Eight different groups will have the chance to weigh in on the fate of B.C.’s mining system this April. In a recent decision, the B.C. Supreme Court allowed groups representing Indigenous communities, human rights, environmental advocacy and the mining industry to present statements in a precedent-setting legal challenge to the province’s mineral tenure system. 

The B.C. Supreme Court will be deciding whether or not the way the province permits mining exploration is “unconstitutional.” The exploration process being challenged is called the “free-entry system” and it has its roots in B.C.’s gold rush era. 

The current system allows anyone to stake a mineral claim without consulting Indigenous communities or private landowners. Anyone age 18 or older can go online, review a map of the province and make a mineral claim with a few clicks on an available plot of land. A claim holder can then access the land for exploration and development. 

Kendra Johnston, president of the Association for Mineral Exploration B.C., previously told the Narwhal that only one in 10,000 exploration projects will ever become a mine.

But claims alone can prevent Indigenous communities from protecting an area. Gitxaała Nation and Ehattesaht First Nation are leading the challenge against the B.C. government, arguing that the current free-entry system does not align with the government’s duty to consult with First Nations and has impacted their rights and title to the land.

The current system is “a relic of colonization,” Union of BC Indian Chiefs Grand Chief Stewart Phillip said to a crowded room of supporters and media in mid-December. “In this day and age, somebody can huddle over their keyboard in a dark basement and file a claim to tens of thousands of acres of Indigenous lands without any consultation whatsoever; without any notification,” Stewart said ahead of court hearings.

The Union of BC Indian Chiefs was part of one of the groups requesting intervenor status mid-December. An intervenor is a group or individual allowed to make legal arguments in a case other than the individual or group who brought the case forward. The court must give permission for an intervenor to submit its position and can impose limitations on how that position is presented.

In December, eight groups representing 19 different First Nations, Indigenous organizations, human rights and environmental groups as well as mineral exploration and the mining industry were seeking intervenor status. On Jan. 6, the court decided all eight groups have the right to intervene.

Sm’ooygit Nees Hiwaas (Matthew Hill), Gitxaała Hereditary Chief launched this case in October 2021. Chief Simon John of Ehattesaht First Nation launched a similar petition in June 2022. The two cases joined last September. Gitxaała seeks a declaration that the Crown failed to meet their duty to consult with their leadership as required by B.C.’s Declaration on the Rights of Indigenous Peoples Act, they want multiple claims in their territory to be quashed and the online mineral and title system suspended in their territory.

One mining exploration company will be intervening in support of Gitxaała: First Tellurium Corp., an exploration junior with a mineral project outside of Smithers. “We believe going forward, the [United Nations Declaration on the Rights of Indigenous Peoples]’s fundamental proposition of free, prior and informed consent must be at the heart of mineral exploration and mining tenures in British Columbia,” Tony Fogarassy, Chairperson of First Tellurium said at a press conference before the court hearings.

But not all exploration companies agree. A group made up of the Association for Mineral Exploration, the Mining Association of British Columbia and the Prospectors and Developers Association of Canada will be intervening to lobby against changing the free-entry system. 

“Any significant disruption” to the improvements and collaborative work currently underway to align with B.C.’s Declaration on the Rights of Indigenous Peoples Act, “poses a risk to investors in existing mines and proposed exploration work,” Michael Goehring, president and CEO of the Mining Association of British Columbia, said in an affidavit. He also expressed concerns that changing the system would cause short-term impact to small communities across the province and long-term economic impact to the “viability of the mining industry.”

‘We decided to take a stand’: Gitxaała leadership

After a long day of court hearings in December, Gitxaała leadership, allied nations and mining justice advocates met for a fundraising event to help cover the legal costs of the case. This is a “once-in-a-generation chance to strike down gold-rush era laws that violate rights and desecrate Indigenous lands and waters,” read the invite from West Coast Environmental Law BC Mining Law Reform, Gitxaala Nation and Respecting Aboriginal Values and Environmental Needs, a charity that raises money for Indigenous legal challenges.

In front of a room of supporters, Hill shared how overwhelming mining damage has been for his people. In 2015, Yellow Giant mine discharged tailings and effluent into waterways, wetlands and forest of Banks Island, in Gitxaała territory approximately 60 kilometres southwest of Prince Rupert, part of the Great Bear Rainforest. The provincial government ordered a shut-down of the site the same year. “The damage is severe, it’s almost non-repairable. For a few years, our people couldn’t harvest their food in that area because of the tailings discharge, into the ocean, right into the harvest bed,” Hill previously told The Narwhal.

