Points of Contact, Fall 2013

Posted: October 31, 2013 in Marc Pinkoski

Two important contacts between the Canadian state and Indigenous Peoples located within its borders are about to manifest: The Panel Recommendations to federal cabinet regarding the proposal for a large open-pit gold/copper mine near Williams Lake, BC is set to be released in a few hours; and the Tsilhqot’in Aboriginal rights and title appeal before the Supreme Court of Canada will be heard November 7, 2013.

The recommendations of the federally appointed panel are important because they will speak to the second significant proposal to mine the ore-body present around an area called Nabas. The three-member Panel’s recommendations are the culmination of about two years of work, including hearing live testimony for almost one month this summer, hearing and receiving evidence to determine “adverse environmental effects” of the proposed mine (and whether they have been mitigated).

A similar proposal was considered by another panel in 2009/10 and their numerous and deep concerns were heeded by the federal minister of the environment at the time, Jim Prentice, when he rejected the initial proposal. Their assessment concluded that if the mine were to be developed as proposed, it would cause irreparable damage to Aboriginal rights, fish stocks and habitats, and at-risk grizzly populations.

Notwithstanding the rejected proposal, the mining company, local politicians and the Williams Lake Chamber of Commerce lobbied federal cabinet for changes to various environmental assessment laws and obligations. This lobby was successful and changes to Canadian environmental law are contained in the massive omnibus legislations passed by parliament in 2012. The panel is set to release their non-binding recommendations to the new minister of the environment, Leona Aglukkaq, and she along with cabinet will decide the future of the project.

Below are some of the instructions the second panel has been charged with:

  • The Panel shall conduct an assessment of the environmental effects of the Project referred to in the Scope of the Project (Part 1) in a manner consistent with the requirements of the Canadian Environmental Assessment Act, 2012 (the Act) and these Terms of Reference.

The assessment by the Panel shall include a consideration of the following factors:

  1.  the environmental effects of the Project including the environmental effects of malfunctions or accidents that may occur in connection with the Project and any cumulative environmental effects that are likely to result from the Project in combination with other projects or activities that have been or will be carried out;
  2. the significance of the environmental effects referred to in the above paragraph;
  3. comments from the public and Aboriginal groups that are received during the review;
  4. measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the Project;
  5. the need for the Project and alternatives to the Project;
  6. the purpose of the Project;
  7. alternative means of carrying out the Project that are technically and economically feasible, and the environmental effects of any such alternative means;
  8. the need for, and the requirements of, any follow-up program in respect of the Project;
  9. the capacity of renewable resources that are likely to be significantly affected by the Project to meet the needs of the present and those of the future.
  • The Panel shall use the information, submissions and testimony generated as part of the 2009/2010 review, including the 2009 Environmental Impact Statement for the previous project (2009 EIS) and the Report of the Federal Review Panel for the Prosperity Gold-Copper Mine Project dated July 2, 2010 (previous panel’s report) to conduct its assessment. This information will be supplemented by a new Environmental Impact Statement (EIS) prepared by the proponent and, as required, by additional information generated through the panel process.

The public hearing and the subsequent recommendations will be an indicator of how changes to federal environmental laws will played be out. Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs, said

This bad project is one of the first to be forced through the now gutted federal environmental review process borne out of the Harper Government’ omnibus bills C-38 and C-45. If this review fails to come to the same conclusion as the last one, then we’ll know that the changes to the EA process are indeed about approving disastrous and unscrupulous projects over the objections of First Nations and the general public and at the great expense to the environment.

In this way, the two hearings and recommendations will provide a test case for changes as essentially the same project is considered.

Amongst the raft of environmental changes to federal law is the role public hearings take in fulfilling the government’s constitutional duty to consult with Indigenous Peoples about development projects that occur in their territories, a duty that increases in obligation with the strength of the Indigenous Peoples’ assertion to rights in the area. This means that environmental hearings, like the one for proposed mine, are meant to satisfy the government’s responsibilities and are a sort of microcosm of Indigenous-state relations. They occur in a public forum, are sanctioned by the state, and meant to satisfy a component of Aboriginal rights under Section 35(1) of the Constitution Act.

So for Tsilhqot’in, the hearing and the recommendations that are set to be handed to cabinet within the hour are important for how resources are accessed and developed on their lands and for how the settler-community around them follows the laws of the state that they claim to uphold. The implications for other Indigenous communities are tremendous, as this will be a road map for future development projects and how the state will interact and build relations with local Indigenous communities.

The second important point of contact upcoming between the state and Indigenous peoples is now closely tied to the first and the burden once again falls to Tsilhqot’in. Following decades of litigation to limit and stop certain resources extraction in their territories, Tsilhqot’in have pursued legal remedies through the Canadian court system. For instance, Tsilhqot’in brought a rights and title case against the BC government a process that led to a trial in Victoria, BC. After hearing testimony for much five years, BC Supreme Court Judge Vickers recognised that Tsilhqot’in have Aboriginal rights to the land to which they are asserting control.

I will write more about this case and its appeal in the coming days, but it is important to note that the relevance of this case. Following the instructions of two precedent setting cases handed down by the Supreme Court of Canada in the 1990s (Van der Peet 1996 and Delgamuuk’w 1997), Tsilhqot’in Nation also serves to be a test and indicator for how Indigenous Peoples’ are received, understood, and treated by the state. Quite simply, after years of going to court and satisfying settler law if Tsilhqot’in are not fully consulted and have a strong, legitimately heard voice in the goings-on of their community, then this is certainly a death-knell for aboriginal rights in Canadian law.

Robert Phillips, from the First Nations Summit, ominously recognises that

This is also a test case of the federal government’s commitment to First Nations Title, Rights and Treaty Rights. If spending 20 years in court proving our rights means nothing at the end of the day, then we’ll only see conflict on the ground.

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