Sheryl Lightfoot didn’t expect there would be much interest in the news of her recent appointment to the United Nations Expert Mechanism on the Rights of Indigenous Peoples.

Yet reporters from across B.C. reached out following the March 24 announcement, eager to know more about the first Indigenous woman from Canada to represent North America on the expert mechanism, which is composed of seven independent experts on the rights of Indigenous Peoples. The experts, who are appointed by the UN Human Rights Council, assist member states like Canada in achieving the goals of the UN Declaration on the Rights of Indigenous Peoples.

“There’s been actually, both from Indigenous press and non-Indigenous press, a whole lot of interest … it’s blown me away,” said Lightfoot, an Anishinaabe from the Lake Superior Band of Ojibwe who is an associate professor at UBC in political science, Indigenous studies and the School of Public Policy and Global Affairs. 

She also holds the position of Canada Research Chair in Global Indigenous Rights and Politics, studying the implications of Indigenous rights movements, the implementation of Indigenous rights in theory and practice and state responses to rights claims. 

Lightfoot, who grew up in Minneapolis, believes part of the interest in her appointment stems from the Black Lives Matter movement and the summer of racial reckoning in Canada and worldwide last year. Another factor is her work at UBC, where she is senior advisor on Indigenous affairs to the UBC president and co-led development of UBC’s Indigenous strategic plan, which outlines the university’s commitment to supporting the rights of Indigenous Peoples.

“Even before the Black Lives Matter movement, we had huge interest from non-Indigenous communities at UBC in the [Indigenous strategic] plan,” Lightfoot said.

Heightened interest in Indigenous Rights and movements also stems from provincial legislation aimed at implementing the UN Declaration on the Rights of Indigenous Peoples and the introduction of similar federal legislation through Bill C-15, she said.

In her new role, Lightfoot will be following in the footsteps of Grand Chief Wilton Littlechild and Dr. Kristen Carpenter, both of whom served on the UN expert body before her. 

The Narwhal caught up with Lightfoot to discuss her new role and thoughts on how Canada and B.C. have fared on their promises to uphold the UN declaration, which affirms Indigenous Peoples’ rights to self-determination, equality and non-discrimination.

How did you feel when you first heard the news about your appointment? What does the designation mean to you personally? 

When I was shoulder-tapped and asked to consider having my name come forward [for the position], I was of course honoured and humbled because I knew who my predecessors were and how honorable and prestigious they are. Then in late December, I was shortlisted and contacted for the interview process, which then happened in January. 

Four of us went through the interview. Following the interview process, the group that was doing the recommendation [ranked] three of the four names that they put forward. I came out as the number one ranking and had my moment of ‘oh my gosh, this could actually happen.’

The next step was for the president of the Human Rights Council to take a look at the candidates and put forward her recommendation. That letter came in February and that’s when I had my excitement and feelings of overwhelm, and honestly just readiness to dive in and start doing this work.

It was also difficult to keep it quiet because it was going to be almost six weeks before it was acted on by the Human Rights Council. So I did my best to keep my excitement [in check], to begin turning my mind to how I would transition and tailor my own academic work so that it would align with the work of the expert mechanism in the coming three years. But the excitement was building, and when the Human Rights Council acted by consensus on that recommendation, then of course, I was extremely excited and humbled.

It’s a bit daunting to be taking this step and expanding work to the global level. I’m not shy about taking on extra work, but I always am conscious of wanting to do it in the best possible way and also trying to make sure that I create supports around me, that I have students involved, that I have proper consultation going on so that I can do this work in an honourable way and with the highest integrity.

In March 2021 Lightfoot was named the North American member on the United Nations Expert Mechanism on the Rights of Indigenous Peoples. The announcement marks the first time an Indigenous woman from Canada has been appointed to the prestigious position. Photo: Jimmy Jeong / The Narwhal

How would you say your childhood experiences and generational knowledge impacted your career so far?

I’m not a survivor of residential schools but the three generations ahead of me all were, so by the time I came to be, that [had] created a great deal of disruption, pain, trauma, language loss, migration.

Growing up in the ’70s, I think, was an advantage, ahead of what the previous generation had, because there was so much focus about revitalizing culture and refreshing language. For all of us that were in the urban spaces — and I grew up in the Minneapolis urban Indigenous community — there was a lot of attention there in the late ’60s, early ’70s, [on] the political movements that were the centre of the American Indian movement. But also associated with that was cultural revitalization. 

I think growing up in that place and in that time planted a seed. In some ways, I say that my current work as an academic even began when I was five years old, which was the time of the Wounded Knee Occupation in South Dakota. It was the time of a shift, also, from the American Indian movement into the international sphere with the launching of the organizations that did end up going international. 

Then there’s the socio-economic realm. I grew up as the child of a single mom who was the child of a single mom, so poverty and difficult socio-economic conditions were the reality. My mother’s big dream for both of her daughters was that we would go to university. To her, that was going to be the pathway out of the difficult socio-economic condition that we had been raised in.

But then again, if we go with the ethos of the time … [Anyone with an] education is expected by everyone to come back and help the people. We were also given that message early on too.

We both have done that in our own way. My sister has been an elementary school teacher for more than 25 years at an American Indian magnet school in St. Paul [Minnesota, where] they’re teaching our language and our neighbouring people’s language to the little ones. 

After I did some community-based work in the urban area first, I went back for a PhD mid career, in my late 30s. So I’m giving back in different ways. My sister always laughs and says we get students at opposite ends. So [she] starts them out. And then [I] graduate them from university and beyond. Together, we make a complete circle.

What will be some of your biggest priorities in your new role? 

A couple of projects that are currently underway will pass to me, and I’m very happy to pick up the baton on both of them.

One is looking at the rights of the Indigenous child around the world, and the other one is a project on Indigenous self determination around the world and how the rights of self determination are being advanced by different stakeholders. 

Both those reports will prove tremendously informative to the UN system. If we think about the rights of the Indigenous child, that report will help create rules for how UNICEF does its work with Indigenous children.

Another key project going on on the international level in preparation for the next 10 years is the international decade on Indigenous languages after it became clear that one year was not enough — that focused attention needed to be for a decade in order to revitalize and save so many Indigenous languages. Those are three ongoing pieces of work that are already in place.

One of my main concerns is the question of free, prior, and informed consent. The expert mechanism did a significant report on it about five years ago, which was a good start, but I think we need to revisit this again because there are cases of unrealized free, prior and informed consent everywhere in the world.

It creates conflict when it’s not resolved and I think all sectors — governments, Indigenous Peoples, industry — are all seeking more clarity on what free, prior and informed consent means, how you get it, and how you know you have it. 

Do you plan on addressing Canada’s failure to acquire the free, prior and informed consent of Indigenous Peoples before moving forward with projects like the Coastal GasLink pipeline, Trans Mountain pipeline and the Site C dam? 

How that gets handled is a matter of some delicacy. In order for the expert mechanism to be brought in, it has to be invited in. Before I was named as a member, you’ll find some writings and some quotes of mine from earlier articles that recommended that in our current conflicts, which sometimes feel irresolvable, it might be a good idea to bring in the expert mechanism to advise Canada and/or B.C. on best paths forward. 

I would still advise that, especially since the Committee on the Elimination of Racial Discrimination (CERD) — a treaty body that monitors compliance by Canada — has issued multiple letters to Canada. The most recent one was in November 2020, advising a change of course on several projects and actually encouraging further discussion and development of appropriate legislation and policy practice. I weighed in on those on both letters and in both cases I recommended looking to the expert mechanism and issuing an invitation because it’s an expert panel of seven human rights experts from all regions of the world who have the ability to come in, listen to the various stakeholders and provide advice from the knowledge base that the mechanism has built up. 

Do you think upholding Indigenous rights also intersects with achieving climate change goals? 

I have every reason to believe so. This is not just an anecdote. There are clear correlations between the areas that are best protected and Indigenous territories.

Quite frankly, if Indigenous lands and territories and cultures are respected in the ways that the UN declaration asks for them to be respected, there will also be a lot more land that is cared for under Indigenous jurisdiction and that in and of itself enhances the climate picture.

Canada has much work to do to move forward on implementing the rights of Indigenous Peoples in Canada, Lightfoot says. Across the country, governments, industry and Indigenous Peoples will all benefit from greater clarity when it comes to securing free, prior and informed consent for development and projects on Indigenous territories, she says. Photo: Jimmy Jeong / The Narwhal

At a provincial level, is British Columbia doing enough to support Indigenous-led conservation efforts?

I think there are some important acknowledgments of Indigenous jurisdiction over particular areas. There are some important examples of partnerships or collaborations which are also positive. What’s left to talk about is the significant amount of Crown land that is also under Aboriginal rights and title.

I believe that, given the underlying rights and title of most of those areas of Crown land, there must be discussions concerning co-management, co-development or, actually, Indigenous ownership.

How much work does the federal government still need to do in order to fully comply with the standards and framework laid out by the UN declaration, which Canada promised five years ago to implement ?

Significant work in all areas: political, cultural, social, economic, health, education. Canada’s behind in almost everything, and far from having implemented the declaration.

I appreciate that in the current proposed legislation is the requirement for a national action plan. A lot of this work will need that action plan in order to really get rolling and get off the ground. I say that because bureaucracies are very resistant to change and they have a strong preference for whatever the status quo has been.

Speaking of the proposed legislation, can you expand on your thoughts on Bill C-15, Canada’s UNDRIP Act? What are its benefits and what are its limitations?

There’s quite a bit of controversy about it in a couple of different dimensions. 

[Some people are] concerned that if it is passed, that will place roadblocks for Canadian industry and investment. I view that similarly to the idea that change is frightening. I think that will dissipate because over time, industry will have a landscape that’s more clear. When a project has the consent of Indigenous people to go ahead, there will be fewer lawsuits, fewer protests, fewer disruptions — and that is actually good for business. But before you get there, you have to do the process correctly, and the people involved have to fully embrace the project. There will be an adjustment period, no doubt, but doing business in a way that aligns with Indigenous human rights is also an exportable model for Canada. It becomes something that Canada could eventually be very proud of and bring to other locations, if done thoughtfully.

At the same time, I have heard worries from Indigenous folks that this legislation could be limiting the constitutionally protected rights of Indigenous Peoples in Canada. I hear their anxieties and I know the trust deficit that’s there. Having looked at the legislation, having given it careful thought, I don’t share that concern.

I think C-15 is actually a positive advancement that places those incentives for government officials and bureaucracies to advance the agenda that they might not otherwise have. I do worry a bit about proceeding without this legislation. On balance, [after] hearing all the concerns, the legislation does a great deal to advance implementation of the UN declaration. And it has already been five years since that last statement. It’s time to put more action on the ground.

Lightfoot says she has faith in Canada’s Bill C-15, the UN Declaration on the Rights of Indigenous Peoples’ Act, but says “it’s time to put more action on the ground.”  Photo: Jimmy Jeong / The Narwhal

Do you think B.C., the first province to unveil UNDRIP legislation, has upheld the standards laid out in the UN declaration or has it mostly been about offering lip service?

I think there have been successes, and I think there have been extreme challenges — both of those truths coexist. Most of the time since that legislation passed [in B.C.], we’ve been in pandemic times, so that’s not an ideal situation. But it is disturbing when there’s a commitment to implementing legislation, and then there’s such a dismal failure so quickly to demonstrate the principles of the UN Declaration in practice. That saddens me a lot, and it’s very discouraging.

However, I also see collaborative and cooperative work on smaller scales, that doesn’t get the visibility that the challenges or the failures do. But I think most of the work in implementing the declaration is going to be piece by piece, project by project and I want to also recognize those movements.

How is your work at the expert mechanism going to address or bridge the gap between what our governments promise to do and what they actually do on a national and international level?

The expert mechanism is charged with providing expertise to the Human Rights Council and is charged with advising states. So some of the work you’re talking about can happen through other channels, like the universal periodic review, like the CERD [Committee on the Elimination of Racial Discrimination] committee, because those are the monitoring bodies.

So they will actually issue the opinions on whether Canada or any of its provinces are aligning or not aligning [with the declaration], and it will often recommend that they contact the expert mechanism to get advice on how to alleviate the issue or the problem that has been identified. 

I look forward to playing my role in that respect.

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.

Rick Desautel, Shelly Boyd and Derrick Lamere stood on the steps of the Supreme Court of Canada in Ottawa on a chilly October morning. They are Sinixt, or ‘people of the place of the bull trout,’ and members of the Arrow Lakes Tribe. Inside, nine supreme court justices heard arguments from a slew of lawyers about whether or not the Sinixt hold rights in Canada, since the federal government declared them ‘extinct’ in 1956.

Sinixt territory stretches from Kettle Falls in Washington to Revelstoke, B.C., but the Sinixt were pushed south due to the impacts of colonization. They were confined to a reserve in Washington and called the Arrow Lakes Tribe. They are now seen by the United States and Canada as an ‘American’ tribe.

Sinixt, according to Boyd is pronounced “sin-eye-ch-kiss-ta, going long on the ‘eye’ and fast on the ‘kiss-ta.’ ”

The tribe has been looking for ways to gain recognition in B.C. for decades. They finally seized their chance to test their rights in court by sending Desautel to harvest an elk in Sinixt traditional territory near Vallican, B.C., in the Slocan Valley, where he was charged (but never arrested) for hunting in Canada as a ‘non-resident.’

