By Ana Simeon
Because Aboriginal and Treaty rights are written into Canada’s Constitution, Indigenous Peoples have won many major legal victories over the years. First Nations’ legal challenges have stopped intrusive projects like the Enbridge pipeline in B.C. and protected the Peel watershed in the Yukon. In the landmark Tsilhqot’in title case, the Tsilhqot’in Nation achieved recognition of their ongoing title to 1,750 square km of land southwest of Williams Lake, BC.
Thanks to trail-blazing nations and individuals such as Tsilhqot’in, Haida, Gitxsan, Mikisew Cree, Marshall and others, that fought and won precedent-setting victories, the Supreme Court of Canada has set clear limitations on the federal and provincial government which uphold the rights of Indigenous peoples ot maintain their cultures and participate in the decision-making process.. Governments are required to consult Indigenous peoples on projects in their territories, and accommodate their interests. In some cases, consent may be required. And government actions that would prevent First Nations exercising their Treaty rights must meet a significant test that includes necessity, a “compelling public interest” and consistency with Canada’s duties toward First Nations.
So how come the déjà vu with Treaty 8 Nations and the Site C dam?
Politicians may mouth soundbites about reconciliation or deck themselves in Indigenous symbols, but the reality is that since the passage of the Constitution Act in 1982 neither the federal government nor the provinces have been willing to fully reconcile the pre-existing Aboriginal sovereignty with the sovereignty now assumed by the Crown – which is the legal meaning of reconciliation. Indigenous rights and title, and treaty rights have never been fully incorporated into Canadian government policy and practice. Instead, these rights have been left to the courts to enforce. The cruel irony is that each individual Nation has to both take the government to court and bear the full burden of proving their case, even if their rights are already set out in a legal document like a Treaty.
If a proposed project would permanently destroy a First Nation’s land and aspects of its culture that are tied to that land, as is the case with Site C, that First Nation has no other choice but to go to court. And, thanks to the Constitution, it will likely win – if it has the resources to stay the course.
As allies, we cannot stand by and watch West Moberly and Prophet River First Nations bear the burden of defending the Treaty that benefits all of us
Fighting a lengthy court battle comes at a steep cost for often remote and under-resourced Indigenous communities. Even with hundreds of pro-bono hours from their highly dedicated legal teams, there is the cost of expert reports and evidence; travel to distant courtrooms and accommodation for witnesses from the community. Meanwhile, as we’ve seen with Site C, the government doesn’t wait around for the court decision – it starts building the project as fast as it can. Then there is more “consultation” on “mitigation” – another bottomless hole for the Chief and Council’s finite time and energy. And it’s not like the community has no other pressing concern to occupy it. Attention and resources are divided between defending their land rights and addressing pressing concerns from clean water to family services to community development. The process can go on for years. Government lawyers know this and more often than not knowingly drag out court proceedings, compensating for the weakness of their legal position by spending taxpayer money on a strategy of attrition.
This is where, as allies, we can dramatically shift the balance of power away from colonial structures and in the favour of Indigenous Peoples. For communities like West Moberly and Prophet River First Nations, to even initiate a legal battle against governments with deep pockets is no mean feat. To have stayed the course as long as they have, against provincial and federal governments that care more about political calculations than the honour of the Crown, is nothing short of heroic.
As allies, we cannot stand by and watch West Moberly and Prophet River First Nations bear the burden of defending the Treaty that benefits all of us, in order to fight for their land in court, on unequal terms carefully calculated to vitiate the full intent of the 1982 Constitution.
The West Moberly and Prophet River injunction hearing against Site C will begin on July 23. Supporting the injunction by donating and telling your friends about it is the single most effective and timely action you can take to ensure these Nations’ access to justice and a fighting chance for the Peace valley. We all have a stake in the outcome. Please join me and donate today.
Ana Simeon is an activist, mediator and former Site C campaigner with Sierra Club BC.