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Southeast Indigenous Transboundary Commission
PO Box 20841 Juneau, AK. 99802
Activity Update - SEITC Newsletter - April 2022
Thank you for your support of SEITC. As per a notice sent out last week the Executive Committee for SEITC passed a Policy and Procedure guidance that allows for a $150 stipend for each Board Member (Tribal representative) attending scheduled Board of Director meetings where a quorum is present. We hope that this encourages participation in these critical meetings. We anticipate scheduling a Board of Directors meeting in the coming weeks.
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News
The rapid pace of development in the headwaters of the transboundary rivers is picking up steam. In the Taku watershed, the New Polaris Mine is beginning the process of re-opening. In the Stikine watershed, the Red Chris and Bruce Jack are expanding operations, Red Mountain is now producing and the road to Galore Creek is about finished. In the Unuk watershed the KSM is gaining more investors and is working toward the status of being “substantially started”, a necessary step toward development. Also, in the Unuk, Skeena Resources has applied to reopen the Eskay Creek Mine as an open-pit.
All our communities and citizens may not live near one of these transboundary rivers, but we all depend on the salmon that spawn and rear in those waters.
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SEITC has been heavily engaged representing all of SE Alaska. We filed comments on the first phase of the Eskay Creek Project and will file more due April 19th. We have had numerous meetings and letters back and forth to the BC permitting ministers and Premier Horgan’s office. We filed comments on the KSM and on BC’s implementation of the Rights of Indigenous Peoples Act, more about that below.
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SEITC has identified a huge opportunity for the SE Tribal governments to gain recognition in Government-to-Government status with British Columbia and possibly have the right to free, prior and informed consent on these developments.
Opportunity for Alaska Tribes to get a seat at the BC transboundary table.
Recently some new opportunities have become available that may allow us to exercise our power of self-determination on the entirety of these watersheds.
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The Declaration on the Rights of Indigenous Peoples Act (DRIPA). BC passed DRIPA in November, 2019. DRIPA establishes the UN Declaration (UNDRIP) as BC’s guide toward maintaining and strengthening Indigenous institutions and cultures and emphasizes the right of self-determination. See, https://www2.gov.bc.ca/gov/content/governments/indigenous-people/new-relationship/united-nations-declaration-on-the-rights-of-indigenous-peoples.
DRIPA requires B.C. to align all its laws with the UN Declaration including the right to free, prior and informed consent. Most importantly, DRIPA ties the definition of “Indigenous peoples” to Section 35 of the Canadian Constitution. The UN Declaration acknowledges the rights to territory prior to European occupation. Many of these territories extend well into BC including where these mines operate or are being proposed.
For example: The UN Declaration on the rights to traditional lands.
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Article 25: Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas. . .”
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Article 26: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
Desautel Decision (See, https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18836/index.do).
The Desautel decision expanded the definition of “Indigenous peoples” in Section 35 of the Canadian Constitution so that it includes people outside of Canada who once held recognized territories inside Canada prior to European contact.
In 2010, Mr. Desautel, an American citizen, shot and killed an elk without a license inside BC. His family are members of the Lakes Tribe of the Colville Confederated Tribes and live in Washington State. The elk he shot inside BC was in part of the traditional territory of his Sinixt ancestors.
He was charged with hunting without a license while not being a resident of BC. Mr. Desautel argued that he was exercising his right to hunt in his traditional territory under Section 35 of the Canadian Constitution. It went to the Supreme Court.
The central question for the court was whether people who are not Canadian citizens, and who do not reside in Canada, can exercise an Aboriginal right protected under the Canadian Constitution.
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The Supreme Court of Canada ruled that, yes, non-citizens and non-residents can claim a right under the Constitution based on pre-contact territories.
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The Supreme Court said a fundamental purpose of Section 35 was “to recognize the prior occupation of Canada by organized, autonomous Aboriginal societies”. The court held that “Aboriginal peoples of Canada” means the modern-day successors of societies that occupied Canadian territory at the time of European contact, even if such societies are now located outside Canada. Not to recognize pre-existing territories would add to the injustice of colonialism.
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The full implications of this decision on other cross-border claims are not yet known as the Court left a number of questions unanswered.
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In another ruling (Haida Nation v. British Columbia Minister of Forests, 2004) found that Canada has a duty to consult aboriginal peoples when it acts in a manner that may adversely affect rights guaranteed by Section 35 of the Constitution. The existence of these rights need not be proven but only credibly asserted in order to trigger the duty. In Haida, the Court indicated that consultation should occur early in the planning stages of projects, and not be left so late that the project is fully defined, rendering any consultation difficult or impossible.
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Where does this leave the SE Tribes?
Taken together, DRIPA and these court cases should give SE Tribes a lot of power on how these mines are allowed to be developed. Some maps indicate recognized clan territories (attached) that extend well into BC including lands where the major mines are proposed.
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SEITC is currently in talks with the BC Ministries and Premier Horgan’s office to leverage these opportunities so that Alaska Tribes are fully recognized under Canadian law and have the right to consultation and consent on how the transboundary watersheds are developed, monitoring and maintained.
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BC has admitted that they have no idea how they are going to implement DRIPA in general, let alone for the SE Tribes and they do not want us asserting rights under Desautel.
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Clock started ticking forcing BC to come to a decision.
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Then Skeena Resources applied to re-open the Eskay Creek Mine along the Unuk River and this set off a statutory timeline. BC must act on specific steps in the permitting process within defined timeframes. SEITC and 7 of its member Tribes received notice of the application as “affected parties'' and we have submitted comments.
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Skeena began a ticking clock forcing BC to figure out how SE Tribes will be considered under DRIPA sooner rather than later.
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Future Actions
Lacking any information on recognized territories prior to European contact, Canada is free to act without consultation. SEITC must submit evidence of pre-contact territories recognized as belonging to our clans prior to occupation.
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We know Canada and BC will not give up power easily. We are working closely with EarthJustice to help navigate this process. Once we submit the evidence of connection to these lands now in Canada, we expect that Canada will grant us some level of consultation on the spectrum between “participation” at the lowest to full rights under Section 35 including the right to free, prior and informed consent. We will have to fight for every step.
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In the meantime, we are re-vitalizing the tradition of Indigenous watershed management. This summer the descendants of the Tahltan clan leaders from Telegraph Creek will meet with the Descendants of the Tlingit Chief Shakes, both representing and honoring the Stikine (Shtax’ he’en) River to restart a governance system that protected this great river for 1000’s of years.
We can only do this with your support and participation. In April of 2014, the SE Tribes decided to unify and task SEITC with protecting our way of life in the face of these developments. The path to doing this is becoming clearer, but now more than ever your participation is necessary.
If you have any questions or need further information, please feel free to contact me at garch570@gmail.com or call me at (907) 209-2720.
Thank you,
Guy Archibald
Interim Executive Director
Southeast Indigenous Transboundary Commission