On that cold October morning, lawyers representing the Crown argued the Sinixt do not have the right to practice traditional hunting on their ancestral territory in B.C. because they are ‘foreign’ — a word that strikes Boyd and Desautel as deeply ironic to hear from settlers as Indigenous people. 

As the non-Indigenous justices listened to mostly non-Indigenous lawyers to decide what rights the Sinixt have within Canada’s borders, the living, breathing Sinixt people waited outside in the cold. They had travelled from Washington to be there, but the group of three was told that due to COVID-19 restrictions “non-essential” people were kept out of the court, Desautel said. They live-streamed the proceedings partway-through to hear their own lawyer, Mark Underhill, but they were never present in the room with the Crown’s lawyers.

Those were the people they had hoped to lock eyes with.

“Ironically, we’re here in a case about extinction, and we’re not allowed to be seen,” Boyd said. “We waited, and had that hope that maybe at least they’ll look out the window.”

It was not the scene they’d pictured when they heard they would be going to the Supreme Court last year. Desautel was disappointed to not be in the court while the Crown and intervenors presented their arguments. 

“I had to be there in person for these proceedings,” he said. 

“I wanted to show them I wasn’t extinct.”

Rick Desautel stands above the Slocan River or Słuʔqín̓, which means “speared in the head,” referring to the Sinixt practice of spearing salmon. Desautel is pictured near the area where he shot an elk in 2010, spurring a lengthy legal battle to determine the legal existence of the Sinixt in Canada. Photo: Mike Graeme / The Narwhal

Crown says Sinixt rights are ‘incompatible with Canadian sovereignty’

In 2010, when Desautel travelled to Canada to harvest the elk, he made sure to keep conservation officers informed every step of the way. 

The hunt was no accident. The Arrow Lakes Tribe planned it as a way to launch a case to test their Indigenous rights. Desautel was eventually charged with hunting without a licence and hunting as a non-resident — a price he and other Sinixt were willing to pay.

“We have to do something, or we just might as well accept extinction.”

“It was a hard call because we knew that we only had one chance to bring it to this level of court,” Boyd said. “It was a really scary decision. But at the same time, it just felt like, what do we do? We have to do something, or we just might as well accept extinction. There’s never going to be a perfect chance.”

But they succeeded, and the provincial supreme court affirmed Desautel’s right to practice hunting on his ancestral land. The Crown challenged him in the B.C. Court of Appeal, where he won again. The Crown appealed yet again, taking him to the highest court, where it continues to argue that Sinixt being allowed to exercise Indigenous rights in Canada is “incompatible with Canadian sovereignty.”

Boyd said it could be six months to a year until the court reaches its decision.

Boyd touches the waters her ancestors knew at ʔ aʔ kłkəkniʔ by the ferry in Harrop, B.C. It is a place for gathering roots, hunting bear and caribou and fishing for trout and salmon. “Kekeńí” means Kokanee salmon, or “place of redfish.” Photo: Mike Graeme / The Narwhal

The question at hand is whether the Sinixt are an ‘Aboriginal people of Canada’ as described in the Constitution Act in section 35, which reads, in part:

1. 1. The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. 
   2. In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

To Boyd, being of Canada means being “literally from the land,” not from a country. 

“Canada is a place, but it’s also an idea,” she said.

For the Sinixt, it’s about the literal land and waters their ancestors lived upon and which they still have a connection with today, and their ability to be stewards of their territory.

“It has nothing to do with being American or Canadian,” she said.

If successful, Desautel and Boyd want to see the exclusion clause thrown out.

“This was placed on us. It should be removed. This is not truth and reconciliation,” Boyd said.

Boyd laces up her moccasins on a beach at iʔ aʔ kłkəkniʔ. Photo: Mike Graeme / The Narwhal

‘Abandonment has no place in Indigenous law’

Sinixt is spelled sn̓ʕaýckstx in their language, n̓səl̓xcin. According to Boyd, Sinixt literally means place, spotted fish and people. The Arrow Lakes Tribe is often used synonymously with the Sinixt, though others identify as Sinixt as well. Some people from the Syilx/Okanagan Nation identify as both Sinixt and Syilx. 

Desautel said the Sinixt were destabilized from first contact, with the arrival of pandemics like smallpox, which “decimated” the population that had once been thousands strong.

As the colonial powers industrialized, he said their dwindling population was further displaced by mining, logging and construction of the Canadian Pacific Railway. In the late 1800s, the Arrow Lakes Tribe joined the Colville Confederated Tribes in Washington, pushed by the United States. The U.S. then pushed them to cede the northern portion of their reservation in 1890. 

In 2017, before the Supreme Court of British Columbia, the Crown had an anthropologist testify, who said the Sinixt had relocated to the United States “enthusiastically.” But the trial judge concluded that, in fact, the evidence showed they did not leave their territory voluntarily. 

“It was a matter of making the best choice out of a number of bad choices,” concluded Justice Robert Sewell.

“Through regulation, they confined us in a smaller box,” Desautel explained. “Then, they took that box and put it into a smaller box. The plan was, get them all to that side of the border. Then like a magician, poof. They’ve disappeared.”

In 1956, Canada declared the last living member of the Arrow Lakes Tribe dead and the tribe extinct. But Sinixt continued to live, and continued to remember their territory up north where they once travelled through the seasons.

Underhill, lawyer for Desautel, reminded the court that Indigenous Peoples relocating during colonization does not mean they willingly deserted their territories.

“Abandonment has no place in Indigenous law,” he said. “The court is well aware of the state of history at that time on both sides of the border. … It was, to be blunt, a dark time for Aboriginal people.”

Boyd stands in her regalia. The Sinixt have been historically referred to as “Arrow Lakes people” by settlers, as the Arrow Lakes are in the heart of their territory. Photo: Mike Graeme / The Narwhal

More than 50 years ago, Canada declared the Sinixt extinct in Canada. Lawyers for the Crown now argue the Sinixt participated in their own displacement under colonization “enthusiastically.” Photo: Mike Graeme / The Narwhal

Working with a colonial judicial system

The arguments in the court were complicated. The Arrow Lakes Tribe was referred to as a ‘foreign’ group by the Crown, and as a ‘collective’ or ‘successive’ group of the Sinixt by Underhill and the interveners. All parties referenced landmark cases like R. v. Delgamuukw and R. v. Sparrow and debated what the intent of the constitution was in protecting the rights of the ‘Aboriginal people of Canada.’ 

Desautel emphasized the Canadian and American judicial systems are imposed on Indigenous Peoples, and the Sinixt have had their own legal systems since before contact. By their law, they remain stewards of the land and the border is an artificial line. But they hope the court may also act as an imperfect tool to affirm pre-existing Indigenous rights when the ruling government is not doing so. 

“Now we have to abide by their judicial system, and we may kick and scream and say we’re not being judged right, but we are still going to step back in and plead our case to open [people’s] eyes and ears to see our plight,” Desautel explained.

In the lower courts, judges applied the Van der Peet test, which originated from the 1996 case R. v. Van der Peet to see if Desautel was exercising entitled Indigenous rights in the eyes of Canadian law. The test stipulates that an Indigenous practice or tradition must be integral to the culture of the Indigenous People claiming that right and must originate from pre-contact. The courts concluded he passed the test.

The Crown argued the test was not relevant because the Stó:lō woman at the centre of that case, Dorothy Van der Peet, was a Canadian citizen, and Desautel is not.  

While the Crown and interveners acknowledged the border was drawn with “little regard to the boundaries of Indigenous people,” as one attorney put it, they argued acknowledging Sinixt Indigenous rights would lead to “practical” problems addressing those rights. 

Underhill said the Sinixt’s absence in B.C. was due to colonial forces, and the central question in the case is not whether they ever stopped hunting in Canada. Instead, he said the important question is “does it still matter to these people, to their culture, to be able to hunt in Canada?”

“We do not have a ‘foreign Indigenous group,’ in the words of the Attorney General of British Columbia, or a group of foreign nationals. What you have is the same collective that was here at contact, and has people residing on both sides of the border,” Underhill said. 

“The question becomes, ‘is that collective an Aboriginal people of Canada?’ And we say, unequivocally, yes.”

Paul Williams, a Haudenosaunee lawyer representing Peskotomuhkati Nation as an intervener, told the court in a wry tone that the case was about “how nine non-Indigenous judges interpret four words: Aboriginal People of Canada.”

He pointed out how even the word of could mean significantly different things from a colonial or Indigenous worldview, either acknowledging the “timeless connection of Aboriginal people and land” or acting as “a possessive term” to differentiate “our Indians and somebody else’s Indians.”

He argued “the key to reconciling and the first step for any treaty relationship is respect,” in particular “respecting the relationship between people and the land.”

Desautel walks down a forested path beside Słuʔqín̓ towards an ancient village lived in by his ancestors. Photo: Mike Graeme / The Narwhal

Sinixt want a voice in salmon discussions

Boyd took part in a virtual salmon ceremony hosted by First Nations along the upper Columbia River in Washington this summer. Fish have been blocked from the upper reaches of the river for decades due to the Grand Coulee Dam, which led to the loss of 1,770 kilometres of salmon and steelhead habitat. First Nations still host ceremonies to call the salmon home. 

The river’s headwaters are in B.C. and it runs through Washington and Oregon to the Pacific Ocean. Those headwaters in the Rocky Mountains are at the centre of the Sinixt creation story.

A beautiful woman, Rain, fell in love with Coyote. He promised her a gift if she shared a gift with him.

“Knowing that she was irrevocably in love with Coyote and that there was nothing she could do about it, Rain reached into her chest, tore her heart from her breast and cast it down. Where her heart landed and her heart’s blood seeped became the headwater of the Columbia River,” reads a condensed version of oral history told by Sinixt elder Marilyn James.

They eventually meet Rain’s cousin, Ocean, and Coyote is smitten by both. Angry, Rain demands her gift from Coyote. He began “taking bites of himself” and laying them by the water running from her heart, and they became beings intricately tied to the water: “all species of flora and fauna, all species of fish, resident and anadromous.”

“After that, Coyote reached into his heart and set down a small piece of it on the land. This piece of his heart became the Sinixt peoples. The responsibility of the Sinixt was to live with Rain’s heart, to show reverence to the land every single day, to show respect and love to the source of the Columbia River, Rain’s heart,” reads the story.

The Sinixt have been releasing salmon above the Grand Coulee Dam to continue that work, but have been excluded from policy discussions.

As a cross-border nation, Boyd wants the Sinixt to have a seat at the table in Canada-U.S. negotiations to renew the Columbia River Treaty, a 1961 agreement on managing dams in the river. But they “aren’t allowed a seat on either side,” she said.

“It’s not just blocking our voice, it’s … it’s blocking the voice of salmon.”

Boyd stands on a beach at iʔ aʔ kłkəkniʔ. Photo: Mike Graeme / The Narwhal

‘This is an international issue we face as Indigenous people’

The court heard from a number of interveners. Provinces intervened with the Crown, while Indigenous Peoples and organizations intervened with Desautel, including the Okanagan Nation Alliance, the Indigenous Bar Association in Canada and the Assembly of First Nations. The case has the potential to impact multiple Indigenous Peoples whose territories cross borders.

“The implications are so much larger than us. This is an international issue that we face as Indigenous people,” Boyd said.

Whitecap Dakota First Nation, whose territory crosses the border close to Saskatoon, acted as an intervener as well. Its counsel, Keith Brown, told the court that dismissing Desautel would render Indigenous rights under the constitution “illusory and impossible to vindicate” if they are not affirmed in the face of evidence demonstrating ancestral occupation of and forceful removal from lands.

Brown said demanding Indigenous Peoples occupy the same territories as they did historically in order to maintain their inherent Indigenous rights, despite colonial intrusions, could threaten Indigenous Peoples who are “entirely within Canada” but were displaced from their ancestral lands.

“The law should not become a tool for severing an Indigenous nation’s bond with ancestral land,” he said.

Jack Woodward, representing Nuchatlaht First Nation on Vancouver Island, told the court B.C. was also not acting in accordance with its own statute that brought the United Nations Declaration on the Rights of Indigenous Peoples into law. The declaration specifically acknowledges Indigenous Peoples divided by international borders.

“They are wrong to advance those arguments in the face of this statute,” he said.

The case may have wide implications for First Nations north and south of the 49th parallel. But Desautel’s purpose remains very focused, he told The Narwhal from Vallican, B.C., close to a Sinixt village site. He’s near the same spot where he participated in a blockade in 1989, protesting the destruction of Sinixt remains during road construction. He is staying there for the winter, as he says his ancestors did.

“My long-term goal is for my people, my children, and for the children upcoming, to come to this traditional territory that I’m sitting on right now,” he said.

“And to say, this is your grandfather’s ancestral grounds. If it wasn’t for these people right here, you wouldn’t be here today. That forty-ninth parallel is not a stopping point in your history. They didn’t find you under a rock someplace in the state of Washington. You started here.”

Updated Oct. 31, 2020, at 1:54 p.m. PST: This article was updated to note Desautel, Boyd and Lamere did not enter the court to hear lawyer Mark Underhill present his arguments as previously stated. Instead, the group live-streamed the lawyer’s arguments from outside the courtroom. A second update was made to correct reference to the Columbia River Treaty, which the article incorrectly stated expires in 2024. The U.S. or Canada can choose to unilaterally terminate the treaty in 2024 but are required to give 10 years notice to do so. 

