Executive Report REGARDING THE PROPOSED KGHM AJAX PROJECT @ PÍPSELL
Prepared for Minister of the Environment and Climate Change Honourable Catherine McKenna July 13, 2016, Niagara Falls, Ontario
TABLE OF CONTENTS Table of Contents .......................................................................................................................................... 2 Intellectual Property Rights & Copyright ...................................................................................................... 3 Introduction .................................................................................................................................................. 4 United Nations Declaration on Indigenous People....................................................................................... 5 Canada ...................................................................................................................................................... 5 Poland ....................................................................................................................................................... 6 Canada-SSN: Nation to Nation ...................................................................................................................... 7 Issue ...................................................................................................................................................... 7 Opportunity:.......................................................................................................................................... 7 Background ........................................................................................................................................... 7 Environmental /Project Assessment Processes ............................................................................................ 8 Issue ...................................................................................................................................................... 8 Opportunity........................................................................................................................................... 8 Background ........................................................................................................................................... 8 Conclusion: Sovereignty and Full Control over Our Territory ....................................................................... 9 Declaration of Title- Pípsell [Jacko Lake & area] ....................................................................................... 9 No Project will Proceed Except with the Informed Consent of SSN ....................................................... 10 SSN has Constitutionally Protected Rights.............................................................................................. 11
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INTELLECTUAL PROPERTY RIGHTS & COPYRIGHT All rights are reserved and remain the property of the Stk’emlupsemc te Secwepemc Nation. This document cannot be used or reproduced in whole or in part without prior written consent. To request consent please contact SSN @
[email protected] © Stk’emlupsemc te Secwepemc Nation
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INTRODUCTION With last week’s “quashing” of the Northern Gateway Pipeline Project, due in large part to lack of consultation with Indigenous people and with the Federal Government now fully embracing the United Nations Declaration on Indigenous People, there has been a seismic shift between the federal government and First Nations that has yet to unfold. In addition, given the current inadequacies of the Canadian Environmental Assessment and BC Environmental Assessment processes, Stk’emlúpsemc te Secwepemc Nation (SSN) has been required to undertake a precedent setting and North American historic first project assessment review process regarding the proposed KGHM- Ajax open pit mine. SSN developed a more fulsome review process that is beneficial beyond the boundaries of our territories, evaluating long-term impacts and benefits of proposed resource development. We have been diligently reviewing the proposed KGHM- Ajax mine on behalf of our members as well as in consideration of our neighbours such as the residents of the City of Kamloops and outlying area. SSN reported on the existence of a history of wrong doings concerning the history of Secwepemc dispossession and alienation for the area surrounding Jacko Lake. We are aware of the shameful legacy of Secwepemc being removed from the lands in the area with government policies sanctioning settlers’ pre-emptions claims and subsequent Crown Grants. Subsequently, SSN has filed a title claim intended to protect Pípsell and Secwepemcul’ecw and (Secwepemc territory) given our long and historical connection both of use and occupancy of the area SSN is seeking meaningful consultation, respectful Nation to Nation relationships and free, prior and informed consent as a decision maker at the table.
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UNITED NATIONS DECLARATION ON INDIGENOUS PEOPLE CANADA With Canada lifting its objector status and announcing its unqualified support for the United Nations Declaration on Indigenous People (UNDRIP) on May 10, 2016, this announcement brought into sharp relief many areas that the Canadian Government is expected to conduct itself in dealing with its Indigenous Population. In regards to the environmental assessment process for the proposed KGHMAjax open-pit mine, the following articles must be considered by both Canada and Poland: i.
ii. iii.
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Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision making institutions. Article 26 (1): Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Article 26 (2): Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. Article 26 (3): States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. Article 27: States shall establish and implement, in conjunction with Indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to Indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of Indigenous peoples pertaining to their lands,
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vi.
vii.
viii.
territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process. Article 28 (1): Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. Article 28 (2): Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress Article 32 (1): Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
ix.
