Willie Moon’s family used to catch hundreds of salmon a day on B.C.’s Kingcome River, ensuring a winter supply of smoked fish for members of the remote Dzawada’enuxw First Nation.

“This year I had my net in for the winter dog salmon [chum] and I believe I only caught 13 in the month of November,” Moon, a hereditary leader, told The Narwhal.

“That’s drastic and scary for our people.”

Moon and other members of his community were in Vancouver Thursday to file an Aboriginal rights lawsuit against Canada that challenges federal fish farm licenses within their traditional territory in the Broughton Archipelago — the latest action in the nation’s escalating bid to revive shrinking Pacific salmon and eulachon stocks.

If successful, the lawsuit would not only close fish farms that affect the Dzawada’enuxw nation but could potentially be used by other First Nations to shut down salmon farms throughout B.C.’s coast, according to lawyer Jack Woodward, who is representing the Dzawada’enuxw [pronounced ‘tsa-wa-tay-nook’].  

“Somewhat unfairly, the focus has been on the provincial government’s role in this,” Woodward said in an interview.

“They’re just the landlord… It’s not nice for a landlord to rent space to a person who carries on an illegal business but the real culprit is the person who carries on that illegal business. And that’s exactly what we say is happening here. It’s Canada who’s authorizing this illegal business. It’s the provincial government that rents the space for it.”

Left: A map of Dzawada’enuxw traditional territory, filed as part of the First Nation’s claim. Right: location of fish farms in the Broughton Archipelago.

Last May, the Dzawada’enuxw First Nation took its quest to shut down fish farms to a new level when it filed a claim of Aboriginal title in B.C. Supreme Court, claiming that tenures granted by the province to several companies — the leases that give the farms a place to operate — are not authorized because they are in Aboriginal title areas.

But the lawsuit filed Thursday marks the first time a First Nation has ever challenged fish farm licenses granted by Ottawa based on the assertion of Aboriginal right, said Woodward, who represented the Tsilhqot’in Nation in a landmark case that determined the nation holds title to about 1,900 square kilometres of its traditional territory in B.C.

“These challenges to the federal permits are different,” Woodward said in an interview. “They are challenges to the idea, in contravention of the Dzawada’enuxw’s Aboriginal rights, that you can introduce Atlantic salmon to Pacific waters. That’s the fundamental problem here.”

Farmed Atlantic salmon affecting wild Pacific salmon

There is mounting evidence that Atlantic salmon farming adversely affects declining Pacific salmon runs.

The DFN federal court statement of claim says fish farms expose wild salmon and eulachon populations to higher levels of harmful fish parasites, including sea lice.

It states that viruses, including piscine orthoreovirus (PVR) are known to occur in farmed salmon raised in open net pen farms on the B.C. coast and can be transferred to wild salmon and eulachon populations.

It also claims there is a credible body of scientific evidence indicating a direct link between PRV and heart and skeletal muscle inflammation (HSMI), noting that both PRV and HSMI are known to have deleterious effect on fish.

Fish farms pollute and degrade the marine environment around the net pens and underwater lights can attract wild eulachon and salmon and expose them to increased risk of harm and predation, the statement of claim also says.

“I believe they’re doing a lot of damage to our seafood,” Dzawada’enuxw member Melissa Willie told The Narwhal. “I work in fisheries and I see the damage.”

All five species of salmon are usually found in the Kingcome River, although chum, coho and spring are the most common, Willie said. But last year salmon were so scarce that her smokehouse sat unused. She and other community members had to fill their freezers with sockeye caught outside of their community, said Willie, the DFN fisheries community coordinator.

Fish farms could remain in Broughton

In December, following negotiations with some First Nations but not with the Dzawada’enuxw, the B.C. government announced what it called a “ground-breaking” process.

The government said new recommendations would allow for an orderly transition of 17 fish farms, operated by Marine Harvest Canada and Cermaq Canada, from the Broughton area by 2024 and establish a “farm-free migration corridor in the Broughton in the short term to help reduce harm to wild salmon.”

But seven of the fish farms would be permitted to remain if aquaculture companies reach agreements with First Nations, and displaced salmon farms would be able to set up shop elsewhere on the coast.

The December recommendations were brokered between the B.C. government and three First Nations, but not with the Dzawada’enuxw. Woodward said the recommendations do not address the Dzawada’enuxw nation’s concerns, which include the impact of fish farms on migrating salmon.

Woodward also pointed out a different government may be in power in B.C. before the farms move.

“That’s merely a political promise,” Woodward said. “There’s no contractual obligation to remove them.”

And even though most of the tenures included in the phase-out are in the traditional territory of the Dzawada’enuxw, the nation was not part of the agreement, Woodward said.

“So it’s a bit audacious of all the parties to that agreement including the provincial government, to make an agreement about the timing and location of those tenures without consulting the party most affected.”

‘We’re looking at the bigger picture’

The Dzawada’enuxw First Nation doesn’t want to wait five years for fish farms to leave its traditional territory, said Moon, who took part in a Vancouver press conference an hour after the lawsuit was filed along with Woodward, elected Dzawada’enuxw chief Farron Soukochoff and Eddie Garder, president of the Wild Salmon Defenders’ Alliance.

“We still don’t feel it’s enough yet,” Moon said in an interview. “We’re looking at the bigger picture…protecting our territory.”

The Dzawada’enuxw says it has an Aboriginal right to harvest eulachon and salmon for food, ceremonial and social purposes in the “Dzawada’enuxw Rights area” which encompasses both land and sea and stretches from west of Fife Sound near Gilford Island, through the Kingcome Inlet fjord near Broughton Island, and up the Kingcome River.

Woodward said legal experts and First Nations will be watching carefully to see if the federal government adheres to its new policy of ‘respectful litigation’ on matters concerning Indigenous peoples, and to see “if they adhere to their stated embracing of the United Nations Declaration on the Rights of Indigenous Peoples and whether they are going to fight this one or concede.”

A 2018 report by Canada’s commissioner of the environment and sustainable development found the federal government has put wild salmon species in danger by not adequately managing risks associated with salmon farming.

Moon said his nation is determined to remove fish farms to protect wild salmon and eulachon – also known as a candlefish because of its oily composition – and a traditional way of life.

That way of life is showcased in a new exhibit that opened Thursday at UBC’s Morris and Helen Belkin Art Gallery, titled Hexsa’am̠: To Be Here Always. The exhibit features the work of Dzawada’enuxw artists and addresses threats to the land and waters of Kingcome Inlet through film, video, weaving, animation, drawing, language and song.  

“I see the beauty, the quietness, and being able to be free there,” Moon said. “All the fish farms having an impact on our resources, that’s what scares us. Once that’s out of the way we’d feel at peace again and at one with our territory.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

As Grand Chief Stewart Phillip prepared for the Federal Court of Appeal decision on the Trans Mountain pipeline expansion Thursday morning his expectations were low.

Like many others, he had watched the National Energy Board’s consultations on the controversial pipeline expansion and firmly believed First Nations’ misgivings were not being genuinely considered and government’s push for the pipeline would trump concerns about the environment, climate change and Aboriginal rights.

“It was pretty much a dog’s breakfast from the get-go,” Phillip told The Narwhal.

Even after the federal Liberal government put a band-aid on the defective process by adding a new layer of scrutiny, Phillip had little confidence the court would rule in favour of the Tsleil-Waututh Nation, which argued that the National Energy Board’s process and findings were so flawed that the government could not reasonably rely on its report and that Canada had failed in its duty to consult Indigenous communities.

‘They’re not getting how the constitution works’: why Trudeau, Notley can’t steamroll B.C. on Kinder Morgan pipeline

“I had prepared myself for a decision that would not come down in our favour and so, when I heard it, I was kind of shocked. The language was pretty powerful and made you realize the magnitude of this decision,” Phillip said, describing waves of energy and elation rippling through Indigenous communities.

