First Nation To Claim Land Title To Block Pacific NorthWest LNG Terminal

Pacific NorthWest LNG’s marine terminal (Credit: Pacific Northwest LNG via Facebook)

The Canadian Press

LELU ISLAND, B.C. — A northern British Columbia First Nation says it is seeking aboriginal title to the land where a Malaysia-led consortium hopes to build a $36-billion liquefied natural gas terminal.

The Lax Kw’alaams First Nation says it will launch an action claiming title to Lelu Island and Flora Bank, where the Pacific NorthWest LNG project would be built.

The nation says if it successfully establishes title, the province would have to seek its consent for massive projects like the one spearheaded by Malaysia’s state-owned Petronas.

Mayor Garry Reece says the Lax Kw’alaams are open to development including the Pacific NorthWest project, but only if an alternate site is found to avoid Flora Bank.

The nation says the area is a critical fisheries habitat located in the estuary of the Skeena River and it is concerned that construction would irreparably harm salmon stocks.

Earlier this spring, Lax Kw’alaams members overwhelmingly rejected a $1.15-billion package from the company and province.

Source: The Vancouver Observer

Court Rules BC First Nations Can Sue Over Territorial Claims

Aerial view of Moose Cree First Nation photo credit: Danny Kresnyak

The Canadian Press | Posted, Apr 16th, 2015

Industrial giants, from forestry companies to mining operations, must respect aboriginal territorial claims in British Columbia just as they would heed the rights of any other Canadian landowner, the province’s highest court has ruled.A decision from the B.C. Court of Appeal paves the way for First Nations to launch lawsuits to protect their territory from private parties, even without proving aboriginal title.

Two northwestern First Nations expressed vindication on Wednesday after a panel of three judges overturned a lower court ruling that denied them opportunity to sue the aluminum producer Rio Tinto Alcan.

The Saik’uz and Stellat’en First Nations, based downstream of the company’s Kenney hydroelectric dam and reservoir, were refused a trial on the premise that aboriginals must first establish their title. Their initial suit was mounted in September 2011.

The nations contend the dam, in operation since the 1950s, causes nuisance and breaches their rights to the natural waterway that runs through their land. They’re seeking damages for property-rights violations, alleging the electricity generator has harmed the Nechako River system and its fisheries.

The decision means they can now take their claims to trial.

“We are pleased that the Court of Appeal recognized that First Nations’ aboriginal title exists, prior to proof in court or treaties with government,” Stellat’en Chief Archie Patrick said in a news release.

He said the decision grants aboriginals the same private-law protections as other individual landowners.

“Our peoples are determined to continue to seek justice for our rights and the Nechako River,” he said.

The Kenney dam provides water for Rio Tinto’s power generation facility that’s used by its aluminum smelter located in Kitimat.

Rio Tinto Alcan has 60 days to apply for leave to appeal to the Supreme Court of Canada. A spokesman said the company is reviewing the decision.

The judge who wrote the decision said that the law is clear that Aboriginal rights “do exist prior to declaration or recognition.”

Justice David Tysoe wrote that setting a separate standard for Aboriginal people, before they can sue other parties to enforce their rights, is arguably inconsistent with the charter right to equality.

“Aboriginal people are part of Canada’s community, and they should not be treated disadvantageously in comparison to any other litigant asserting claims…,” he wrote.

Lawyer Gregory McDade, who represents the two First Nations, said there’s been no previous case law on aboriginal title and called the decision significant.

“I would put it on the level of the Haida decision and the Tsilhqot’in decision in terms of moving the law forward so that aboriginal rights are recognized like other Canadian legal rights.”

The Haida ruling, in 2004, established that Crown has a duty to consult with First Nations regarding land use. The more-recent Tsilhqot’in decision is a landmark ruling in which the Supreme Court of Canada recognized aboriginal title to a specific tract of land for the first time in the country’s history.

That decision, last June, concluded a 25-year-long legal battle.

Another mining company endorses Kaska resource law

Ross River, Yukon, is part of the Kaska Dena traditional territory, which comprises about 23 per cent of Yukon and part of northern British Columbia.

By Nancy Thomson, CBC News

Kaska law will govern use of resources on traditional territory

A lawyer who represents the Kaska says Yukon Premier Darrell Pasloski may not understand how the Kaska have the inherent right to self govern.

