Canadian Press

VANCOUVER – Two legal challenges were filed Friday against the federal cabinet’s approval of the Northern Gateway pipeline.

The Gitxaala (git-HAT’-lah) First Nations, who hail from the North Coast of British Columbia, filed an application for judicial review with the Federal Court of Appeal.

Ecojustice filed a separate application on behalf of ForestEthics Advocacy, Living Oceans and the Raincoast Conservation Foundation.

The environmental groups are asking for a court order quashing the approval of the pipeline proposed by Calgary-based Enbridge (TSX:ENB).

Ecojustice lawyer Barry Robinson says the federal approval was a flawed decision based on a flawed report by the federal environmental assessment panel.

The groups also want the Conservative cabinet to provide reasons for approving the project that would link the Alberta oilsands with a marine terminal on the B.C. coast.

READ: Native law expert: First Nations hold power to stop Enbridge


First Nations, Constitution are Canadians' best defence

Rafe: First Nations, Constitution are Canadians’ best defence

First Nations, Constitution are Canadians' best defence
Chiefs of the Tsimshian First Nation speak out against Enrbidge at a 2012 Prince Rupert rally

Big money now rules the world. The rich get richer and the poor get poorer and the middle class gets squeezed. No government in the world is doing anything about this – least of all the Conservative government in Canada.

The only people fighting this, and for their own reasons, are First Nations. We all do things for our own selfish reasons so that was not meant to be a criticism, but simply a statement of fact.

It is time we looked at the reality of the Roger Williams case in light of the fight against big business and see how it plays out. The best places to look are at the Northern Gateway and Kinder Morgan pipelines.

‘Compelling and Substantive’

In light of the Williams case, they both face the same problem. Each of them must now consult with the appropriate First Nations. They may well consider that since they have been turned down they have already consulted with them to but my advice under the Williams case is to do it again and get turned down again.

They will then have to convince the crown, in this case the federal government, that their project is “compelling and a substantive” and consistent with the crown’s fiduciary obligation to aboriginal peoples.

I, frankly, think that it would be enormously difficult for a government to make that decision under any circumstances I can imagine. If nothing else, the political ramifications across Canada, with every First Nation, would be enormous. For a First Nation anywhere in the country to learn that one of their brethren, in trying to protect the environment of its land, was forcibly frustrated by the government would be a huge blow and would spread throughout the aboriginal community, and in my opinion, rightfully so.

Pipeline approvals will trigger lawsuits

Let us suppose for sake of argument that the crown, whether provincial or federal, does make such a decision. There would be, immediately, a lawsuit. Going on the past, a lawsuit would take five years , minimum, to resolve. Without any doubt it would go to the Supreme Court of Canada and from the company’s point of view, they would realize that the aboriginals have the longest winning streak in history in that court.

The main point is that no matter what, Northern Gateway and Kinder Morgan have got a very long time to wait before they get the final decision in their favour, if they ever do.

Let us suppose they did get that final and for them favourable decision. This would not end the matter because in my view the public of British Columbia would still raise hell and there would be civil disobedience.

In short, I think that the Williams case spells paid to the two pipelines in question.

Exclusive use

There is another interesting feature arising out of the Williams case. A reader of my column in The Tyee points out that the Chief Justice talked about “exclusive use” of the land in question. What if two nations shared land by way of an understanding, tacit or otherwise? Would they not be able to claim that they should to share ownership of that land now because the two of them had had exclusive use?

I suppose the real point I’m making is that there are plenty of legal questions left and I can only wish that I had just graduated from Law School aged 24 instead of having done so in 1956!

First Nations stand best chance of protecting BC

As I have said elsewhere, I by no means think that the Williams case adversely affects development in British Columbia. It changes the rules and it changes who gets the money but First Nations want development too. They are, I might happily add, much more concerned about environmental matters than large international developers or governments. They are concerned about values like caribou, fish, and trees. They, in short, care about the sort of things that many other British Columbians are also concerned about but can’t get their governments to give a damn about.

First Nations know, as we all should know, that “dilbit”, which is the oil that would be transported by these pipelines, is lethal stuff. One need only look at the Kalamazoo River to see what happens when Bitumen, or dilbit, spills. As long as human beings are involved, we will have spills. Many, if not most, of these spills will be in virtually inaccessible places. We know from Kalamazoo that even if they spill is accessed, there is very little the company can do about it.

Living so close to the land and the oceans as First Nations do, they are keenly aware of these facts. Large international companies, and their client governments, don’t give a damn about these things – never have and never will.