In a landmark decision that brings the pipeline plan to a screeching halt, Federal Appeals Court judge Eleanor Dawson ruled Canada failed to meaningfully consult First Nations, falling well short of of the mark set by the Supreme Court of Canada, and that the National Energy Board’s report was flawed because it did not consider the issue of increased tanker traffic — even though the board is obligated to consider environmental effects — leading to a deficient report.

The strongly worded ruling says: “Canada failed in Phase Three (the final stage) to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”

Tsleil-Waututh Chief Maureen Thomas said it was clear from the start that Indigenous concerns about the pipeline expansion were not being considered.

“We went into consultations with the federal government with open hearts and minds, but, sadly, the process could best be described as window-dressing. We had a strong sense that the decision had already been made before we even sat down,” she said.

Bigger leap on Indigenous rights needed

The verdict is one in a long line of recent court decisions that carve out new legal space around Indigenous title and rights, including the quashing of Enbridge’s Northern Gateway pipeline proposal and, although not precedent-setting, reinforces a trend in the case law.

Governments and industry should now change their ways of doing business instead of coming up with another bogus consultation process and, despite the federal government’s insistence that the Trans Mountain project will go forward, it is time to bury it, Phillip said.

“Smothered by choking wildfire smoke this summer, we’ve experienced a taste of what climate change is bringing. This environmentally destructive project should never have been approved and the Trudeau government must stop construction immediately,” he said.

Union of B.C. Indian Chiefs vice-president Chief Bob Chamberlin is encouraged that the court has recognized the need for Canada to uphold Indigenous title and rights on projects on their territories, but says a bigger leap is now needed.

“First Nations face consultation processes endlessly and I have yet to see one where meaningful accommodation of Aboriginal rights occurs. It’s quite the opposite,” he said.

The way forward is for governments to fulfill promises for full implementation of the UN Declaration on the Rights of Indigenous Peoples and recommendations from the Truth and Reconciliation Commission, Chamberlin said.

Implementing UNDRIP is a Big Deal for Canada. Here’s What You Need to Know.

“If you want to make things better you can’t do what has always been done, you have to come up with something different,” he said.

“Consultation and accommodation is yesterday’s law and so today and tomorrow it’s about implementing UNDRIP, which means consent,” he said.

That means coming up with a new process that sets out shared decision-making instead of relying on a process that allows government to run roughshod over Aboriginal rights, he said.

Ruling could affect Site C dam case

In the meantime, the decision is likely to affect other projects before the courts, including the Site C dam which is being challenged by West Moberly First Nations in B.C. Supreme Court, Chamberlin said.

Indigenous law expert Jack Woodward agrees the decision, which he described as “courageous,” will enhance other cases as it emphasizes that the existing law on Aboriginal rights must be applied.

“Absolutely it could have a bearing on the Site C case. Although that hearing is going to a different court, they will respect each others’ decisions and apply those precedents appropriately. It strengthens the hand of the Aboriginal parties,” Woodward, author of Section 35, which enshrined Aboriginal rights in the Canadian constitution, said.

Federal Finance Minister Bill Morneau has not yet said whether the case will be appealed to the Supreme Court of Canada, but is emphasizing the pipeline will be built with appropriate environmental standards and engagement with Indigenous people.

However, Woodward is unsure how that is possible.

First the government will have to work out how to get around the Species At Risk Act and accommodate the increase in tankers, from five to 34 a month, without killing off the Southern Resident Killer Whale population, he said.

Then there is the thorny question of how to properly conduct consultations when Canada has purchased the pipeline with the assumption it will go ahead.

“How can Canada go back to the First Nations and listen and accommodate properly? The government has made its case so much more difficult now because the question of good faith consultation is now front and centre because the government has said we don’t care what this decision says, it is going ahead,” Woodward said.

Any future consultations will be under a microscope and it will be difficult to claim good faith or a neutral stance when the government has prejudged the issue, he said.

“I wouldn’t bet money on this project ever going ahead,” Woodward said.

“They have tied one hand behind their back and I don’t know how they can get around this.”

Chris Tollefson, University of Victoria law professor and executive director of the Pacific Centre for Environmental Law and Litigation, said the decision changes the landscape and underlined profound deficiencies in the process that will take a long time to address if the project is to go ahead.

“The government has been put on notice that shortcuts and artificial deadlines in the consultation process will not be tolerated by the courts,” he said.

Government ownership of the pipeline is a wild card and, if the case if appealed, government has some difficult decisions as it would be spending taxpayers’ money in a way that could impair Aboriginal rights and title, Tollefson said.

Government will also have to get its head around the fact that consultation requires meaningful dialogue around key points of concern, with government representatives looking for solutions rather than acting as note-takers, Tollefson said.

“The government got elected on a platform where they admitted the process was flawed and they wanted to fix it and yet when First Nations raised those concerns in the consultation process there was never any attempt to address them. It was simply noted and then referred to cabinet,” he said.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

First opposed, then endorsed. It’s now pledged, but called “unworkable.”

In Canada the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is not ratified, nor from a legal perspective even really understood.

The history of Canada’s relationship with Indigenous rights has been a sordid one. But all that was supposed to change with the nation’s latecomer adoption of the declaration. After years of federal Conservative inaction on the file, Justin Trudeau took to the campaign trail with a promise to restore Canada’s relationship with Indigenous peoples.

The doctrine of ‘free, prior and informed consent‘ is a touchstone element of the declaration and one that will have a potentially massive impact on how megaprojects — like pipelines, the Alberta oilsands, and Site C dam — are proposed and approved in traditional Indigenous territory.

Yet onlookers say the declaration’s implementation is now hung on an NDP private member’s bill in the House of Commons and while there is broad support for its implementation, the actual meaning of UNDRIP for Canada is unclear and, as a technically non-binding document, may mean less than many think it should.

Interpretation of UNDRIP Strongly Contested

This past week the private member’s bill C-262 — first tabled by NDP MP Romeo Saganash back in April 2016 — was debated following its second reading in the House of Commons.

The bill requires the federal government to “take all measures necessary to ensure that the laws of Canada are consistent” with UNDRIP and develop a national action plan to do so in “consultation and cooperation” with Indigenous peoples.

The concise bill received full support from the federal Liberals only two weeks prior to the second reading. That catapulted it very much into the realm of possibility.

Yet the actual interpretation of UNDRIP is strongly contested.

The declaration itself is a document that lays out the basic rights Indigenous peoples that should be afforded around the world. It outlines specific obligations on the part of nations in how they relate to Indigenous peoples and their land, and contains some clauses that fly in the face of Canada’s historic treatment of First Nations, Métis, and Inuit.

The federal Liberals have seemingly contradicted themselves on multiple occasions about what UNDRIP means while some Indigenous scholars have an altogether different take on what the declaration truly means for Indigenous sovereignty and nationhood.

“When they say they’re going to support Bill C-262, I just view it as a PR stunt,” said Russ Diabo, a Kahnawake Mohawk policy advisor, in an interview with DeSmog Canada.

The federal government isn’t prepared to fully face the implications of UNDRIP, Diabo said, and how it could challenge Canada’s current legal frameworks.

“A lot of people out there on both sides may not actually like what a court says UNDRIP means when push comes to shove.” https://t.co/rqeaRx2c8Q

— DeSmog Canada (@DeSmogCanada) December 12, 2017

UNDRIP: Opposed, Endorsed, Pledged, Unworkable, Supported

When UNDRIP was first adopted by the UN General Assembly in 2007, there were only four opposing votes to the 46-article declaration: the United States, Australia, New Zealand and — you guessed it — Canada.

In 2010, the Conservative government under Harper endorsed UNDRIP, describing it as an “aspirational document,” but remained a permanent objector of the declaration. Despite the endorsement, the principles of UNDRIP were never applied in Canada in any tangible way.

The Liberal Party pledged to change that. In its 2015 election platform, the party clearly stated that it would “enact the recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.”

In May 2016, Minister Carolyn Bennett officially announced Canada’s removal of its permanent objector status to UNDRIP, committing to “fully adopting this and working to implement it within the laws of Canada, which is our charter.”

