B.C. judge grants U.S.-based Indigenous group a role in legal fight over Kootenay mine

A B.C. judge has granted status to a U.S. Indigenous band, which means they will have a role in a legal fight over a proposed mine in the Kootenays.

The Sinixt Confederacy — part of the Washington-headquartered Colville Confederated Tribes — is a cross-border tribe that considers itself transboundary with rights in both the U.S. and Canada.

The Sinixt were deemed “extinct” by the government in 1956, but five years ago, that changed when the Supreme Court of Canada ruled the Sinixt Confederacy an “Aboriginal people of Canada,” in what is known as the Desautel ruling.

Now, the B.C. Supreme Court and Court of Appeal have rejected an attempt by West High Yield Resources to remove the Sinixt from a legal challenge tied to its proposed magnesium mine near Rossland.

The courts found that the tribe has a direct and meaningful interest in the project.

“It is big for us,” Jarred-Michael Erickson, a chief with the Sinixt and Colville Confederated Tribes and chairman, told Global News.

“We want to make sure this has an environmental assessment on it. I think that’s well within the scope of what it should have been initially to start with and that we should be included in that judicial review.”

Erickson added that they want to make sure the resources are protected, the water, fish and wildlife habitat.

“We want to make sure that we’re getting a thorough review and have that environmental assessment to show what those impacts could be,” he said.

The Sinixt say their territory in Canada extends from south of the U.S. border to north of Revelstoke, B.C. but that area also encompasses the traditional territory of the Sylix Okanagan, Secwépemc Nations and Ktunaxa Nations.

Thomas Isaac, a partner at Castles, Brock, and Blackwell, who also leads the national Aboriginal law group and the national major projects team group, said this is why there’s an obligation to consult with the Sinixt, following the Supreme Court of Canada ruling.

“I think the bigger question is, is I think people are now seeing the effects of Desautel, which really, at its core, acknowledged that U.S. citizens, United States citizens, can potentially have constitutionally-protected rights and a constitutional right to be consulted within the four corners of the sovereign state of Canada and put a burden on the Canadian government to deal with U.S. citizen rights in Canada,” he said.

Isaac added that only in Canada could we allow non-Canadian citizens to be able to limit the power of a provincial or federal government.

“We’ve got folks in Alaska now claiming into northern B.C.,” Isaac said.

“And by the way, they’re not allowed to claim the other way around. And remember, Canada and British Columbia has the most robust protection regime on the planet. And I’m not talking about UNDRIP. UNDRIP does nothing to protect Indigenous rights at law unless you change the Interpretation Act as we did. It has no effect.”

Erickson said that they don’t feel like the B.C. government is recognizing Sinixt rights.

“The Supreme Court recognizes us as Indigenous people to Canada,” he said. “Yeah, it’s unfortunate it’s got to the way it has, and I won’t say much more than that. I just hope we can, we’re still willing to come to the table and have those conversations and work through it.”

The Syilx Okanagan Nation has stated that the Sinixt People are already represented in Canada through them.

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