Hill shared childhood memories of digging up giant clams and feeling connected to the land. He wants to ensure his people’s land and way of life is protected for future generations.

“When we realized claims were in the middle of our territory we decided to take a stand,” Hill said. 

The Gitanyow will be intervening in support of the Gitxaała. The First Nation declared its territory in northwest B.C. a protected area in 2021 in an attempt to protect critical salmon spawning habitat from claims and potential mining projects. But the claims on the land remain and removing them might require the province to compensate claim holders. Naxginkw (Tara Marsden), wilp sustainability director for the Gitanyow Hereditary Chiefs said that the government has estimated it could cost between four and $7 million to compensate tenure holders on their territory. 

“The shell game the mining industry is playing with Indigenous lands and taxpayer dollars needs to be overhauled,” Marsden said at the fundraising event. 

The government is currently considering revisions to the Mineral Tenure Act and in his most recent mandate letter to Josie Osborne, Minister of Energy, Mines and Low Carbon Innovation, Premier David Eby asked that “the co-development of a modernized Mineral Tenure Act with First Nations and Indigenous organizations, in alignment with the [Declaration on the Rights of Indigenous Peoples Act] Action Plan commitment” be prioritized.

The court will decide the fate of the province’s free-mining system after a seven-day hearing in April. If it decides to immediately strike down the current system, the Crown argues there would be a policy vacuum for an “income-generating industry” as the province is not prepared to implement an alternative system to dictate how claims would be made or what the duty to consult would look like.

However, if there is a delay in implementation, the Gitxaała lawyers argue there could be a “claim-staking-free-for-all.” Miners will try and stake as many claims as possible before the process is changed and a duty to consult is required.

For Grand Chief Stewart Phillip this case is an opportunity for progressive change in the province. “This represents hope,” he said.

Updated Jan. 17, 2023, at 9:57 a.m. PT: This article has been updated to clarify Michael Goehring’s title. He is president and CEO of the Mining Association of British Columbia not the president of the Association for Mineral Exploration as previously stated.

Updated Jan. April 6, 2023, at 4:56 p.m. PT: This article has been updated to clarify the remedies that Gitxaała is seeking in the case.

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The Neskantaga First Nation in northwestern Ontario hasn’t had access to safe tap water since 1995.

A generation of residents have grown up and begun to raise children of their own under a permanent boil water advisory, despite decades of federal government promises to address the water crisis on reserves. It’s the longest running boil water advisory in Canada, but just one of almost 100 currently in place.

Last month, things got worse. The reserve’s water pump and backup pump both broke down and tap water was no longer filtered.

The boil water advisory was replaced with a “do not consume” warning. Some homes had no running water at all. The community’s school was closed.

A mother in Neskantaga cleans and rinses her baby’s bottles. The Neskantaga First Nation hasn’t had access to safe tap water since 1995. Photo: Samer Muscati / Human Rights Watch.

The unfiltered water led to an immediate spike in residents visiting the local health centre, complaining of headaches, skin rashes and stomach problems.

Neskantaga — an Oji-Cree community of about 300 people accessible only by plane and by winter roads — joined 13 other reserves in Canada with do-not-consume water advisories.

On the morning of Sept. 14, two days after the pump failure, Neskantaga Chief Chris Moonias asked Indigenous Services Canada to assist with a community evacuation, but it refused, claiming that the repair would be quick and that there were “no immediate health or safety risks” to residents.

Moonias, unconvinced, declared a state of emergency.

“This continued water crisis goes beyond boiling contaminated water,” he said in a statement. “The bigger issue is that peoples’ basic fundamental human rights are being contravened and continually ignored.”

About 220 people — those most directly affected, such as infants and chronically ill adults — were evacuated by air to Thunder Bay, about 430 kilometres south of the reserve. They waited while a new pump was flown in from southern Ontario and installed, and for the water to be tested.

“I never thought it would happen,” a 24-year-old-mother who was evacuated told The Tyee. (She declined to share her name, citing personal reasons.)

“I thought it was a solid joke, honestly.”