But only two months later, Minister of Justice Jody Wilson-Raybould described the adoption of UNDRIP as “unworkable” and “a political distraction.”

Near the end of 2016, when questioned about the recently approved Kinder Morgan Trans Mountain pipeline, Prime Minister Trudeau stated that Indigenous opponents “don’t have a veto,” directly contradiction previous promises that under his government ‘no would mean no’ for Indigenous peoples when it came to resource extraction and energy infrastructure projects.

Other have suggested Trudeau’s position also contradicts the key provision in UNDRIP of the need for governments to obtain “free, prior and informed consent” from Indigenous peoples prior to development.

UNDRIP Technically Non-Binding, Up to Canada To Define

In the recent House of Commons debate about Bill C-262, MP Romeo Saganash thanked the federal Liberals for “finally accepting that this should be a framework for reconciliation in this country.”

But there are still great disagreements about what legal ramifications of implementing such a “framework” will be. In international law, declarations, such as UNDRIP, are non-binding.

Robert James, principal lawyer at JFK Law in British Columbia and expert on Aboriginal law, said the eventual implementation of UNDRIP in Canadian law could impact how federal statutes are interpreted and applied, and how some elements of common law, such as duty to consult, are applied.

“One of the side effects of this is it may take what’s primarily a political document used to advance moral and political positions and really put it in the hands of the Western court to say, ‘well actually, here’s what UNDRIP really says,’” James told DeSmog Canada in an interview.

“A lot of people out there on both sides may not actually like what a court says UNDRIP means when push comes to shove.”

Tension over Indigenous Sovereignty

As to be expected, a main tension is about Indigenous sovereignty and self-determination.

James points out that Article 46 — the very last of the declaration — states that nothing in UNDRIP may be interpreted as authorizing or encouraging “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”

Canada is one of those “sovereign and independent states.”

Critical components of the declaration could be interpreted as having the ability to “dismember or impair” Canada as a nation, meaning Article 46 could have significant consequence for how fully UNDRIP is implemented and embraced.

Disputes over access to land, natural resources and water, for example, lie at the heart of many recent clashes between Indigenous peoples and Ottawa. And as the Mi’kmaq blockade in New Brunswick demonstrated, Indigenous peoples are often criminalized for exercising sovereignty over traditional lands.

Patricia Doyle-Bedwell, a Mi’kmaq lawyer and professor at Dalhousie University said the power of UNDRIP lies in its ability to strengthen Indigenous rights to protect land and water.

“That’s what that is about. We’re not going to have anything if we don’t have our land,” she told DeSmog Canada.

“We have the right to our survival, our dignity, our way of being as Indigenous people.”

How Does UNDRIP Fit In With Constitutionally Protected Aboriginal Rights?

In 1982 Canada amended its constitution to — for the first time — enshrine the rights of Canada’s indigenous peoples.

The amendment, Section 35, states simply: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

The creation of Section 35 represented a turning point in Canada’s history and a monumental victory Canada’s Indigenous peoples fought very hard for. Yet the wording of the section has been criticized for its vagueness which doesn’t define what those rights are.

So in May 2016, when Minister Bennett told the UN, “By adopting and implementing the declaration, we are excited that we are breathing life into Section 35 and recognizing it as a full box of rights for Indigenous Peoples in Canada,” concerns emerged that Canada might restrict UNDRIP under the confines of the constitution.

“Bennett is trying to contain international laws and principles and standards into Canadian domestic constitutional law and court cases,” Diabo, the Kahnawake Mohawk policy advisor, told DeSmog Canada. “That’s the problem that I have.”

Diabo said the original negotiations between Indigenous nations and Canada about the constitution weren’t a success, leaving plenty of “unfinished business.”

Former national chief of the Assembly of First Nations, Ovide Mercredi, recently called for the completion of those negotiations and the need for Canada to actually honour and fulfill its existing treaties with Indigenous peoples.

What Lies Ahead for UNDRIP?

Bill C-262 will be debated again in February 2018. A March will decide if the bill will move past second reading to committee. Given full support from the federal Liberals, it appears likely that will happen.

As that March vote approaches, the declaration will be put under increasing scrutiny. Past debate has been used to raise questions about the merits of the document and what uncertainties remain surrounding its legal implementation.

During the Dec. 5 debate in the House of Commons, Conservative MP and opposition critic for Indigenous and Northern Affairs, Cathy McLeod asked: “What is the difference between ‘free, prior, and informed consent’ and ‘consult and accommodate,’ which is what we have in law right now?”

She continued, “certainly there is no question that the declaration proposes that change in our law and we need to simply know what that is going to mean because it is important.”

As of right now, there aren’t any clear answers to that question.

For many Indigenous experts, the potential success of Bill C-262 and UNDRIP itself depends on the federal government’s perspective on Indigenous sovereignty and self-determination.

“To implement UNDRIP…we have to go back to nation-to-nation relationships,” Doyle-Bedwell said. “This idea that we have to fit it into these boxes will not advance our reconciliation.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

B.C. hasn’t been particularly good at including Indigenous populations in the decision-making process. First Nations are often brought to the table after high-level political decisions have already been made — leading to significant social and legal conflict over consultation, consent and the management of natural resources.

Legal challenges of Site C, the cumulative impacts of B.C.’s sprawling oil and gas operations and the Kinder Morgan Trans Mountain pipeline are all current examples of what these conflicts look like.

But it doesn’t have to be so, say a team of researchers from by the University of Victoria’s POLIS Water Sustainability Project and the Centre for Indigenous Environmental Resources in a new report, which proposes B.C. manage water resources via a co-governance model based on a principle of collaborative consent.

“Imagine Indigenous people being involved at the highest level of policy-making and reaching an agreement that is good for everyone,” said Merrell-Ann Phare, founding executive director of the Centre for Indigenous Environmental Resources and lead author of the report.

Water is a good issue for the collaborative consent approach as it concerns everyone in a community, Phare said.

Disputes between government and Indigenous communities are often clouded by a perceived need for legal clarity on rights, but there are many areas where, even without legal clarity, different levels of government are able to work out solutions, she added.

“We need to pull up the chairs to those tables for Indigenous governments and we need the federal and provincial governments to recognize that,” she said.

“Indigenous governments have a right to be there.”

Collaborative consent would not mean an end to legal challenges, but it would help find solutions to some of the battles that continue for generations, said Phare, adding that B.C. would not be breaking new ground as territorial and Indigenous governments in the Northwest Territories already use a collaborative consent approach.

Cowichan Watershed Revitalization a Collaborative Consent Success Story

A little more than a decade ago, the Cowichan watershed was a mess.

Clearcuts on surrounding slopes intensified run-off during winter storms. A 2003 drought resulted in critically low water levels that made it impossible for Chinook salmon to reach spawning grounds. Future droughts were on the horizon and water quality was threatened by sewage, fertilizer and a rapidly expanding population.

Catalyst Paper — the largest employer in the area — was on the verge of shutting down because of a water shortage.

“The management situation of the day was not working and the risks to the river and its communities were great,” says a 2014 case study of the evolution of the Cowichan Watershed Board by the University of Victoria’s POLIS Water Sustainability Project.

Management of the watershed was spread among a patchwork of federal, provincial, Indigenous and local governments, while waterfront home owners and local businesses wanted input on how to deal with ongoing droughts and the shrinking salmon runs.

There was general acknowledgement that action was needed to save Cowichan Lake and the iconic Cowichan River, but with the jigsaw of federal and provincial acts and the need for Cowichan Tribes to protect their interests, little was accomplished.

A 2007 plan set out a proactive approach to water management, but, two years later, implementation was minimal, largely because of lack of leadership and scattered responsibilities.

It was clear that a different type of management was needed, with local leadership, so, the Cowichan Watershed Board was formed with the chair of the Cowichan Valley Regional District and chief of Cowichan Tribes as joint chairs, while other agencies were encouraged follow board decisions.

That style of management typifies collaborative consent, which should be the model used in B.C. to defuse conflict around water and land use, the new report recommends.

