This article was written by Nathan Vanderklippe and was published in the Globe & Mail on June 19, 2024.
Native Americans in Washington and Alaska who want status as aboriginal peoples of Canada are considering legal action against the government of British Columbia, after the province said it would create a consultation process on mining and industrial projects for U.S.-based groups that is separate from that held with Canadian groups.
The B.C. Environmental Assessment Office, in letters earlier this year to the Southeast Alaska Indigenous Transboundary Commission, or SEITC, and the Lummi Nation, said it is working on a policy to consult Indigenous groups based outside of Canada that “will be different from that taken with B.C. First Nations.”
The letter confirmed that B.C. intends to give those U.S.-based groups a voice in the development of projects on Canadian soil, such as a current proposal to expand the Roberts Bank marine container terminal near Vancouver and mines in the province’s mountainous northwest corner.
But the Lummi in Washington State, and the Alaska tribes under the SEITC, argue that is not enough. They believe their peoples’ historic use of territory that is now Canada entitles them to be consulted in the same way as Canadian Indigenous groups.
“We want to be heard. And we want to be equals in consultation,” said Lummi Nation chairman Anthony Hillaire. The Lummi are prepared to fight for that right in court, he said.
It’s not clear yet what the new process will look like. The province is saying it could take months to complete.
“This work is complex and needs to be done in consultation and co-operation with Indigenous Peoples,” Sean Leslie, a spokesperson for the B.C. Ministry of Water, Land and Resource Stewardship, said in a statement. Early discussions with First Nations in B.C., he said, suggest they have a “strong interest” in the development of such a policy – which, he suggested, may not be ready in time for the projects of interest to the SEITC and Lummi.
The province may work with those two groups “on an interim basis in order to allow for the required regulatory and permitting processes to proceed in a timely manner,” he said.
The mining industry says a separate consultation process for U.S. groups has the potential to help smooth issues and expedite approvals. But Michael Goehring, president and chief executive of the Mining Association of BC, warned that if tribes use the process to contest mine permits it’s likely those projects will encounter increased administrative burdens and potential project delays.
The specifics of the new policy will determine whether it brings new certainty, or merely new problems, said Rudi Fronk, chairman and chief executive of Seabridge Gold, which is pursuing the KSM project, an open-pit copper, gold, silver and molybdenum mine in northwestern B.C.
“Introducing a new process also adds another layer of complexity to the permitting process,” he said. “Different consultation frameworks might lead to inconsistencies and confusion, both for project proponents and the consulted groups.”
In Alaska, tribal nations worry that Canadian mining projects, including the KSM project and the reopening of the Skeena Resources Ltd. Eskay Creek mine, threaten the Unuk River.
The 130-kilometre waterway flows from the mountains of northwestern B.C. before reaching tidewater in the Misty Fjords National Monument Wilderness. The Unuk has historically been important for the harvest of eulachon fish, whose oil formed a cornerstone of the precolonial Indigenous economy.
Those subject to the effects of industrial development should be given equal treatment in consultation, regardless of which side of the border they call home, argued Louie Wagner, a fisherman in Metlakatla, Alaska, whose Brown Bear Clan has long fished and hunted on the Unuk.
“If they don’t protect the rivers, then we’re all going to lose the same thing,” he said.
U.S. Indigenous groups began to seek rights in B.C. after a 2021 Supreme Court decision, known as Desautel, in which Canada’s top court found that the Lakes Tribe in eastern Washington State should be considered aboriginal peoples of Canada, given their historical use of land that is now B.C.
That decision has created frictions with First Nations in Canada as U.S. groups assert a right to intervene on territory claimed by Canadian Indigenous groups and on projects that Canadian First Nations support.
The Washington State-based Confederated Tribes of the Colville Reservation, which includes the Lakes Tribe, has established its own footprint in B.C. by opening an office in Nelson. On the Eskay Creek project, the province and the Tahltan Central Government have agreed to a process that will allow the Tahltan Indigenous group to authorize permits.
The Desautel decision has shifted the legal landscape in Canada – and the very concept of the border – in ways that are not yet fully understood. The decision acknowledges that the responsibility of the Canadian government toward groups outside the country is different, and that therefore “the scope of the Crown’s duty to consult with them, and the manner in which it is given effect, may differ.”
A judicial review, scheduled for June 26, is expected to examine the Lummi petition on the Roberts Bank terminal expansion.
That project, the Port of Vancouver says, is critical to the future of Canada’s economy, and will support a 30-per-cent increase in the country’s Pacific container capacity. It received federal and provincial approval in 2023.
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