Editorial: More Tsilhqot’in fallout in BC

One recent resource development story in B.C. shows how the ground rules for project developers are changing forever in the province after the Supreme Court of Canada’s precedent-setting Tsilhqot’in decision in June and Imperial Metals’ massive tailings dam breach at Mount Polley in August.

In late November, four First Nations communities that are part of the Secwepemc nation in central B.C. tabled a 54-page “mining policy” for all mineral development in what they call their “unsurrendered and unextinguished title and rights throughout the Secwepemc traditional territory.”

The four communities are the Canim Lake Indian Band, the Stswecem’c/Xgat’tem First Nation, the Soda Creek Indian Band and the Williams Lake Indian Band. The land in question covers 50,000 sq. km, or 5% of B.C.’s landmass, from just southeast of Quesnel to southeast of Shuswap, and includes communities such as Williams Lake, Soda Creek, Clinton, Revelstoke and Kamloops.

To get a flavour of the document, here are three sentences from the policy’s preamble:

“The laws governing mining activities in B.C. are not adequate to protect the environment and resources for future generations.

“The laws regarding mineral claim staking, exploration, mine development, mine closure and reclamation, and major incident response in B.C. are inconsistent with the Crown’s constitutional duty to seek [the four communities’] consent to such activities.

“[The four communities] and their members are not being adequately compensated for the extraction of resources from the Statement of Intent area, nor the adverse impacts caused by mining activities…”

In other words, coming out of the gate, the four communities completely reject B.C.’s current mineral exploration and mining regulatory regime.

The four communities say they would enforce a “holistic approach” to mineral development and “evaluate all mining activities in accordance with the precautionary principle and the principle of intergenerational equity.”

Reading to the end, the policy proposal boils down to the four communities saying they — and not the provincial or federal government — would have final say on any kind of mineral activity in the territory, and would require project proponents to fund the communities’ regulatory costs, as well as preferentially hire community members and companies. Moreover, permits at all stages of development could be revoked at any time for fairly vague reasons such as negative socio-cultural impacts. There are also stickier financial demands that the four communities have direct access to miners’ reclamation cash bonds in cases of emergency.

On one hand, the policy proposal comes across as a grandiose fantasy, with no legal standing whatsoever. But on the other hand, in the wake of the Tsilhqot’in decision — which gave title to the small Tsilhqot’in First Nation over a sparsely populated 1,750 sq. km territory of “traditional land” west of Williams Lake and changed the government’s constitutional “duty to consult” First Nations to an effective “requirement for consent” from First Nations — it comes across as a savvy twenty-first century hardline opening bargaining position, not unlike Canada, Russia and Denmark all individually claiming the North Pole. (A more practical next step for the four communities would be to win title over the disputed area in the courts, in a process that could take a decade or longer, if the Tsilhqot’in decision is any guide.)

Either way, it’s bad news for mineral explorers and miners active in B.C. who are increasingly getting caught as collateral damage in jurisdictional battles between First Nations and the provincial and federal governments.

Anecdotally, immediately after Imperial’s tailings failure, the entire mineral regulatory system in B.C. pretty much shut down and there were bottlenecks for every sort of permit that took a while to sort out. As well, some explorers have since experienced stepped-up blowback from some First Nations over tasks as simple and fairly innocuous as getting a notice of work for a drill program and other early work.

It’s likely exploration work has been delayed for more than a few players in B.C. who didn’t already have valid permits, and it’s a sign of more conflict to come in the province.