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.’s NDP government came to power in 2017 promising to protect the environment. 

“[Former Premier] Christy Clark and the BC Liberals have chosen to pit jobs against the environment,” the party’s election platform said. “It shouldn’t be that way.”

From protecting drinking water sources to reducing carbon emissions, the BC NDP’s platform detailed the actions it would take to protect the province’s environment and create jobs. 

“B.C. was an early champion of a price on carbon and other green policies,” Ecojustice Executive Director Devon Page pointed out in a statement following the election call today. 

“Yet the province’s laws and policies haven’t always lived up to its green reputation,” Page said. “Greenhouse gases rose under the NDP-Green coalition, and the government failed to live up to its commitment to introduce endangered species legislation.”

What environmental promises did the NDP make? And, once in power, how many pledges did the party keep? 

The Narwhal dove in. Here’s what we found.

Stopping the Trans Mountain pipeline

The NDP pledged to use “every tool in the toolbox” to stop the Trans Mountain pipeline from going ahead, saying the project was not in B.C.’s interest and would result in a seven-fold increase in tanker traffic. 

“It doesn’t, and won’t, meet the necessary conditions of providing benefits to British Columbia without putting our environment and our economy at unreasonable risk,” the election platform stated.

In 2018, the government announced its intention to explore restricting the transport of diluted bitumen across the province. (Alberta Premier Rachel Notley responded with a brief boycott of B.C. wine.) 

In January 2020, the Supreme Court of Canada ruled that the B.C. government does not have jurisdiction to regulate the flow of bitumen through the province.

The NDP government opted not to order a “made in B.C.” environmental assessment of the project. It could have done that following a 2016 Supreme Court decision that found the former BC Liberal government’s decision to hand over responsibility for the project’s environmental assessment to the National Energy Board was not legal and the provincial government has a duty to represent the best interests of British Columbians. 

Protecting endangered species 

B.C. has more species at risk of going extinct than anywhere else in Canada. “Yet, we’re one of the only provinces in the country without stand-alone species at risk legislation,” the NDP noted in its election platform. 

The party promised to enact endangered species legislation, reiterating its pledge in Premier John Horgan’s mandate letter to Environment Minister George Heyman. 

After more than three years in power, the NDP government has failed to keep its election promise.

Almost 1,340 species are now on B.C.’s red and blue lists of species at risk of extinction. Another 1,037 species meet the provincial status requirements for red and blue listings but have not yet been added. 

Scientists like UBC biologist Sally Otto, who sits on the federal species at risk advisory committee, have urged the NDP to take action to protect endangered species.

“The bottom line for caribou and many other wildlife species is crystal clear: without timely and meaningful protection and restoration measures, including a provincial endangered species law, these creatures will be lost forever,” wrote Otto and a dozen other scientists in an opinion piece published in The Narwhal.  

Improving management of old-growth forests

The NDP promised to modernize land-use planning “to effectively and sustainably manage” B.C.’s old-growth forests. 

“We will take an evidence-based scientific approach and use the ecosystem-based management of the Great Bear Rainforest as a model,” the party said in its election platform. 

In 2019, the NDP government commissioned foresters Al Gorley and Garry Merkel to conduct an old-growth strategic review. 

In their report, submitted to the government at the end of April, Gorley and Merkel called for a paradigm shift in the way B.C. manages old-growth. They said old forests should be managed for ecosystem health, not for timber.

The duo provided 14 recommendations for the government and called for an immediate deferral of logging in areas at risk of irreversible biodiversity loss. 

In response, the government said it would defer logging in nine areas and would provide a more fulsome update in the spring of 2021. 

None of the nine areas, which total almost 353,000 hectares, was slated for immediate logging. Some have a notable absence of old-growth, while others have already experienced clear cutting.

It’s business as usual everywhere else in the province, including in the old-growth forests in the central Walbran and Fairy Creek on southern Vancouver Island, in endangered caribou habitat in the Anzac Valley north of Prince George and on the Sunshine Coast.

Judy Thomas surveys clear cut logging in the Anzac Valley with journalist Sarah Cox. Photo: Taylor Roades / The Narwhal

Banning grizzly bear trophy hunting 

The NDP promised to ban the grizzly trophy hunt. “It’s not just wrong, it’s bad for the economy,” the party’s election platform said. “The trophy hunting of grizzly bears delivers fewer jobs than wildlife viewing operations, and is opposed by most hunters.”

The new government moved quickly to fulfill its pledge, and a ban on grizzly bear trophy hunting came into effect on Nov. 30, 2017. 

Taking action on climate change

The NDP pledged to implement a “comprehensive” climate action plan to reduce carbon pollution and get the province back on track to meet its climate targets.

In 2018, the government released the CleanBC plan to encourage the use of more clean and renewable energy. By the end of 2019, the government had spent $3.17 million to promote the plan.

But B.C.’s greenhouse gas emissions continue to rise. From 2017 to 2018, carbon emissions in the province rose by 3.5 per cent, to 65.5 million tonnes. 

B.C. missed an emission reduction target to cut greenhouse gases 33 per cent from 2007 figures by 2020. The NDP government revised the target, saying it will slash emissions 40 per cent by 2030. It’s unclear how the new goal will be achieved. 

The NDP’s election platform said the party would phase in the federally mandated $50 a tonne carbon price by 2022 over three years, starting in 2020. On April 1, 2019, B.C.’s carbon tax rose from $35 a tonne to $40 a tonne. Following the start of the COVID-19 pandemic, the B.C. government announced the carbon tax will remain at $40 a tonne until further notice. 

In 2018, the NDP government approved the LNG Canada export project, which will generate about four megatonnes of greenhouse gas emissions every year in the first of two planned phases. That’s equivalent to putting more than 800,000 cars on the road for a year. 

The four megatonnes will account for 10 per cent of B.C.’s entire carbon budget by 2050, placing massive pressure on other sectors — such as transportation, building and industry — to undergo a rapid decarbonization. 

B.C. Premier John Horgan tours the site of the LNG Canada project in Kitimat, B.C., in January 2020. Photo: Province of B.C. / Flickr

The government says CleanBC will take the province 75 per cent of the way to the 2030 target. But the NDP hasn’t identified how it will close the 25 per cent gap.

Earth scientist David Hughes, who was a scientific researcher for 32 years at the Geological Survey of Canada, examined the B.C. government’s emissions math in a recent report for the Canadian Centre for Policy Alternatives.

When the LNG Canada project is factored in, Hughes found that emissions from oil and gas production will exceed the province’s 2050 target by 160 per cent, even if all other emissions are reduced to zero by 2035.  

LNG Canada is one of seven liquified natural gas projects in various stages of proposal, planning and construction in B.C. 

Reviewing fracking

The NDP said it would appoint a scientific panel to review the practice of hydraulic fracturing “to ensure that gas is produced safely, and that our environment is protected.” The panel assessment would include impacts on water and the role gas production plays in seismic activity.

The government followed through and appointed a three-member, independent panel. The panel submitted its final report to Michelle Mungall, former minister of energy, mines and petroleum resources, in February 2019. 

But whether or not the government will implement the majority of the panel’s recommendations remains to be seen. And despite the NDP’s commitment to ensure the gas “is produced safely,” the scientific review did not include an examination of the public health implications of fracking, in keeping with the government’s quiet assurance to the industry lobby group Canadian Association of Petroleum Producers that the hot button issue would not be included in the panel’s mandate. 

Even so, the panel found that fracking entails numerous unknown risks to human health and the environment. Panel members cautioned that the severity of those risks is unknown due to a lack of data, noting they were not aware of any health-related studies being conducted in northeast B.C., which is covered with thousands of fracking wells, including in the middle of communities and on farmland.

A natural gas well pad with numerous wells is readied for fracking north of Farmington, B.C. Photo: Garth Lenz / The Narwhal

The panel also found a “profound absence of knowledge” about the presence and migration of fracking fluids — a proprietary mix of chemicals — below the ground.

The panel’s report raised concerns about the thousands of earthquakes caused by hydraulic fracturing and wastewater disposal wells in northeastern B.C. It found that “the maximum magnitude of an event that could be induced in [northeastern B.C.] is unknown.” 

The government’s response, quietly posted on its website but not sent to media, said new groundwater observation wells near Fort Nelson had been installed, mapping of more than 55 aquifers had been completed and that it would map zones likely to experience greater ground motion from seismic events. It said it had also established a cross-government working group to develop “short-term and long-term action plans” for implementing the panel’s recommendations.

Northeast B.C. is poised for a fracking boom to supply the LNG Canada project. 

Adopting the United Nations Declaration on the Rights of Indigenous Peoples

The NDP promised to adopt the UN declaration, which outlines global standards for upholding the rights of Indigenous peoples.

The government kept its commitment, passing legislation in November 2019 to enshrine the declaration in B.C. law. The declaration states that large resource projects require the free, prior and informed consent of Indigenous peoples on whose territories the projects will be built.

How the declaration is going to be implemented remains an open question and the Wet’suwet’en conflict in early 2020 illustrated the complexity of this commitment. 

Indigenous youth occupy the B.C. legislature in a solidarity action with Wet’suwet’en hereditary chiefs on Feb. 11. Photo: Carol Linnitt / The Narwhal

Banning political donations from corporations and unions

Saying it would “take big money out of politics,” the NDP promised to ban corporate and union donations to bring B.C. in line with other Canadian jurisdictions. The party moved quickly once in power, passing a law in November 2017, and donations are now limited to B.C. residents, with a cap of $1,200 a year. 

Prior to the new law, corporations such as Imperial Metals, the owner of the Mount Polley mine, and mining titan Teck Resources Ltd., whose coal operations have polluted a transboundary waterway with selenium, donated more than $1 million to political parties.

Banning fish farming on wild salmon migration routes

The NDP pledged to implement the recommendations of the Cohen Commission, “keeping farm sites out of important salmon migration routes, and supporting research and transparent monitoring to minimize the risk of disease transfer from captive to wild fish.” 

It also promised to provide incentives to help the aquaculture industry transition to closed containment where possible. 

A salmon farm at Sonora Point in the Discovery Islands of B.C. Credit: Tavish Campbell

In December 2018, the government announced that salmon farms in the Broughton archipelago would be closed or moved by 2023, following an agreement among the B.C. and federal governments, First Nations and two fish farm companies, Marine Harvest Canada and Cermaq Canada.

Salmon farms remain along wild salmon migration routes in Clayoquot Sound, the Discovery Islands and elsewhere. 

The NDP does not appear to have made any announcements about supporting research and transparent monitoring to minimize the risk of disease transfer from captive to wild fish. Nor has it provided incentives for a transition to closed containment farming. 

Improving wildlife management

The NDP’s election platform said B.C.’s biodiversity, fish and wildlife populations, and the habitat upon which they depend, were under threat due to lack of funding, government cuts to staff and ineffective policies. 

The party pledged to ensure dedicated funding for wildlife and habitat conservation.

Instead, the government has cut spending on matters related to fish, wildlife and the environment, according to Jesse Zeman, director of the fish and wildlife restoration program for the BC Wildlife Federation. 

“The government has publicly announced it’s increasing investment, but behind the scenes it has clawed back base budgets and it has cut funding from the Forest Enhancement Society of BC,” Zeman told The Narwhal. 

“Given B.C.’s biodiversity, we still [have] the most underfunded fish and wildlife agency in North America.”

The government also did not follow through on its election promise to dedicate all hunting fees to fish and wildlife management, Zeman said. 

A caribou cow stands watch over its two-day old calf. Photo: Ryan Dickie / The Narwhal

Increasing the budget for BC Parks

The NDP said it would restore funding for BC Parks, and hire additional park rangers and conservation officers.

The party’s election platform said it aimed to boost the BC Parks budget by $10 million in each of 2018-19 and 2019-20 to restore parks and hire additional park rangers and conservation officers.

The BC Parks budget has only increased by $416,000 since 2017-18, according to budget documents. It’s now $49.7 million. 

The Narwhal asked the B.C. Environment Ministry for the number of conservation officers and park rangers in 2017, as well as for today’s numbers. The ministry did not respond by press time, more than two business days after we put in the request. 

Updating environmental assessment legislation

The NDP said it would update B.C.’s environment assessment legislation and processes for major resource projects to ensure they respect the legal rights of First Nations and “meet the public’s expectations of a strong, transparent process.” 

The government passed Bill 51, the Environmental Assessment Act, in late 2018. 

Scientists commended the NDP for overhauling the act, calling the bill a “good start” and noting it allows First Nations communities to be involved at the start of assessments.

But an open letter from 180 academic scientists identified three “deficiencies” in the new legislation: a lack of scientific independence, peer-review and transparency.

One of the main deficiencies of the legislation, according to the scientists, is that it still allows project proponents to oversee, collect and present the vast majority of evidence for environmental assessments.

The legislation also has no requirement that all data generated by the project proponent, or gathered by a technical advisory committee, be made public. Nor does it include criteria for how the government’s final assessment decisions will be made. 

Ensuring clean, safe drinking water 

The NDP singled out the former Liberal government for leaving British Columbians in dozens of communities under ongoing boil water advisories. 

The party said it would work with the federal government to improve drinking water quality in B.C. communities and ensure the permitting process prioritizes local drinking water needs. It also said it would review the Water Sustainability Act to ensure drinking water sources are protected. 