Some residents make the trip to get water from the community’s reverse-osmosis machine, the only free source of clean drinking water on the reserve. The machine, photographed in 2015, breaks down a few times a year. Photo: Samer Muscati / Human Rights Watch.

High transportation costs mean groceries are expensive and residents rely on cheap, processed drinks, resulting in an elevated diabetes rate in Neskantaga. A 3.75-litre bottle of water cost $7.25 in 2015. Photo: Samer Muscati / Human Rights Watch.

It took about a week for the do-not-consume advisory to be lifted, and the evacuated community members began returning home on Sept. 23.

The water situation returned to the way it was the past 24 years — tap water that looks more like tea and that has to be boiled before drinking, and showers that can make residents itchy for over an hour.

“It’s yellow,” said the mother, “but sometimes I drink it when I have no choice.”

Usually she drives her truck twice a week to get water at the small, out-house-like structure that houses the reserves reverse-osmosis treatment system, near the motel that overlooks Attawapiskat Lake.

It’s the only place on the reserve residents can get free clean water, open from 8 a.m. to 10 p.m. on weekdays and 10 a.m. to 10 p.m. on weekends. Residents typically have to make a few trips a week. The machine has been prone to freezing and malfunctioning, forcing the First Nation to rely frequently on expensive bottled water shipped to the remote community.

For over 42 years, federal governments have been talking about solving the water crisis on reserves.

In 1977, the federal cabinet accepted a memorandum by then prime minister Pierre Trudeau on providing reserves “with the physical infrastructure that meets commonly accepted health and safety standards, similar to that available in neighbouring, non-Indian communities.”

But there was never legislation to cover on-reserve needs such as education, health and drinking water.

Only piecemeal policies and programs were approved, resulting in “confusion about federal responsibility for funding them adequately,” found a 2011 auditor general’s report.

The problem was reiterated in the 2015 Truth and Reconciliation Commission’s final report. Indigenous communities “cannot effectively plan and control the delivery of their services because the federal government has not created a legislative base to hold itself accountable,” the commission found.

That has created uncertainty about questions like who is responsible for things like building and maintaining water treatment systems.

Youths walk along the road in 2015 in Neskantaga First Nation, a remote community in northern Ontario which has been on a boil water advisory since 1995. Photo: Samer Muscati / Human Rights Watch

Then there’s the problem of changes in government. In 2005, the Paul Martin Liberal government signed the Kelowna Accord, a $5-billion, 10-year commitment that included $400 million for clean water on remote reserves. But when the Harper Conservative government came to power the following year, the deal was scrapped.

And so the water crisis persists — due to inadequate funding, confusion about jurisdiction and poor water management, monitoring and personnel training.

Human Rights Watch found in 2016 that many water technicians and operators received limited education and training — learning through “trial and error” — and virtually no support.

“I learned by myself, by the book,” said one.

But every reserve is unique in its challenges.

On the Neskantaga reserve, it was an incorrectly built filtration system that resulted in the 24-year boil-watery advisory. For others, it might be a polluted well or a lack of pipes.

In the 2015 election campaign, Justin Trudeau promised he would help lift all drinking-water advisories on reserves by March 2021.

When his Liberal government came into power in November of that year, there were 105 reserves with water advisories. Government data show that 87 have been lifted during their term, with 56 remaining.

But in the same period, advisories were issued for another 39 reserves.

Neskantaga, with $8.8 million from the new government, was supposed to have a new water treatment facility by spring 2018. But the contractor the nation chose did not meet the deadline, and they were fired in February.

With a new contractor, the facility is now expected by next month at the latest.

Meanwhile, the Liberals have pledged to meet their March 2021 deadline for eliminating all drinking-water advisories on reserves. The NDP have promised that it would do it even faster if elected. The Greens have also pledged to address the issue, while the Conservatives announced Friday they will “continue to support efforts to end long-term boil-water advisories, which were first started by the previous Conservative government.”

Considering the confusion that still exists around responsibilities, the problems are not likely to end soon.

The Tyee made multiple unsuccessful attempts to interview someone from the band office and health centre and was unable to reach Chief Moonias by email or phone.

