A powerful alliance of B.C. First Nations and Southeast Alaska natives has been forged in the aftermath of the Mount Polley dam collapse and tribes, who have not worked together for generations, are aiming to put the brakes on B.C.’s border mining boom.

Tears flowed after a May meeting in Vancouver when Union of B.C. Indian Chiefs (UBCIC) president Grand Chief Stewart Phillip and vice-president Bob Chamberlin agreed to support the newly formed United Tribal Transboundary Mining Work Group in its bid for Alaskan — and particularly tribal — input into B.C.’s decision-making process on mines along the Southeast Alaska border.

“We are bringing together the tribes from both sides of the border and building a relationship. We can make more noise together than when we are separated by a border that has not been part of our tradition,” said Mike Hoyt, leader of the Teeyhittaan clan from the Stikine River.

It was a historic meeting that could be a catalyst for change, according to Phillip. [view:in_this_series=block_1]

“It was very significant, coming together with our brothers and sisters in Alaska. I think it was a long time coming,” he said.

The Transboundary Work Group, made up of federally recognized tribes, conservation groups, fishing advocates and community leaders, will collaborate with B.C. First Nations to let the provincial government, mining companies and investors know their concerns about mines being approved near the headwaters of Southeast Alaska’s most important salmon rivers, said Jennifer Hanlon, environmental specialist with the Central Council Tlingit and Haida Indian Tribes of Alaska.

“We want them to know (the mines) are a concern for indigenous people. We’re talking about our salmon, our health and our lands. Hunting and fishing are still the backbone of our economy,” Hanlon said.

The group wants the issue sent to the International Joint Commission, the body designed to resolve U.S./Canada water and air disputes. The commission operates under the Boundary Waters Treaty that forbids either nation from polluting waters flowing across the boundary.

“Alaska needs a seat at the table when it comes to deciding whether mining projects in B.C., with the potential to pollute our waters, should go forward and, if they do, how these mines should deal with their waste, which has a high likelihood of flowing downstream into transboundary rivers,” says one of the group’s briefing notes.

Phillip said when the U.S. and Canadian groups got together there was a “robust discussion” about B.C.’s deregulation and lack of environmental oversight.

The Canadian contingent offered little comfort as they described federal and provincial legislative changes that Phillip believes have gutted the environmental assessment process and removed protections for the vast majority of lakes and rivers.

“Clearly the Harper government is squarely in the corner of big business, big corporations and big oil. They facilitate and fast-track major resource projects at the expense of the environment, wild salmon and marine life,” Phillip said.

However, there are differences of opinion among bands about the extent of mining that is acceptable in northwest B.C. and some First Nations have signed agreements with companies opening mines near the Alaska border.

Among the more controversial is a co-management agreement between the Tahltan Nation and Imperial Metals, owners of the Red Chris mine and Mount Polley. Tahltan decided to ratify the agreement even though only 12.9 per cent of members voted and elders had previously set up a blockade.

Differences of opinion are inevitable, Phillip said.

“If we were to wait for a unified front, the only ones to benefit would be the mining industry, corporations and government. It doesn’t happen anywhere in the world,” he said.

After the Mount Polley dam breach the B.C. First Nations Energy and Mining Council, like UBCIC, called for major mining and mineral exploration reforms and a larger role for First Nations in environmental assessment and permitting, dam monitoring and water testing.

The council also wants companies to put forward security bonds that represent the true cost of cleaning up a disaster.

“Performance bonds that are required to mitigate and monitor projects in perpetuity are insufficient in major breaches such as the Mount Polley disaster,” said council CEO Dave Porter.

“Mining companies that bring these projects forward should bear the financial burden of mitigation of these potential damages.”

A report on tailings facility failures, released by the council in June, pointed out that mining usually takes place on traditional lands and, if there are dam failures, First Nations are disproportionately affected.

“The principle of free, prior and informed consent must be applied in advance of mining operations, from exploration through all phases of development, including post-closure,” says the report.

Energy and Mines Ministry spokesman David Haslam said the report provides government and industry with a greater understanding of First Nations perspectives on mining and tailings storage and will help inform the upcoming review of the Health, Safety and Reclamation Code for Mines.

Mines Minister Bill Bennett told the Globe and Mail that First Nations will have an equal seat at that table with industry and organized labour.

The review is part of  government’s response to the report from the expert panel looking into the Mount Polley dam collapse. The panel emphasized the need for change and said that business as usual was not an option.

For Alaskan natives, the bottom line is forcing companies to put in all the safeguards needed to avoid another Mount Polley-type disaster, even if that means no mines beside salmon-bearing rivers or their tributaries.

The relationship with the rivers runs deep, said 84-year-old Ethel Lund, who was born in Wrangell and remembers trading up and down the Stikine River with Canadian First Nations when the king salmon were running or when the eulachon — a small oily fish colloquially known as hooligans in Southeast Alaska — filled the river.

“The Stikine River is very precious to us,” Lund said.

“I worry about the mines and the pollution and I think about the tremendous impact it could have on our communities and waterways. There really is a need for communication between Canada and Alaska to try and work it out, because we are going to be most impacted,” she said.

However, it is not easy to make tribal voices heard, even in Alaska, Hanlon said.

“We have 13 tribes working together to try and protect our ancestral lands and we’ve not been consulted by the B.C. government or the mining companies or even the state of Alaska,” Hanlon said.

But some are optimistic the relationship with the Alaskan government will improve as Lt. Governor Byron Mallott, a member of the Tlingit Nation, becomes increasingly involved.

Mallott, who visited B.C. to see the Mount Polley spill firsthand and to meet with Energy and Mines Minister Bill Bennett, said in an interview with DeSmog Canada that he hopes to add tribal interests to the government-level task force.

Richard Peterson, president of the Central Council of Tlingit and Haida Tribes of Alaska, said the relationship with the tribes has been on a better footing since Mallott’s election late last year and he is optimistic that, with the help of Canadian First Nations, a game plan can be developed to protect the rivers and a way of life that dates back thousands of years.

“I think this is one of the most serious things we face right now,” Peterson said.

“I know we have an uphill battle, but, when we are arm-in-arm as indigenous people, we can do it.”

Image Credit: Rivers Without Borders

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Source: Globe and Mail

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

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

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

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

What can you do?

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

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

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

David Suzuki’s Stop the China-Canada Trade Deal

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

The Council of Canadians Open Letter to Stephen Harper

Sustainable Living and Urban Gardening Anti-FIPA Petition

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

Rob Merrifield rob.merrifield@parl.gc.ca

Ron Cannan ron.cannan@parl.gc.ca

Russ Hiebert russ.hiebert@parl.gc.ca

Ed Holder ed.holder@parl.gc.ca

Gerald Keddy gerald.keddy@parl.gc.ca

Bev Shipley bev.shipley@parl.gc.ca

Devinder Shory devinder.shory@parl.gc.ca

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.