In July 2019, B.C. Auditor General Carol Bellringer found the B.C. government is failing to protect drinking water from increased risks that include climate change and industrial activities such as logging, saying accountability measures for safeguarding drinking water are “of grave concern.”

‘You can’t drink money’: Kootenay communities fight logging to protect their drinking water

The health ministry and the Provincial Health Officer are “not sufficiently protecting drinking water for British Columbians,” Bellringer told reporters.

The audit came as communities around B.C. grappled with imminent plans for logging and other industrial activities in watersheds that supply their drinking, irrigation and, in some cases, fire-fighting water. B.C. currently has 200 boil water advisories and five do not consume water advisories, according to the website Water Today. 

Bringing back investment in clean energy

Saying the Liberal government had made B.C. “unfriendly” to investments in wind and solar projects, the NDP pledged to bring investment in wind, solar and other clean energy projects back to B.C. 

Instead, faced with a growing glut of energy in the province — even before the hugely over budget Site C dam comes online at some unknown point in the future — the government indicated it would shut the door on most new wind and solar projects. It introduced Bill 17 to amend the Clean Energy Act, eliminating the requirement that B.C. be self-sufficient in new power and allowing the province to import cheap power from the U.S., potentially including coal and gas-fired power. 

The NDP government also said it would not renew contracts with independent power producers, leaving family-run, green and clean power projects facing bankruptcy after supplying power to the grid and remote communities for decades. 

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 communities across the country braced for the worst of the COVID-19 pandemic, Canada’s oil and gas lobby was pushing the federal government to suspend pollution monitoring requirements and delay forthcoming measures to fight climate change in an effort to prop up the flagging industry.

In a 13-page letter to cabinet ministers late last month, the Canadian Association of Petroleum Producers (CAPP) asked the government to “adopt a do no harm principle with respect to regulations and the costs they impose on industry.”

But some observers say the proposed measures could in fact cause serious harm to Indigenous communities, the environment and public health.

“I was gobsmacked,” said Dale Marshall, the national climate program manager with Environmental Defence, which posted a leaked copy of the letter online last week. It has since been posted on CAPP’s website. 

While Marshall said some of the requests, such as a recommendation to defer greenhouse gas emissions reporting by a few months, are more reasonable given the challenges posed by the pandemic, he said others are “quite frankly, ludicrous.”

Among more than 30 recommendations, CAPP asked the federal government to suspend methane leak detection surveys for the duration of the COVID-19 crisis, defer monitoring required under the Fisheries Act for 2020 and suspend stack testing until non-essential workers return to work sites. 

The association also requested the federal government defer legislation on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), hold off on changes to the Canadian Environmental Protection Act, defer increases to the carbon tax until the recovery is underway, postpone additional climate measures, defer implementation of the clean fuel standard for three years, and exclude offshore exploration drilling and in-situ oil sands projects from federal environmental assessments.

A number of these requests “have little to do with the COVID crisis, aren’t imminent and are really offensive,” said Marshall.

Some could pose a health risk. 

“When they ask for a suspension of monitoring pollution that’s coming from smokestacks or a suspension of leak detection for methane, those are public health issues,” he said.

In a statement, CAPP said oil and gas companies have postponed non-essential work to limit the number of people at work sites and ensure social distancing to prevent the spread of COVID-19 and protect their workers.

“With fewer people on-site, it has been a challenge to meet all of the existing regulatory requirements in order to be compliant,” the association said. “Implementing temporary changes for certain low-risk regulatory requirements allows companies to focus on critical areas of operations and continue to ensure effective protection of the environment and our neighbours.”

CAPP added that it’s asking the government to “suspend, delay or reconsider” regulations or policies that could increase costs to industry.

For the oil industry, which has struggled under depressed prices for the last few years, 2020 brought another major hit. Oil prices plunged to record lows, at one point dropping below $0, driven by a decline in demand due to the COVID-19 pandemic and a price war that led to a glut in supply.

“Increasing the costs of operating will inflict further damage to our economy as we struggle to weather this crisis,” CAPP’s statement said. “Support for the industry now can position us to be a part of the foundation of recovery and the long-term rebuild of Canada’s social and economic structure.”

Why we’re seeing negative oil prices in Alberta and across North America

Observers expressed major concerns, however, that the industry association’s approach to economic recovery runs contrary to Canada’s commitments on climate change and Indigenous rights. 

Mary Ellen Turpel-Lafond, director of the Indian Residential School History and Dialogue Centre at the University of British Columbia, said the organization’s letter was “very disturbing.”

In particular, CAPP’s recommendation that the federal government delay legislation on UNDRIP is both “unwise” and “very aggressive,” she said.

CAPP said there needs to be a full understanding of how UNDRIP fits with Canada’s economic recovery “to ensure alignment with the do no harm principle” and asked the federal government to hold off on legislation until “meaningful consultation” is possible.

But Turpel-Lafond said “it’s not going to be possible to rebuild the economy if it means that you do not respect that Indigenous people on their territory have significant rights that need to be appropriately respected.” 

“We need to make significant progress on supporting First Nations governments, addressing land issues, making some fundamental shifts in Canadian society to make it a more fair and just society, and to say that that’s a project that we can’t do because of a pandemic is really a concern.”

Dayna Scott, an environmental law professor at York University, noted the irony in CAPP urging the federal government “to adopt this do no harm principle.”

“Certainly, I think Indigenous people experience harm when projects are approved over their objections and without their consent,” she said.

The industry association is using the COVID-19 crisis as cover to push forward longstanding demands, Scott added.

“The most blatant example is they took a shot at getting the offshore exploration drilling and the in-situ oilsands (projects) taken out of the environmental assessment regime and they don’t even offer a COVID-related rational,” she said. 

CAPP argues in-situ projects, which involve injecting steam through horizontal wells to pump oil to the surface, are already subject to provincial legislation and makes the case that offshore exploratory drilling is “routine” and the risks and mitigations are well known.

“I don’t think people want to see oil companies using the excuse of the pandemic to be able to have projects approved without public input,” Scott said.

“If anything, I think people have come to see this period of shut down as an opportunity for us to pause and think carefully about what kinds of activities we want to continue once it’s finished,” she said.

People don’t want to see a return to “a ramped-up version of an oil-based economy” coming out of the COVID-19 crisis, Scott added.

On the same day the federal government announced $1.7 billion to help clean up oil and gas wells and create thousands of jobs, Global News asked Prime Minister Justin Trudeau about CAPP’s letter.

In response, he said “just because we are in one crisis right now doesn’t mean we can forget about the other crisis, the climate crisis that we are also facing as a world, as a country.”

The federal government remains committed to exceeding its 2030 emissions targets and reaching net zero by 2050, added Moira Kelly, a spokesperson for Environment and Climate Change Minister Jonathan Wilkinson, in a statement to The Narwhal. 

11 things you need to know as Trudeau announces $1.7 billion to clean up ‘festering’ orphan and inactive wells

While Scott said Trudeau’s comments offer some comfort that the government won’t compromise on its high-profile commitments, such as the carbon tax, she worries about concessions on some of the more complex, lower-profile issues CAPP raised.

It’s a concern Marshall shares. “We’re going to have to keep an eye on a lot of these,” he said.

As it stands, Canada is projected to miss its 2030 target by 77 million tonnes — roughly the emissions produced by 16.6 million cars in a year ­— without new measures to reduce greenhouse gases. 

“The (Intergovernmental Panel on Climate Change) has made it crystal clear major GHG reductions are needed before this decade concludes or the world will find it exceedingly difficult, if not impossible to keep warming to 1.5 C,” said Jeffrey Brook, the scientific director of the Canadian Urban Environmental Health Research Consortium, in an email to The Narwhal.

He noted Canadians are already experiencing the consequences of climate change at the current level of warming. 

“It seems a shame that CAPP would thus try to gain three years of time in meeting critical clean fuel objectives and also weigh in on national carbon pricing plans,” said Brook, who is the lead author of a paper published last year that found some oilsands air emissions are underestimated. 

“This is three years we don’t have.”

‘Nowhere else to turn’: First Nations inundated by oilsands projects face impossible choices

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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.

According to Wet’suwet’en oral history, the Kweese War Trail is lined with the buried bodies of warriors who lost their lives avenging the murder of Chief Kweese’s wife and son.

The trail — a place where Wet’suwet’en youth can literally walk in the footsteps of their ancestors — branches out to important ancestral sites spread throughout the traditional territory of the nation’s five clans. 

But now a 100-metre portion of the trail, a critical piece of history for the Wet’suwet’en and the origin of some of their clan crests, and another potential archaeological site lie buried under work camps and clearcuts for the $6.6 billion Coastal GasLink pipeline, proposed to move fracked gas from B.C.’s northeast to Kitimat to feed LNG Canada’s $18 billion liquified natural gas (LNG) export facility and the province’s promise of a LNG export boom.

On Jan. 4 the hereditary chiefs of the Wet’suwet’en issued an eviction notice to Coastal GasLink owned by TC Energy (formerly TransCanada), saying the company “bulldozed through our territories, destroyed our archaeological sites and occupied our land with industrial man-camps.” The eviction notice comes one year after the RCMP enforced a court injunction, forcibly removing and arresting Wet’suwet’en blockaders at a checkpoint designed to prevent the company from accessing work sites. That injunction was extended on Dec. 31, 2019, triggering the Wet’suwet’en eviction notice and raising the spectre of renewed tensions.

Although the B.C. government recently celebrated becoming the first jurisdiction in Canada to enshrine the rights of Indigenous people in its law, the Wet’suwet’en’s fight against the pipeline raises questions about Indigenous sovereignty and self-determination — in instances when permits have already been granted. 

‘It’s lost’

Mike Ridsdale, an environmental assessment coordinator for the Office of the Wet’suwet’en and a descendant of the first people to walk the trail, spent years carefully documenting important cultural sites along the historic path. 

Tying up bright pink and blue ribbons, he marked trees bearing the telltale signs of cultural modification — folds of bark healed after strips were peeled away, harvested for household uses, kindling and markers for routes and trails.

In 2014, Ridsdale led provincial government and industry representatives along the trail, pointing out ribbons denoting a “Cultural Heritage Resource” or a “Culturally Modified Tree.”

Mike Ridsdale, environmental assessment coordinator for the Office of the Wet’suwet’en, near Telkwa, B.C. Photo: Amber Bracken / The Narwhal

Ridsdale, holding a form of culturally modified tree, near Telkwa. Photo: Amber Bracken / The Narwhal

Ridsdale hoped the markers would play a role in the trail’s protection, as advocated by Wet’suwet’en hereditary chiefs. But by the time he returned to the spot last August, the trees with pink and blue ribbons lay piled in the dirt along 100 metres of the Kweese War Trail that had been cleared for a section of pipeline.

“They are erasing our history,” Ridsdale tells The Narwhal, his silver hair peeking out from beneath his ball cap. “They’re erasing that part of our history that we know in this generation that may not be taught to the next generation.”

“Then it’s lost.”

Ridsdale in a stand of trees he flagged as culturally modified. Ridsdale tells The Narwhal he is worried Wet’suwet’en history is being lost with logged CMTs. Photo: Amber Bracken / The Narwhal

Culturally modified trees are considered important historic evidence of human occupation of the landscape. Photo: Amber Bracken / The Narwhal

Ridsdale re-flags a culturally modified tree. Photo: Amber Bracken / The Narwhal

A felled culturally modified tree near Telkwa. Photo: Amber Bracken / The Narwhal

Historically modified trees are more than just a direct linkage to his ancestors, Ridsdale says. They are also critical to the Wet’suwet’en nation’s unresolved legal claim to its traditional territory.

For the Wet’suwet’en, it’s a conundrum: they need archaeological evidence to prove the legal boundaries of their Aboriginal title, yet they have no legal status to defend their cultural heritage from destruction.

“The thing is that I’m living this whole process [and] the process is broken,” Ridsdale says.

A newly cut and logged Coastal GasLink access road near Houston, B.C. Photo: Amber Bracken / The Narwhal

‘Where else in Canada can you put a road over what could be a gravesite?’

Chelsey Geralda Armstrong, a postdoctoral fellow in archaeology at the University of British Columbia, investigated the impact of the Coastal GasLink pipeline for the Wet’suwet’en and identified nine areas where construction permits lacked necessary archaeological impact assessments, which are used to determine if archaeological sites exist.

Armstrong sent a report to both B.C.’s Archaeology Branch, which manages archaeological resources protected under the Heritage Conservation Act, and Coastal GasLink. But she says they never responded.

Fieldwork conducted from 2013 to 2015 found the Coastal GasLink pipeline corridor rich in archaeological sites. A report submitted to provincial regulators in early 2016 found 85 archaeological sites, 65 of which are lithic, meaning they relate to stone or the presence of stone tools. An additional 14 sites were found to contain culturally modified trees and seven sites were considered cultural depressions — evidence of previous human occupation.

According to Armstrong, the trail itself is an archaeological site, potentially even a burial site — and is a key linkage point to other parts of Wet’suwet’en heritage.

“If you follow a trail, it will lead you to every single site on a landscape,” she says.

But the impacted area of the trail didn’t qualify for further archaeological investigations, according to a Coastal GasLink report and a portion of the trail was cleared.

“The site was just destroyed,” says Armstrong.

Coastal GasLink says it logged the area by hand, rather than bulldozing, and covered the trail with timber to avoid ground disturbance. 