Steve Walsh was referring to comments made recently by Pasloski.

The premier told CBC News that because the Kaska haven’t signed a final land claim and self government agreement, they still fall under the Indian Act, and can’t pass their own laws.

The five Kaska First Nations have issued a declaration, saying they will pass a Kaska resource law this summer.

They say it will be used to govern the use of resources on Kaska territory.

Walsh says the Constitution clearly outlines the rights of First Nations when it comes to governing themselves.

“I was very surprised to hear Premier Pasloski refer to the Indian Act ..  the inherent right of self government was recognized by the government of Canada 20 years ago in 1995,” he says.

“It’s a right protected under section 35 of the Constitution Act 1982 as an existing aboriginal right. So the question whether the Kaska can pass a resource law has nothing to do with the Indian Act, it has to do with their inherent right of self government.”

A lawyer who represents the Kaska says Yukon Premier Darrell Pasloski may not understand how the Kaska have the inherent right to self govern. (CBC)

The Kaska also take exception to Pasloski’s reference to “asserted” aboriginal rights and title.

Walsh says the Kaska have signed agreements with the Yukon government, in 1997 and 2003, that did acknowledge title.

“They contain very clear acknowledgements of the Kaska’s aboriginal title and rights to their traditional territory….those agreements were negotiated and concluded in good faith and I think that for the government to turn around, after the government obtained what it wanted under those agreements…and then repudiate that title and rights is inconsistent with the honour of the Crown and constitutes bad faith.”

Walsh says “there’s a world of difference” between recognition of asserted aboriginal title and acknowledgement of aboriginal title.

He says the Kaska also have strong case law on their side, referring to the 2012 decision by the Yukon court of appeal on quartz mining claims staking within the traditional territory of the Ross River Dena Council, one of the Kaska nations.

“The Yukon Court of Appeal, the territory’s highest court, recognized in crystal clear terms that aboriginal title includes title to resources. And the Kaska take that clear statement of the law and combine their inherent right to self government and decide that they intend to pass a Kaska resource law.”

Walsh says the resource law is about providing certainty for industry.

“The real question isn’t whether the Kaska can enact a resource law, the real question is whether such a law will help to promote investment and development of Yukon’s resources and what I understand is that industry is responding very positively. They like the idea of having a clear set of rules to operate by.”

‘I see absolutely nothing but positive:’ Golden Predator CEO

And mining companies with properties in the Kaska territory are soundly endorsing the idea.

Janet Lee-Sheriff is the CEO of Golden Predator, which has three properties: 3 Aces, Grew Creek, and Sproge.

Golden Predator has three properties in Kaska territory including the 3 Aces gold project.

Lee-Sheriff is enthusiastic about the resource law. She says her company already has an exploration memorandum with the Kaska.

“We see this as a very exciting time for the Kaska and for ourselves,” she said.

“We’re very excited by the announcement. We’re…accustomed to adhering to government legislation and we don’t see this being any different than similar working relationships we’re expanding on with the Kaska.”

Lee-Sheriff says such a law would be very helpful to companies such as Golden Predator.

“Our concern and our objective is to make sure that we maintain an excellent working relationship and go forward together.

“It’s important that we all are together on these things and it’s the only way you’re going to make mining happen. The Kaska have never been ‘anti-mining.’ They’ve been very supportive of us, and I don’t want to speak for them but I view it as they just want to be partners in the process and be at the table.”

Earlier this month, North American Tungsten called the Kaska resource law an “exciting and positive” development.

Yukon should stop ‘butting heads with First Nations:’ lawyer

Bill Gallagher, a lawyer who specializes in aboriginal rights and resource development, was a keynote speaker at November’s Yukon GeoscienceForum.

Gallagher advises the Yukon government to stop “butting heads with First Nations” and instead engage them in a “genuine fashion.”

He says industry recognizes that need.

“They say ….’we’re going to be tenants one way or another, we are not the resource owner, we’ll work with whoever can give us certainty,'” he says.

“There’s a key message North of 60. First Nations are emerging as resource rulers and this group, the Kaska, are definitely in the ‘top ten’ of that list in the country. They are well on their way to calling the shots in terms of accepting projects they are prepared to participate in and denying projects that they don’t want.”

Walsh says the Kaska are willing to work with the Yukon government.