The bottom line is that in the great war against marauding capital there is only one “Peter at the dike” and that’s our aboriginal community, as supported by the Canadian Constitution.


Rafe-Time Canadians get used to Tsilhqot'in case, Aboriginal title

Rafe: Time Canadians get used to Tsilhqot’in case, Aboriginal title

Rafe Mair-Tsilhqot'in decision shows Aboriginal title is real
Chief Roger Williams (left) at the the Supreme Court of Canada (Photo: Pei-Ju Wang)

The Tsilhqot’in First Nation’s Roger Williams case victory settles the question once and for all: there is aboriginal title, it is effective, and it can be enforced by aboriginal peoples.

This is a long way from where the law was 25 years ago and for many people that will take some getting used to. No doubt there will be gnashing of teeth and suggestions that perhaps Parliament should change this. Forget it – get used to it – Parliament has no such power as this was a Supreme Court of Canada interpretation of Canada’s Constitution. The only way it can be changed is by a constitutional change and that simply is not going to happen.

There are unanswered questions, of course. What about other aboriginal claims than the ones ruled upon here?

[quote]Canadians are going to have to adjust their attitudes. This is now the law, not some speculative, temporary rule.[/quote]

Decision makes it easier to assert aboriginal title

Each of those of course stands on its own merits. What this case does, however, is make it much easier for aboriginal communities to prove that they are entitled to the land. No longer must they show continuous habitation from ancient times – the fact that they can show a usage going back a reasonable period of time is enough. There will be arguments, of course, but I think one can understand, finally, that the Supreme Court of Canada is going to tend its judgments towards First Nations.

The question, of course, is what will this mean to development in British Columbia. Does this mean that hereafter we become a barren land where no development takes place?

The answer is, of course, no. Aboriginal peoples are going to favour development in certain areas, consistent with their laws and customs. There will continue to be logging, mining, etc., but it will be on entirely new terms. It also will be far more environmentally sensitive.

Enbridge, Kinder Morgan face uphill battle

What this is going to mean, of course, Is the laws of the province and federal government will change, as will be the procedures of business. It is no longer a question of consultation which implies that once that takes place, one can go ahead with what one planned. Now the operative word is “consent” – a very different thing indeed.

There will be something of immediate consequence, of course. In my opinion the Northern Gateway project is as dead as a door nail. There are numerous unceded First Nations territories in question and especially to be noted are those on the coast near Kitimat. Without any doubt, some of these nations will nix the project.

It would be merciful to all concerned if both the Northern Gateway and the Kinder Morgan projects were terminated now.

First Nations could block LNG

There are other projects which are in jeopardy. Much of the proposed infrastructure for liquefied natural gas (LNG) would fall on First Nations territories and will be subject to their veto. It seems to me that the BC government would be very wise to canvas this situation now, rather than wait and have them done individually as they come up. While some nations have embraced LNG, others are already voicing serious concerns.


This could be a very substantial blow to Premier Clark’s plans to make us all rich by LNG. No doubt some of them will be approved, but not all. How wise it would be to sort this out now rather than wait, pretending everything will be OK?

Fear of aboriginal title unfounded

Many of the fears of those who worry about these things are unjustified. From the outset, First Nations have excepted private property from their claims. They have generally made no claim that cities and other settlements within their boundaries should all of a sudden belong to them. The city of Vancouver, for example, covered with aboriginal claims can rest easy at night in the knowledge that their homes and buildings are not going to be torn down and taken away.

In fact, when one looks back at this whole process of some 20 or 30 years, the reasonableness of First Nations in this regard stands out. One is so used to confrontations where everything in the world is demanded in hopes that there be some settlement at the halfway point that the fact that the First Nations have respected the private property of other British Colombians is to be noted.

What does Williams case mean for future?

I arrive back to conclusions about the Williams case.

British Columbians specifically and Canadians in general are going to have to adjust their attitudes. This is now the law, not some speculative, temporary rule. There will be no going back. In fact, there is a great deal of work yet to be done and some of this will be uncomfortable.

There is a power in the Crown, if a project is compelling and substantive, to interfere if to do so is consistent with its fiduciary obligation to aboriginal peoples. I take this to be almost meaningless. It is not a duty to consult, etc., but a power to completely change a decision by a First Nation.

I cannot see any government using this clause – if only for political reasons. It is there as a safeguard but in my view is all but unenforceable. Its only use I can see is as a threat in extraordinary circumstances.

