OPEN LETTER: Upholding commitments to reconciliation and Indigenous rights in court regarding the Site C injunction hearings

08/08/18

Author:

On behalf of the UNION OF BC INDIAN CHIEFS Grand Chief Stewart Phillip President Chief Robert Chamberlin Vice-President Kukpi7 Judy Wilson Secretary-Treasurer

August 7, 2018

OPEN LETTER: Upholding commitments to reconciliation and Indigenous rights in court regarding the Site C injunction hearings

Dear Premier Horgan and Minister Eby:

We are writing to shed light on the unacceptable and disconcerting gap between your political commitments to reconciliation and Indigenous rights, and BC Hydro’s legal arguments in the current

BC Supreme Court Hearings regarding the West Moberly First Nation’s application for an interim injunction while their Treaty case is being heard.

As you are aware, the Union of BC Indian Chiefs (UBCIC) has been deeply engaged in supporting the Treaty 8 First Nations in opposing the devastating Site C dam. UBCIC Resolutions, most recently

UBCIC Resolution 2018-05 “Support for Treaty 8 Litigation and Public Opposition to Site C” mandate the UBCIC to do this work.

West Moberly has asked the court for an injunction to either halt construction entirely, or to at least preserve the most ecologically and culturally sensitive areas of the Valley, so that the

court can reach a meaningful resolution of the Treaty case.

Your government has committed to reconciliation and to fully implementing the minimum human rights standards affirmed in the United Nations Declaration on the Rights of Indigenous Peoples (UN

Declaration) and the Calls to Action of the Truth and Reconciliation Commission. Your government has stated time and again the importance of “lasting reconciliation with First Nations in BC.”

The arguments being used by BC Hydro’s legal counsel are consistently diminishing the rights of First Nations and freezing those rights in the past. This is harmful not only for the Treaty 8 First Nations, but for all First Nations across British Columbia and Canada. A few examples are outlined below that illustrate how far this Crown corporation’s legal arguments are from the espoused commitments of your government.

• BC Hydro explicitly claimed in court that Treaty 8 was never intended to protect First Nations' "practical, traditional, cultural, or spiritual connection to any land." This is an arbitrary, one-sided interpretation of the Treaty that runs contrary to the principles of Treaty interpretation already recognized by the courts, and contrary to the spirit of reconciliation.

BC Hydro is asserting, in effect, that the "meaningful right" protected by the Treaty can be reduced to the simple act of hunting, fishing or trapping devoid of the traditional knowledge, protocols and oral histories that make these acts so meaningful and essential to First Nations. This cynical denial of Indigenous peoples' own understanding of their rights is the basis for BC Hydro's unscrupulous denial of the crucial importance of the Peace River Valley to Treaty 8 Nations.

BC Hydro actually goes so far as to claim that a right can still be meaningfully protected even when the practice is disrupted for a generation or longer. This is what BC Hydro is saying when it claims that fishing rights are "compatible" with the flooding of the Peace Valley because the people of West Moberly will be able to fish in the reservoir that is created - something that BC Hydro knows may not be safe or possible.

• In its oral arguments, BC Hydro has also demonstrated disrespect for the wisdom of First Nations elders and tradition keepers, treating their oral evidence as little more than hearsay.

• UBCIC firmly believes that the Site C dam is a profound violation of the Treaty relationship and, as stated by the UN Committee on the Elimination of Racial Discrimination, a violation of the human rights of First Nations. Consistent with the UN Declaration, the dam simply should not proceed when free, prior and informed consent has not been given.

• BC Hydro has consistently defended itself by claiming that its meetings with First Nations constitute meaningful consultation. However, BC Hydro's arguments in court demonstrate a profound disrespect for Indigenous knowledge and an inability to listen to and learn from our elders. BC Hydro's arguments in court cast doubt on the corporation's ability or intent to engage in anything resembling meaningful consultation. BC Hydro's actions also clearly illustrate why government cannot rely on consultation processes controlled by project proponents to protect First Nations’ rights. We have long insisted that governments must uphold the minimum standard of free, prior and informed consent as set out in the UN Declaration.

• BC Hydro has also repeatedly characterized West Moberly’s concerns about the clearing of forests as an aesthetic issue, not a rights issue. In response to Justice Milman’s question about planned clearcutting interfering with the exercise of fishing rights, the BC Hydro lawyer stated, “Perhaps you have to draw a distinction between aesthetics and harvesting rights.” Diminishing peoples’ human rights’ as an “aesthetic” concern is demonstrative of the ongoing discrimination against Indigenous peoples perpetuated by Canadian governments.

These examples illustrate just how far the Crown’s actions are from the commitments that your Government has made to the people of British Columbia. We call on you to publicly denounce these statements that diminish Indigenous rights in an open letter to the BC Supreme Court, and to apologize formally for the disrespect shown to the Treaty 8 First Nations.

There can be no lasting reconciliation while Indigenous peoples’ rights are being trampled upon, diminished, and frozen in the past. There can be no trust in your government while the words you say to the public ring false in the court rooms where Crown corporation lawyers perpetuate neo-colonization.

On behalf of the UNION OF BC INDIAN CHIEFS

Grand Chief Stewart Phillip

President

Chief Robert Chamberlin

Vice-President

Kukpi7 Judy Wilson

Secretary-Treasurer

CC: Chief Roland Willson, West Moberly First Nation

Chief Kirk Tsakoza, Prophet River First Nation

Reidar Mogerman, West Moberly Legal Counsel

Tim Thielmann, West Moberly Legal Counsel

First Nations Summit, Task Group and Co-Chairs