Article 32 (2): States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
x.
Article 32 (3): States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
POLAND SSN has informed the Polish Ambassador to Canada in a letter dated May 27, 2016 of the SSN’s Aboriginal Title and Rights regarding the proposed KGHM Ajax Mine Project, the SSN Project Assessment Process and of the obligations under the UN Declaration on the Rights of Indigenous People. SSN have insisted that the Government of Poland direct its KGHM Polska Miedz SA Supervisory and Management Board to uphold commitments under UNDRIP including development of an agreement which would ensure that the free, prior, and informed consent of the SSN is included in the asset investment review planned for 2017. SSN has also called on KGHM Polska Miedz SA Vice-President Miroslaw Stanislaw Bilinski to include the SSN’s decision package in this review. The SSN requested a meeting with Polish Ambassador the Honourable Mr. Marcin Bosacki to discuss the development of a Nation to Nation relationship with SSN regarding the proposed KGHM Ajax Mine project.
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CANADA-SSN: NATION TO NATION ISSUE Inasmuch as the current federal government has declared its intent to foster relations with First Nations on a Nation to Nation basis, the development of a Nation to Nation table and process has been long overdue. The Canadian EA Review Process makes no mention of involvement of Indigenous People with the only provision being submitting comments through the Public Comment period. The SSN contends that this review process is in direct dereliction of UNDRIP Article 19 whereby, “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free prior and informed consent before adopting and implementing legislative or administrative measures that may affect them”. OPPORTUNITY: Minister’s McKenna and Bennett meaningfully engage and consult with SSN regarding the Canadian EA Review Process as part of the Nation to Nation process and table, ensuring SSN has an explicit role in the review. BACKGROUND Prime Minister Justin Trudeau has publicly stated his government’s commitment to renewing the relationship with First Nations in Canada embodying the following principles: i.
ii. iii.
“This renewal must be a nation-to-nation relationship, based on recognition, rights, respect, cooperation, and partnership...to make real progress on the issues most important to First Nations;” “Serious, concrete actions [will be taken] to demonstrate [the government’s] commitment to recognizing, respecting, and fulfilling its obligations and commitments to First Nations;” and, A Federal Reconciliation Framework will be developed in full partnership with Indigenous peoples, which includes addressing outstanding land claims.
SSN have continually requested meetings with the Ministers and have only recently confirmed that Minister McKenna will meet with SSN leadership in Niagara Falls at the AFN meetings in mid-July 2016. SSN has yet to confirm that Minister Bennett will also meet with SSN to discuss the Ministerial mandated review of the Canadian Environmental Assessment Process and legislation. SSN has recently become aware from the Government of Canada’s News Release dated June 20-2016 that 6 Canadian Ministers announced a public review Environmental Assessment process across Canada with 2 expert panels (1- Fisheries & Navigable Waters; 2- CEAA & NEB). Public Comments were invited for the Terms of Reference for Expert Panel with a deadline of July 20th, 2016. SSN have recently negotiated a Government to Government Framework Agreement with the Province of BC which presents an opportunity to draw from from this agreement and process for the purpose of a Nation to Nation Agreement with the Federal Government.