The Kaska have said they are not seeking to replace Yukon government laws with their resource law.

Canada Responds to Tsilhqot’in Decision: Extinguishment or Nothing!

Image source: warriorpublications.wordpress.com

By Russell Diabo and Shiri Pasternak | New Socialist 08 Feb 2015

This is the third in a three-part series on the landmark Supreme Court of Canada Tsilhqot’in v. British Columbia decision last June, first published in First Nations Strategic Bulletin. Part 1, “The Tsilhqot’in Decision and Canada’s First Nations Termination Policies” can be found here. Part 2, “The Tsilhqot’in Decision and Indigenous Self-Determination” is here.

“Our government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements,” stated Minister of Aboriginal Affairs and Northern Development Canada (AANDC) Bernard Valcourt on the day the final Tsilhqot’in decision came down in June.

After 25 years of litigation, millions of dollars in legal fees, and 399 days in court for the Supreme Court hearing alone, the Tsilhqot’in people might have preferred a negotiated settlement, too. But not the kind the Government of Canada was offering. The Minister was referring to the Comprehensive Land Claims policy, the Government’s preferred method for dealing with unceded Indigenous territory in Canada.

For critics of Canada’s Comprehensive Land Claims policy, the federal government’s response to the Supreme Court decision conveyed an automatic and outright denial of the Court’s watershed finding that the Tsilhqot’in Nation held underlying Aboriginal title to their territorial lands. The land claims policy, referred to by critics as the “termination tables,” requires Aboriginal groups to cede their Aboriginal title and circumscribe their Aboriginal rights upon settlement through the use of two legal techniques: “Modification” of Aboriginal Title and/or “Non-Assertion” of rights.

To push the land claims policy at a moment when the Supreme Court of Canada successfully challenged one of its worst aspects – extinguishment – was a stark message for the federal government to send.

At a press conference in the weeks following Canada’s initial reaction, Minister Valcourt expanded on his Department’s approach to unceded Indigenous lands, now evading any mention of the Tsilhqot’in decision.

He introduced new measures to promote “reconciliation” in advance of and outside of the Comprehensive Land Claims policy and to accelerate the signing of “modern treaty” agreements. He also promised the introduction of new consultation guidelines for government and industry with regards to First Nations over natural resources.

Would these changes reflect the recognition of Aboriginal title won under Tsilhqot’in?

Consultation as extinguishment

At the press conference, Minister Valcourt announced the appointment of Douglas Eyford as the Ministerial Special Representative to assist Canada to reform the Comprehensive Land Claims policy. This appointment signals an end to the Assembly of First Nations (AFN) – Canada Comprehensive Claims Senior Oversight Committee (SOC). Prime Minister Harper established SOC during a meeting with the Assembly of First Nations in Ottawa on January 11, 2013 in order to address grievances with the policy.

But the appointment of Eyford marks the real direction the government is taking to address First Nations’ grievances. In 2013, Eyford acted as the Government’s Special Federal Representative on West Coast Energy Infrastructure. The “Eyford Report” focused on consultation and engagement with First Nations over energy infrastructure. The report mentions Aboriginal title only once, in passing. Thus, Eyford has been instrumental in creating the template for denying Aboriginal title through consultative mechanisms.

The focus of consultation in his 2013 report is on “reconciliation.” However, it is clear from the report that it is Indigenous peoples who must do all of the reconciling of their pre-existing sovereignty with Canadian claims to underlying title.

The mandate of the Eyford Report is linked to the Government of Canada’s agenda of expanding export markets for oil and gas. Spelled out early in the report, Canada’s priority is the need to “capitalize” on global energy demands, therefore “to construct pipelines and terminals to deliver oil and natural gas to tidewater.”

The Projects listed as crucial here are the expansion of Kinder Morgan’s existing Trans Mountain Pipeline, Enbridge’s Northern Gateway Pipeline, and several proposed natural gas pipelines and related upstream developments. Projects also include the development of liquefied natural gas (LNG) facilities in Kitimat and Prince Rupert, tied most directly to potential Asian markets.

The “impediment” to Canada’s diversified energy market – crucial because Canada’s principal customer is the United States, which is expanding its energy sources – is that Aboriginal peoples hold constitutionally protected title and rights with which industry and government must legally comply. In other words, the objective of Aboriginal Affairs’ recent announcement on the land claims policy was not to reconcile the policy with the Supreme Court’s findings on Aboriginal title, but to accelerate the policy framework of Aboriginal title extinguishment, particularly in the areas of major resource development projects like the proposed pipelines in British Columbia.

