Taku River watershed protected for now

Page 11

While some British Columbia First Nations are hailing the victory of the Taku River Tlingit in the B.C. Court of Appeal as an affirmation of Aboriginal title and rights, the mining company that wants to develop a sensitive watershed area on Tlingit territory says it is a narrowly defined win of little significance and the company is prepared to appeal.

Both the company and the province face continued opposition from B.C. Native groups, environmental organizations and possibly the State of Alaska.

John D. Ward is the designated spokesperson for the Taku River Tlingit First Nation. He thinks everybody is trying to determine what the case result means.

The case pitched the Taku River Tlingit against the Tulsequah Chief Mine Project and Redfern Resources Ltd., the B.C. Environmental Assessment Office, the Minister of Environment, Lands and Parks and the Minister of Energy and Mines and Minister Responsible for Northern Development.

The question the court was asked to consider, according to the dissenting reasons of Madam Justice Southin, was

1. "Who has the power to decide whether natural resources on Crown land lying within an area to which an Indian band . . . makes claim shall be turned to account?

2. "Does the power of decision rest with the legislature of British Columbia under s. 92, especially head 5, and s. 92A of the Constitution Acts, 1867-1982; with the Parliament of Canada under s. 91.24 of the Constitution Act 1867; or with the Indian band under s. 35 of Part II of the Constitution Act of 1982; or some combination, and if so, what?"

The province had issued a mining certificate to allow development of the Tulsequah mine, which had previously operated and been abandoned as unprofitable. The Taku River Tlingit took their objection to reopening the mine to the B.C. Supreme Court on the grounds that the province had not properly consulted with them respecting their Aboriginal title and rights.

The province has refused to recognize they have any rights unless the Tlingit first prove them in court, on the basis B.C. is under no legal or fiduciary obligation to do so.

Yet its own Environmental Assessment Office had concluded in 1998 that the province, developers and the Tlingit faced a great deal of uncertainty about who controlled the area in the absence of a treaty.

Their report also acknowledged the project "will inevitably impact (Tlingit) traditional land use."

"It will require new and special institutional arrangements between the (Tlingit), the province and Redfern, and a form and level of co-operation and partnership between government, developer and First Nation in the (Tlingit) traditional territory which are unprecedented," to proceed successfully with the Tulsequah Mine Project, the EA report stated.

The majority of the appeal court disagreed with the province and upheld the lower court's decision in favor of the Taku River Tlingit. The court found the Crown's position had "the effect of robbing s. 35(1) of much of its constitutional significance," and would "effectively end any prospect of meaningful negotiation or settlement of Aboriginal land claims."

The Court of Appeal quashed and set aside the project approval certificate the provincial ministers had issued to Redfern. It also referred the certificate back to the ministers for consideration after a revised project committee report that "meaningfully addresses the concerns of the Taku River Tlingit First Nation" is delivered to them.

The implications for hot Aboriginal rights issues such as the Sun Peaks resort expansion dispute in British Columbia are unprecedented.

"For us right now, we're just glad that we have a win and that the courts agree with us in our arguments regarding sustainability and our rights," said Ward.

"I think that we were able to establish that there are limits to the British Columbia government's authority when it comes to their administrative law, as they had argued that our rights and title has no place n the administrative law practices."

That view was echoed by Chief Stewart Phillip of the Union of British Columbia Indian Chiefs.

"The B.C. government cannot simply proceed as though it were business as usual in this province. For too long, Aboriginal title has been treated as though it were a legal fiction, as though it did not exist. The Taku case confirms that there is a strong provincial duty to take our Aboriginal title and rights into account in all of the decisions it makes regarding lands and resources in this province."

The Taku River Tlingit know they could be "in the Supreme Court of Canada in a year," Ward said.

"We would anticipate a lot of people joining us (as intervenors)."