For First Nations, this has been a long struggle, going back perhaps 200 years or more. The issue was not settled by conquest, if only because no conquest existed. Even then, lands conquered are not ordained by God to stay that way. Obviously, there were no treaties involved. The Europeans simply came in and took the land.

It’s under those circumstances congratulations are due First Nations and the rest of the community must simply resolve to make the best of the situation.

In my view, life will go on.

Liberal govt hubris handed Tsilhqot'in First Nation bigger legal victory

Liberal govt hubris handed Tsilhqot’in Nation bigger legal victory

Liberal govt hubris handed Tsilhqot'in First Nation bigger legal victory
The statue ‘Ivstitia’ (Justice) guards the entrance of the Supreme Court of Canada (Sean Kilpatrick/CP)

The BC Liberal Government just couldn’t leave well enough alone. In choosing to appeal the Tsilhqot’in First Nation’s BC Supreme Court victory over land title and rights, the government set in motion a chain of events that could have profound consequences for its future resource development plans.

The Tsilhqot’in won a landmark legal victory affirming title and rights over 200,000 hectares of their traditional territory, west of Williams Lake, at the BC Supreme Court in 2007 (with limited rights to an even larger area). The 17-year case was the longest and arguably most important in the provincial court’s history. But at the lowest level of the courts, its ramifications remained unclear – especially as they applied to other territories.

Then, the BC government decided to challenge the ruling – initially winning a small victory in 2012 at the Court of Appeal, which undermined key aspects of the lower court’s decision. But the move would ultimately backfire.

BC government its own worst enemy

Like other seminal aboriginal rights cases such as Haida and Delgamuukw before it, in choosing to appeal the Tsilhqot’in case, the province ultimately made matters much worse for itself by entrenching the substance of the lower-court decision in the highest judicial precedent of the land, when the Supreme Court of Canada handed down its verdict this week. The SCC’s decision maintained the nation’s title and rights to 170,000 square hectares – essentially affirming the BC Supreme Court’s original ruling.

The choice of the Liberal government to roll the dice with the higher courts was likely motivated by two factors: 1) Its fixation on the proposed Prosperity Mine at Fish Lake, in Tsilhqot’in territory; and 2) Concerns over the broader implications for its resource development program throughout province if the BC court decision stood.

By proceeding with the challenge, the government failed spectacularly on both accounts.

The Fish Lake that got away

The province’s unrelenting support for Taseko Mines’ Prosperity project saw it clash with the Harper Government on several occasions. It rubber stamped the mine’s first iteration, only to watch federal Environment Minister Jim Prentice shoot it down after the panel reviewing it identified serious environmental and First Nations issues.

Then, the Liberal government stirred up a hornet’s nest when it issued exploratory permits to the company. The First Nation balked, evicting contractors from the territory. After Taseko obtained an injunction against the nation, the Tsilhqot’in got it overturned.


While all this legal wrangling over the mine was going on, the province was appealing the separate-but-related BC Supreme Court decision on the nation’s title and rights.

When the company submitted a new proposal for the mine in 2013, it too was rejected in February of this year. The company, still unwilling to take “no” for an answer, is now seeking a judicial review of the second rejection – but this week’s SCC decision surely must represent the final, final nail in the coffin for Taseko’s ill-fated mine.

What does ruling mean for Enbridge, other projects?

The SCC ruling’s impact on other contentious resource projects, like the proposed Enbridge and Kinder Morgan pipelines, remains to be seen. “Just because the Supreme Court of Canada has issued this claim doesn’t mean that the government is going to start giving all the land back to the aboriginal people,” says Garth Walbridge, a Métis lawyer.

[quote]But it could have a serious economic impact. The size of the boulder that Enbridge is rolling up the hill to get their pipeline built just got much bigger today, because the First Nations in that part of the country now have much much bigger say in whether or not Enbridge can go ahead.[/quote]

In pushing the case to the Supreme Court of Canada – and losing, big time – the BC Liberal government has ensured that these questions will be central to all resource development in the province going forward.

November 2011 injunction case over Prosperity Mine

Gitga'at women erect symbolic blockade of Enbridge tanker route

Gitga’at women erect symbolic blockade of Enbridge tanker route

Gitga'at women erect symbolic blockade of Enbridge tanker route
Photo: Andrew Frank/Flickr

By The Canadian Press

HARTLEY BAY, B.C. – The women of the Gitga’at Nation of British Columbia planned to erect a symbolic blockade made of yarn across the Douglas Channel on Friday to protest the federal government’s approval of the Northern Gateway pipeline.

