The Ktunaxa Nation is deeply disappointed with a B.C. Court of Appeal ruling on a challenge to the province’s approval of Jumbo Glacier Resort’s development plans, says Kathryn Teneese, Ktunaxa Nation Council Chair.

Last year the Ktunaxa argued in B.C. Supreme Court that there was not adequate consultation before the province signed a Master Development Agreement with Glacier Resorts Ltd. for the controversial Kootenay ski resort and that development in an area considered sacred by the First Nation would violate their constitutional right to freedom of religion.

That petition was dismissed by the Supreme Court and the Ktunaxa launched an appeal, which was heard in May but, on Thursday, the Court of Appeal upheld the initial ruling in favour of the provincial government.

“The decision of the minister to approve the Master Development Agreement did not violate the Ktunaxa’s freedom of religion guaranteed under section 2a of the Charter. The minister did not breach his duty to consult and accommodate,” the ruling reads.

Teneese said an official response to the decision will be released next week.

“We are working closely with our legal team to analyze this ruling and other developments to determine what our next steps may be,” she said.

The court ruling is the latest twist in the 24-year Jumbo Glacier Resort saga.

Despite strong opposition to plans for a billion dollar, 6,300-bed resort in the Purcell Mountains wilderness from local politicians, environmental groups and the Ktunaxa, the province granted Glacier Resorts an Environmental Assessment Certificate in 2004 and renewed it in 2009.

However, Environment Minister Mary Polak pulled the Environmental Assessment Certificate this summer after concluding the project had not substantially started.

That means the project would have to go back to square one with a new application for a certificate, but company spokesman Oberto Oberti said last month that Glacier’s lawyers will submit a request for a judicial review of Polak’s decision or will come up with plans for a smaller project that would be below the threshold of Environmental Assessment regulations.

Robyn Duncan, executive director of Wildsight, a major opponent of the project, said the Court of Appeal ruling is a blow as it removes one of the ways the project could have been stopped.

“The big take-away is that the Master Development Agreement remains intact. They still can’t develop anything without an Environmental Certificate or without reducing the scale of the project and having that approved, but, nonetheless, it remains intact,” she said.

Meanwhile, both sides are awaiting another court ruling.

A B.C. Supreme Court judge has reserved her decision on an application by the West Kootenay EcoSociety to dissolve Jumbo Glacier Mountain Resort Municipality.

The municipality, which has no residents or structures within its boundaries, was formed to administer the development agreement.

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Internal documents obtained by B.C.'s Haisla Nation show the federal government had concerns about the consultation approach proposed for Enbridge’s Northern Gateway pipeline since at least 2009.

The documents, requested by the Haisla Nation nearly four years ago, were released through Access to Information legislation recently and show the federal government was warned it wasn’t fulfilling its duty to consult Aboriginal peoples as required under Section 35 of the Canadian Constitution.

An Environment Canada e-mail included in the documents contained a list of concerns regarding the consultation process, stating, “it is not clear that [the process] would meet the honour of the Crown duty.”

The e-mail also acknowledged “First Nations were not involved in the design of the consultation process” and that there was a “lack of clarity” concerning First Nations’ rights and title.

Haisla Nation Chief Councillor Ellis Ross said he received the trove of documents with “mixed emotions.”

“We’re very satisfied to know the staff of Environment Canada agreed with us in terms of the inadequate process in place to address rights and title,” Ross said. “But it’s disappointing this information is in our hands now when we can’t do anything with it legally or politically.”

“But it does confirm what we’ve been saying all along about the process when it comes to rights and title is very inadequate. It doesn’t even follow case law.” 

Under Section 35 of the Canadian Constitution Act, the government is obligated to "recognize and affirm" First Nations rights, including the right to traditional land and cultural practices. The Crown has a 'duty to consult' First Nations on any projects planned for traditional territory or projects that may affect aboriginal rights. 

The National Energy Board conditionally approved the controversial 1,178 kilometre Northern Gateway pipeline in June 2013 despite broad opposition from First Nations and other British Columbians.

