We are now 5 days into a stand-off between the Okanagan Indian Band and Tolko Industries at Browns Creek on the west side of Okanagan Lake. With Tolko in court today seeking an enforcement order to remove Elders, band members, supporters and Chiefs from Browns Creek, things are about to escalata further. The dispute brings to a head the long-standing conflict between Tolko’s plans to clear cut log in the watershed and the Okanagan’s resolve to protect their water supply, their ability to map and collect evidence establishing their Aboriginal Title and Rights, and their future use of the watershed and its ecological abundance.
But the issues go even deeper than this. Indeed, the story playing out in Browns Creek is one that raises profound moral and legal questions. The Okanagan Nation has been the owners of this land since time immemorial, never ceding or relinquishing it to anyone. Today, the Okanagan are exercising their right and their responsibility under Okanagan law to protect their land and territories from the threat of logging.
The situation, however, appears very different from a Canadian legal perspective. Although the Browns Creek watershed has been the subject of Aboriginal Title proceedings for over a decade, the Crown has continued to grant permission to companies like Tolko to log in the area. In turn, Tolko’s Tree Farm Licence and cutting permits gave it sufficient rights to seek an injunction preventing the Okanagan from interfering with logging and road construction, which was ultimately successful with some provision for additional archaeological work. While finding that the counter-claim of the Okanagan Nation Alliance against Tolko for trespass raised a “‘serious question to be tried,” Madam Justice Brown, in a manner all too typical of similar proceedings, was much quicker to find that Tolko’s potential economic losses represented “irreparable harm” than the environmental and cultural losses raised by the Okanagan.
It should trouble us morally and legally as Canadians that the ancient legal principles, rights and responsibilities of First Nations peoples, rights which are constitutionally protected, are routinely expected to give way in the face of the statutory and contractual rights of corporations and their economic interests. And we all lose when the environment and drinking water are degraded in the result.
Can the provincial government and companies be encouraged to better respect Indigenous environmental laws? West Coast Environmental Law has been working for many years to support First Nations partners in developing land use plans and written policies and codes that embed principles of the nation’s traditional environmental laws in technical terms that the Crown and third parties are more familiar with. Reconciliation negotiations with the provincial government and legal agreements about shared decision-making and land use planning can sometimes set the stage for legal protection of key areas in both First Nations and Canadian law. There are also precedents for providing interim protection while this work is ongoing, and legal authority for doing so in provincial law. Regrettably, however, it has often taken conflicts like that currently playing out at Browns Creek to galvanize the political will of the Crown to implement proactive solutions.
The Okanagan Nation is in the process of developing a land use plan that would “give the land a voice” and will no doubt provide further weight to their decision to protect the Browns Creek watershed from clear cut logging. The questions is: when this hard work is done, will it be too late for Browns Creek?
By Jessica Clogg