First Nations from northwest B.C. are strong in their opposition to a proposed liquefied natural gas project near Prince Rupert and will fight it in the courts and on the land if it is approved, a delegation of senior aboriginal leaders warned the federal Liberal government Tuesday. 

The group travelled to Ottawa to urge the government to reject Petronas’s Pacific Northwest LNG project at the same time as six municipal politicians from northern B.C. travelled to Ottawa in an effort to persuade the federal government to support LNG projects in the province.   Cabinet is expected to make a decision on the environmental assessment of the $11.4-billion Petronas project by late June.    While mayors from communities such as Fort St. John and Tumbler Ridge say LNG approvals are needed to prop up their sagging economies, First Nations say the Petronas project would threaten the Skeena River salmon run — Canada’s second largest wild salmon run — and would become one of the largest greenhouse gas emitters in the country.

One of the major reasons for the First Nations delegation was to tell government that claims of widespread First Nations support for the Petronas project are false, said Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs. 

“Contrary to the mythical claims of First Nations support, being spread by B.C. government officials and Petronas lobbyists in Ottawa, there is a deeply entrenched, extensive and broad indigenous opposition to the proposed PNW LNG project,” Phillip said.   The company claims to have support from major First Nations in the area, but last year the Lax Kw’alaams First Nation comprehensively rejected a $1.14-billion benefits package from the Petronas-led consortium and have continued to oppose the project, which would see a gas plant and shipping terminal built on Lelu Island, adjacent to Flora Bank.   However, last month, John Helin, newly-elected Lax Kw’alaams mayor, wrote to Environment Minister Catherine McKenna indicating conditional support for the project.   Proponents are using the letter as an indication of the community’s support, but other First Nations leaders say the letter was not authorized by the band council and Helin had not consulted with hereditary leaders, the community or his own council.   “The B.C. government has been saying that we’ve changed our minds and support the project,” said former Lax Kw’alaams Mayor Garry Reece.   “That’s simply not true and John Helin had no business sending a letter to that effect without consulting his elected council, hereditary chiefs and our community. That letter does not represent the position of the Nine Allied Tribes of Lax Kw’alaams.”   The delegation brought a message from Simoyget Delgamuukw of the Gitxsan First Nation. Delgamuukw is one of Canada’s best-known hereditary leaders and was the plaintiff in the ground-breaking aboriginal rights court case that saw the Supreme Court of Canada rule in 1997 that aboriginal rights had not been extinguished in Canada.   “The Prime Minister and, especially, the Justice Minister should be under no illusions — we will fight this ill-considered and illegal project in the courts and on the land if need be and we will win,” said the message from Delgamuukw.   “Petronas and the province have spent hundreds of millions of dollars lobbying Canadians and the federal government to approve a dangerous project. But they have been unable to buy our consent and they cannot purchase our legal system. Nor can they hide behind rogue elected band officials acting without proper authority.”   The project is linked with construction of an 800-kilometre pipeline that would cross dozens of First Nations territories and leaders from the entire Skeena River are standing in opposition because of impacts on the salmon harvest said Chief Na’Moks of the Office of Wet’suwet’en.   “We cannot allow this project to move forward and, even if the Government of Canada grants it approval, we will tie it up in the courts through legal challenges,” Na’Moks said.   Last month the First Nations position was bolstered by a group of 130 scientists who wrote to McKenna urging her to reject the Canadian Environmental Assessment Agency’s draft report on the project saying the report was scientifically flawed.   “A worse location is unlikely to be found for PNW LNG with regards to potential risks for fish and fisheries,” says the letter.   While the First Nations were setting out their case and asking Prime Minister Justin Trudeau to follow up on his promise of a new relationship with First Nations, the group of five municipal mayors met with Natural Resources Minister Jim Carr and senior bureaucrats.   The group was hosted by Bob Zimmer, Conservative MP for Prince George-Peace River-Northern Rockies who said in a news release that it is critical that the government hears about the strong support for B.C. LNG as it is vital to future growth of the northern B.C. economy.   “As we all know, our communities are struggling under the low price of energy and support for the LNG industry would provide a positive boost for our region,” Zimmer said.   But First Nations will not budge on their opposition to the Petronas project, emphasized Simoyget Yahaan, hereditary chief of the Gitwilgyoots Tribe of the Lax Kw’alaams people.   “Without our agreement, this project cannot and will not proceed,” he said.

Image: Heather Badenoch/Twitter.

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The Treaty 8 First Nations have received notice from BC Hydro that work on the Site C dam could start as early as July 6 — despite court proceedings still being underway.

Treaty 8 First Nations have applied for judicial review of the federal government’s decision to grant an environmental assessment certificate, arguing the Site C dam infringes on their treaty rights. The joint review panel’s report on Site C found the dam will result in significant and irreversible adverse impacts on people in the Treaty 8 communities.

The federal appeal begins the week of July 20, 2015. But Treaty 8 First Nations say that BC Hydro has ignored requests to put construction on hold until the outcomes of the court proceedings are known. BC Hydro did not respond to a request for comment in time for publication.

“The provocative activities that the B.C. government is recklessly trying to advance are irreversible, and will leave an irreparable and permanent scar on the land,” said Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs. “These deliberate actions will also indefinitely scar B.C.’s relationships with First Nations.”

The 1,100-megawatt Site C dam would be the third dam built on the Peace River. It has been proposed for more than 30 years and with a price tag of $8.8 billion, it is the most expensive public project in B.C. history.

The project has been controversial due to its impact on farmland, infringement of treaty rights and concerns about the costs of the project.

The First Nations Leadership Council — comprised of the executives of the Union of BC Indian Chiefs, the First Nations Summit and the B.C. Assembly of First Nations — issued a press release Thursday stating the council will “fully support the Treaty 8 First Nations to address this injustice and to prevent damage to the Peace River Valley.”

Treaty 8 says BC Hydro intends to begin blocking off the main channel of the Peace River with booms this summer. BC Hydro also intends to clear 735 hectares of trees and vegetation.

“If construction begins, it will be understood as a clear message that this government has absolutely no respect for the Treaty 8 First Nation people, and is blatantly disregarding constitutionally recognized aboriginal title, rights and treaty rights,” Phillip said. “Further, rushing ahead of the courts to build this project is an irresponsible and negligent use of tax dollars.”

Robert Phillips of the First Nations Summit political executive said the provincial government seems to have tunnel vision when it comes to building the Site C dam.

“By denying the Treaty 8 First Nations their day in court, the government is making an outright statement that they are above democratic rights and the judicial system,” Phillips said. “This approach is unacceptable and an affront to the cultivation of constructive government-to-government relations between the provincial government and B.C. First Nations.”

Close to $50,000 has been donated toward the Treaty 8 legal fight through Victoria-based charity RAVEN.

The B.C. government has argued the Site C dam is the most cost-effective way to meet the province’s electricity needs and has rejected repeated calls for an independent review of costs by the B.C. Utilities Commission.

Harry Swain, the chair of the joint federal-provincial panel that reviewed Site C, criticized the B.C. government’s actions on the dam in March 2015, in comments called “unprecedented” by environmental law experts.

Photo: Grand Chief Phillip Stewart of the Union of B.C. Indian Chiefs at last year's Paddle for the Peace on the Peace River.

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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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