Resolution for System of Delays, Court Cases with Water Co-Governance

Conflicts could be avoided if Indigenous governments were given an equal seat at the table at the start of a process, instead of being brought in after decisions are made, says the report.

Delays, court cases and disagreements are common as Indigenous communities battle to protect traditional territories, while other levels of government and, in some cases, major corporations, write legislation or set the rules, only to have them challenged by First Nations, who frequently claim inadequate consultation.

Collaborative consent, with all parties committed to working together as equals, takes the heat out of issues as everyone works towards decisions they can live with, says the report, which suggests that the method should be used to come up with regulations for B.C.’s new Water Sustainability Act.

Rosie Simms, co-author of the report and POLIS water law and policy researcher, said collaborative consent offers a way for B.C. to govern according to the United Nations Declaration on the Rights of Indigenous people, as promised by Premier John Horgan.

Water is a compelling issue because jurisdictional overlaps and gaps pave the way for creative forms of co-governance, Simms said.

Indigenous History, Lessons Benefit Local Government

Back in the Cowichan Valley, the collaboration has helped people understand the extent of Cowichan Tribes’ history in the area and traditional knowledge is now used to help inform decisions, said Chief William Seymour.

“We all have the same concerns about our watershed. The logging that went on and what happened to our streams, what happened to our water levels and the water temperature, all the issues of contamination with sewage and fertilizer going into the river — everyone in the valley has those concerns,” Seymour said.

With everyone working towards the same goals, protection of the watershed is improving, he said.

Jon Lefebure, Cowichan Valley Regional District chair, said an excellent relationship has developed between Cowichan Tribes and the district because of the equal partnership on the Watershed Board.

“It has flowed into many other things we do around land use and the opioid crisis — which has an impact on all parts of our community,” he said.

The relationship has also brought local government a new awareness of First Nations culture and the advantages offered by their history and perceptions, Lefebure said.

For example, there is an emphasis on taking only what you need and leaving the rest for future generations, as opposed to the culture of taking all you can and damn the consequences, he said.

Priorities for the watershed are based on looking at the whole system, rather than individual pieces and are guided by a traditional Cowichan Tribes lesson that “everything on this earth is what sustains us, everything on this earth is connected together,” says the POLIS case study.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Two rejections by the federal government have not deterred a Vancouver mining company from again heading to court in an effort to quash Ottawa’s decision to turn down a proposal for an open-pit copper and gold mine in an area where the Tsilhqot’in Nation has established aboriginal rights.

Taseko Mines Ltd. is appearing in Federal Court in Vancouver this week to launch a constitutional challenge to the Canadian Environmental Assessment Act and ask for a judicial review of the federal government’s decision to reject the proposed $1.5-billion New Prosperity Mine, 125 kilometres southwest of Williams Lake.

Despite the project gaining provincial approval in 2010, the federal government turned down the proposal in 2010 and 2014, saying there would be severe environmental damage and immitigable adverse effects on Tsilhqot’in culture, heritage and aboriginal rights.

The panel found that Fish Lake, known as Teztan Biny by members of the Tsilhqot’in Nation, had unique cultural importance and would be harmed by the mine. In the first application the company planned to turn the lake into a toxic tailings dump and, although the second application spared the lake, the panel concluded the mine would still have severe impacts.

However, Taseko is arguing that the Environmental Assessment Act, amended in 2012, goes too far in protecting the interests of Aboriginal people according to a Tsilhqot’in news release.

“In essence, the company is attempting to further reduce the protection of our already-gutted federal environmental laws, particularly as they apply to aboriginal people,” it says.

The company, in its application, says the review panel erred in the evidence it considered and that the company was not given an opportunity to challenge that evidence.

It is frustrating that the nation has to continue spending time and money fighting Taseko, said a Tsilhqot’in spokesman.

“After two federal rejections, this company still tries to bulldoze ahead and cause destruction in our territory,” Chief Roger William, vice-chair of the Tsilhqot’in National Government, said in a news release.

“For the past decade we have opposed Taseko Mines in the strongest terms and it is time they finally understood our position — simply stated, we do not consent,” he said.

The Union of B.C. Indian Chiefs is supporting the Tsilqhot’in people in their battle, said Grand Chief Stewart Phillip, UBCIC president.

“This is an arrogant and unrepentant company that has not learned its lesson, despite not one, but two scathing federal rejections by the Harper government, the most pro-industry and anti-First Nations government in memory,” Phillip said.

“We will continue to completely support the Tsilhaqot’in as they do what it takes to lay this wretched, destructive and highly offensive mine proposal to rest for once and for all,” he said.

The area gained additional significance in 2014 when the Supreme Court of Canada, for the first time in Canadian history, recognized aboriginal title on about 1,750 square kilometers of Tsilhqot’in Nation land — a decision that reframed the way resource companies and governments dealt with First Nations.

The mine is outside the title territory, but in an area of proven aboriginal rights, according to the Tsilhqot’in. It is part of the Dasiqox Tribal Park, created in 2014.

In an additional wrinkle, which will again draw the provincial government into the fray, despite a 2016 agreement to work on reconciliation, Taseko has applied to the province for a permit to start exploratory drilling.

The exploration would be extensive with road building, drilling, seismic line testing  and construction of a 50-man camp. The company has said it wants to be ready to start construction of the mine before the amended B.C. permit expires in 2020, but the exploration is strongly opposed by the Tsilhqot’in.

“[Taseko’s] permit application ignores all findings against the proposed mine. It is an insult to Tsilhqot’in and the rule of law,” William said.

Spokesmen for the Ministry of Energy and Mines did not reply to questions about the permit by deadline.

Taseko documents show the company has spent more than $130-million trying to develop the mine. The area is believed to be the largest undeveloped gold/copper deposit in North America and the company claims that, once in production, it would produce 250,000 ounces of gold and 110-million pounds of copper annually for 20 years.

Image: Taseko Mines rendering of the New Prosperity mine project. 

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

BC Hydro deeply regrets the impacts of the W.A.C. Bennett Dam on First Nations and will not repeat the “mistakes of the past,” Hydro’s Deputy CEO Chris O’Riley said Thursday at the unveiling of a new First Nations gallery at the dam’s visitor centre.

“While we remain very proud of the engineering marvel that is the Bennett dam, and we continue to be thankful in this province for the prosperity that it underpins, we recognize a need to acknowledge those parts of the picture that we can’t be proud of,” O’Riley told representatives from six First Nations in the Peace who gathered under a tent in the rain, overlooking the two kilometre-long dam.

“We recognize the need to acknowledge the adverse impacts of the dam on the environment and on the original people of the land. We think this acknowledgment is a really important part of reconciliation,” said O’Riley.

When the Bennett dam was completed in 1967 and the floodwaters of ten rivers and creeks converged to form the massive Williston Reservoir, local First Nations were not even informed, much less consulted.

Some, like Emil McCook, the former chief of the Kwadacha First Nation, were caught unaware as churning waters submerged First Nations riverboats. McCook, then a teenager, plucked a young boy from the rising water after one boat overturned, a story he recounts in a documentary video, Kwadacha by the River, part of the new First Nations gallery.

Emil McCook. Photo: Sarah Cox.

The gallery is titled “They Call It Progress, We Call it Destruction.” It was largely the work of a Peace Aboriginal Advisory Committee that collected stories from many First Nations members about the Bennett dam’s devastating impact on aboriginal communities who relied on the flooded rivers for travel, food, contact with relatives and other villages, and cultural and spiritual purposes.

The stories on the walls of the gallery tell a chilling tale of the reservoir’s largely-undocumented impacts on First Nations, which included severing the migration route of caribou that had provided them with food, tools, clothing, and other important materials: “We lost a way of life that used to provide us with so much and we got nothing in return.”

“Under water lies many burial ground, traditional ceremony sites and history.”

“…it was a death trap for the animals.”

“Many of our gathering sites and the trails leading to them were destroyed.”

“We can’t change that, we can’t bring it back,” McCook said in an interview after the ceremony. “But how can First Nations benefit from the resources? Over the years hopefully they will listen to First Nations.”