Due to the psychological affects of the 25 year BWA, it will take another generation to trust the water after the BWA has been lifted. If it’s ever going to be lifted. Even today, we have a hard time trusting any water from the tap. Pictured is a boiled water from Neskantaga pic.twitter.com/5zaj4pHjXC

— Chris Moonias (@can_ndn) December 7, 2018

But Moonias, in a tweet from last year, noted the “psychological” effects of these water advisories. It’s stressful wondering if water from the tap for a drink or a bath will make you and your kids sick.

In his community, Moonias says, “it will take another generation to trust the water after the BWA [boiled water advisory] has been lifted.”

“If it’s ever going to be lifted,” he added.

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“First Nations save us again.”

That was the message of a text I received from a friend after they heard of the Federal Court of Appeal’s decision to overturn the Harper government’s approval of the Enbridge Northern Gateway pipeline.

And it’s true: First Nations have borne the social burden once again of calling out undemocratic, law-breaking government actions that threaten the climate, the environment and human health.

Alongside the many First Nations that brought a legal challenge against the Northern Gateway pipeline approval were several environmental organizations that brought attention to the ways the project threatened endangered species and marine life.

But it was the former government’s tragic lack of First Nations consultation that caught the court’s attention.

In their ruling, two of the three judges said the government failed to meet even a basic standard for First Nations consultation. In fact, the government all but closed their eyes and stopped up their ears to some of the most basic aspects of First Nations existence.

From the ruling: “The inadequacies — more than just a handful and more than mere imperfections — left entire subjects of central interest to the affected First Nations, sometimes subjects affecting their subsistence and well-being, entirely ignored.”

“Many impacts of the project — some identified in the Report of the Joint Review Panel, some not — were left undisclosed, undiscussed and unconsidered.”

“Ignored.” “Undiscussed and unconsidered.”

It’s extraordinary that some of the most disenfranchised participants in this system were left to fight a major energy infrastructure project — and the undemocratic process that granted its approval — in the courts.

In fact, the mere existence of First Nations people in British Columbia is extraordinary.

That these unique traditional cultures and ways of life have survived the onslaught of Western, industrial, imperial and racist governments and policies in this province is extraordinary.

That they have done so mostly outside a treaty framework, and upon almost entirely unceeded territories, is extraordinary.

That these communities, these individuals, have preserved a cherished, land-based way of life that seems in part the antidote to the poisonous, destructive and extractive impulse of modernity — all while fighting precedent-setting court cases to maintain their right to that life — is extraordinary.

And let’s not forget: the very way First Nations rights and title is enshrined within our constitution is extraordinary.

And the fact that today, in the face of a government that has systematically neglected, silenced and oppressed them, these First Nations have secured a legal victory that will likely benefit us all, is extraordinary.

Legal commentators are already pointing to how this ruling exposes the fundamental inadequacy of our pipeline review process. That is the very same process currently in place for the Kinder Morgan Trans Mountain pipeline — another project local First Nations have been forced to fight in court.

The same failures and inadequacies of consultation have also plague this province’s approval of fracking operations, industrial water use, species at risk management, environmental assessments and the oversight of a nascent LNG export empire.

Treaty 8 First Nations in the Peace Region have also been forced to take the province to court over violations of treaty rights in the face of the destructive Site C dam. There are more violations occurring there than local First Nations have the time or capacity to legally challenge.

Legal battles like the one won for B.C. First Nations today are costly. They drain First Nations of the energies and resources that would otherwise be invested in their communities.

The decision for the Enbridge Northern Gateway pipeline now rests in the hands of the federal government and Prime Minister Trudeau, who recently signed Canada onto the UN Declaration on the Rights of Indigenous Peoples.

Let’s hope, moving forward, First Nations consultation as well as all constitutional and treaty rights, will be made part of this government’s decision-making process rather than a shameful afterthought.

Heaven knows it will benefit us all.

Image: Pipeline opponents rally against the Enbridge Northern Gateway pipeline in Vancouver. Photo: Zack Embree

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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

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BC Hydro has come out swinging against the Royal Society of Canada and 250 of Canada’s top scientists and academics that recently called for a stop to construction of the Site C dam, saying the group is being one-sided.

Royal Society representatives and academics did not take part in the environmental assessment process and did not seek a balanced assessment of the hydroelectric mega-project, says an unusually critical statement released by BC Hydro.

The dam, which will cost taxpayers almost $9-billion, will flood farmland and First Nations traditional territory in the Peace Valley to create an 83-kilometre reservoir.

