On January 30th, media, First Nations groups, activists and one law student intern crowded into a hotel room on the outskirts of Edmonton for a press conference held by the Yinka Dene Alliance. Alberta and Northwest Territories First Nations signed on to the historic “Save the Fraser Declaration” to oppose the export of tar sands oil to tankers on the BC Coast. As a law student intern newly started at West Coast Environmental Law, I was very interested to watch First Nations asserting their decisions under Indigenous law.

December 1st marked a turning point in the effort to protect the Pacific coast and the watersheds that we all depend on from the threat of oil spills. For the first time, First Nations from the north coast, the south coast, and the Interior gathered together to declare, in solidarity, that tar sands pipeline and tanker projects are banned in their respective territories.  The massive First Nations opposition, combined with the overwhelming opposition from the rest of the population, means that it’s unlikely that Enbridge’s tankers will see the light of day, and that Kinder Morgan faces an uphill battle to expand the oil port in Vancouver.

West Coast Environmental Law congratulates the Tsilhqot’in First Nation on its most recent court win in its efforts to protect Teztan Biny (Fish Lake) from the development of Taseko’s Prosperity (now called “New Prosperity”) mine.  Last week lawyers for the Tsilhqot’in and Taseko tangled in court, with the Tsilhqot’in coming away with the main prize: a court order preventing Taseko’s mining exploration activities related to the “New” Prosperity mine.  Justice Grauer of the BC Supreme Court agreed with the Tsilhqot’in’s lawyers that the First Nation had not been adequately consulted before the exploration permits were granted by the BC government and that the exploration activities would impact the environment and the Tsilhqot’in’s Aboriginal rights.  The court order is good for 90 days, with the possibility of renewal, during which time the Tsilhqot’in are seeking a judicial review of the validity of the permits themselves.

Today, November 7, 2011, the Canadian Environmental Assessment Agency (the Agency) announced that Taseko Mine Ltd.’s gold and copper mine proposal, New Prosperity, will undergo a federal environmental assessment.

As we have explained, we do not think that the New Prosperity proposal is anything more than a re-packaging of the previously assessed and vehemently rejected option two of the original Prosperity Mine proposal and thus we are disappointed to learn that additional time and resources will be spent further assessing this proposed project.

A Guest Post by Bonnie Docherty, Lecturer on Law and Senior Clinical Instructor, Harvard Law School International Human Rights Clinic - The ongoing tension in British Columbia between mining interests and First Nations concerns has resurfaced yet again this fall. In September, Premier Christy Clark announced her B.C. jobs plan, in which she promised eight new mines and the expansion of nine existing mines by 2015. Although the plan pledges in general to “work more closely” with First Nations, it does not mention consulting with First Nations about those mines and in fact calls for expediting the granting of exploration permits, which many First Nations believe are currently issued too quickly.  In the midst of these developments, the coalition First Nations Women Advocating Responsible Mining (FNWARM) brought stakeholders together in a panel entitled “The Future of Mining in British Columbia: Cooperation, Not Conflict.”  I joined the panel as co-author of the 165-page report Bearing the Burden: The Effects of Mining on First Nations in British Columbia, published by the Harvard Law School International Human Rights Clinic in 2010. My remarks, which I elaborate on below, analyzed the aboriginal rights to which First Nations are entitled, illustrated the undue burden of mining First Nations bear despite those rights, and offered recommendations for how stakeholders could better share the burdens and benefits of this industry.

Last July (2011) we told you about the Halalt First Nation’s win in the BC Supreme Court to protect water flow in the Chemainus River, when the BC Supreme Court ordered a halt to the use of water from the Chemainus Aquifer until the Halalt First Nation are meaningfully consulted. Unfortunately, the District of North Cowichan and the Province have appealed that decision.  The District asked the BC Court of Appeal to "stay" the lower court decision - essentially to suspend it until the appeal is heard and decided.  However, on Tuesday (October 11th) Madame Justice Bennett of the Court of Appeal refused to grant a stay - meaning that the District cannot pump from the Aquifer - at least for now. 

The Canadian government recently withdrew suddenly and unexpectedly from a funding agreement to create a plan to manage BC’s North Coast, known as the Pacific North Coast Integrated Marine Area Plan (PNCIMA). Prime Minister Harper’s government may have believed that it was helping Enbridge and its Northern Gateway Pipelines by withdrawing from this funding agreement - but the resulting uncertainty, and the appearance that the federal government has acted less than honourably towards the Coastal First Nations, may well cause Enbridge huge legal head-aches in the future.