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ENVIRONMENTAL /PROJECT ASSESSMENT PROCESSES ISSUE Current inadequacies of the Canadian and BC Environmental Assessment processes as a whole but in particular in their inability to assess the impacts to Aboriginal Interests and especially Aboriginal Title. Environmental assessments are currently not well-suited to the consideration of intangible impacts including those which relate to Aboriginal Title, Secwepemc law and spiritual and cultural knowledge and significance. OPPORTUNITY The boots on the ground work done by SSN in conducting its own project review process is an invaluable resource for the review of the Canadian Environmental Review Process. In addition, environmental assessments are well poised to serve as an integral part of reconciliation with Indigenous Canadians. SSN can help illuminate this truth by showcasing our own historic and North American first fully Indigenous project review process that put our Secwepemc laws, values, history and culture front and centre to the process. In sharing about the process, it is our belief that much more common ground will be found between Indigenous and non-Indigenous people as the more people learn about the Indigenous process, the more that they have an opportunity to learn about the many values that they too uphold. BACKGROUND On May 3, 2016, BC Auditor General Carol Bellringer released “An Audit of Compliance and Enforcement of the Mining Sector” and concluded that the BC government’s management of the mining industry is failing to protect the environment against significant risk. She based her decision after a two-year investigation that found a regulatory regime defined by too few resources, infrequent inspections and a lack of enforcement. A recently released (July 5, 2016) MacDonald-Laurier Institute paper (Reconciliation through Listening, Making Aboriginal Voices heard in Environmental Assessment) explored how Environmental Assessment can become an integral part of reconciliation with Aboriginal Canadians. The paper states that Environmental Assessment is now on the front lines of reconciliation between Aboriginal peoples, governments and resource developers. In identifying the inadequacies of the Canadian Environmental Assessment and BC Environmental Assessment processes, Stk’emlúpsemc te Secwepemc Nation (SSN) has been required to undertake a precedent setting project assessment review process regarding the proposed KGHM- Ajax project. The SSN project assessment was developed to ensure that SSN cultural perspectives, knowledge and history were duly considered in the assessment and was built on the “Principle of Walking on Two Legs”respecting both Secwepemc and western knowledge. The process involves an innovative community
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engagement program modeled to reflect a traditional governance model, and respecting the role of families. The panel is inclusive and representative, composed of Tk’emlúps te Secwepemc and Skeetchestn Chief and Councils, family appointed representatives, Elders, youth, and Knowledge Keepers. SSN successfully completed the Panel Hearing from May 2-6, 2016 in Tk’emlúps. Over the course of the week the SSN Review Panel heard evidence from over 80 presenters sharing knowledge from both the Western and Indigenous (Knowledge Keepers) experts. During this week KGHM was also granted a suspension under the BC Environmental Assessment Act stopping the clock at Day 107. EA Processes are also inherently challenged when attempting to assess the impacts to Aboriginal Interests and especially Aboriginal Title. EA Processes are designed on a principle of compartmentalization whereby project impacts are segmented and individually assessed. While this approach is convenient in the assessment of “environmental/tangible” impacts it is not well-suited to the consideration of intangible impacts including those which relate to Aboriginal Title, Secwepemc law and spiritual and cultural knowledge and significance.
CONCLUSION: SOVEREIGNTY AND FULL CONTROL OVER OUR TERRITORY Stk’emlúpsemc te Secwepemc Nation (SSN) asserts sovereignty and full control over our territory. By our political declaration and subsequent Notice of Civil Claim, SSN put the Canadian Provincial and Federal Governments and KGHM on notice of our Aboriginal Rights and Title in Pípsell and of the responsibility to preserve SSN’s Aboriginal Interests.