A Statement of Concern, released by the academics earlier this week, asks the federal government to live up to election promises to respect legal obligations to First Nations and to make decisions based on scientific integrity.

Repeated requests by DeSmog Canada for comments from Energy and Mines Minister Bill Bennett have been ignored but, speaking to other media, Bennett criticized the Royal Society for being political and suggested members should have taken part in the environmental assessment process.

Ken Boon, president of the Peace Valley Landowner Association, whose historic farmhouse overlooking the Peace River will be flooded by the dam, dismissed that idea.

“That’s silly,” he said pointing to the many recommendations made by the Joint Review Panel that were then ignored by the provincial government in its rush to get construction of the dam underway.

“There were steps that should have shut it down and it didn’t make any difference,” said Boon, who is happy to see the academic support. Boon, along with several other Site C opponents, is currently being sued by BC Hydro for his participation in a protest camp. Legal experts have criticized the lawsuit as a threat to freedom of expression.

“This has had incredible media coverage and rightly so when you have such a large and distinguished group speaking out on the project,” he said.

Boon does not believe the provincial government is showing any sign of listening to the criticism, but his hopes are pinned on the federal government.

“In a lot of ways the ball is in the federal government’s court right now. It’s the government’s obligation to review those permits properly and then refuse to issue them if that’s what they deem is the right thing to do,” he said.

The Royal Society and fellow academics say the federal government should not issue any more permits for the project until there have been additional reviews and the courts have ruled on four legal challenges that have not yet been heard.

In its statement BC Hydro argued it cannot stop construction to wait for court rulings as its mandate is to meet the long-term electricity needs of customers and to build Site C on time and on budget.

“Court challenges of major infrastructure projects are not uncommon in Canada and they do not stop construction from proceeding,” says the statement, which points out that, so far, four judicial reviews of the environmental appeals have been dismissed.

Chief Roland Willson of West Moberly First Nation is hoping the appeal by scientists and academics will influence the federal government.

“It is frustrating when you have the premier of B.C. saying they are just going to ride roughshod over the rights of First Nations…But we have some ability to get the federal government to pay attention because the treaty lies with them, so they are on the hook,” Willson said. The West Moberly and Prophet River First Nations are currently fighting against the Site C dam in the courts, saying the project violates treaty rights.

“If they issue permits, then we may have to file another court case for treaty infringement.”

The Wilderness Committee is among groups calling on Prime Minister Justin Trudeau to consider the human rights and environmental impacts of the dam detailed by the academics.

“The federal government’s position is that projects like the Site C dam that were approved by the previous Conservative government will not be revisited,” said Joe Foy, Wilderness Committee national campaign director.

“This is an outrageous position and a slap in the face to those who have been demanding justice. B.C. taxpayers are being fleeced and First Nations’ and farmers’ lands are being flooded for this dam project — the government must do the right thing."

Image: Premier Christy Clark and Minister Bill Bennett/Flickr

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The speech Alberta Premier Rachel Notley gave to over 1,000 federal NDP delegates on Saturday in Edmonton’s Shaw Convention Centre was a stunning thing to behold.

In a mere half-hour, she received around a dozen standing ovations, cracked a pretty solid joke about Donald Trump and delivered a unabashed appeal for the approval and construction of pipelines “that are built by Canadians, using Canadian steel.”

But even more stunning was the fact that she completely failed to mention the rights or interests of First Nations, Métis and Inuit people.

Oil and Gas Industry Currently Critical to Alberta Economy

The Alberta government clearly has a reason for wanting to facilitate the export of more oil and gas via the proposed TransCanada Energy East and Kinder Morgan Trans-Mountain pipelines.

In 2014, energy products accounted for one-quarter of the province’s GDP and three-quarters of its exports. The global oil price has since plummeted by two-thirds, resulting in a projected provincial deficit of over $10 billion.

Notley emphasized in her speech that “hundreds of thousands of Canadians work in resource industries — here and across Canada” and “we need to be able to get the best possible world price for the oil we produce here” via “pipelines to tidewater that allows us to diversify our markets and upgrade our products.”

Alberta NDP Pledged to Implement UNDRIP, “Ensure Respectful Consultation”

Those are very nice ideas, supported by many political pundits and Alberta NDP supporters.