“Now we can see that Canada’s own environment ministry agreed with us,” Chief Fred Sam of Nak’azdli said.

“For years Nak’azdli and the Yinka Dene Alliance have said to Canada that its approach to consultation for the Enbridge proposal is seriously flawed,” he said.

Eight First Nations including the Haisla, the Nak’azdli and Gitxaala Nations have launched a legal challenge against the pipeline on the basis of inadequate consultation.

Chris Tollefson, lawyer with the University of Victoria Environmental Law Centre, said the lack of appropriate consultation was apparent from the moment the Joint Review Panel (JRP) hearings for the Northern Gateway pipeline began.

“At the hearings I could see the frustration of the First Nations that were participating in terms of the inability of the process to deal with their constitutional rights and their issues,” Tollefson told DeSmog Canada.

“The JRP in my view was never clear on what its role was in relation to consultation and that uncertainty, I think, will ensure that this issue is before the courts for some time. Because in the end that consultation, from my perspective, was never duly discharged.”

When it comes to Section 35 of the Constitution, “the first principle is that First Nations have a right to be consulted on projects that would affect their rights or their title; in short, their livelihood and life and right to occupy traditional territory,” he said.

Tollefson said the federal Court of Appeal will hear the case of the eight First Nations as well as two environmental organizations — including BC Nature which he represents — against the Northern Gateway pipeline's approval in Vancouver this October.

Ellis Ross. Photo: Philip Chin

An additional Transport Canada e-mail released to the Haisla, dated August 31, 2009, also expressed doubt in the adequacy of the government’s approach saying “the consultation plan as written does not appear to be flexible enough to account for changing circumstances and incoming information.”

Both the Environment Canada and Transport Canada e-mails were sent to the Canadian Environmental Assessment Agency, which was seeking input from government agencies on Crown consultation.

Despite these doubts the federal government “charged ahead” with its consultation process, Chief Sam said.

“Now, many First Nations have been forced to go to court to challenge Canada’s Enbridge decision,” he said.

Gitxaala Nation Chief Clarence Innis said he’s “shocked” that, despite the apparent level of uncertainty about consultation, “Canada pressed ahead with this dishonourable treatment of our Nation and other First Nations.”

“This confirms the justice of our principled opposition to the shipping of bitumen through our territory and British Columbia’s Northwest Coast,” Innis said.

For Haisla legal counsel Ellis Ross, the documents cast a shadow on the traditionally fraught relationship between First Nations and the federal government.

“We’re trying to follow the rules, and case law principles — the Haisla isn’t blocking roads or anything — we’re trying to follow the courts,” he said.

“But with Canada, it’s like the rules are there to be bent or broken.”

Environment Canada Sep 1 2009 Email Re Consultation Approach

Transport Canada Aug 31 2009 Email Re Consultation Approach

Image Credit: Ellis Ross by Philip Chin

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A First Nations campaign to raise funds to conduct scientific research on the cumulative impacts of the oilsands has raised more than $27,000, surpassing its original goal of $25,000. The campaign ended yesterday after a short run of two weeks.

The donated funds will go toward the Beaver Lake Cree Nation’s constitutional challenge to the cumulative impacts of oilsands development. The trial is important, says Susan Smitten from the group RAVEN (Respecting Aboriginal Values and Environmental Needs) because it represents the “first time in Canadian history that the Court is allowing this kind of challenge to widespread industrial activity based on the cumulative effects these activities have on the Beaver Lake Cree’s constitutionally protected rights.”

The Tar Sands Trial

The pending trial hinges on the First Nation’s ability to demonstrate the cumulative impacts of oilsands expansion on their treaty rights. This is no small feat.

In an interview RAVEN’s Susan Smitten told DeSmog “this case is about proving the cumulative impact piece by piece. Experts will be needed to show how each individual species — from the ungulates to the fish — will be or already are being affected by the tar sands industries. This means gathering a lot of data — also about the impact on water, land and air.”