But some portions have been covered over by an access road, and if the trees aren’t replaced, Armstrong and others fear the trail will “brush over” and become unidentifiable. Ridsdale voiced concern that potential burial sites could be lost forever. 

“Where else in Canada can you put a road over what could be a gravesite?” he says. 

The archaeology branch eventually issued permits for an archaeological impact assessment — which allows for archaeological investigation like digging and boring into trees — for the impacted portion of the trail but only after clearing and construction had already taken place. 

It was a decision that Armstrong had never seen before. 

“So is it legal?” she asks aloud. “Sure.” 

“Is it just? No.”

A map of the Coastal GasLink pipeline route and location of camp 9A. Map: Carol Linnitt / The Narwhal

Artifacts discovered at camp 9A

Beginning in Jan. 2019 a Wet’suwet’en heritage site was bulldozed to make way for camp 9A, a Coastal GasLink work camp and staging area designed to house 450 workers that is now the subject of the hereditary chiefs’ eviction notice.

Wet’suwet’en elders knew the site had been a seasonal fishing village, so on Feb. 13, 2019, sent a small party to examine the site. The group says they discovered six projectile points on the upturned ground and gathered two as proof. They thought physical evidence in the form of these lithic stone tools would deter continued destruction of the site. 

It didn’t.

Under B.C.’s Heritage Conservation Act, protected heritage sites can legally be destroyed as long as the provincial government issues a permit. Companies can apply for a permit to destroy, damage and/or move protected heritage objects and sites.

Coastal GasLink’s work camp 9A is designed to hold 450 workers. There are 14 such camps located along the length of the pipeline’s corridor. Photo: Amber Bracken / The Narwhal

An RCMP outpost located along the service road that leads to the Unist’ot’en and Gidimt’en camps. Photo: Amber Bracken / The Narwhal

Coastal GasLink machinery on a mountain road in Wet’suwet’en territory. Photo: Amber Bracken / The Narwhal

The first step for industry is to hire archaeologists to file desktop reports that predict the potential for archaeological sites within the proposed project area. According to Coastal GasLink’s desktop report, the area where camp 9A stands was designated as having low potential for archeology sites. The report stated further ground investigations weren’t required but cautioned that “in the event that archaeological, historical or palaeontological resources are discovered, all work should be suspended immediately.”

The company also performed a preliminary assessment of the Kweese War Trail and did not identify any protected artifacts or trees. In July Coastal GasLink self-reported missing several archaeology impact assessment permits for multiple areas along the pipeline route adjacent to the trail. 

Yet a 2007 report by Crossroads Cultural Resource Management, which utilized Wet’suwet’en traditional knowledge, found high potential for archeological sites in the entire area around both camp 9A and the Kweese War Trail.

Stone tools that members of the Wet’suwet’en reported finding at camp 9A. Photo: Amber Bracken / The Narwhal

Ridsdale walks in the forest near Telkwa, where his mother lived as a child before being removed to attend residential school at the age of seven. At one time, all the trees in the area would have been coniferous. Logging for fuel and construction material during the time of settlement in the area led to spruce and pine being replaced by alders and poplars. Photo: Amber Bracken / The Narwhal

Rick Budhwa, applied anthropologist and archaeologist and principal of Crossroads Cultural Resource Management, says these kinds of reports are interpretive, and different archeologists use different criteria, resulting in different declarations of potential. The legislation in the Heritage Act offers the most protection for sites considered unique, like petroglyphs, compared to trails and culturally modified trees, he says.

Budhwa adds that companies found breaking rules designed to protect heritage sites can be fined up to $1 million, but he is unaware of these fines ever being issued in B.C.

Areas identified as “high” or “medium” potential require an archaeological impact assessment. Although the area of camp 9A and the impacted section of the Kweese War Trail were both deemed low priority in Coastal GasLink’s desktop report, nearby areas were found to have higher potential. 

Yet archaeologists hired by Coastal GasLink couldn’t proceed past Wet’suwet’en checkpoints to complete the required fieldwork in these areas. 

The B.C. government issued construction permits anyway.

Coastal GasLink workers near Houston on Oct. 13, 2019. Amber Bracken

A red dress hanging from a road sign signifies Canada’s missing and murdered Indigenous women. The dress hangs along an access road being used by Coastal GasLink. Photo: Amber Bracken / The Narwhal

Workers monitor a section of narrow access road on Oct. 11, 2019. Photo: Amber Bracken / The Narwhal

In an emailed statement to The Narwhal, the B.C. Oil and Gas Commission said it is “not uncommon” to grant permits before all necessary assessments are complete, because they can technically still be conducted prior to construction. The assessments in this instance could not be completed before the permits were issued “due to Unist’ot’en activities impacting the ability to conduct work,” the commission’s email stated.

In an email to The Narwhal, the archaeology branch said the trail has never been identified in any archeology assessments for the Coastal GasLink project submitted by the company.

But reports submitted by Coastal GasLink appear to ignore the findings of Crossroads Cultural Resource Management.

“I struggle to see how this wasn’t consulted. I struggle to see why it wasn’t consulted because it is a publicly available resource,” Budhwa says.

Budhwa says there are pressures on archaeologists working for industry, as compared to those who are conducting research, that can impact how potential archaeological sites are assessed.

“When you have a bulldozer behind you ready to impact land, you’re working on a strict timeline. You can’t be concerned with the finer scales of archeology,” he says. 

A newly cut and logged Coastal GasLink access road on Oct. 13, 2019. Photo: Amber Bracken / The Narwhal

After the incident, the Oil and Gas Commission released a bulletin stating the stone tools were likely not found in their original location.

Archaeology depends on layers of soil to date artifacts and to make extrapolations about the circumstances in which they were left, says archaeologist Chelsey Armstrong, who is a postdoctoral fellow with the Smithsonian Institution. “If it’s mixed up in soil that’s been disturbed, you’ve lost all that context. And so of course it’s not from its original location. They bulldozed it.”

Armstrong helped draft an open letter to the archaeology branch, calling for a complete archaeological impact assessment. More than 60 professionals signed the letter, but the government never responded.

Instead, the site was given “legacy” status meaning it was no longer protected because it had already been destroyed. Questions have since been raised about the legitimacy of the archaeological finds, but Budhwa says in a disturbed context it is impossible to know for sure.

“At this stage, there is no way of knowing how and when those artifacts got to their place. Regardless, it’s still considered an archaeological site,” he says. “In my opinion, what is more important than the found artifacts is that proper process is followed to manage for those artifacts and any additional archaeological sites.”

Last June, Coastal GasLink was reportedly three months behind schedule because of the Wet’suwet’en blockades.

“Delayed access has had an economic impact that is very difficult to estimate or quantify,” Coastal GasLink company spokesperson Suzanne Wilton said in an emailed statement.

Coastal GasLink disputes that any cultural values have been impacted on the trail, Wilton said, adding the company is back on track for the 2023 projected completion date.

Camp 9A where six lithic tools were reportedly found. Photo: Amber Bracken / The Narwhal

Questioning government commitment to UNDRIP

In November, B.C. became the first Canadian province to pass legislation to implement the United Nations Declaration on the Rights of Indigenous People (UNDRIP), which says Indigenous peoples must give their “free, prior and informed consent” prior to resource development in their territories.

Wet’suwet’en hereditary chiefs have opposed the Coastal GasLink pipeline and others, including Chevron’s Pacific Trails and the Enbridge Northern Gateway pipelines, for years, Ridsdale points out.

Since 2010, hereditary chiefs and their supporters have maintained camps and checkpoints along a remote forest service road that provides access to the Coastal GasLink pipeline route, in order to assert jurisdiction and prevent clearing work permitted by the province but opposed under the Wet’suwet’en’s own customary law. 

The checkpoints, a display of occupation on their traditional territory, began at the Unist’ot’en camp at the 66-kilometre mark on the forestry road. They then expanded to the Gidimt’en camp, 44 kilometres up the road, to Likhts’amisyu clan territory near Parrott Lakes, about 35 kilometres south of Houston and, most recently, to a new support camp 39 kilometres up the road.

Last January, in a violent clash, the RCMP removed the checkpoint gates and arrested 14 people under a court-ordered temporary injunction. Until then, the Wet’suwet’en had successfully prevented pipeline contractors and archaeologists employed by the company from accessing the site.

Indigenous rights, as defined by UNDRIP, were seriously infringed, when Wet’suwet’en members were arrested and removed from their territory, Ridsdale says. He is hopeful the new law will better protect heritage sites, but doubts change will come soon enough for the Wet’suwet’en.

A view of forest in Wet’suwet’en territory. Photo: Amber Bracken / The Narwhal

Though exact boundaries remain undefined, more than 22,000 square kilometres of Wet’suwet’en lands have never been ceded through treaty, as affirmed by the landmark 1997 Delgamuukw case. The case confirmed Aboriginal title exists in B.C. as a right to the land itself — not just the right to engage in traditional practices such as hunting and fishing — and said the government must consult with, and possibly compensate, First Nations when their rights are affected by decisions on Crown land. In the Delgamuukw title case, hereditary chiefs were recognized as the rightful representatives of the Wet’suwet’en and managers of territorial lands.

Coastal GasLink — like many companies doing business in the traditional territory of First Nations — signed agreements with band councils, elected in a process set out in Canada’s much criticized Indian Act to govern communities on reserves.

Ridsdale, who took part in an Environmental Assessment Office working group for the project, says relations with the company weren’t always so tense. Coastal GasLink funded the Wet’suwet’en office to engage in consultation efforts and shared data from preliminary studies, he says.

Through the working group, the Wet’suwet’en convinced the company to relocate a short section of pipeline. But Coastal GasLink rejected the nation’s proposal to reroute the pipeline to spare the trail.

The logged pipeline right-of-way near Houston, B.C., on Oct. 13, 2019. Photo: Amber Bracken / The Narwhal

Bloated, huge, complicated

The Coastal GasLink pipeline regulatory review took six years and was supported by more than 7,000 pages of documentation. Archaeology requirements were just one component.

The process “is bloated, it’s huge, it’s complicated,” Budhwa says. 

Consultation with First Nations for pipeline and other projects is required by law. Yet what constitutes adequate consultation is undefined, and the regulatory process makes it very difficult for First Nations to meaningfully voice their concerns, according to Budwha.

Responding to reviews for projects like the Coastal GasLink pipeline can be a significant burden for First Nations.

Wet’suwet’en member George Lenser walks through nation’s territory to check on construction. Photo: Amber Bracken / The Narwhal

A logged pipeline right-of-way near Houston. Photo: Amber Bracken / The Narwhal

Lenser rides through his territory in October to monitor construction and clearing work for the pipeline. Photo: Amber Bracken / The Narwhal

“You pile on a whole bunch of paperwork and reviews for projects and you put a strict timeline on it for them to respond to. And if they don’t respond within that timeline, the ship sails,” says Budhwa.

In an emailed statement, Coastal GasLink said it provides “opportunities for interested Indigenous groups to participate directly in heritage resource studies.” 

‘Built for oil and gas’

Between January 2019 and Oct. 31, 2019, the B.C. Oil and Gas Commission conducted 56 inspections of the Coastal GasLink pipeline. The commission issued one warning letter and one order to stop work in an area where the company self-reported missing archaeological impact assessments.

An Office of the Wet’suwet’en request to Doug Donaldson, B.C.’s Minister of Forests, Lands and Natural Resource Operations, to halt clearing work at the cultural sites was deferred to the Oil and Gas Commission, which did not issue a stop work order. 

An Aug. 2019 report published by the Canadian Centre For Policy Alternatives found the B.C. Oil and Gas Commission was established as a “one-stop” shop to streamline the industrial resource projects. 

“From a very early state the OGC bore the hallmarks of a ‘captured’ agency,” the report states, and has led to a troubling “regulatory breakdown” when it comes to the protection of the environment and Indigenous rights. 

It’s a view shared by supporters of the Wet’suwet’en hereditary chiefs.

“The whole system is built for oil and gas. It’s not built for Indigenous people and it’s definitely not built to protect these cultural resources,” says Anne Spice, a Tlingit woman who is a long time Unist’ot’en camp supporter and a PhD candidate in anthropology.

“It seems like the whole structure is set up to approve projects and to make sure that the projects are done quickly.”

Tlingit woman and PhD candidate in anthropology Anne Spice at the Gidimt’en checkpoint, near Houston, B.C., on Oct. 11, 2019. Photo: Amber Bracken / The Narwhal

‘Easier to say sorry’

Ridsdale is more worried than ever about preserving Wet’suwet’en cultural history. 

“This one project is killing our history. It’s taking away the history that we want to teach our children,” he says, standing on the outskirts of a former village site near what is now Telkwa.

Ridsdale has changed out of his “town-shoes” into heavy-duty rubber boots to give a tour of culturally modified trees. He begins by talking about how his people used the area but the story abruptly turns very personal.

His mother lived at Telkwa when, at the age of seven, she was taken to Lejac Residential School, more than 200 kilometres away. As a native Wet’suwet’en speaker, she was whipped for not knowing English, or not learning it fast enough.