The crochet chain was expected to stretch 2.5 nautical miles, or about 4.5 kilometres, across the opening of the narrow channel tankers will have to navigate to a marine export terminal set to be located in Kitimat, on the north coast.

“It’s to show that we’re prepared to do what it takes to stop them because we can’t let it happen. It’s the death of our community, our culture,” said Lynne Hill, who came up with the crochet blockade.

[quote]And if there was an oil spill there would be nothing left.


Members of the community in Hartley Bay — best known for rescuing passengers from the Queen of the North ferry as it sank in 2006 — initially planned to set out at 6:30 am to string the crochet chain across the water.

That departure was delayed by weather, and a flotilla of boats planned to set out by noon to drape the multi-coloured yarn, decorated with community memorabilia and messages of hope, between buoys across the ocean. The slender chain is more than six kilometres long to ensure it will reach from one side of the narrows to the other.


Hill, 70, said the protest began in Hartley Bay and spread, with supporters sending in crochet links from all over Canada. One woman knit an entire kilometre-long link by herself, she said.

On Tuesday, the federal government granted final approval to the pipeline that will bring oil from Alberta to the B.C. coast for export, with 209 conditions. Hill said it was a devastating day for the Gitga’at.

She said community members will see the tankers from the project pass right in front of the remote community at the mouth of the channel, about 630 kilometres north of Vancouver. The village is reachable only by boat or plane.

“We thought right down the line that somebody that cared would be listening to what we were saying. Not just us — to what lots of people were saying,” she says.

[quote]When the joint review panel was here we thought they were listening. We thought they heard what we had to say.[/quote]

Hill says the crochet chain is a warning that the Gitga’at will do what it takes to stop the pipeline.

“We get our food from the sea. We travel on the sea,” she says.

Check out Gitga’at Chain of Hope Flickr photostream by Andrew Frank

Haida stand with Fort Nelson First Nation on LNG, fracking concerns

Haida stand with Fort Nelson First Nation on LNG, fracking concerns


Haida stand with Fort Nelson First Nation on LNG, fracking concerns

The Council of the Haida Nation (CHN) is vowing to support The Fort Nelson First Nation’s tough stand on proposed Liquefied Natural Gas (LNG) development and the 600% increase in controversial shale gas fracking it would represent for their northeast BC territory.

According to The Northern View, a recent visit to Haida Gwaii by FNFN Chief Sharleen Gale was met with sympathy from the Haida audience. Gale was there to bring to light the upstream implications if CHN were to support the province’s vision for LNG development, which would also mean significant tanker traffic through Haida waters.

The chief shook up the LNG debate several months ago when she put the BC Liberal government on notice that no development would proceed without proper consultation with her community (see video below).

Haida concerned about upstream impacts of LNG

CHN has been mulling its official position on LNG over the past year. The elected government of the Haisla Nation – across Hecate Strait from Haida Gwaii – has bought into the industry, forging partnerships for LNG terminals in Kitimat. The Haisla quit the Coastal First Nations alliance in 2012 over internal disagreement around LNG development.

Meanwhile, other First Nations along the proposed pipeline routes are opposing this development – many of them citing growing concerns about the upstream implications of these decisions, as support for LNG would mean vastly increased fracking in northeast BC to supply the feedstock.

CHN and other Coastal First Nations members have also been examining the potential impacts of the LNG industry on the coast – everything from air quality and climate issues to the impacts of tanker traffic and dumping bilge water in the marine environment.

Province’s ‘less-than honourable dealings’

According to The Northern View, CHN President Peter Lantin and Vice-president Trevor Russ have twice ventured to northeast BC to learn about the impacts of LNG development on Treaty 8 and Fort Nelson First Nation territories. 

“It would be irresponsible for us to take a position without understanding the effects on the people most affected,” said Lantin following Chief Gale’s speeches to CHN and public gatherings in Massett and Skidegate.

Added Russ:

[quote]Their story is of a people and landscape being overrun by natural gas exploration and extraction and less-than honourable dealings from the provincial government.[/quote]

Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs, went one step further at a recent town hall meeting on LNG at SFU’s downtown Vancouver campus. “The economy of this province is being built on the destruction of the Northeast,” said Phillip. “The pipelines that are being contemplated by LNG will further destroy the North.”

No support for LNG until First Nations’ concerns addressed

Following these Haida Gwaii meetings with Chief Gale, the Haida Nation decided not to take an official position supporting or opposing LNG “without ensuring that the interests of the people at the source of the LNG are taken care of,” says The View.