This requires putting together data from disparate sources into comprehensive impacts report for a judge to digest, Smitten says. “Science will create a picture that shows definitively how the treaty rights are being infringed.”

An obvious example, Smitten says, rests in the vanishing caribou herds from traditional Beaver Lake Cree territory.

“The woodland caribou report done by University of Alberta expert Stan Boutin showed the woodland caribou in the Beaver Lake Cree’s traditional region have already declined by 70 percent since 1996. That science is a smoking gun that tar sands development is violating the Beaver Lake Cree’s right to hunt and fish in the band’s usual and accustomed places under the treaty with the government of Canada.”

She adds: “What science will help to clearly show is that the expansion of the tar sands project is making it impossible for the band to hunt and fish: they can’t find an animal, and if they do it is often inedible because it has been exposed to toxins. So the promises in the treaty are not being kept.”

The fundraising campaign will in part support the band’s much larger goal of raising $2 million to pursue cumulative impacts research and expert witnesses.

“I’m thrilled that so many people supported this cause,” Smitten says. “I’m surprised that within two weeks the target of $25,000 was not just reached but surpassed. It tells me that there are many concerned global citizens wanting to do something real. They want to find a way to make a difference on an issue that until this legal action came along seemed too huge, to impossible, too overwhelming. But now there is a way to work for a better future.”

RAVEN’s vision, she says, “is a country that embraces the caretaker values of First Nations and their equitable access to the justice system within a thriving natural habitat. This legal action launched by some of our bravest citizens is a way to make that a reality.”

A Problem of Regulation

One of the most popular government refrains about the Alberta oilsands is that the megaproject operates under the calculating eye of one of the most advanced environmental regimes known to the oil and gas industry. Yet, scientists and environmental organizations have said for years that neither provincial nor federal oversight is up to the task of monitoring the world’s largest industrial project. Groups such as the Pembina Institute show that when the provincial government does make specific regulatory recommendations, in some cases it is completely ignored by industry. Other reports have shown that industry violations most often go unpunished.

One thing is clear: government regulation has been incapable of keeping pace with rapid expansion of the project. And despite government and industry claims to the contrary, the impact of that expansion has been significant.

And, according to the approval of the Beaver Lake Cree's legal battle, Canada’s legal courts feel these impacts deserve a fair trial.

Cumulative Impacts

The oilsands have long been known to have a negative impact on many aspects of northern Alberta life. The disappearance of woodland caribou may be one of the most notable measures of the development’s high costs, but so too are the health affects felt by local First Nations, who often live off the land. The Beaver Lake Cree are one of these nations.

Within the traditional territory of Treaty 6, the Beaver Lake Cree live on an expanse of land guaranteed by the Canadian government to support their traditional way of life. In 2008 the Beaver Lake Cree argued in an Alberta court that the government’s ceaseless permitting of new oilsands projects was inhibiting their ability to practice traditional ways of life — the very traditions guaranteed to them by the Canadian government since 1876.

The cumulative impacts, they said, had so fundamentally changed the nature of the landscape that hunting and trapping were becoming obsolete. At issue are the more than 19,000 project authorizations and some 300 individual industrial projects approved by the provincial and federal governments. The cumulative effects of the ever-growing oilsands development on locals species and ecology, including the presence of hydrocarbon contaminants in fish populations and lake sediment, are a direct threat to First Nation ways of life, say the Beaver Lake Cree.

When the government of Canada tried to have the case thrown out of court, the Alberta Court of Appeals responded with a judicious affront. The federal government, the Court of Appeals cautioned in April 2013, would benefit from taking the case seriously and should hasten to prepare for “litigation through trial.”

Industrial Impacts Ongoing

Since then the Beaver Lake Cree have experienced several unprecedented oil spills within their traditional boundaries. The infamous Cold Lake oil spills, discovered on four well pads operated by Canadian Natural Resources Ltd. (CNRL), spilled a total of at least 1.8 million litres of oil into surrounding forest and wetlands. The spills were related to a high-pressure steam injection process called Cyclic Steam Stimulation (CSS). Several fissures in the ground seeped oil into the area for months as the company and energy regulator tried to understand the cause of the release.