McCook said the Kwadacha First Nation still lacks hydro power and gets its electricity from a diesel generator.

Site C Dam Not Mentioned

Throughout the ceremony and speeches, one contentious subject was carefully side-stepped by both BC Hydro and First Nations members. Not one person mentioned the controversial $8.8 billion Site C dam currently under construction on the Peace River 100 kilometres downstream from the WAC Bennett Dam.

Site C, when complete in 2024, would flood 107 kilometres of the Peace River and its tributaries, including the traditional land of Treaty 8 First Nations.

Contrary to O’Riley’s promise that BC Hydro will not repeat the mistakes of the past, the Joint Review Panel that examined Site C for the federal and provincial governments concluded that the dam and its reservoir would “significantly affect the current use of land and resources for traditional purposes by Aboriginal peoples.”

The panel disagreed with BC Hydro regarding Site C’s impact on fishing and hunting opportunities and practices for Treaty 8 First Nations, concluding that the project would likely cause a “significant adverse effect” that “cannot be mitigated.”

.@BCHydro’s #FirstNations apology doesn’t line up with unavoidable #SiteC impacts https://t.co/5C6C0tYmbD @christyclarkbc @maryforbc #bcpoli

— DeSmog Canada (@DeSmogCanada) June 12, 2016

Three Treaty 8 First Nations, all of them represented at the visitor centre opening, have on-going court cases against the Site C dam. Three legal challenges were launched by the West Moberly and Prophet River First Nations.

A fourth legal case, launched by the Blueberry River First Nations, claims that the cumulative impact of Site C and other industrial development has infringed on the Nations’ treaty rights. A fifth court case against Site C by the Peace Valley Landowners Association, representing 70 landowners who will be affected by the dam, is also still in progress.

“We’re not in support of Site C,” McCook said in the interview. “We have to work with our First Nations brothers that live down the valley. Site C is going to be hurtful to our neighbours down here.”

The Tsay Keh Dene, one of the First Nations most affected by the Bennett Dam, was not represented at the visitor centre gathering or in the First Nations gallery. A quote on the gallery wall from Tsay Keh Dene Chief Dennis Izony said his people had decided not to contribute to the impacts gallery “due to the on-going trauma and lasting effects of the creation of the reservoir on our nation and its people that has yet to be resolved.” Neither the Tsay Keh Dene nor the Kwadawa belong to Treaty 8.

In 2009, the year before the B.C. government announced it would seek regulatory approval for Site C, the province reached a settlement agreement with the Tsay Keh Dene over the development of the Bennett dam and Williston Reservoir. That agreement provides the Tsay Keh Dene with a one-time payment of $20.9 million and annual payments of $2 million.

O’Riley acknowledged that sharing stories of the impact of the dam and reservoir had brought up painful memories for some First Nations members. He thanked those who participated in the process and said BC Hydro respected that others were not ready to discuss the Bennett dam’s “deep and profound and painful” impacts.

“The door is forever open to have that conversation when the time is right.”

O’Riley also said that remembering what was lost will lead BC Hydro “to be more mindful of our actions today and of our actions in the future.”

Premier Christy Clark has vowed to push the Site C dam  “past the point of no return” and BC Hydro continues to fast-track construction despite multiple requests by the West Moberly First Nations and others to pause until legal cases are resolved.

Image: Drummers at the opening of the gallery at the W.A.C. Bennett dam. Photo: Sarah Cox

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Top-level scientists and academics from across Canada are calling on the federal government to put the brakes on construction of the Site C dam and, in an unusual move, the call is being supported by the Royal Society of Canada.

A stinging criticism of the assessment process, lack of consideration for First Nations concerns and the B.C. government’s decision to start construction despite ongoing court cases, was released at an Ottawa news conference Tuesday with a letter to Prime Minister Justin Trudeau and a statement asking that the federal government not issue any more permits for the hydroelectric mega-project until there have been additional reviews and the courts have decided on First Nations court cases.

A “Statement of Concern” signed by 250 scientists and academics, amounting to a Who’s-Who of Canadian academia, asks that the B.C. government submit the project for review by the B.C. Utilities Commission, something suggested by Joint Review Panel, but rejected by the provincial government.

There should also be a review by the Department of Justice to analyze whether the project infringes on aboriginal and treaty rights, the statement says.

“Based on evidence raised across our many disciplines, the undersigned scholars have concluded that there were significant gaps and inadequacies in the regulatory review and environmental assessment process for the Site C Project,” says the statement.

Royal Society of Canada to @JustinTrudeau: #SiteC not subject to rigorous scrutiny & fails First Nations #cdnpoli https://t.co/ty9sZ0a1ZJ

— DeSmog Canada (@DeSmogCanada) May 25, 2016

“Our assessment is that this process did not accord with the commitments of both the federal and provincial government to reconciliation with, and legal obligations to First Nations, protection of the environment and evidence-based decision making with scientific integrity.”

Work — including clearing of old-growth forest in the surrounding area, construction of a work camp and letting of contracts, which the B.C. government says are worth billions of dollars — has already started on the dam that will flood the Peace River valley to create an 83-kilometre reservoir at a cost of almost $9-billion.

Karen Bakker, Canada research chair in water governance at the University of British Columbia, said Site C is a test of the federal government’s commitment to reconciliation with First Nations and science-based decision making.

“We truly believe this is a bellwether,” Bakker said.

“Will they actually live up to the commitments they have made to evidence-based decision-making with scientific integrity and also to reconciliation with First Nations?” she asked.

Gordon Christie, a UBC law professor specializing in indigenous legal studies, said at the news conference that the lawsuits might take months or years to wend their way through the courts and yet, in the meantime, the province is forging ahead with construction.

“Courts have asked the federal and provincial governments of Canada to act honourably and to demonstrate something known as the honour of the Crown and, no matter what your notion of honour might be, this is clearly dishonourable conduct,” he said

The decision to go ahead appears to be at odds with the federal government’s recent support of the United Nations Declaration on the Rights of Indigenous People that requires informed consent from aboriginal people before projects on their land are approved, said the academics.

The significant environmental effects of the dam are unprecedented in the history of environmental assessment in Canada, Bakker said.

“Site C has 40 per cent of the total adverse environmental effects ever identified [in Canadian environmental assessments] since 1992, “ she said.

“We are calling on the government to explain why the unprecedented imposition of these very severe environmental effects would be justified by Site C — a project whose electricity output is currently unnecessary and for which less damaging alternatives exist.”

The Joint Review Panel concluded that the power will probably not be needed for decades and, with no demand within B.C. for the power, lately the province has been looking at selling Site C power to Alberta.

Federal fisheries and transportation permits have not yet been issued and Bakker said in an interview with DeSmog Canada that representatives of the group have approached ministries dealing with aboriginal affairs, fisheries, environment and justice and are hoping to meet with at least two ministers in the near future.

The group is also planning to release another paper, dealing with provincial Site C issues, she said.

It is rare for the Royal Society to speak out and it is the first time in several decades that the society has become involved in such a specific issue, Bakker said.

In a letter to Trudeau, Royal Society president Maryse Lassonde questioned why a project of such scope was not assessed by the B.C. Utilities Commission.

“That should have been a priority. Why did the B.C. legislature pass an act to prevent this essential review?” Lassonde asked.

“This failure to subject the project to rigorous scrutiny raises serious questions about whether the project should proceed until such time as a more thorough review is undertaken,” she wrote.

The academic and scientific support delighted Grand Chief Stewart Phillip, Union of B.C. Indian Chiefs president and an outspoken critic of Site C.

“This is great news. It’s very encouraging,” he said in an interview.

Site C can still be stopped, despite the provincial rush to get the project underway, Phillip said.

“It can be stopped if enough people speak out against this ill-conceived, unwanted and absolutely unnecessary project,” he said.

In February Site C was condemned by a group of non-profit agencies including Amnesty International Canada, Canadian Parks and Wilderness Society, Ecojustice and Greenpeace Canada.