Art decorates the window at the Unist’ot’en healing centre near Houston. Photo: Amber Bracken / The Narwhal

Ridsdale in the forest near Telkwa where his mother lived as a child. Photo: Amber Bracken / The Narwhal

In the middle of winter, she escaped with her two sisters, then aged five and nine, wearing only the dresses and shoes provided by the residential school. They survived by following the train tracks and with traditional knowledge imparted from their families. When they finally made it home, an Indian agent was waiting to take them back to residential school.

Ridsdale, like many Wet’suwet’en, is not fluent in his own language. His mother did not live to hear the apologies of church and government. 

Ridsdale worries it will be the same with his people’s cultural history — that everything will be gone by the time the apologies come. As with residential schools, “it’s easier to say sorry than to ask for permission,” he says.

“Give us our land back,” he says. “Let us work with you, with our governance system, with our laws. Let us work together.”

With files from Carol Linnitt.

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British Columbia recently introduced groundbreaking provincial legislation to implement global standards for upholding the rights of Indigenous Peoples. Those rights are set out in the United Nations Declaration on the Rights of Indigenous Peoples.

At the time, Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs called it such a positive development that he wondered if he might be asleep and dreaming it all up.

I had the honour of being in the legislature when the Bill 41 was introduced and fully share Grand Chief Phillip’s sense of elation, pride and, yes, a certain amount of disbelief. It’s impossible to overstate the importance of this historic achievement — or the exhilaration over how far we’ve come.

The UN Declaration is the most comprehensive international human rights instrument setting out the inherent rights of Indigenous Peoples and the obligations of governments to honour, protect and fulfil those rights. Implementation of the UN Declaration is at the heart of the Truth and Reconciliation Commission’s 94 Calls to Action.

With the introduction of Bill 41, B.C. is on track to become the first government in Canada — and indeed anywhere in the English common-law world — to establish a legislative framework for putting the declaration’s human rights standards into concrete practice. In doing so, B.C. is not only making an important step toward reconciliation, it is setting an example for the rest of Canada and the rest of the world to follow.

Now comes the hard part: maintaining the courage of its convictions and fulfilling the promise of implementation.

Implementation questions linger

In some quarters, any talk of actually upholding the UN Declaration will spur anxiety and opposition. Readers may be familiar with the fact that Bill 41 is based on proposed federal legislation. Romeo Saganash’s private members bill, Bill C-262, died in the Senate in June 2019 after the delaying tactics of a handful of Conservative senators prevented it coming to a final vote.

Concerns over the implications of the UN Declaration have also popped up from time to time in B.C. media.

Speaking to the legislature after the bill was introduced, Cheryl Casimir, of the First Nations Summit, joked: “Did you hear that? The sky didn’t fall.”

I agree wholeheartedly. As someone who has intensively studied the UN Declaration, its content, its history and the work of Indigenous Peoples around the world to bring its provisions to life, I can say without hesitation that the fears and anxiety that have been stirred up around implementation are overblown and unwarranted.

Implementation of the declaration is already well under way, albeit in a patchwork and uncertain way. Courts, human rights tribunals and environmental impact assessment panels have already referenced and applied its provisions.

The importance of Bill 41 is that it provides a framework for the province to now engage more proactively so that implementation can unfold in a more predictable and consistent way. Bill 41 requires the province to develop a co-ordinated action plan “to achieve the objectives of the Declaration” and to report regularly to the legislature on the progress being made.

‘In consultation and co-operation with’

I was heartened to see the measured and cautiously optimistic response to Bill 41 from the Mining Association of B.C. After the introduction of the legislation, Mining Association CEO Michael Goehring told the Vancouver Sun:

“The truth is, the status quo has not engendered confidence in British Columbia’s economic future, nor has it served British Columbians or B.C.’s Indigenous communities.”

In contrast, Goehring said, implementation of the declaration could “enable greater certainty and predictability on the land base.”

The bill also requires that the government implement it “in consultation and co-operation” with Indigenous Peoples. The phrase “in consultation and co-operation” is crucial. The words come directly from the UN Declaration itself and signal the imperative of going beyond mere consultation to instead work together in what the declaration calls “a spirit of partnership and mutual respect.”

Legislative pathways have always been considered essential for domestic implementation of the UN Declaration. As the text of Article 38 states: “States, in consultation and co-operation with Indigenous Peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”

Various UN bodies have called for legislative measures and public policies to implement the rights recognized in the declaration, yet they also recognize that legislation alone is generally not sufficient.

Without a doubt, there is significant work ahead to identify, prioritize and implement the reforms needed to bring B.C. in line with the requirements of international human rights law. Even with the framework provided by the UN Declaration, it will not be quick or easy work to uproot the legacies of colonialism present in provincial law and policy.

Action plans

While B.C. is about to become the first jurisdiction in the Commonwealth to adopt a legislative framework for implementation of the declaration, it will not be the first to develop an action plan for implementation. The collaborative development of a National Action Plan is already well under way in New Zealand.

The New Zealand government is working with the Maori people to identify key reforms necessary in their national laws and policies and co-develop their National Action Plan. As part of its process, the Human Rights Commission of New Zealand and Maori groups co-invited members of the UN Expert Mechanism on the Rights of Indigenous Peoples to visit and provide advice. The government of British Columbia should follow suit.

While the action plan developed in B.C. must adapt to the specific needs of Indigenous Peoples in the province, it’s important to remain engaged with the ongoing processes of how the declaration is interpreted and applied globally.

Doing so is an opportunity to set positive examples for other countries, to learn from what others are doing and to ensure that domestic interpretation of the declaration not diverge from its international human rights foundations.

Terry Teegee, the Regional Chief of the B.C. Assembly of First Nations, remarked after the introduction of Bill 41 that making history “is not for the faint of heart.” Further, Grand Chief Edward John of the First Nations Summit encouraged the Members B.C.’s Legislative Assembly to “be brave” as “change does require courage.”

Without a doubt, there is hard work ahead, both for the Horgan government and the Indigenous leadership in B.C.

It’s worth noting another historical aspect of Bill 41: it was co-developed between the Horgan government and the B.C. Assembly of First Nations, the First Nations Summit and the Union of B.C. Indian Chiefs.

In other words, a foundation for collaborative development of an action plan has already been established. The very fact that their collaboration has already resulted in the tabling of Bill 41 holds out hope for the progress that can be made by working together.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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The First Nations Energy and Mining Council has added its voice to increasingly insistent calls for B.C. to toughen up mining rules and make polluters pay.

A newly released study, conducted for the council, recommends the province change rules to ensure mining companies post sufficient funds up-front to pay for cleanup and remediation of mining sites and the report recommends that, if the government will not act, First Nations should do it for them.

“If the British Columbia provincial government does not implement the … recommendations, Indigenous nations should require in-full and up-front financial assurance as a condition of their consent to mining projects,” the study says.

Alternatively, First Nations could negotiate full clean-up costs as part of impact and benefits agreements with mining companies, suggests economist Jason Dion, lead author of the report.

The demand is buoyed by B.C.’s commitment to implementing the UN Declaration on the Rights of Indigenous Peoples and the study says that requiring stringent financial assurances before mining projects can go ahead on Indigenous lands “would be fully in line with their rights as articulated in the UN Declaration.”

Robert Phillips, a member of the First Nations Mining and Energy Council, said government reaction to the report will indicate its commitment to UNDRIP.

“By accepting our recommendations, the B.C. government will be demonstrating that it is genuinely committed to not only mining reform, but also the spirit and principles of the Declaration on the Rights of Indigenous Peoples Act that is being passed by the Legislature,” Phillips said.

Another recently released report, from the B.C. Mining Law Reform Network is recommending that Indigenous-led groups should be given a larger role in overseeing mining projects approved on their lands.

Taxpayers on the hook for mine clean-up costs

Although mining companies are supposed to be liable for the costs of mine remediation in B.C., in reality, taxpayers are left on the hook for expensive clean-up of sites if a mining company goes broke because the province does not insist on up-front bonds in the form of cash or securities. 

Instead, pledges or guarantees based on the value of minerals are often accepted when the provincial Chief Inspector of Mines decides on the form of financial assurance.

That leaves B.C. taxpayers on the hook, with Auditor General Carol Bellringer estimating in her 2016 report that there is a $1.43 billion gap between the total cleanup liability of $2.79 billion and $1.36 billion held in financial assurance. Another report by the watchdog group MiningWatch Canada estimated the figure to be closer to $3 billion.

The expense of cleaning up mining messes, such as acid mine drainage, can be staggering. 

The Tulsequah Chief mine in northwest B.C. has been leaking acid mine drainage into a tributary of the Taku, a major Alaskan salmon-bearing river, for more than six decades and remediation costs are expected to be huge.

Water treatment at the Brittania Mine on Howe Sound costs B.C. $3 million annually in perpetuity and the Mount Polley disaster, which released 24 billion litres of contaminated mining waste into surrounding waterways after a tailings dam burst, has cost taxpayers $40 million  even though the company was found to be at fault and is still in business.

Unremediated mines often on Indigenous land

In addition to the financial burden on all British Columbians, the mess left behind by mining companies is often on Indigenous land.

“Environmental harm from unremediated mines can affect the ecosystems that Indigenous people rely on for sustenance and cultural uses. And it can harm the spiritual connections they have to the local land, water and wildlife,” says the report, adding that there are numerous examples of environmental damage from mines on Indigenous land.

“If the government is not prepared to put policies in place to protect our territories, we will implement them ourselves.”

Allen Edzerza, a member of the First Nations Mining and Energy Council and Tahltan Nation elder, said it is time for mining companies and government to change their approach.

“For too long we have watched mining companies disrespect the rights of First Nations in B.C. by polluting our water, threatening our salmon and damaging our land,” he said.

“That must now stop. If the government is not prepared to put policies in place to protect our territories, we will implement them ourselves,” he said.

The jade hunters on Tahltan land

B.C. mulls changes to mining rules

The provincial government has said it will release an updated policy for mine reclamation securities and the First Nation Energy and Mining Council is hoping the report will help inform those changes.

Government is looking at changes to the Mines Act and is talking to stakeholders about the Mineral Tenure Act, but Calvin Sandborn, legal director of the University of Victoria’s Environmental Law Centre, told The Narwhal last month there are troubling signs that B.C. might not join jurisdictions such as Quebec and Alaska in requiring 100 per cent bonding.

A spokesman for the Energy, Mines and Petroleum Resources Ministry said the ministry is considering feedback and, if the government chooses, a bill will be introduced next year.

The report recommends that B.C. should bring in a policy similar to Quebec, where the full, estimated cost of remediation is required within the first two years of a mine starting operations and it points out that the stringent requirements have not stifled the province’s mining industry.

“By bringing in stronger financial assurance requirements, British Columbia can reduce environmental risk and better protect taxpayers, while still benefiting from the jobs and income that mining generates,” Dion said.

Alaska, which only accepts full, solid financial assurances against the cost of mine remediation, also has a bond pool funded by companies, which covers the cost of remediation if a company fails to meet its obligations.

An example of the differences can be seen in security paid by Canadian mining giant Teck Resources for projects in Alaska and B.C.

Teck was required to pay full security for an estimated $560 million in reclamation costs for its Alaskan mine, but Teck’s five B.C. mines, which have been plagued with selenium pollution problems, have unsecured reclamation costs of $700 million.

For decades B.C. failed to address selenium pollution in the Elk Valley. Now no one knows how to stop it.

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In early July, Tahltan Central Government President Chad Norman Day boarded a helicopter in Dease Lake, flying to a nearby cluster of rogue mining claims exploiting one of the world’s richest deposits of nephrite jade.

“Jade mining has put a nasty facelift on the land,” says Day of what they saw on the flight. 

“They’ve built roads and ripped up a lot of land and forest.”

Jade miners have also built camps with outhouses and garbage dumps, he says, and the Tahltan suspect the waste is being buried instead of hauled out.

It’s becoming a cliché to say that British Columbia is a “wild west” for mining, but when it comes to nephrite jade, the official provincial gemstone, it’s no exaggeration. 

Location of Tahltan traditional territory in northeast B.C. Map: Tahltan Central Government

Jade placer mining operations occur without an environmental assessment. Photo: Tahltan Central Government

Out on this remote landscape 1,750 kilometres north of Vancouver, critics say there is no active enforcement to speak of, no meaningful requirement for reclamation, and no necessity to consult and seek permission from the Tahltan Nation to work on the land. 

Back in June, Day sent a letter demanding the province take immediate steps to shut down the jade and gold placer mining (mining surface areas near streams and digging in old riverbeds) across the Tahltan Nation’s nearly 100,000 square kilometres of territory. 

Weeks later, Day showed up in person with a film crew to document his eviction of the biggest players, putting them on notice that the party was over. 

The growth of B.C. jade

The term “jade” refers to two different kinds of ornamental rocks — jadeite and nephrite, which have been revered in China since the Stone Age. Today British Columbia is the world’s largest producer of nephrite jade, with deposits documented in more than 50 sites — but nowhere is it more plentiful than in the northwest corner of B.C., including east of the Stewart Cassiar Highway near Dease lake. 

Jade is an unusual mining commodity, says Glenn Grande of the Fair Mining Collaborative: some miners finding it by placer mining, while others mine it from hard rock like other minerals. There’s an opportunistic element to it as well — sometimes big jade boulders are found randomly by miners looking for other things, like gold. 

“It can be a deliberate seek or an accidental find,” Grande says.

In recent years especially, there is a big cash incentive to look for jade. 