DECLARATION OF TITLE- PÍPSELL [JACKO LAKE & AREA] SSN title claim is intended to protect Pípsell and Secwepemcul’ecw (Secwepemc territory). Pípsell is a cultural keystone area with significant spiritual and historical importance to the SSN. The area is connected by the epic oral history titled in English the Trout Children stemming from Jacko Lake and its surrounding which explains the deeds of Secwepemc people on the lands and to the land as inseparably connected. Pípsell and its Secwepemc stsq’ey’ (indigenous laws) provide the narrative foundation for ownership and stewardship of Secwepemc lands and resources. The Secwepemc law concept of x7ensq’t (the land and sky turning on you) is directly connected to this area because it is imbued with spiritual power due to past events and where we have a special responsibility to safeguard the respectful relationship with the land, lest the land and sky turn on you. All activities and developments on SSN Territory must be consistent with SSN Laws. While KGHM has bought out surrounding ranches and lands as registered at the BC Land title office, they never received the permission of the Secwepemc people who assert and have Aboriginal Title over the area. There exists a longstanding Legacy of Wrongs which must be reconciled. The loss of use and access
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has been well documented in the SSN Cultural Heritage Study (August 27, 2014) and remains an infringement on our Aboriginal Title and Rights. SSN reported on the existence of a history of wrong doings concerning the history of Secwepemc dispossession and alienation for the area surrounding Jacko Lake. We are aware of the shameful legacy of Secwepemc being removed from the lands in the area with government policies sanctioning settlers’ pre-emptions claims and subsequent Crown Grants. The Jacko family and Phillip Jacko specifically (Stk’emlupsemc member) tried to exercise control over the area of Jacko Lake to Peterson Creek throughout the 1860’s to 1880’s. Despite his attempts to pre-empt and maintain control over the area, Jacko along with other Stk’emlupsemc were excluded from the area as settlers established Crown Grants which have continued to exist to this day. The Jacko family defiantly continued to use the area despite settlers establishing ranches and fencing off the land (SSN Preliminary Mitigation Report, June 6, 2014). This legacy of wrongs has enabled the current policies of fee-simple land tenure, minerals claims, Crown Grants, and land use policies (e.g. Agricultural Land Reserve). SSN’s Aboriginal Title and Rights include: 1) The right access the lands and resources for traditional purposes; 2) The right to economical benefit from their lands and 3) The right to manage and decide the use to which the land will be put, have been historically and are currently impacted by KGHM and the BC government in this area. (from a letter to KGHM dated September 9, 2015) By way of media this has led the public opinion to view this fight to be about private property. In fact, this is a fight about mineral tenures which were unilaterally granted by the British Columbia government without Secwepemc consent and the appropriate future land use of an Cultural Keystone Place. The proposed mining project could result in irreversible damage to Indigenous land uses and the environment. SSN is exercising Indigenous environmental governance by conducting our own assessment of the proposed mining development, to protect Indigenous Peoples, the environment, but also all other people living in Secwepemcul’ecw, especially the City of Kamloops.
NO PROJECT WILL PROCEED EXCEPT WITH THE INFORMED CONSENT OF SSN We have put KGHM Ajax and the federal and provincial governments on notice that no project will proceed except with the informed consent of SSN. Following our Declaration of Title at Pípsell, we developed and have implemented our project assessment process which runs independent, and where appropriate, collaboratively with the federal and provincial Environmental Assessment Processes.
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SSN HAS CONSTITUTIONALLY PROTECTED RIGHTS SSN has constitutionally protected rights to participate in decision-making in matters which would affect our rights and to maintain and develop our own Indigenous decision-making institutions whereby we will determine and develop priorities and strategies for the development or use of our lands or territories and other resources. We have called for a fair, independent, impartial, open and transparent process, giving due recognition to Indigenous peoples’ laws, traditions, customs and land tenure systems in order to obtain our free and informed consent prior to the approval of any project affecting our lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources (UNDRIP Articles 18, 27, 32). SSN has articulated- through the Government to Government consultation with the BC Government, the Cultural Heritage Study and at the SSN Panel Hearings- that the area encapsulated by the Trout Children Story (which includes but not limited to: Pípsell [Jacko Lake & surrounding area], Hunting Blind, Goose Lake, Prayer Tree, X7ensq’t, Peterson Creek) is a Cultural Keystone Place. To propose the ability of SSN to practice its rights in other locations is a foundational flaw within the EA and other consultation processes. This concept of practicing in other areas or simply moving to another area does not apply in Cultural Keystone Places. It is the unique attributes of this area (including red and blue listed species of birds and animals) which collectively imbue the deep and rich value which is connected directly to this place on the landscape. In short SSN is seeking meaningful consultation, respectful Nation to Nation relationships and free, prior and informed consent as a decision maker at the table.
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