But unfortunately for such boosters, the NDP committed in its election platform to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and to “work with Alberta Indigenous Peoples to build a relationship of trust and ensure respectful consultation.”

Article 32 of the declaration states that “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories.”

And free, prior and informed consent (FPIC) underpins much of the document, requiring that Indigenous peoples are consulted with in a way that ensures a process free of manipulation, conducted well in advance and with plenty of information provided.

Eriel Deranger, communications manager of the Athabasca Chipewyan First Nation (ACFN) suggests the NDP’s push for the development of pipelines and oil and gas resources simply doesn’t respect the principle of free, prior and informed consent.

“Where’s the consent?” asks Deranger. “If communities want to say ‘no,’ then we’re talking about a government that’s willing to respect communities’ right to say ‘no’ and to uphold that right,” she says.

Many First Nations Oppose Energy East and Trans Mountain Expansion

Many First Nations and other Indigenous groups have voiced opposition to Energy East and the Trans Mountain expansion (the two projects considered most likely to be approved and constructed).

The Squamish, Tsleil-Waututh and Musqueam nations and Union of British Columbia Indian Chiefs are explicitly opposed to Trans Mountain, while the entire Iroquois caucus, Wolastoq Grand Council and Assembly of Manitoba Chiefs have united in resistance to Energy East.

A letter sent by Mohawk Kanesatake Grand Chief Serge Simon to Quebec Premier Philippe Couillard in early March stated: “The Mohawk Council of Kanesatake as well as the rest of the Iroquois caucus has made its choice. Other First Nations are making the same choice.”

Mike Hudema, climate energy campaigner at Greenpeace Canada, says: “Not only have First Nations not given their consent but they have said very strongly that they don’t want these pipelines going through their traditional territory.”

Federal Government Positioning to Implement Pipeline Strategy

On Monday, the National Post’s John Ivison reported (while vaguely citing “people with knowledge of the matter”) that Prime Minister Justin Trudeau has instructed cabinet ministers to prepare a pipeline strategy to “make Energy East and Trans Mountain expansion in British Columbia a reality.”

The federal government has also pledged to implement UNDRIP, as well as all 94 calls to action contained in the Truth and Reconciliation Commission.

The TRC also emphasizes the concept of free, prior and informed consent of Indigenous peoples “before proceeding with economic development projects” and the requirement of “recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements.”

Many First Nations Desire Co-management of Resource Development

Deranger emphasizes that First Nations communities are not anti-development: “There’s this really, really antiquated notion that if you give First Nations the right to say ‘no’ we’re going to end up back in teepees and sending smoke signals or something really ridiculous,” she jokes.

Rather, she says First Nations are asking for co-management of resource development, something that has been done in the Northwest Territories, Nunavut, Northern Quebec and Manitoba (ACFN has been petitioning for a similar arrangement for 20 years).

“Co-management is not asking for everything,” she says. “It’s asking to be partners. Our ancestors signed our treaty agreements believing that we were signing nation-to-nation agreements, to be given equal say in the development of our lands and territories.”

There has been no public indication that such conversations are on the radar of the provincial or federal government.

Alberta’s Push for Pipelines “Flies in the Face of These Commitments”

After all, truly engaging with documents like UNDRIP and the TRC would require a complete overhaul of how development is conducted, could potentially pose a threat to corporate profits and prove difficult to explain to voters.

But the Alberta NDP perhaps shouldn’t have promised to implement such policies if it just wanted to continue rapid oilsands development in Treaty 8 territory and ram pipelines through other sovereign territories without ensuring free, prior and informed consent beforehand.

“I do think the Alberta government pushing so hard for pipelines really flies in the face of these commitments,” Hudema says. “A lot of First Nations communities are looking to see how the government deals with this situation to know how serious the government really is to its commitments to First Nations people.”

Image: Premier Rachel Notley holds a sign in support of the Energy East pipeline. Photo: Premier of Alberta/Flickr.

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.

“Responsible Resource Development.”

“World-Class Environmental Monitoring.”

“Jobs, Growth and Long-Term Prosperity.”

These are just some of the titles to emerge from the Harper government in recent years to pleasantly describe what is otherwise seen as a myopic and undemocratic program of increased resource extraction across the country. Yet, according to a new report released by the human rights watch group Amnesty International, Canada’s pursuit of energy superstardom has sidelined the nation’s human rights issues.

