Fight for the right to exist
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Imagine fighting for your right to exist, your entire life. That’s the reality of any Indigenous person living in the world today. To live is to fight - to fight for your lands and waters, rights, spirituality, culture, future generations. It’s a fight known too well by the Tŝilhqot'in Nation, comprised of six distinct but unified communities located in the interior of what is now known as British Columbia.
The Tŝilhqot'in are the only nation in Canada’s history to have proven and won Aboriginal title in the Supreme Court of Canada, a case that took over 25 years.
The case, launched in 1989 in response to a logging dispute, called into question the legitimacy of the provincial government’s forestry regime within Tŝilhqot'in territories. It required the communities to unify as one nation to present their oral history, generational land-based relationships and knowledge, and defend their cultural integrity and language in a way that showed Canada they are a sovereign nation, have always been Tŝilhqot'in and will always be.
On June 26, 2014, the Supreme Court of Canada declared that the Tŝilhqot'in Nation holds ‘Aboriginal title’ to approximately 40 per cent of the area claimed in the case, an expanse of some 1,750 square kilometres within the caretaker area of the Xeni Gwet’in (Nemiah Valley), one of six Tŝilhqot'in communities. The declared title area represents only a portion (around 20 per cent) of the collective territory of the entire Tŝilhqot’in Nation. The decision confirmed full ownership, benefit and control of the title area by the Tŝilhqot'in people, but the nation continues to recognize and uphold, as well as negotiate for full recognition of title over its entire territory.
But while the Tŝilhqot'in push to define, express and assert their proven rights and title where it matters most, at home, they find themselves draining precious time, energy and resources in ongoing court disputes to protect one of their most sacred areas from what would be one of the world’s biggest copper and gold mines. It has been a decades-long struggle for the Tŝilhqot'in, and while the proposed mine in question has been rejected twice at the federal level, its owner, Taseko Mines Limited, was successful in obtaining permits for an ‘exploratory drilling program’ slated to start last Tuesday, forcing the nation to travel back to Vancouver to seek an injunction from the courts, and prepare yet again for what they identify as an ongoing spiritual war.
Home for our ancestors
When I arrived last week to Tŝilhqot'in territories, a five and a half hour drive from Vancouver, I had planned to learn about the Dasiqox Tribal Park, for National Observer's ‘First Nations Forward’ series, focused on land and water management and self-determination efforts in First Nations across the province.
People I spoke with were eager to talk about the vision of the tribal park, as well as other clean energy projects, like solar farms and greenhouses, but a shadow lurked behind every conversation and it was this ongoing threat of mining-related activity at Teztan Biny (known in English as Fish Lake). It’s in an area where the Supreme Court found the Tŝilhqot’in had rights but not title, a distinction that is useful in the Canadian legal context but which many Indigenous people, including the Tŝilhqot’in, consider absurd.
When I asked Chief Joe Alphonse of Tl’etinqox, Tribal Chair of the nation, if I could learn more about their fight to protect Teztan Biny and the surrounding area, he said I better see it for myself.
This area, Teztan Biny, is one of the highest elevation lakes in the Tŝilhqot'in territories. For the Tŝilhqot'in, “the higher the elevation, the higher the spiritual power,” Chief Alphonse explained in an interview at the Tŝilhqot'in National Government office in Williams Lake.
The Tŝilhqot'in people have always lived around and used the area; for hunting, fishing, harvesting medicines, but also for healing, ceremony and cultural camps.
Jessica Alphonse, who grew up in Xeni but is registered with and from Tŝilhqot'in’s Yunesit’in Nation and works as principal of the school there, said she is upset by the lack of understanding, communication and agreement between Taseko and her nation.
“We have plans for our future generations in that area, and with all these trucks, all these strangers, the possibility of this massive open-pit mine will change our way of life there,” she said over the phone Monday. “There’s no working relationship. It makes me sad, it makes me angry.”
At this time of the year, the area around Teztan Biny is only accessible by snowmobile or helicopter.
I traveled to Teztan Biny from a Williams Lake helipad with Chief Jimmy Lulua from Xeni Gwet'in, Dalton Bapiste, the band manager of Xeni Gwet'in, and Peyal Laceese, a youth spiritual ambassador and son of Chief Francis Laceese from Tl'esqox (Toosey Indian Band), a third Tŝilhqot'in community. As we flew past Williams Lake (Secwepemc territory) and over Tŝilhqot'in territory, we spotted three moose. Just a few years back, there would have been many more, Chief Lulua said.
