IronNoggin
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Alaskan tribes sue B.C. over fast-tracked gold mine
Alaskan tribes claim the B.C. government's move to fast-track the Eskay Creek gold mine was illegal and failed to properly consult them on potential environmental impacts to their territoryMore than a dozen Alaskan tribes have launched a legal challenge against the B.C. government over its refusal to consult them as it fast-tracked a major mining project.
On Wednesday, the Southeast Alaska Indigenous Transboundary Commission (SEITC) and its 14 members filed a request for judicial review with the B.C. Supreme Court seeking to quash a June 2024 provincial order in council they claim is illegal and failed to properly consult them on environmental impacts from the Eskay Creek Revitalization Project.
In a statement, SEITC president Esther Reese said that while imposition of the colonial border has partially displaced their tribes and prevented access to traditional territory, “our Tribes have never surrendered or abandoned their claims to their traditional territories on the Canadian side of the border.”
“There is no legal or moral basis for B.C. to exclude our Tribes who have deep ancestral ties and relationships to land and territory on both sides of the border,” said Reese.
Operational between 1994 and 2008, Skeena Resources Ltd. (TSX:SKE) has been active in trying to restart the Eskay Creek mine near Smithers, B.C. One of the highest-grade gold mines in the world, the site is estimated to contain about 2.98 million ounces of the metal.
Court filings show the SEITC is requesting the Supreme Court for a declaration that B.C. acted in “bad faith” and breached the “honour of the Crown” after it failed to properly consult with the nations over potential negative effects the mine could have on the Unuk River.
By exempting the Eskay Creek Revitalization Project full consultation with the Alaskan tribes, the petitioners claim the order in council threatens the water quality and ecosystems of the Unuk, which flows from B.C. into Alaska.
The petition to the court claims the Unuk River is a vital part of the Alaskan tribes’ traditional territory, and historically supported robust runs of eulachon (candlefish) and all five species of salmon, sustaining their communities for generations.
They contend that the previous operation of the Eskay Creek mine led to water pollution and the decimation of these fisheries starting in the mid-1990s, resulting in a eulachon fishing moratorium by 2006.
While the Unuk River ecosystem is now slowly recovering, the tribes argue that exempting the proposed Eskay Creek revitalization project from proper consultation threatens to repeat this environmental disaster, jeopardizing their subsistence, culture, and rights to fish and hunt.
Guy Archibald, executive director of SEITC, said he expects B.C.’s Environment Assessment Office (EAO) to issue a decision on the environmental assessment certificate for the mine within days.
“B.C. denied our claims and all the evidence we presented without ever ruling on the merit of the evidence,” said Archibald.
“We’re bringing it now because B.C. continues to permit mines without adequate consultation with the southwest tribes.”
John Gailus, a lawyer with Cascadia Legal LLP who is representing the group, said that in response to the SEITC’s request for consultation, the B.C. government required the consortium to submit extensive ethnographic evidence of their historic and ongoing ties to the affected watersheds.
“They went through the process, provided the evidence … effectively the government said no, we don’t want to make the decision on this,” said Gailus.
“Instead they decided to put their thumb on the scale [using other legislation] to deny them that status.”
B.C.’s Environment Assessment Office (EAO) is expected to finish its environmental assessment of the mine over the coming weeks.
A statement attributed the EAO said it will continue to fulfill its constitutional obligations by consulting with U.S. tribes “when there is a credible assertion of Aboriginal rights under the Canadian Constitution and a potential for these rights to be impacted by a proposed project.”
“The B.C. government takes its obligations to consult with First Nations who may be impacted by a proposed project very seriously—including with tribes in the U.S.,” added the statement.
“As the matter is currently the subject of legal action, we are not able to provide further comment.”
The B.C. government has 21 days to respond to the claims in the petition. None of the allegations have been tested in court.
If the request to quash the order in council is successful, Gailus said a judge could give the Alaskan Indigenous consortium the same rights Canadian First Nations have under the Environmental Protection Act. The judge could also allow the Environmental Assessment Office (EAO) to make that determination.
Gailus said getting denied consultation status by the EAO would inevitably lead to another petition to the court.
“What they’ve been denied is a seat at the table. They want to be in that room with B.C. First Nations and government,” said the lawyer.
“We’re not seeking a veto on any of these projects. What they’re seeking is meaningful consultation.”
