Last week, we sat down to talk with lawyer Sara Mainville in the wake of the BC Supreme Court’s decision to deny West Moberly First Nation an injunction that could have halted construction on Site C while the court determines whether the project violates their Treaty rights.

Sara is a Partner at the law firm, OKT, and works with First Nations as legal counsel, strategic advisor and negotiator. She has a law degree from Queen’s University and a LL.M from the University of Toronto. Throughout her legal career, Sara has been committed to giving back to her community of Couchiching First Nation. In 2014, Sara was elected Chief of Couchiching First Nation. Sara is recognized to be a leading thinker around Indigenous jurisdiction and its role in Nation-to-Nation reconciliation.

Sara is one of the panelists who will speak at a free public event in Toronto—Breach of Trust: Indigenous Rights and the Future of the Site C Dam—on November 5^th.

This is the first of two blog posts extracted from an edited transcript of our conversation.

You can also listen to a short excerpt from the audio recording.

What are the implications of the BC Supreme Court’s denial of West Moberly’s request for an injunction to halt construction on Site C, at the very least in certain critical areas, until their Treaty rights claim is resolved?

“I think it’s incredibly disappointing. It’s not a new situation when [Treaty] rights have gone to court, and we’ve seen rights get denied. That’s the problem with the way the Canadian court struck out on s. 35. It’s creating a situation where basically we [First Nations] are reacting all the time to harms to our way of life instead of acting on a government-to-government basis to make sure that . . . we have the mandate in which to practice our rights off reserve.

And that was always the guarantee. Every single numbered Treaty that I’ve looked at, that’s always the guarantee – that you can continue as you were, hunting, fishing, trapping, practicing your way of life, and we will settle on pieces of land where you’re not doing those things. That guarantee has long been forgotten. Unfortunately, it was that guarantee that made Treaties easier to agree to.

I’ve watched [West Moberly’s] case going to court regarding the importance of their relationship with caribou for example. That to me, really resonates in my heart as a Treaty person, as an Indigenous person. I understand those relationships and how important it is for law to recognize that it’s not just a legal right that can be infringed, it’s a human right that goes to people’s human dignity, and we have to do much more to foster better relationships.”

Looking forward, what role do you think environmental assessments should play when it comes to counting the costs of projects like Site C for First Nations?

“I really like the way that we’ve gone in our dialogue on Bill C-69 [the proposed new federal impact assessment legislation], in our discussion on protecting s. 35 rights, about looking at different factors in the sustainability approach. That was in the expert panel report [that led to the Bill], the idea that it’s not simply a public interest test, that you’re actually looking to ensure that the project is truly sustainable. I think that those are better approaches. And you know I don’t think that ink is spilled at a total loss, I think we can all turn to that expert panel report we can turn to some of these First Nation submissions and look at more progressive reforms to these assessments.

The other thing that I think is really important is regionally assessing what the region can bear as far as development, and in that regional process ensure that you know what the First Nations see as their future. How do they see them able and capable of exercising their way of life in that region? Those regional impact assessments are, I think, really important and have to be in place prior to doing a single project assessment:  a larger, just general approach to the region and what the region can support and getting the region itself involved in what they want in terms of development and what they believe the region can sustain, protecting core values.

Key to that is protecting the values of sacred places and sacred areas and those places we’ve always used. These are the oldest universities in the world, these are where our youth and our young people are learning their cultural values and their languages and such at these places across Canada and they need to be protected from development.”

What are the implication for other numbered treaties if the court does find that Site C violates West Moberly’s treaty rights?

“I think that would be a big win. And I’m hopeful that the continued effort against this project—that to me makes no sense—I’m hopeful that there’s going to be success, either in court or in a political effort, basically to ensure that politicians see that the better decision actually is saying no to Site C.

I’m hopeful that Treaty rights will start to resonate with people. Really that’s the key to peace and good relations and prosperity for everyone, is to be more mindful of the fact that there are pre-existing Treaty relationships and Treaty frameworks that really have to breathe life into having better law and better development in these areas.”

What do you think is the most positive thing that Canadians can do to support First Nations around struggles like Site C and in vindicating Treaty rights?

“I think sometimes there are natural leaders that come out of these situations and I think as much as possible to support and lift up those natural leaders and to listen to them and to amplify their voices rather than to translate them or, you know, take their words and make them your own. I think it’s really important that it’s the Indigenous peoples themselves if they take on direct action that are at the forefront of these movements and we see these people take on leadership roles afterwards and I think that’s amazing. I’ve met some of these folks, from the Ellen Gabriels to other really important people to Indigenous rights issues of varying natures.

I think it’s really important for allies to try to lift these people up and support them, but also to understand that there’s a lot at stake. Like I said, it’s about our education, it’s about our way of life, it’s about ancestral knowledge, and ancestral knowledge exists in specific places. We have to go to specific places and if they don’t exist anymore, that’s a real shame for all of Canada.”

To hear more from Sara on the significance of First Nations treaties, particularly in the context of resource development projects like Site C, stay tuned!