In June 2000, Alaska governor Tony Knowles sent a delegation to British Columbia to advance the idea of joint watershed planning, but they have had no recent meetings with the B.C.

government. The state fears if the mine is reopened and a 100-mile road is built on the Taku River south of Atlin, the river and salmon habitat will be threatened as will the livelihood of people depending on those resources.

Alaska Fish and Game Commissioner Frank Rue stated unequivocally that B.C. was "putting the cart before the horse," and that "piecemeal permitting cannot ensure the safety of these valuable resources."

A report prepared by ecological economist Tom L. Green and published by the Environmental Mining Council of B.C. last summer concluded, "The prudent course of action from a sustainability perspective is to reject the mine at present." Green stressed the need for extensive involvement by the Tlingit in a land-use plan "if it is the intent of the province to promote sustainability and to meet the purpose of the province's Environmental Assessment Act."

Ward added that he believes "the current consultation guidelines that B.C. has put out does not exist anymore, because these guidelines call for us to prove that we have any rights or title, and this court case says that we dn't need to, that they do exist."

Ward said that the B.C. government's expectation was that Native people go to court every time an issue of right or title arises.

"That was the argument they were making in the lower court in British Columbia, that our rights and title arguments belong on the trial list, or we must have a concluded treaty."

He's scornful of treaty talks.

"They're not even doing a treaty. They're treating us like they would probably treat a rifle and pistol club or a skidoo club-an interest group coming to the government with an interest.

"I think they're really cutting their teeth on the one part of the decision where it states there are limits to the British Columbia government's authority. I suppose if you just try to look at what options are available to the minister, he probably could re-issue the project certificate, but knowing full well that he'll be faced with a court injunction. He could come to us and speak with us in a real respectful way and honor our rights and title issues, and deal with them in a substantive way. Basically they need to get out of their box and create a new regime."

Ward said he is referring to the Minister of Energy and Mines primarily.

"Now, when we try to talk to him he sloughs us off to his lower bureaucratic level, say, regional managers and so on. We're saying this goes a lot higher."

Perry Chandler, president of Redfern Resources Ltd. said his legal advisors told him "it's actually a fairly narrow scope of decision."

Because the court of appeal judgement is so long, Chandler added, it is open to different interpretations.

What might clarify it, he said, is that "the order that's being drafted to come out of the judgement is apparently in dispute and they'll probably have to get that in front of the judges to get it clarified."

He said that means the Attorney General's office would give the ministers some direction as to what they need to consider in the appeal court judgement.

He said the apparent rason the court referred the certificate back to the ministers for consideration instead of giving the certificate back to them "was because, in our interpretation, the Crown had argued all through the lower court and the appeal court they could not consider Aboriginal right as entitlement until it was proven. And for that reason, I believe the majority opinion sent it back to the ministers for the decision so that they would include, so that they would acknowledge that perhaps there was no proven right or entitlement here, [but] they would have to consider the potential for infringement. And that's a fairly narrow point. And that was probably the only distinction between the dissenting opinion and the majority opinion that resulted in us not getting our original certificate back."

Chandler said they don't consider that the decision has gone against them.

"We consider this to be, frankly, a very positive thing, that it's going to go back to the ministers for their decision, and that way we fully expect that the earlier decision to approve the project will be vindicated."

He said that returning the certificate to the ministers for a decision on project approval "basically turned the clock back to 1998." That's when they received the approved certificate.

He said detractors of the Tulsequah Chief Mine include "a large consortium of environmental groups." The Alaska governor's involvement, Chandler added, "I would say that's quite clearly been politically motivated, rather than objective or fact-motivated."

He said their objections revolve around "not the merits of the project, per se, but it has become a battle over land use-mostly the environmental groups."

Regarding Aboriginal people's entitlements, Chandler said, "I don't think that anybody disputes that those rights exist, but I think also . . . the Crown does have the ability to infringe upon those rights for, if you want to call it higher purpose or economic needs or other developmental purposes. Although