The Union of B.C. Municipalities has also called for Site C to be reviewed by the B.C. Utilities Commission.

The provincial Ministry of Energy and Mines did not respond to questions in time for publication.

You can click here to read more about Prime Minister Justin Trudeau and climate change.

Image: Construction for the Site C dam in the Peace River valley. Photo: Garth Lenz

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

This article originally appeared on the Common Sense Canadian.

It all started off so well. Justin Trudeau launched his career as Prime Minister with big promises to First Nations and the growing number of Canadians concerned about the environment. He installed indigenous MPs in key portfolios like Justice and Fisheries; vowed a new respect for Aboriginal people and their rights; re-introduced the climate to Environment Canada.

But five months later, it appears former New York Governor Mario Cuomo was right when he famously said, “You campaign in poetry. You govern in prose.” And the prose Justin Trudeau is authoring these days tells a very different story than it did on the campaign trail.

Tough Choices

It’s all frankly understandable. The forces behind major pipelines, hydro dams and LNG projects are considerable and deeply entrenched. It was always going to be a challenge for young Justin to appease two sides seemingly so far apart.

At the recent World Economic Forum, when he spoke of Canada shifting from “resources to resourcefulness” and joining the global green economy, he drew a mixture of ridicule and outrage from Calgary to Bay Street. Even as the rest of the world is getting it, we, as Canadians, clearly have a depressingly long way to go.

Yet there are some hard realities here which are simply unavoidable. And that means Prime Minister Trudeau has some very difficult choices to make.

Can’t Have Your Cake and Eat it Too

He cannot, for instance, ignore the pleas and court challenges of Treaty 8 First Nations on the catastrophic and treaty-breaking Site C Dam and still claim to be respectful of First Nations.

He cannot approve LNG projects and pretend to care genuinely about climate change.

He cannot keep approving and subsidizing heavy oil pipelines and pretend to champion the green economy.

These, unfortunately for Justin, are not grey areas. There is no room for “balance” or a “middle path” — simply because of a stubborn little thing called facts.

Just the Facts

Treaty 8, signed and adhered to beginning in 1899, guaranteed First Nations throughout the Peace Valley Region the right to hunt, fish, trap and practice their traditions on the land unimpeded by colonial settlement and development. Flash forward a century and it is abundantly clear this promise has been shattered.

Over two thirds of the region has been impacted by heavy industry — in many places multiple layers of development stacked on top of each other. Logging, mining, roads, power lines, conventional gas, fracking, pipelines, massive hydro dams. As for the latter, there are two already. Site Site C would be the third and, undeniably, the final nail in the coffin of this treaty and the lives First Nations have lived there for some 10,000 years.

In other words, you cannot sign off on Site C — or refuse, in this case, to revoke illegitimate permits issued by your predecessor on the eve on an election, literally — and declare yourself a friend of First Nations. These two realities are utterly and completely incompatible.

Wilson-Raybould Between a Rock and a Hard Place

And this is where it gets very messy for even the best-intentioned, brightest young stars of the Trudeau Cabinet.

I’m talking specifically about Justice Minister Jody Wilson-Raybould. The former B.C. leader of the Assembly of First Nations has run smack into a wall of political reality. She claims no conflict between her current role and her former. But here we must go back to what she to said to me and others 4 years ago at the Paddle for the Peace, where she took a passionate, unequivocal, legal, treaty-based stand against Site C.

See for yourself here. Ms. Wilson-Raybould is the first indigenous person to be minster of justice in Canada. She is a smart, capable leader and she understands Aboriginal law perfectly well, as she attests to in the above video, noting:

The legal reality is that Aboriginal people have rights and treaty rights that must be respected…The country’s reputation is at stake with approval of these projects like Site C…running roughshod over Aboriginal title and rights, including treaty rights, is not the way to improve that reputation. 

But what good is all that if she can’t put it to use and do the right thing, legally, for the people of Treaty 8 territory, now that’s she’s finally in a position of real influence?

Suicide and Dams

Before leaving off on Site C, I want to direct readers to Emma Gilchrist’s poignant and accurate piece titled “Want To Reduce Suicide in Native Communities? Step 1: Stop Destroying Native Land.” Mr. Trudeau has recently come face-to-face with the tragic epidemic of suicides on native reserves in this country. If he’s honest about it, he will stop compartmentalizing this issue from that of environmental devastation.

This is no big leap. It is abundantly fair to connect these issues and it brings home the gravity of the decisions he now faces. There are, literally, many lives hanging in the balance. That’s a big responsibility for anyone to bear, but no one said being Prime Minister is easy.

The Dirtiest Fossil Fuel on the Planet

Next, we move onto LNG. And more unavoidable facts, which are as follows: B.C.’s LNG industry would require a massive increase in fracking in — once again — Treaty 8 Territory.

This is not Liquefied Natural Gas but Liquefied Fracked Gas (LFG). Fracking is far worse for the climate — not to mention water, local air quality, wildlife habitat, etc. — than old school “natural” gas. It’s also even worse than coal.

When you then take that fracked gas and pipe it to LFG terminals on the coast, in order to turn it into a liquid you can load onto Asia-bound tankers, you first have to chill and compress it. This requires the burning of copious amounts of additional gas to create the electricity for the cooling process. One plant alone, the proposed, Petronas-led Lelu Island project, would increase the province’s greenhouse gas emissions by a whopping 8.5 per cent. 

Plus all that dirty fracking to get it out of the ground.

Don’t take my word for it: listen to the world’s top independent experts, like Cornell University’s Dr. Robert Howarth.

Woodfibre Approval a Bitter Pill

Suffice it to say, you cannot be a friend of the climate and still approve LNG projects. No way, no how. Which is why it came as a huge — though not surprising — disappointment when, this past Friday afternoon, the Trudeau Government quietly approved the proposed Woodfibre LNG plant in Howe Sound. (PS you don’t make an announcement you’re proud of on a Friday afternoon).

Once again, this decision came with casualties, including the tarnishing of another bright new MP’s credibility — that being West Vancouver-Sunshine Coast-Sea to Sky Country’s Pamela Goldsmith-Jones. This just after she held a series of public meetings to discuss the climate impacts of the project.

My colleague Rafe Mair called bullshit at the time, noting that climate calculations can easily be fudged and admonishing Goldsmith-Jones for ignoring all the other issues associated with the project — like tanker danger and the millions of gallons of hot, chlorinated water that would be dumped into local fish habitat by the plant. Some called Rafe cynical for not giving Pam a chance. Well, though it gives me no pleasure to say in this case, my friend Rafe was bang-on.

Pipelines to Nowhere

Finally, a few more inconvenient truths on pipelines:

There is no market justification for them. As this recent study shows, Canadian oil sands producers are already getting the highest value possible for the resource — despite all the wailing and gnashing of teeth about getting bitumen to tidewater.

There is no growth in demand for fossil fuels. As our contributor Will Dubitsky has aptly noted in these pages, “according to the International Energy Agency, in 2015, an astounding 90 per cent of all global electrical power capacity added was attributable to renewables.” Global emissions have been flat since 2013 — which is really, really good news. The shift to the green economy is real and it’s happening right now — everywhere except Canada.

So instead of continuing our massive subsidies to the oil and gas sector and approving new pipelines, our prime minister needs to follow through on his bold statements about green energy and actually start supporting the stuff. That will lead to far more jobs, which will prove far more reliable into the future than would continuing to flog a dead oilsands horse.

Again, that is simply what the best available facts point to, so wherever you stand morally on these issues, if you care about jobs, then this one is a no-brainer.

Where the Rubber Meets the Road

So where does Mr. Trudeau go from here? I’m happy to report it’s not all bad. Fisheries Minister Hunter Tootoo appears to be listening seriously to First Nations on the Central Coast of B.C. about the upcoming herring fishery. The commercial quota has been significantly cut back this year and tensions appear to be much eased compared with the fierce standoff I documented in these pages last April. Fingers crossed.

