The Sinixt Confederacy and the Southeast Alaska Indigenous Transboundary Commission add references to the Gitxaała DRIPA win to their lawsuits
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U.S. tribes in Washington State and Alaska are planning on citing B.C.’s Declaration on the Rights of Indigenous People’s Act in challenging provincial approval of resource projects.
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The Sinixt Confederacy and the Southeast Alaska Indigenous Transboundary Commission argue that they have historic rights to parts of B.C. They say lack of consultation and expedited environmental assessments for economic development contravenes their rights under the Canadian Constitution and the United Nations Declaration on the Rights of Indigenous Peoples.
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DRIPA, passed in 2019, aimed to align B.C. laws with UNDRIP, but some experts have argued that the Gitxaała decision by the B.C. Court of Appeal in December effectively made UNDRIP the law in B.C. The court decision shot down the Mineral Tenure Act, ruling it did not allow for free prior and informed consent for First Nations.
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Conservative Indigenous Relations critic Scott McInnis said U.S. tribes using DRIPA to block or delay resource projects amounts to a “sovereignty crisis.”
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He said Eby and Attorney General Niki Sharma need to come up with a solution quickly instead of waiting for the court cases to pile up.
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“The premier has a lot of explaining to do as to why court cases are piling up, and he thinks that it’s a great idea to come up with some sort of durable solution, which is unknown sometime into the future,” said McInnis.
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In northwestern B.C., the Southeast Alaska commission is challenging the approval of the Eskay Creek Mine revitalization project. They have also voiced concerns about the Red Chris Mine expansion and the Seabridge Gold Mine.
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It represents 14 tribes, including the American members of the Tlingit, Haida and Tsimshian peoples, and argue that their traditional territory extends on both sides of the Canada-U.S. border and that their traditional territory includes the Unuk Watershed, where the Eskay Creek Mine is located and where Seabridge is proposed.
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Guy Archibald, executive director of the commission, says the lawsuit was filed in November and the commission has still not heard back from the province. Instead, he says the province changed the Environmental Assessment Act to try to limit “participating Indigenous nation status” to Canadian First Nations.
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Archibald says the commission is hoping to file an amended claim by the end of this week that will include the Gitxaała DRIPA decision in its argument on why it should be consulted.
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“The Gitxaała decision showed that the Declaration on the Rights of Indigenous Peoples act is law. It’s not aspirational. It’s it is the law of the land, and that all of the regulations and guidance need to to comply with the UN Declaration on Indigenous People’s’s rights,” says Archibald.
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“If you look at the UN Declaration on the Rights of Indigenous People’s Rights, it doesn’t talk about, well, you have some rights on this side of the border and other rights on that side of the border. B.C. cannot create two classes of rights for the same people.”
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Premier David Eby argued the case has little to do with DRIPA and much more to do with Section 35 of the Canadian Constitution and the 2021 Desautel decision by the Supreme Court of Canada that ruled U.S. tribes with traditional territory in Canada are “Aboriginal Peoples of Canada” and have traditional rights such as the right to hunt.