Jade scattered on the ground near a placer mining operation. Photo: Tahltan Central Government

Jade claims near Dease Lake, B.C. Because of B.C.’s antiquated mining laws, anyone can stake a mining claim online, even in Indigenous territory.

According to a report from Visual Capitalist, the average AAA B.C. jade price jumped from less than $200 per kilogram in 2004, to around $1,400 per kilogram in 2016. During that same period, average yearly B.C. jade sales grew from fewer than 400 tonnes per year to about 1,000 tonnes per year.

Talk of this lucrative trade is a sore point for Day.

“In terms of Tahltan Nation benefits, revenue sharing, anything like that, benefits that would flow to the nation as a collective and in a significant way, there’s nothing.”

Day points to the “impact benefit agreements” the Tahltan has with other industries — including mining exploration, guide outfitting, logging and clean energy — and says the jade industry will need to follow these examples.

“We’re very experienced in terms of drawing up agreements to make sure that the Tahltan are intimately involved, in processes, especially around permitting and the environment, and that our people and our communities are receiving benefits and opportunities,” he said. “None of these things are currently [in place] with the jade industry at all.”

Placer mining in particular is a bust for the province too: according to research by the Fair Mining Collaborative, B.C. collected less than $79,000 in royalties from 558 permitted placer mines in 2017. That same year, placer gold sales alone were estimated at almost $16 million.

Reality TV catches Jade Fever

Excitement about Dease Lake-area riches has been fanned by the Discovery Channel reality show Jade Fever, which follows a group of financially stressed jade miners, working on and off for Chinese backers, as they do battle with the rough, mountainous topography of jade country.

Like other mining reality shows in recent years — there are at least 13, most dedicated to placer gold mining — Jade Fever is a clarion call to every weekend warrior with access to heavy machinery and dreams of making easy money plucking “million dollar” jade boulders from streambanks and out of mountainsides.

“This isn’t mining,” says one of the hapless miners on Jade Fever. “It’s treasure hunting.”

The drama doesn’t always stop when the camera cuts. In October 2017, CBC reported that Ken Foy, the star of the History Channel’s Yukon Gold was fined $145,000 for the environmental damage inflicted on his placer claim near Dawson City. The actual taxpayer cost was reportedly closer to $1 million.

If Jade Fever is any indication, you find jade not with geological knowledge, but with “your gut” — and by driving lots of heavy equipment through watercourses, drilling speculative holes, and digging big pits in the ground.

Clash of two legal systems

The conflict over jade in northwest B.C. is the result of two clashing legal systems. 

According to B.C. law, the gold rush that started in 1859 never ended; in many cases, mining remains the highest use of Crown land. 

The current system of free-entry not only allows you to stake claims online without physically touching the land, but once you’ve done so, your rights to access the subsurface trump most other land rights.

Jade miners have staked claims and applied for permits that give them the right, under provincial law, to be on the land exploring and mining for jade.

Jade placer mining operations on unceded territory of the Tahltan nation. Photo: Tahltan Central Government

But many of these same miners are coming on to unceded Tahltan Nation territory, without any contact or consultation with the First Nation, creating significant land disturbances and environmental harm as they go.

Although B.C. recently proposed some mining reforms, they only apply to the Mines Act and not the Mineral Tenure Act which undergirds the free-entry system. 

That’s why, when Day was flying around in a helicopter, he was evicting jade miners that have every right to be there under provincial law.

“The online staking regime, it’s definitely illegal under Tahltan law,” says Day. “I’m sure if we took this thing to court at the highest level, the Supreme Court of Canada would likely agree.”

President of the Tahltan Central Government, Chad Day, speaks with a placer miner during the process of handing out eviction notices. Photo: Tahltan Central Government

Implementing new Indigenous rights framework

There is real hope that B.C. mining laws will be reformed in the near future, thanks to the NDP government’s unveiling of new legislation to implement the UN Declaration on the Rights of Indigenous People (UNDRIP).

Under article 32 the declaration grants Indigenous peoples “the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.” 

It also requires governments to “consult and cooperate in good faith” with Indigenous peoples through their own representative institutions. 

When it comes to resource development like mines, UNDRIP mandates governments obtain free and informed consent of Indigenous peoples prior to the approval of “any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

Placer mining in some areas takes place along watercourses but has not been subject to an environmental assessment. Photo: Tahltan Central Government

Members of the Tahltan survey placer mining operations from the air. Photo: Tahltan Central Government

B.C.’s proposed legislation, introduced through Bill 41 in late October, would require the province to work in tandem with Indigenous legal systems. 

But just what the integration of colonial and Indigenous law will look like on the ground and in places like Tahltan traditional territory remains unclear, although some have indicated it could be transformative when it comes to long-promised nation-to-nation decision-making. 

It is written into the mandate letter of Michelle Mungall, Minister of Energy, Mines and Petroleum Resources that her ministry participate in bringing “the principles of the [U.N.] declaration into action.”

Terry Teegee, regional chief of the B.C. Assembly of First Nations, said the new legislation is likely to bring more certainty to mining operations because it will more clearly establish what is required for gaining Indigenous consent. 

“Consent is about agreement. It is a process to achieving and maintaining agreement … about respecting our laws as equals and as partners,” Teegee said at the B.C. legislature, during Bill 41’s unveiling. 

“One of the greatest uncertainties for project development in B.C. is not knowing if a project has the consent of affected First Nations,” he said. “Laws that are co-developed … will deliver economic, legal certainty and predictability in this province.”

Placer mining operations in a valley. Photo: Tahltan Central Government

“The courts have been clear that Indigenous peoples have rights in their territories and the legislation will help provide a plan and a path forward for all of us,” Sarah Plank, a spokesperson for the Ministry of Indigenous Relations and Reconciliation, told The Narwhal.

In mid-September, Day attended meetings with the ministry to talk about what the implementation of UNDRIP will look like for the Tahltan.

“I think [UNDRIP] will definitely play a role in how to address these issues with jade mining,” says Day. “It’s a hopeful step, but the devil’s in the details.”

No shortage of solutions

Day says another part of the solution is to complete Tahltan land use planning — already under way for several years, buoyed by new funding, which will ultimately dictate where resource development happens in Tahltan territory.

“The big change that needs to take place is that Tahltan land use planning needs to take place ahead of time, to ensure that no outside interests can stake land that [we] have said is off limits.”

Mount Edziza Provincial Park in the territory of the Tahltan nation. Mining occurs on the outer boundaries of this park. Photo: Carol Linnitt / The Narwhal

Day points to the success of the Klappan Plan, unveiled by the province and Tahltan this past summer, which has created three separate land use zones across about 640,000 square hectares, including the subalpine basin known as the Sacred Headwaters. 

In the recent past, this area has been a conflict flashpoint in conflict over coalbed methane extraction via fracking, coal mining, mineral exploration and moose poaching.

Future land use planning like in the Klappan, Day says, will not only determine where resource activities can happen, but will “ultimately bring more certainty to everybody, including industry.”

Make claims conditional

B.C. could solve a lot of problems by making mineral claims conditional, depending on what other activities and uses are competing for the same area, says Jessica Clogg, executive director and senior counsel at West Coast Environmental Law.

This would end the persistent idea, born in the 1860s gold rush era, that mining is always the highest and best use of B.C. land — and could spell the end to mining claims being staked in sensitive First Nations territory, important watersheds for drinking water and fisheries, and more.

“The idea that mineral claims are appropriate in any of these places is a bit crazy, really.”

Day walks around jade placer mining equipment while posting eviction notices at mining camps, some of which were empty. Photo: Tahltan Central Government

B.C. also needs to rethink the statutory right to compensation, introduced by the B.C. Liberals, which forces taxpayers to generously compensate miners if their claims to an area must be sidelined for things like park creation.

Clogg adds that updating B.C.’s mining laws will be a boon to industry.

“If we reform our mineral tenure system to be clearer about where mineral claims and mining activity is not appropriate, it will create greater certainty for industry, and avoid situations where millions and millions of dollars are expended, only to be mired in controversy and lawsuits.”

You only have to think of recent mining history for examples: the ongoing Taseko Mines debacle, the proposed Ajax mine near Kamloops city limits, and now, the rush for Dease Lake-area jade.

Preemptive changes already being made

The province says it has already made changes to begin meeting UNDRIP — including committing $500 million over 10 years to support the construction of Indigenous family housing, and $50 million to revitalize languages.

In mid-September, they also proposed a plan to modernize the environmental assessment process, which could potentially affect placer mining. 

The threshold that would trigger an environmental assessment for a placer mine has been lowered from 500,000 tonnes to 250,000 tonnes of annual “pay dirt.”

(Pay dirt is an old term for mined gravel that is processed in a sluice box, wash plant or other device for extracting precious metals.)

Jade placer mining operations. Photo: Tahltan Central Government

Perhaps the biggest problem is that the miners themselves, often working in very remote locations, would be expected to “self-report” when they reach the threshold to trigger an assessment which means a placer miner has to phone up the ministry and request an environmental assessment.

“Project proponents are responsible for making their own determination as to whether or not their proposed project falls within the thresholds set out in the Reviewable Projects Regulation,” wrote a spokesman from the B.C. Ministry of Climate Change and Environment. “[They] must identify themselves to the [Environmental Assessment Office] if they are reviewable.”

Sharing the benefits of jade

Back up near Dease Lake in July, Chad Norman Day is reading an eviction notice to Claudia Bunce and her husband Robin, the stars of the reality TV show Jade Fever, as the cameras roll.

It’s a strange moment: a film crew is already on the site filming the show, and the Tahltan have brought their own cameras to document the eviction process for their members.

“To be clear, your activities here are unlawful and deeply disrespectful to our Tahltan culture, people and ancestors who shed blood for these lands,” reads Day from the eviction notice he is delivering to Bunce. 

“This letter is your final notice to shut down.”

Months have passed since the eviction notices were presented to the jade miners in Tahltan territory. In the interim at least two miners have indicated to the Tahltan that they have ceased operations and are exploring options for moving forward.

The Tahltan Central Government also confirmed they are now working with the province to chart a path forward. 

The days of the roaring 1860s gold rush are long gone, and the Tahltan are determined to move British Columbia’s jade industry into the 21st century, one way or another.

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B.C. has become the first province in Canada to unveil legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 

With a wavering voice, Premier John Horgan spoke to the historic moment as the landmark Bill 41 was introduced in the legislature on Thursday.

“It is truly a great honour to stand in this chamber alongside Indigenous elders, leaders and people to introduce this bill,” the Premier said.

“I’m determined to walk a path of reconciliation.”

“We can have a better future than our past.”

What is UNDRIP and what does it mean for Canada?

Set out in 46 Articles, the declaration calls on state governments to engage with Indigenous nations, communities and cultures in such a way that bolsters the preservation of traditional territories and ways of life.

“It has the capacity to be transformative,” said Merle Alexander, legal counsel for the B.C. Assembly of First Nations and member and hereditary chief of Kitasoo Xai’xais First Nation. “The challenge will be: how do we implement it?”

Alexander, who co-drafted the legislation, said the act is designed to be a framework for reconciliation. 

“The potential of this legislation is to create a new baseline,” Alexander told The Narwhal.

“When you enable government to enter into consent-based agreements, it could radically shift almost all government relationships.” 

A new era of mutual consent

A major question about B.C.’s incorporation of UNDRIP centres around the question of “free, prior and informed consent” and whether or not it amounts to granting Indigenous peoples the power to veto projects that affect traditional territories. 

“Nowhere in the act, nowhere in the declaration, do the words ‘veto’ ever come up. For the first part, it’s fear-mongering,” Alexander said.

Article 32 of UNDRIP grants Indigenous peoples “the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.” 

It also says governments “shall consult and cooperate in good faith” with Indigenous peoples through their own representative institutions, in order to obtain their free and informed consent prior to the approval of “any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

But Alexander said it isn’t an accurate framing of the issue to say UNDRIP will essentially grant nations the power to override government and industry. 

“Veto is about overriding jurisdiction and overruling governments, whereas consent is about agreement and coming together and working through problems and finding solutions,” he said. 

“In some ways consent and veto are polar opposites to each other.” 

Major projects — including the Site C dam, the Trans Mountain pipeline expansion and extensive fracking operations in northeastern B.C. — have been widely criticised for being approved by government without the “free, prior and informed consent” of affected Indigenous communities and nations.

First Nation communities regularly find themselves in the position of waging legal battles against projects after they are approved, when major impacts to land and traditional practices can no longer be prevented.

Blueberry River and the death by a thousand cuts

From the legislature floor, Terry Teegee, regional chief of the B.C. Assembly of First Nations, spoke directly to the claim the new legislation will in effect give Indigenous peoples ‘veto powers.’

“To bring this to a hard point, some people will oppose this law because of their fears of what an era of mutual consent means. There is fear in the idea of sharing power and jurisdiction. I want to say strongly and clearly here this declaration law is not about providing any government with veto rights.”

“Consent is about agreement. It is a process to achieving and maintaining agreement … about respecting our laws as equals and as partners,” Teegee said.

“Consent is the future and most simply put, it’s about coming together as governments, as people seeking to find common ground. Although consultation law has empowered many First Nations in B.C., it has done little to create legal certainty.”

Too often the Crown does not engage in good faith consultation and negotiations and First Nations are turning to the courts to resolve these issues, Teegee said.