As for Site C, I know it’s messy. It’s tough for a new administration to reverse the policies of the old one — especially once they’re already in motion. Our new PM doesn’t want to run roughshod over B.C. Premier Christy Clark and this one is clearly her baby.

Yet Site C is still in its infancy. There is still time to reverse a very bad and politically unpopular decision — for taxpayers, ratepayers, farmers, fish, wildlife, and, frankly, all British Columbians. Make no mistake – this one decision will cast the die for Mr. Trudeau’s legacy with First Nations. That’s the choice before him, whether he likes it, recognizes it or not.

Lelu Decision Looms

As for LNG, Mr. Trudeau has already made the tragic mistake of approving Woodfibre. Still on his docket is the larger Lelu Island project that would, in addition to being terrible for the climate, also threaten our second biggest salmon run, the Skeena, and further alienate First Nations (I’m not talking about the band council that reversed its position on Friday, rather the clear opposition of the thousands of band members it represents who voted nearly unanimously against the project last year).

Mr. Trudeau received a letter from over 130 respected scientists slamming the government’s draft assessment of the project and urging it to protect wild salmon by turning down the permit. We shall see how the review panel finds and then how Mr. Trudeau’s Cabinet rules. But if they say “Yes” to this one, it will be exceedingly difficult to tell the difference anymore between Mr. Trudeau and his predecessor.

If that last line causes some to gasp, so be it. Nearly three years ago, I wrote a piece titled, “Why Justin Trudeau may be more dangerous than Harper,” which touched a nerve back then. I take no pleasure in being right about such unfortunate matters. But my thesis then was essentially that Justin represents a better-packaged version of the same policy positions as Harper on many defining issues — trade deals, oil and gas, the environment, and foreign ownership of strategic resources.

The way things are shaping up today, I can see little justification for altering that assessment.

Here’s Hoping

I hope I’m proven wrong. I hope, sincerely, that Mr. Trudeau, Ms. Wilson-Raybould, Ms. Goldmisth-Jones, and all their well-meaning, bright-eyed Liberal colleagues find the courage to right the ship, even if that means braving rough political waters ahead.

It would be good for this country and the world if the next four years proved radically different from the last.

But, then, as they say, the proof is in the pudding.

You can click here to read more about Prime Minister Justin Trudeau and climate change.

Image: Prime Minister's photo gallery

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

This article originally appeared on the Dogwood Initiative blog.

With final arguments in the Kinder Morgan pipeline review underway in Burnaby, a top Chinese official is using the moment to offer Canadians a deal. During his visit to Ottawa last Friday, Han Jun, China’s Vice-Minister of Financial and Economic Affairs, said the world’s second-largest economy would be willing to sign a Free Trade Agreement with Canada — but only if we build a pipeline to the West Coast.

Signing an FTA, Han suggested, would give Canadian agriculture and energy producers greater access to China’s domestic market. In return, Beijing also wants restrictions lifted on takeovers of Canadian companies by Chinese state-owned enterprises (SOEs).

China has been working to gain access to Canadian oil reserves for more than a decade. As Enbridge’s first partner on Northern Gateway in 2005, state-owned PetroChina pledged to purchase up to half of the pipeline’s capacity, but became frustrated by delays and eventually pulled out of the project.

In the years following, China’s SOEs invested billions into the Canadian oil patch, culminating in the 2013 purchase of Nexen by the Chinese National Offshore Oil Corporation (CNOOC) for $15 billion. (In a tragic coincidence, hours after Han spoke in Ottawa, an explosion at Nexen’s Long Lake facility killed one worker and left another critically injured.)

After the Nexen takeover, which prompted concerns about China’s human rights record, labour practices and one-way approach to investment, Prime Minister Stephen Harper brought in restrictions on future purchases of Canadian firms by Chinese SOEs. Angered by the gesture, the Chinese administration shelved negotiations on a Canada-China trade deal.

Now Beijing is back, once again dangling the prospect of free trade. Right on cue, two friendly think tanks — the Canada-China Business Council and the Canadian Council of Chief Executives — released a report arguing that a trade deal with China would boost Canadian exports by $7.7-billion over the next fifteen years and create 25,000 additional jobs.

“During the term of Prime Minister Justin Trudeau there are rare, historical opportunities between China and Canada,” Han told the Globe and Mail. Here in Canada, influential members of the Liberal family are working hard to prove him right.

Having served as Jean Chretien’s former Deputy Prime Minister (as well as Minister of Finance, Foreign Affairs, and Industry), John Manley is perhaps the most visible former Liberal lobbying for closer economic ties to China. Manley is President and CEO of the Canadian Council of Chief Executives, which co-authored the Canada-China FTA report.

The CCCE’s Chairman is Paul Desmarais Jr., whose day job is Chairman and Co-CEO of Power Corporation of Canada. Having employed at different times Jean Chretien, Paul Martin, and Pierre Trudeau, the late Paul Desmarais Sr. was also the founding Chairman of the Canada-China Business Council, which is the other co-author of the above-cited FTA report.

The CCBC is stacked with Liberal heavyweights. Its current Chairman, Peter Kruyt, works for Desmarais at Power Corporation, while its Vice Chairman is former Liberal Justice Minister Martin Cauchon. The CCBC’s President is Peter Harder, a highly-respected former federal civil servant. When Justin Trudeau needed an experienced set of hands to oversee his transition into government, he called Harder.

None of this is to suggest that further trade with China is in itself a bad idea. But the terms on which we negotiate such a deal must be fair to Canadians, as well as uphold the country’s duties to First Nations. By cheerleading publicly for an FTA, old-guard Liberals like Manley and Desmarais increase the pressure on Trudeau to cut a quick deal on China’s terms.

Don’t forget, any new trade deal would take effect in addition to the Canada-China Foreign Investment Promotion and Protection Agreement ratified by the previous government. The FIPA, from which Canada cannot fully withdraw for the next 30 years, locked in more wide-ranging investment rights for Chinese companies than Canadian firms get in China. That’s why signing the FIPA before negotiating a Free Trade Agreement was a mistake by the federal government, according to one of the treaty’s most vocal critics.

“The sequencing works in China's favour,” says Osgoode Hall law professor Gus Van Harten. “China is the capital exporter in the relationship, so it has the greater interest in a FIPA that provides special rights and protections to each country's investors in the other country. I would say that, with the FIPA, the Harper government gave away one of Canada's bargaining chips to get a favourable trade deal. Now we should be going into trade negotiations with a view to repairing some of the flaws in the FIPA, which will not be straightforward or easy.”

Among the problems with the FIPA — at least for Canadians concerned about environmental laws or labour standards — is the right of Chinese corporations to sue Canada over decisions by courts or legislatures that are seen to interfere with their investments. These investor-state disputes are settled in secretive international tribunals overseen by for-profit arbitrators, and can force host countries to pay damages in the billions of dollars. (For more on the Canada-China FIPA, see Sold Down the Yangtze by Gus Van Harten).Add up the lopsided terms of the FIPA and the sudden pressure on Trudeau to conclude a Free Trade Agreement and the picture becomes clear. China intends to use this next round of trade talks to get what it has wanted for more than ten years: ownership of Canadian energy assets and secure access via pipelines and supertanker terminals on the West Coast.

Let’s curtail any accusations of Sinophobia, right here and now. My family was the victim of the same ‘yellow peril’ discourse that has simmered below the surface of B.C. politics for more than a century. This is not about racism toward Chinese people. This is about protecting our sovereignty — Canadian sovereignty, B.C. sovereignty and Indigenous sovereignty — from a powerful international trading partner.

Prime Minister Trudeau’s job is to balance the pressure coming from the likes of Han Jun, John Manley and Paul Desmarais Jr. with the legal and political realities here in British Columbia. Just last Monday the B.C. government came out in opposition to Kinder Morgan because the company has no credible plan to clean up toxic, sinking bitumen. Municipalities and First Nations around the Salish Sea applauded the province’s move.