The Black Box

The federal government is fighting tooth and nail against ceding an inch of legal authority over land despite the pronouncement from the highest court in the land. According to figures recently released by Parliament (as reported in the Law Times), oil and gas disputes have been the top expense for AANDC for the past three years.

The federal government has been either fighting First Nations in court – the last resort for Indigenous peoples trying to defend and protect their lands – or pushing groups into the Comprehensive Land Claims policy, many of them through the British Columbia Treaty Commission process, since 50 percent of the current Comprehensive Land Claims negotiation tables are in British Columbia.

So, what should the Government of Canada’s response have been to the Tsilhqot’in decision?

When the SCC Delgamuukw (1997) decision came down, recognizing that Aboriginal title underlies provincial fee simple interest in the land, by a resolution of the Chiefs-inAssembly, the AFN established a group to leverage the Supreme Court decision to change the Comprehensive Land Claims policy. The AFN Delgamuukw Strategic Implementation Committee (DISC) commissioned a legal analysis, prepared by Mark Stevenson, to find any discrepancies between the policy and the decision.

Two initiatives sprung from AFN-DISC: an Aboriginal Title Alliance and an aborted judicial review undertaken by the Assembly of First Nations to examine the Minister of Indian Affairs’ decision not to review the policy, given the ground-breaking ruling. Both of these efforts failed due to internal division between First Nations leaders who had agreed to negotiate under Canada’s Comprehensive Land Claims policy and those First Nations leaders who are not negotiating under the Comprehensive Claims policy.

Perhaps a new Aboriginal Title Alliance will form today. Are there too many Aboriginal groups at the Comprehensive Land Claims negotiating tables that have borrowed money from the federal government for land claims negotiations to exert any pressure on the government to change the policy, as has been the case in the past? Or can a political movement of Aboriginal Title holding groups build the unity and strength to hold Canada to account for administering illegal unjust policies that violate Aboriginal title, rights and international protocols protecting Indigenous peoples from land dispossession?

There are fundamental changes that Canada could make to reform the Comprehensive Land Claims policy for the better. In her decision, Justice McLachlin specifically rejected what UBCIC Grand Chief Stewart Philip called the “postage stamp” theory of Aboriginal title. Instead, the court opted for a more expansive understanding of Indigenous land rights over a broad territorial range. Yet the land selection process under the Comprehensive Land Claims policy is precisely the kind of site-specific approach to addressing underlying Aboriginal title that the SCC rejected. The entire territorial range including private lands should be on the table at least for compensation, and Aboriginal title should not be extinguished upon settlement or transformed into private property.

Currently, there is no way to get a Declaration of Aboriginal Title in Canada without enduring a costly and timely research process and court case, which most groups cannot afford. The Comprehensive Land Claims policy is the sole federal policy by which unceded lands may be settled, yet it requires that bands extinguish their pre-existing Aboriginal title through a negotiated title conversion process into fee simple title.

What alternatives exist? Valcourt clearly signaled that Canada is not willing to change the structure of settler colonialism in Canada. Only a political movement of Indigenous Peoples and supporters from Canadian civil society who support justice and reconciliation with Indigenous peoples will convince him otherwise.

Russell Diabo is a member of the Mohawk Nation at Kahnawake. He is Editor and Publisher of the First Nations Strategic Bulletin, a web-based newsletter available from the Canada Library and Archives website in Electronic Collections. For more information, contact rdiabo [at ] rogers.com.

Shiri Pasternak is a researcher and activist who has worked closely with the Algonquins of Barriere Lake as an ally in their resistance to the federal land claims process in Canada. She is a founding member of Barriere Lake Solidarity, a member of the Indigenous Sovereignty and Solidarity Network in Toronto, and an ally in the Defenders of the Land network.

An earlier version of this article was published in First Nations Strategic Bulletin 12, 8-10 (August-October 2014). Part 1 in this series, “The Tsilhqot’in Decision and Canada’s First Nations Termination Policies” can be found here. Part 2, “The Tsilhqot’in Decision and Indigenous Self-Determination” is here.