“One of the greatest uncertainties for project development in B.C. is not knowing if a project has the consent of affected First Nations. Laws that are co-developed … will deliver economic, legal certainty and predictability in this province.”

Teegee said the province has come a long way in respecting Indigenous self-determination and decision-making in recent years, pointing to very recent but ultimately rejected plan to turn a sacred lake in Tsilhqot’in territory into a tailings pond for a mine. 

The task of adhering to the principles of UNDRIP presents a unique case in provinces such as B.C., where the vast majority of the landscape is considered unceded Indigenous territory, meaning treaties haven’t been signed.

Unceded land in B.C. is often referred to as Crown land, although that designation can be misleading because much of the province falls within traditional territories that have not been ceded but have not been claimed under title rights (as in the case of the Tsilhqot’in Nation).

Map of Canada, showing treaties. Map: Native-land.ca

Major clashes over natural resource projects, such as recent blockades to prevent the construction of the Coastal GasLink pipeline on traditional Wet’suwet’en territory, occur on unceded lands where Indigenous peoples have been guaranteed the right to fish, hunt and practice their traditional ways of life in perpetuity. 

Forest management a natural place to start

Jack Woodward, an Aboriginal rights lawyer who served as legal counsel on the landmark Tsilhqot’in title case, said while Aboriginal rights and treaty rights are governed by the constitution, the province can look for ways to support reconciliation within its own jurisdiction. 

He pointed to the way old-growth forests are being managed by BC Timber Sales, saying it is a matter of policy, not legislation. 

Old-growth forests are a valuable heritage resource for First Nations because they contain the last archaeological record of pre-contact through culturally modified trees, Woodward said. 

“That’s what UNDRIP speaks to and what’s referred to in the proposed legislation but the actual process on the ground is what is going to matter and they’re going to have to give way to make significant change.”

An enormous, freshly fallen western redcedar in a BC Timber Sales-issued cutblock in the Nahmint Valley near Port Alberni. The Nahmint Valley is in traditional territories of the Hupacasath and Tseshaht First Nations. Last year, the Hupacasath sent an open letter calling on the provincial government to halt old-growth logging in the Nahmint and work collaboratively with the band to protect the area’s old growth and, especially, the biggest trees and monumental cedars. Photo: TJ Watt

Alexander said the process of prioritizing where to start on UNDRIP implementation will begin now, but he agrees forestry is a logical place for improvement.

“It does make sense that forestry might be a very tangible and smart place to start,” he said. “The Jenga game has sorta collapsed a bit on forestry and it needs to be re-built.”

“Areas where we’ve seen the greatest successes are where First Nations and industry and environmental groups and government push in a single direction together. That’s going to require dialogue.” 

Woodward also pointed to a directive at the federal level, introduced under Jody Wilson-Raybould as Justice Minister, that instructed federal lawyers to pursue reconciliation in their engagement with Indigenous litigation. 

“That is very progressive and forward-looking,” Woodward said. “And there’s nothing like it at the provincial level so when First Nations find it necessary to go to court they are met with a very hostile response that makes it very time consuming and very expensive.”

“It’s the province’s fault for not managing that interaction in a respectful and conciliatory manner.”

First Nations going to court over Site C dam’s violation of treaty rights

But clashes are also taking place on treaty land in B.C. 

In the province’s northwest, Blueberry River First Nations has launched legal action claiming that the cumulative impacts of resource development on its traditional territory, including fracking, oil and gas development and construction of the Site C dam, mean its members can no longer engage in traditional practices guaranteed to them in Treaty 8. 

West Moberly First Nations is also waiting for a court date for what it calls a “mega-trial” to determine if treaty rights have been unjustifiably infringed by the Site C dam and two other large hydro dams on the Peace River.

Construction at the Site C dam site, July 2018. Photo: Jayce Hawkins / The Narwhal

A judge recently ruled the nation’s treaty rights case must be heard by 2023, prior to the flooding of 128 kilometres of the Peace River and its tributaries, which would destroy traditional hunting and fishing grounds, Indigenous burial sites and areas of special cultural and spiritual significance. 

Article 37 of UNDRIP affirms the right of Indigenous peoples to have their treaties recognized and enforced by government — so, at least theoretically, with new legislation in place projects wouldn’t move ahead without addressing these concerns.  

“The Crown and the Crown corporation would have had it be a requirement to receive consent from Day 1. That would have been a completely different framework,” Alexander said.

“Whether or not they would have ever conceived consent is an open question.” 

While announcing the UNDRIP legislation, Horgan said the environmental assessment process must work in a respectful, collaborative fashion with Indigenous practices and traditional knowledge.

He noted it will be important for governments across Canada to work together to ensure Indigenous rights and values are respected in this process. 

“Jurisdictional differences in this country — it is the strength of our federation, it’s also our greatest weakness.”

How Indigenous-led environmental assessments could ease resource, pipeline gridlock

How does UNDRIP integrate with existing law?

How UNDRIP articles and the declaration’s overarching principles will be integrated into provincial law remains a lingering question.

In a news release, the province states that “over time as laws are modified or built, they will be aligned with the UN Declaration.”

The province also states it will create “new decision-making agreements between the province and Indigenous governments where decisions directly affect Indigenous peoples and mechanisms exist in applicable legislation — with clear processes, administrative fairness and transparency.”

The province also states it will work to recognize Indigenous forms of governance, including collectives and hereditary governments recognized from within Indigenous communities themselves. 

B.C. will produce an “action plan” to meet UNDRIP objectives and will release annual plans on progress made.

It’s been a long time coming … 

The declaration on the rights of Indigenous peoples was adopted by the UN in 2007 after a quarter-century’s in development. Canada was one of four UN member states to vote against the declaration’s ratification.

In 2016, after the Trudeau government was elected, Canada officially removed its objector status to the declaration.

Although the document is a significant step forward in the recognition of Indigenous rights worldwide, it sets only a basic standard when it comes to the affirmation and protection of Indigenous rights. 

Canada’s Truth and Reconciliation Commission called on Canada’s federal, provincial and territorial governments to implement UNDRIP in its calls to action released four years ago.

The introduction of today’s bill is the B.C.’s first formal step in that direction. The bill must go through two more readings in the legislature and be voted on before it becomes law. 

— With files from Emma Gilchrist

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When the Truth and Reconciliation Commission of Canada concluded its work almost four years ago, it provided a road map for Canadians to follow. That road map, the 94 Calls to Action, aims to “revitalize the relationship between Aboriginal Peoples and Canadian society” after more than 100 years of the traumatic and systemic removal of Indigenous children from their families.

Call No. 43 underpinned all others, according to the commission. The commission urged federal, provincial and territorial governments to fully implement the United Nations Declaration on the Rights of Indigenous Peoples. They called it “the framework” for all reconciliation measures “at all levels and across all sectors of society.”

It’s extremely rare for international human rights standards to even be mentioned in the Canadian policy debate. However, when Canada voted against the declaration in 2007 at the United Nations, it was the first time that Canada had ever stood in opposition to an international human rights standard.

It remains today the only international human rights standard in Canada up for debate.

Former prime minister Stephen Harper issued an official apology for residential schools in 2008. However, my ongoing study on state apologies to Indigenous Peoples demonstrates that apologies without clear policy shift are typically rejected as “empty gestures.”

International standards of justice require that those responsible for human rights violations must do more than acknowledge and apologize for the harm that has been done. They must go further. They must take every reasonable measure to set things right and to prevent any recurrence of harms.

A closer look at the history of the declaration and its unique framework for human rights protection underscores the Truth and Reconciliation Commission’s wisdom in highlighting its indispensable role in reconciliation.

Library and Archives Canada images of Indigenous children in residential schools. Clockwise from top left: young girls sew at the Fort Resolution school in the N.W.T.; the cricket team from Battleford Indian Industrial School, Saskatchewan, 1895; students with their teachers outside an Indian school, near the Poplar River, Manitoba, circa 1890; two Métis Children with an Inuit Child at All Saints Residential School, Shingle Point, Yukon, 1930. Illustration: Carol Linnitt. Photos: Library and Archives Canada / Flickr

The birth of the declaration

The idea for an international standard on Indigenous Peoples’ rights emerged out of several grassroots Indigenous movements in North America. Those movements were informed by their connections to traditional Indigenous forms of governance. They were also influenced by the U.S. civil rights movement, as well as decolonization movements across the Global South.

Fed up with government policies and frustrated by the lack of neutral avenues for dispute resolution, these Indigenous movements took their cause to the international level, hoping to appeal to wider global consciousness on human rights.

Indigenous diplomacy at the UN in Geneva and New York carved out a unique space where Indigenous peoples could actually sit down with states and jointly create a mutually agreed framework for recognition, protection and fulfilment of our rights. The process of developing the text for declaration began with the creation of a special working group within the UN human rights system in August 1982.

This was the first time that the direct beneficiaries of a global human rights instrument standard were also its co-authors. On Sept. 13, 2007, a full 25 years after the writing process began, the UN General Assembly adopted the declaration as a body of “minimum standards” that all states are expected to uphold.

Grand Chief Wilton Littlechild, a Cree Chief from Canada, makes a ceremonial call to order prior to an event held on the occasion of the International Day of the World’s Indigenous Peoples and the tenth anniversary of the UNDRIP, under the theme “A Decade in Review: Achieving the Rights of Indigenous Peoples.” Photo: Kim Haughton / United Nations

The very length of this process — a quarter-century! — tells us a lot about the depth of resistance that Indigenous peoples had to overcome to bring the declaration to life. It also speaks volumes about the dedication of all those Indigenous advocates from around the world who returned to the UN year after frustrating year until eventually, they prevailed.

As Dalee Sambo Dorough, now president of the Inuit Circumpolar Council, said during the final years of the negotiation process:

“I truly would love to just be at home enjoying my rights, and not having to pound the halls of the United Nations to gain a little respect, to gain some recognition of my inherent rights as an Indigenous woman, or the collective rights that I share with my people.”

Refuting the doctrines of racial superiority

Human rights lawyers and scholars often say the declaration creates no new rights. They say they have been developed on the foundation of other international human rights standards with vast global experience in their interpretation and application.

But, as I have written in my book, Global Indigenous Rights: A Subtle Revolution, the specific way the declaration approaches these existing rights is subtly revolutionary. The declaration’s approach helps to transform the often Eurocentric discourse of human rights to more fully encompass Indigenous worldviews, histories and contemporary struggles.

With the adoption of the declaration, the famous words “We the peoples of the United Nations” at long last became inclusive of the realities of Indigenous Peoples. It made way for Indigenous Peoples who seek a multiplicity of new relationships with UN member states within whose boundaries our territories and nations have been divided and subsumed.

The declaration reinvigorates the themes of self-determination, decolonization and anti-discrimination that are the foundations of the United Nations.

In its preamble, the declaration refutes the doctrines of racial superiority that have been used to justify the dispossession of Indigenous peoples around the world. In its provisions, the declaration calls for concrete remedies for the harms that have resulted from this dispossession.

Reconciliation: Much work needs to be done

For more than 10 years, I have been attending various international meetings such as the Permanent Forum on Indigenous Issues that support the ongoing work of implementing the declaration. I am also working with Indigenous academics and other partners around the world to share knowledge and experience about the growing body of implementation measures at the national and regional levels.

While the era of UN declaration implementation is well underway, enormous work remains to be done. This is as true of Canada as it is of the rest of the world.

The declaration calls for redress and rights protection through a wide range of specific provisions on matters such as Indigenous languages, cultural property, sacred sites, traditional medicines, environmental protection and the rights of children and families. More than anything, however, the declaration recognizes Indigenous Peoples’ continued authority, as self-determining peoples, over decisions affecting our lives and futures.

Cindy Charleyboy with First Nations Women Advocating Responsible Mining. Charleyboy speaks of the Tsilhqot’in First Nation’s fight for the past decade to stop the Taseko Mine, proposed for Teztan Biny, a lake considered sacred by the Tsilhqot’in. “The lake is pristine and that water is needed there, untouched, so we can continue our Indigenous ways of life, our culture, language and spirituality uninterrupted so we can provide for our families,” Charleyboy told The Narwhal in May 2019. Photo: Taylor Roades / The Narwhal

James Anaya, a former UN special rapporteur on the rights of Indigenous Peoples, has said the declaration’s foundation in established human rights obligations, the direct involvement of Indigenous peoples in its development and the exhaustive deliberations that led to its final adoption give the declaration a unique “moral, political and, yes, legal” weight that makes its implementation all the more imperative.

In 2018, the House of Commons passed a private member’s bill, Bill C-262 — put forth by NDP MP Romeo Saganash — meant to create a legislative framework for federal implementation of the declaration. Key provisions of the bill included review of federal laws and direct collaboration with First Nations, Inuit and Métis people in establishing policy priorities. These measures are key to meaningful implementation by the federal government.

The story of Bill C-262 is bittersweet, however. The House of Commons adopted the law, which was further supported by a unanimous motion in the House. These facts give some hope of seeing the legislative framework adopted in the future.

In the end, however, the opportunity to pass the legislation in the current session of Parliament was lost because the bill was stalled by Senate filibustering.

This highlights the considerable remaining resistance, much of it partisan, to the concrete implementation of the declaration.

For this to change, more people must take the time to learn about the declaration. More people need to see their way past the myths and misrepresentations that confuse its actual content and implications. More people need to join the ranks of those who have already championed the UN declaration — an indispensable part of the national project of 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.

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.