A total of two beavers, 51 birds, 106 amphibians and 62 small mammals died as a result of the spills and a portion of a lake was drained to expose an underwater fissure leaking oil into the water body.

According to Crystal Lameman, member of the Beaver Lake Cree Nation, the Cold Lake spills pointed to the often dangerous and experimental technologies used in oilsands extraction. The public knows very little about in-situ or underground extraction methods and yet the vast majority of oilsands deposits will be developed using these methods.

“We’re putting our guards down,” Lameman told DeSmog in July, while industry and government put the First Nation’s water at risk. “When we have spills like the CNRL spill, our aquifers are connected, so we know that the spills all have a connection to the water.” 

Lameman says these kinds of accidents, even if they don't immediately or directly affect human beings, "affect those beings that cannot speak for themselves. And it is those beings that we have a constitutionally protect right to live off of, to hunt, fish and forage for. But if they're drinking toxic water, they're breathing toxic air, then how can they guarantee to us that those animals are in their purest form?" 

Lead Image Credit: Kris Krug via flickr

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The Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) may be ratified as soon as tomorrow, November 1. This despite a massive demonstration of Canadian opposition to the investment trade deal that will lock the federal government into a dangerously undemocratic agreement with China and Chinese investors for 31 years.

The proposed agreement, signed by Stephen Harper in Russia on September 9 and kept secret until September 26, is being strong-armed through the house of commons after the required 21-day session in Parliament.

Political action and environmental groups, opposition party leaders and experts in the field of international trade law are urging the Harper government to reconsider the agreement’s immediate ratification, demanding an open parliamentary debate before the trade deal’s future is decided.

So far all requests to throw out the deal, host a national debate, investigate the deal in emergency Parliamentary discussions, or indefinitely delay the deal’s ratification, have gone unheeded by the Harper government.

Under FIPA the federal government is obliged to protect investor rights and profits, even to compensate for lost profits. That means when it comes to disputes involving Chinese investors, like the one over the future of Enbridge’s Northern Gateway Pipeline, the Canadian government will have a duty to protect investor profits and not necessarily the jurisdictional rights of the British Columbian government, people or First Nations.

But as West Coast Environmental Law (WCEL) pointed out yesterday, First Nations people in Canada have a unique constitutional standing in the country, a standing that restricts the federal government from making decisions — without prior consultation — that affect First Nations’ constitutionally-protected Aboriginal Rights.

It appears the Stephen Harper government has not fully considered the fact that, as WCEL puts it, “by giving new rights to Chinese investors, the treaty risks undermining Canada’s obligations to deal in good faith with First Nations.”

When it comes to the China-Canada Investment Deal, not only has the Harper government failed to deal in ‘good faith’ with First Nations, but has failed to deal with First Nations at all. For this reason, the details of the treaty may be inconsistent with Canadian law.

According to WCEL Canada is hoping to ratify the trade deal through an “Order of Council,” which will see the deal implemented via Cabinet without any legislation. However, Canada is only meant to implement international treaties this way “once the treaty is consistent with Canadian law.”

Treaty implementation occurs in Canada this way because we’ve got what is called a dualist model: “a treaty that has been signed and ratified by the executive still requires incorporation through domestic law to be enforceable at the national level…Canada cannot ratify an international treaty until measures are in place to ensure that the terms of the treaty are enforceable in Canadian law.”

(This is different than America’s monist system where Congress has the power to ratify treaties, making them, in principle, U.S. law, adds WCEL).

So, are the terms of FIPA ‘enforceable’ in Canada?

Well, no. Not according to Section 35 of the Canadian Constitution which states that the Crown must make decisions “leading to a just settlement of Aboriginal claims.” The Crown also has a duty to consult and accommodate First Nations before adversely impacting Aboriginal Title and Rights.