Then on Wednesday the B.C. Supreme Court delivered the game-changing Gitga’at ruling, concluding that B.C. erred in signing away its duties of consultation around Enbridge’s Northern Gateway proposal. That ruling has clear implications for theKinder Morgan review, which relies on the same “Equivalency Agreement” between B.C. and Ottawa. Pipelines, as it turns out, are not the exclusive domain of the federal government.

As Beijing ramps up its campaign for a West Coast pipeline approval, our job will be to support those Members of Parliament looking to do right by their constituents — and prevent another cave-in like what happened with the FIPA. Simply put, if the cost of a trade agreement involves dangerous bitumen-laden supertankers on our coast, then the people of B.C. aren’t going to accept the terms. We have just under two months to make that clear before Trudeau heads on his first trade mission to China.

Image: Prime Minister Photo Gallery

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The provincial government did not fulfill its legal obligation to consult with First Nations on the Enbridge Northern Gateway pipeline, the B.C. Supreme Court ruled Wednesday.

The case, brought forward by the Gitga’at and other coastal First Nations, argued the province erred when it handed over decision-making authority for the project to the federal government under a provincial-federal Joint Review Process managed by the federal National Energy Board.

B.C. granted Ottawa authority over the project’s environmental review in a 2010 equivalency agreement. That agreement, however, did not release the province from the legal duty to consult First Nations, the B.C. Supreme Court found.

“It’s a very significant ruling,” Elin Sigurdson, lawyer with JFK Law, said. “The coastal First Nations and Gita’at were very successful in the application to quash the equivalency agreement which means the province now has to consult with First Nations that will be affected by matters in the provincial jurisdiction and has to conduct a new environmental assessment for the project.”

In December 2013 a Joint Review Panel recommended the federal government approve the pipeline, slated to carry 525,000 barrels of oilsands crude to the B.C coast each day, subject to 209 conditions, one of which was “consultation with aboriginal communities.” Federal cabinet approved the pipeline in June 2014.

Greg Rickford, former Natural Resources Minister under the Harper government, suggested at the time that the duty to consult with First Nations resided with Enbridge.

"The proponent clearly has more work to do in order to fulfil the public commitment it has made to engage with aboriginal groups and local communities along the route," Rickford said in a government press release.

“The duty to consult as a constitutional obligation does not lie with Enbridge,” Sigurdson said. “The Crown always has to ensure that the duty to consult was discharged in a meaningful way.”

Heiltsuk Chief Marilyn Slett said the ruling is a “great victory.”

“We’re feeling really good about it,” she said. “We’re just so committed to our community and protecting our coast.”

“It’s affirming to know that there’s a responsibility to come back and talk to the people these kinds of projects will affect.”

Slett said the government acknowledged the need to address First Nations concerns in Premier Christy Clark’s five conditions for oil pipelines.

“In terms of the government saying they are doing what they are supposed to be doing, well today shows [Christy Clark] has to be held accountable, to consult with us.”

“We stand our ground, around protecting who we are as people and our communities. This strengthens all of us,” she said. “We’re in it together.”

Susan Smitten, executive director of RAVEN Trust, said the ruling will mean major delays for a project that is already mired in uncertainty.

“All the coastal nations that will be affected by components within B.C. jurisdiction will have to be consulted, which will take time,” she said. “An environmental assessment would also take time.”

She added her organization is delighted with today’s win. “This is what we live for: to see Indigenous Peoples successfully see their issues through the courts.”

In September the B.C. Environmental Appeal Board ruled B.C. handed out scientifically flawed long-term water withdrawal permits to Nexen, a company with fracking operations in northern B.C.

The board found B.C. failed to properly consult with the Fort Nelson First Nation when issuing the water licence and ordered its cancellation, effectively immediately. The board also ruled B.C. failed to operate in good faith with the Fort Nelson First Nation and that the province’s consultation process was “seriously flawed.”

According to Sigurdson, the province may need to change its approach to consultation.

The province should have ensured the equivalency agreement met the needs of First Nations that stood to be affected by the Northern Gateway pipeline, she said.

“They were supposed to have consulted and it was not honourable for them to not do that.”

Consultation “has to mean something,” Sigurdson said. “It’s an obligation grounded in a solemn constitutional promise to preserve and protect the aboriginal rights of First Nations in Canada.”

“It can’t just be window dressing,” she said.

“It has to be real and meaningful dialogue. You can’t just have pretend consultation stand in the place of performing the actual obligation of giving information, hearing concerns and responding to them — actually engaging the concerns. “

“If you’re not doing that, you’re not doing the consultation required.”

Image: Mandy Nahanee, member of the Squamish First Nation at a rally, June 2014. Photo: Zack Embree.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

“I do not want to be the grand chief who consented to a pipeline that’s going to destroy 30 per cent of the fresh water in Ontario, in Treaty 3 territory,” Treaty 3 Grand Chief Warren White said in a speech outlining his objections to TransCanada’s proposed Energy East oil pipeline last week.

“I did not come here for consultation. I came here to let everyone know what Energy East is all about…In unity in Treaty 3 we will be the ones to stop this. Our communities, our youth, our leadership are being called on by other nations,” White, while presenting at a public meeting hosted by the Ontario Energy Board in Kenora, Ontario, stated.

TransCanada “low balled” and “tried to pull a fast one” on Treaty 3 chiefs, according to White. The pipeline company agreed to participate in a consultation process based on Treaty 3 Resource Law or Manito Aki Inakonigaawin in Anishinaabe (Ojibwe), but failed to actually engaged in the process. TransCanada was a no-show for a meeting with Treaty 3 chiefs on December 21st last year.

“I am very upset right now and you put that in your report that Energy East, TransCanada whatever you wanna call it, are there for the dollar signs, and nothing about the land, nothing about how we survive,” White said.

"I do not want to be the grand chief that’s remembered as, 'all he wanted was the money.' I do not want to be the grand chief known as the destroyer of the lands, waters, sacred sites, rivers, trees, animals, birds…We are going to get another Grassy Narrows situation, an oil spill will happen no matter how safe you guys say it is.”

If approved, the 1.1 million barrel a day pipeline stretching from Alberta to New Brunswick would operate on Treaty 3 territory. The Treaty 3 First Nation represents over twenty-five Anishinaabe First Nations whose traditional territory covers an area of northwestern Ontario larger than Newfoundland.

White’s speech was part of the ongoing public consultations Ontario’s energy regulator – Ontario Energy Board – is conducting with communities and First Nations along Energy East’s proposed route in northern and eastern Ontario. The board will be in Ottawa Thursday.

The provincial government claimed it will partly base its position on Energy East in light of the board’s findings. Ontario plans on arguing its case for or against Energy East at the National Energy Board (NEB) hearings on the pipeline project expected to take place later this year.

Ontario has identified seven conditions for its approval of the pipeline. Included is the condition that “proponents and governments” fulfill their constitutional duty to consult with the province’s First Nations on the project.

“When you send me correspondence and I never participated that does not constitute consultation. We keep hearing [from] government about meaningful consultation, the duty to consult. I never consented to be part of this [regulatory] process,” White told the Ontario Energy Board.

The federal government has the constitutional duty to consult with First Nations, Metis and Inuit on projects that may infringe upon their aboriginal and treaty rights according to the Supreme Court of Canada decision in Haida First Nation vs British Columbia in 2004. There is no indication yet that the federal government plans to fulfill this legal duty in the case of Energy East.

White expressed his lack of faith that the Ontario Energy Board and National Energy Board processes are interested in protecting Treaty 3 rights:

“No matter what we say as intervenor or [in] protest to the Ontario Energy Board and National Energy Board we know you are still going to move forward [with the pipeline], but without our consent,” White said.

Ontario, although calling itself a “climate leader,” has come under fire recently from pipeline critics for weakening its stance on Energy East. Premier Kathleen Wynne announced last December the province would not take into account the potential upstream greenhouse gas (GHG) emissions of Energy East when deciding whether to support the project.

The Ontario Energy Board has also been criticized for its claims Energy East, North America’s largest proposed pipeline project, will likely have a “relatively modest” impact on GHG emissions in Canada.

Image Credit: Ontario.ca

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.