According to Amnesty International the Harper government has put economic development above human rights concerns and this is playing out most notably in the growing conflict between First Nations and the energy resources sector.

In a press release on its website Amnesty notes Harper’s recent statement to the UN General Assembly where he called for a world “where human rights and justice are preserved.”

Amnesty notes, “government action far too often fails to match those words.”

Alex Neve, director general for the group, recently told The Canadian Press that Amnesty wants human rights front and centre in next year’s upcoming federal election.

“With all the attention that will be on jobs and the economy, we have to recognize how important it is to deal with indigenous people’s land rights, corporate accountability and a trade policy that is grounded in human rights,” he said.

“All of that is not only good for rights and justice, but that’s actually ultimately the road for more sustainable economic growth.”

The Harper government has recently come under international fire for mistreatment of indigenous communities across Canada. James Anaya, the UN’s Special Rapporteur on the Rights of Aboriginal People, said Canada “faces a crisis when it comes to the situation of indigenous peoples of the country.”

Anaya said in the 10 years since the UN’s last visit to Canada, no significant progress has been made to address the very serious threats faced by aboriginal communities. In his recommendations to Canada, Anaya pressed Canada to avoid resource extraction on traditional indigenous lands without “adequate consultations” and the “free, prior and informed consent” of affected aboriginal communities.

Yet both federal and provincial governments have continued to push for new oilsands development, pipelines, fracking and mines on First Nations territory.

Intensive expansion of the oilsands in Alberta has led to multiple high-profile legal battles with local First Nations and proposed oilsands pipelines have ignited similar battles in British Columbia and likely Ontario.

A protest against gas fracking in New Brunswick made international headlines last year after a Mi’kmaq blockade on Elsipogtog territory was met with an aggressive police response including snipers. Similar conflicts have occurred on other reserves like that of the Kainai Blood Tribe, where aboriginal communities were met with violence and imprisonment for their opposition to fracking and natural gas development.

Mining has also been centre-stage in the conflict between indigenous communities and government and industry.

In British Columbia after the disaster at Imperial Metals’ Mount Polley mine the Tahltan nation set up a blockade at the entrance of the company’s Red Chris mine and called for an independent, third-party review.

The long-standing conflict between First Nations and the extractive industry was radically altered this year after the Tsilhqot’in people in Northern British Columbia won the most significant land title dispute in the country’s history. The implications of that precedent-setting decision will become clear as nations make similar land-based territorial claims across the province.

In addition the Harper government ratified the Canada-China Foreign Investment Protection and Promotion Act (FIPA), a trade agreement that pits First Nations rights against the legal obligation under the treaty to protect Chinese investments in projects like the Northern Gateway Pipeline.

Amnesty is calling on the Harper government to subject such trade agreements to rigorous and independent human rights assessments. Amnesty also recommends the government establish an ombudsman for the extractive industries and provide better access to Canadian courts for people harmed by Canadian mining companies.

The groups is also challenging Canada to respect both international and domestic laws that protect indigenous rights and to launch a public inquiry into Canada’s missing and murdered indigenous women.

Alexandra Lemieux, spokesperson with Natural Resources Canada, said “our government has taken substantial action to enhance participation of First Nations in resource development.”

She added, “we recently opened the Major Projects Management Office-West to enhance engagement between governments, industry and First Nations.”

According to Amnesty’s report an estimated 600 new major resource extraction projects are planned for Canada over the next decade. And although many of these projects will affect First Nations, Inuit and Métis the federal government has not ensured indigenous rights will be protected, the report states.

“Canada’s failure to ground economic development in respect for Indigenous peoples’ rights, hesitancy to ratify treaties that enhance law and order, and inconsistency in which countries attract Canada’s criticism are among the issues outlined in the new agenda,” Neve said.

“Economic growth, the quest for law and order and the promotion of freedom and democracy abroad must have respect for human rights at their core.”

“With an election on the horizon,” he added, “the human rights agenda is clear.”

“The road to economic success must be based on respect for rights of Indigenous peoples, upholding economic, social and cultural rights, welcoming refugees, and protecting the human rights of all."

Image Credit: Joyce Williams and Linda Williams of the Squamish Nation. Photo by Kris Krug.

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.