Aboriginal Title and Rights include the right to exercise sovereignty over territorial lands, to fish and hunt traditional foods and to partake in ceremonial practices. What is immediately obvious to BC First Nations is that Canada’s duty to protect and ensure these rights runs into conflict with Canada’s proposed duty and obligation to promote and protect the rights of Chinese investors eager to make a profit of the country’s production and export of tar sands oil.

Yesterday the Union of BC Indian Chiefs addressed Stephen Harper directly on this issue.

As they outlined in an open letter, BC’s First Nations are concerned Canada’s ability to honour negotiations with aboriginal peoples will be limited while the legal threat of international arbitration hangs over the government’s head. This is especially pertinent to the development of the tar sands and the construction of bitumen pipelines — both of which pose a significant threat to First Nations’ territorial sovereignty and traditional, land-based ways of life.

“On behalf the Union of BC Indian Chiefs, we are writing to firmly express, advise and direct the Government of Canada to reject the Foreign Investment Promotion and Protection Agreement with China as the Government of Canada has breached its fiduciary duty to consult First Nations on our respective constitutionally-enshrined and judicially-recognized Aboriginal Title, Rights and Treaty Rights.

Furthermore, as both Canada and China have adopted the United Nations Declaration on the Rights of Indigenous Peoples, both countries are bound by Article 19 which states: “States shall consult and cooperate in good faith with the indigenous peoples concerned…in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

As designed, we believe that through the ratification of this agreement, China will be granted protection and would thus greatly increase their investment in the development of the Alberta tarsands, pipelines, mining projects and possibly future offshore drilling projects, all at a great cost to our Aboriginal Title, Rights and Treaty Rights.”

Source: Globe and Mail

As this map illustrates, the pipeline traverses the territories of numerous First Nations in both Alberta and British Columbia and will supply Asia-bound supertankers with tar sands bitumen to ship through territorial waters.

When it comes to deciding whose rights ought to be protected, WCEL suggests FIPA could lead the government to favour foreign investors over First Nations:

“FIPA itself may violate the constitutionally-protected process of negotiations between the Crown and First Nations. There is a reasonable probability that the threat of multi-million dollar investor-state suits under FIPA will create a disincentive for the Crown to negotiate honourably with First Nations (for example, regarding environmental and cultural protection measures in treaties or other legal agreements). The question is whether this effect is so significant that it can be said that FIPA therefore ‘substantially interferes’ not just with First Nations preferred outcomes, but the very process of negotiation. If so, then on the basis of Charter jurisprudence in Canada, a court could hold any legal action taken by Canada to ratify or implement FIPA to be unconstitutional, and it is possible that a First Nation could seek an interim injunction preventing its ratification until they have their day in court.”

WCEL adds “given the lack of consultation with First Nations on FIPA it is very difficult to see how Canada could justify its infringement of First Nations constitutional rights.”

What can you do?

The countdown is running low, with the deal’s potential ratification expected as early as tomorrow.

If you haven’t already signed a petition, or you are looking to sign another, be sure to check out these options:

Leadnow.ca and SumofUs.org’s Stop the Sellout: Canada is Not for Sale

David Suzuki’s Stop the China-Canada Trade Deal

Change.org’s Prime Minister Harper: Stop FIPPA Deal with China NOW and allow debate in House of Commons

The Council of Canadians Open Letter to Stephen Harper

Sustainable Living and Urban Gardening Anti-FIPA Petition

You can also email these pivotal members of the Standing Committee on International Trade:

Rob Merrifield rob.merrifield@parl.gc.ca

Ron Cannan ron.cannan@parl.gc.ca

Russ Hiebert russ.hiebert@parl.gc.ca

Ed Holder ed.holder@parl.gc.ca

Gerald Keddy gerald.keddy@parl.gc.ca

Bev Shipley bev.shipley@parl.gc.ca

Devinder Shory devinder.shory@parl.gc.ca

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