The moose population in the area has alarmingly decreased over the years, as the impacts of extractive industry surrounding the territory have sucked life from the land, waters and overall ecosystem. We witnessed the devastating impact of the logging industry and the mismanaged wildfires which left massive patches of forest naked, dried up, dead.
In 2009 and 2010, some communities were forced to evacuate due to wildfires, a traumatizing experience the Tl’etinqox band later refused to repeat. In the summer of 2017, when the wildfires were worse than ever before, communities faced another evacuation order.
While the nation was dealing with whether their members would decide to stay or leave, they were notified that the B.C. Liberal government had approved Taseko’s exploratory three-year drillling program on its last day in power, a major surprise for the nation that was taken as a slap in the face.
Technically, the permit is issued by a purportedly independent statutory decision-maker, not the Liberal government itself, but it stung the nation just as hard nonetheless.
“It was a little hand grenade the Liberal government left behind for the NDP and we're caught in the middle of it," said Chief Joe Alphonse. "There needs to be policies in place that prevent governments from issuing long-tenured projects like this on their last day of power.”
"The most important Tŝilhqot'in laws have to do with the protection of water"
The Tŝilhqot'in Nation, not unlike other Indigenous Nations across this young country known as Canada, often prioritize their own legal systems and values over colonial legal orders that in most cases were brutally enforced on sovereign nations.
For the Tŝilhqot'in, the most important laws, Chief Alphonse explained, have to do with the protection of water.
Through oral history, Chief Alphonse learned from a young age that other crimes, like stealing, perhaps wouldn't have traditionally been considered such a big crime. There would be consequences, he said, but they wouldn’t be severe.
“But you come and do damage to the quality of water,” he said, his face suddenly serious, “or you damage the highest elevation spawning grounds in North America… You do damage to the quality of water, in some cases, that was considered one of the biggest crimes you could commit.
“You’re talking about our livelihood and our dependence on the sockeye run, you’re talking about the starvation of a whole nation. To maintain a healthy run you have to have clean water. Water is the most precious thing for our people.”
Taseko’s $1.5 billion open-pit gold and copper ‘New Prosperity Mine’ has been rejected twice at the federal level, by Stephen Harper’s pro-industry government.
Taseko’s original project (then called “Prosperity Mine”) received its environmental assessment certificate from the province, with 103 recommendations for the proponent, but the project was turned down at the federal level on July 2, 2010, due to the environmental and cultural impacts it would have.
The company applied again, with modifications to their proposal, and on September 29, 2011, the province granted approval to carry out “exploratory work,” sparking a blockade by Tŝilhqot'in Nation members.
A little over a month later the federal government called for a review of the “New Prosperity Mine” by a second independent panel, which in 2014, concluded that the proposal carried too many adverse effects. Ottawa rejected the project a second time.
Taseko filed in court for judicial review of the federal panel’s report, and later filed a review of the rejection. On January 14, 2015, the province granted a five-year extension of the Environmental Assessment Certificate for Prosperity Mine. In 2016, Taseko started to prepare a new exploratory program, several times the scale and magnitude of the drilling program that faced a blockade in 2011. This new drilling program was rejected by the Tŝilhqot'in on the grounds that the activity was for a mine that had been rejected twice.
(Judith Lavoie mapped out a useful timeline of the ongoing events in an article for the Narwhal.)
The exploratory drilling program includes construction of 367 trenches and/or test pits, 122 geotechnical drill sites, 48 kilometres (km) of new excavated trails, 28 km of existing access modification, 20 km of cut lines, more than 1000 square metres of timber cuts, a 50-person camp with 11 mobile trailer units, a base camp staging area, storage of up to 10,000 litres of fuel on site, seven water pump locations, a temporary core shed, and 15 km of seismic refraction traverses.
On July 17, 2017, the drilling program was approved by Rick Adams, a senior inspector for permitting with the province's ministry of energy, mines and petroleum resources. Taseko’s plans to proceed in that year were thwarted by not just the Tŝilhqot'in appealing the approval in court, but also court proceedings brought by the government of Canada, who unsuccessfully argued in the B.C. Supreme Court of Appeal that the magnitude and purpose of the drilling program constituted the company actually beginning construction of the rejected New Prosperity Mine.
In 2018, when Canada failed to block the drilling, the Tŝilhqot'in reactivated their court proceedings. On March 1, 2019, the B.C. Court of Appeal disagreed with the Tŝilhqot’in and upheld the drilling permit. Taseko gave notice that it intended to begin the program on Tuesday, March 19, while the nation will be in court seeking to file an injunction from the B.C. Court of Appeal on Friday, March 22. The nation is standing by to see whether Taseko will start construction, but is focused on moving forward with their own court proceedings.
They don't understand our values
Chief Jimmy Lulua of Xeni Gwet’in finished a long day of meetings and came home to elk meat, rice and tea prepared by his wife June. After scooping a few mouthfuls down, he straightened up and told me bluntly that the people with the power to help his nation protect their sacred areas and declining ecosystems lacked the courage to do so.
“Everyone knows this area needs to be protected, it’s the last ecosystem this size, interconnected all along the Fraser River and all the way to the coast,” Chief Lulua said. “We believe the waters are fresh and the area pristine, because we protected it all those years. We went to war for it.”
Chief Lulua said his people were known to take up arms to defend their territory, including in the Chilcotin War of 1864, which caught media attention over the past year as Prime Minister Justin Trudeau exonerated six Tŝilhqot'in war chiefs in Ottawa’s Parliament buildings (situated on unceded Algonquin territory), as well as on Tŝilhqot'in title land.
“Now, we’re at spiritual war,” Chief Lulua said.
Peyal Francis Laceese is known as a youth spiritual ambassador from Tl’esqox (Toosey Indian Band). His father is Chief Francis Laceese. Peyal grew up as his dad’s shadow, he told me, and he was raised hearing stories of when his dad and community created roadblocks against military vehicles trying to access a training facility built right near the rez, whose explosions would make their homes, schools and buildings shake. He heard stories of resistance against logging companies, he heard about his family’s experiences in residential schools, he learned about how smallpox killed 80 per cent of his people, and of course, from a young age, he was introduced to the threat Taseko Mines posed to Teztan Biny.
In an interview outside the band office in Xeni Gwet’in last week, 21-year-old Peyal told me he sits at many of the leadership tables, where Chiefs and Councils discuss the decade-long dispute against the proposed mine and plan their strategic response. Peyal also attended both of the provincial environmental assessment panels regarding the mine. He said at first, he knew the project wouldn’t go through, but during the second panel, he saw more clearly how determined the company was and how “they weren’t going to stop.”
“It was then that I started to prepare myself, not only emotionally, but spiritually,” Laceese said. “I started doing ceremony and learning about what our people did a long time ago.”
When Laceese thinks about the provincial court’s decision to approve the drilling permits and the government’s inability to recognize his nation’s proven rights, he said it comes down to a difference in values.
“They still don’t understand our values, and who we are as a people,” he told me.
Last Friday, as the helicopter pilot dropped us and took off, Chief Jimmy started to drill a hole in the frozen lake with a chainsaw. He was preparing to bring bottles of water to Vancouver, as they continue their court proceedings and spiritual battle.
Following Tŝilhqot'in protocol, we held a water ceremony. We sang, drummed, offered tobacco, gave thanks and took the water samples in a good way.
It didn’t take long for me to understand why Chief Alphonse had suggested I visit the site, and why Chief Lulua and others had made sure it happened. The area was sacred, no one could deny it. I sang my own gratitude song, after Baptiste and Laceese woke up the ancestors with songs of old, passed down to them for these very occasions.
The water was cold and fresh, the air pure and crisp, the land expansive and relatively untouched. I imagined the generations of Tŝilhqot'in who traveled and continue to travel to the area for hunting, fishing, harvesting, camping, cleansing, ceremony.
I imagined trucks rolling in, ploughing down trees, building roads.
I imagined the lake being contaminated with a massive tailings pond nearby, upstream and uphill. I thought about how the same engineers who built the Mount Polley tailings pond, the biggest mining disaster in B.C.’s history, designed the tailings storage facility for this project as well. I thought about the tailings pond spill that poisoned the Rio Dulce in Brazil too, a relative of mine’s main food source and his community’s oldest relative. They will never pull a fish from that river again.
All of the interviews I had that week suddenly swarmed around me. I hadn’t only spoken to leadership - Chief Alphonse, Chief Lulua, Peyal Laceese and his dad Chief Francis Laceese, Chief Russell Myers Ross of Yunesit’in, Chief Roy Stump of ʔEsdilagh, and Chief Otis Guichon of Tsi Deldel. I had spoken with elders and community members, and sat in on a community meeting in Xeni Gwet’in, a meeting that was entirely translated from English into the Tŝilhqot'in language, as they always have been. The language was everywhere, on the lips of members young and old, and even here, this high up, in the trees, the spaces between, in the cold water where we laid our offerings and in the old songs that Peyal and Dalton sang to wake up their ancestors.
This was a spiritual war, no doubt.
A turning point for Indigenous people
A large delegation of Tŝilhqot'in community members have already taken off on a trip to Vancouver, to show a strong front as their lawyers argue for an injunction against Taseko and to continue to raise awareness on this issue.
I reached out to Taseko for comment, but did not receive a reply. Speculation within the community seems to imply that the company isn’t earnest in their push to build the copper and gold mine, but may be more interested in keeping their stock price high, or eventually launching a lawsuit against the government. I asked the company these questions, whether there were ulterior motives behind their persistence, what impact they thought their activity would have on all six communities, and whether they expected it to affect water quality, and I was disappointed to hear nothing even a week later.
“There are more ways than building a mine to make money,” Chief Alphonse told me when I asked him what he thought about the allegations around stock prices and potential to sue. “You can make money by mining, but you can sue a government for pulling a license as well.”
He said the core issue at stake is whether their proven title and rights end up being watered down and what that means for other First Nations in Canada.
“You think winning title is enough, but the fight only intensified when you’ve proven that,” he said. “We need to get out and develop projects that are revenue-generating for our nation, Tŝilhqot'in solutions, Tŝilhqot'in money, Tŝilhqot'in programs, based on our ethics and our values.”
In B.C., any activity that meets the definition of a mine under the Mines Act, including exploration and development activities, requires a permit, a process that requires consultation with the relevant Indigenous communities, explained Suzannah Kelly, a B.C. public affairs officer who strung together emailed responses from three provincial ministries (Environment; Energy, Mines, and Petroleum; and Indigenous Relations and Reconciliation).
“Government engages with Indigenous Nations on provincial authorizations, like Mines Act permits, that may impact nations’ interests. The current Mineral Tenure Act allows claims to be registered online, granting certain legal rights and interests to the minerals as well as surface and exclusive exploration rights,” she wrote.
“In areas where Aboriginal title has been declared, the Mineral Tenure Act does not apply, and thus registering of claims cannot occur.”
On behalf of the Ministry of Indigenous Relations and Reconciliation, Kelly said the long-standing, complex matter was inherited by the previous government and is being dealt with in the courts.
“While we respect the court’s decision in this matter, our government believes true reconciliation lies outside of the courts, building relationships through open, respectful discussion,” she wrote. “That’s why we are invested with Tŝilhqot'in to advance our work under the Nenqay Deni Accord.”
“The Accord is a “made-in-Tŝilhqot'in” agreement signed on February 11, 2016 that sets out a five-year framework for discussions between British Columbia and the Tŝilhqot’in Nation to advance and achieve a lasting reconciliation for the Tŝilhqot'in peoples,” according to the Tŝilhqot'in National Government’s website.
The federal government, meanwhile, recently signed a Pathway Letter, developed collaboratively with the Tŝilhqot'in Nation. The document outlines commitments to nation-to-nation work to improve education, health, and community safety, with an emphasis on housing investments in all six communities.
“We signed the accord with Trudeau, so the government could back up their words,” Chief Lulua said. “Trudeau has held up his portion so far, he has opened a door that has never been opened for us, and I’m going to walk through and see what’s in there.”
The feds have shown good faith, he added, and B.C. wants in (they’re working on a tripartite agreement), but the mining dispute is straining relationships more every day it continues, he said. The province is scared of a lawsuit, Chief Lulua said, echoing the thoughts of Chief Alphonse.
“The Tŝilhqot'in have title, but we’re still being treated as less-than, because for some people, all they believe in is that bottom line, that quick fix,” he said. “Some people don’t practice that seven generational law - the belief that seven generations from now should have the same ecosystems, the same opportunities as the ones before.”
As an Indigenous person, we’re mandated to understand, Chief Lulua said.
“When they’re all said and done in thirty years, they’re going to leave this destruction. No more fish, no more migration routes, no more moose, no more goats, no more sheep,” he said. “Investors help these companies stay afloat, while we waste millions in court. The provincial government has the power to pull the pin on the permit.”
There’s a turning point for Indigenous people, Chief Lulua said, and it’s now.
“Even though Tŝilhqot'in are seen as fierce and strong, the reason we are is because we have no choice, we have no choice but to fight for what we know is our values,” said Peyal Laceese, reflecting on the generational fight he was born into. “We have evolved, going through colonialism, wars, epidemics… and this is who we have become, this is us reacting, again, to having to protect these areas at whatever cost and enact our rights and title.”
Peyal said it's his responsibility to learn from the past, to be able to look at the problems, solutions or opportunities, and respond in a Tŝilhqot'in way.