Quote:
Originally Posted by MalcolmTucker
With culturally modified trees on Lelu Island, it should be a pretty easy court process for the Lax Kw'alaams to establish title through a process similar to the Tsilhqot'in. Or the CEAA could recommend an entirely different site be found.
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A bit more background is required. Both the proponent, Petronas, as well as the government have been engaged behind the scenes since 2013 on Lelu Island with the Lax Kw'alaams. The Lax Kw'alaams had apparently no objection to date.
A concern was Flora Bank, just off Lelu Island, which contains eelgrass and apparently is a stopover for juvenile salmon at the mouth of the Skeena River.
In fact, as part of the consultation process with the Lax Kw'alaams et al, major mitigation measures were put into place. Instead of a ~3 km trestle to the offshore LNG marine loading facility, which required some dredging at the periphery of Flora Bank (potentially disturbing Flora Bank) Petronas decided to pursue another route - a $1 billion suspension bridge (imagine that!) completely bypassing even the periphery of Flora Bank.
One must also remember that Lelu Island is separated by just roughly 100 feet of channel water with Ridley Island - the major NW BC federal port with its major coal port and grain-loading facilities.
Petronas, even relatively recently, undertook very expensive 3-D underwater modelling of Flora Bank confirming minimal impact upon Flora Bank for the CEAA. Even recent federal fisheries input suggested further non-major mitigation measures in that regard.
Problem was that the Lax Kw'alaams did not have this info at hand prior to their "vote", unfortunately. And from all reports both Petronas as well as the gov't have been meeting with the Lax Kw'alaams, behind the scene, since then, and apparently matters are progressing well.
What ya also need to understand is that the Lax Kw'alaams are situate roughly 50 km north of Prince Rupert. Much closer to the Lelu Island is the Metlakatla FN, which signed a "project benefits agreement" with Petronas just last December.
As did the Kitselas FN, which are situate along the Skeena River. Both FNs also value their heritage fishery akin to the Lax Kw'alaams but obviously take a different view on Flora Bank.
BTW, the Lax Kw'alaams are a break-away group from the Tsimshian Tribe, which has been the historical name for the Prince Rupert area NW coast FNs. And the Metlakatla FN as well as the Kitselas FN are part of the official Tsimshian Tribe.
Even the Lax Kw'alaams have admitted, in a G & M article about a month back, that if Petronas decided to proceed with their proposed LNG facility on Lelu Island "they would be unable to stop it through the Courts". [paraphrased]
Again, behind the scenes the parties are currently apparently progressing in resolving any concerns about Flora Bank vis-a-vis Skeena fishery.
As for the SCC's Tsilhqot'in decision, that was a very unique case involving unique factors. And even then, the Tsilhqot'in FN only obtained 5% of their claim in terms of aboriginal title. Lands in the desolate far west Chilcotin abutting the coast mountain range. Also, no other BC FN claimed that territory as part of their land claim.
More importantly, the Tsilhqot'in were involved in the so-called Chilcotin Indian War" against outsiders on that 5% territory, back in the day, repelling outsiders from that area.
And the Tsilhqot'in met the legal test, on an evidentiary basis, concerning the "Exclusivity Test" - proof of keeping others out, requiring permission for access to the land, the existence of trespass laws, lack of challenges to occupancy showing the FN's intention and capacity to control its lands.
I know of no other BC FN that is currently pursuing a similar aboriginal title land claim through the BC Courts. For many reasons. Almost all BC FNs have over-lapping land claims. For example, at the BC Treaty Commission, all FNs on Van Isle claim each others territory. And many Van Isle FNs claim territory in Metro Vancouver.
And Metro Vancouver FNs claim each others territory and Van Isle territory as well as interior FN territory. Same situation involving interior BC FNs. No wonder, after 20+ years and roughly $1 billion spent at the BC Treaty Commission, just a few treaties have been generated.
Unlike the Tsilhqot'in, which repelled invaders on that west Chilcotin desolate area, ergo meeting the SCC's "Exclusivity Test" for aboriginal title, the Lax Kw'alaams went in a completely opposite direction `back in the day`.
When the Hudson's Bay Company set up Fort Simpson - roughly 50 km north of Prince Rupert (where Lelu Isle is situate) the Lax Kw'alaams abandoned their then Prince Rupert villages and set up new villages outside the gates of the Hudson Bay's Fort Simpson. Absolutely cannot see the Lax Kw'alaams meeting the SCC`s "Exclusivity Test" thereto.
BTW, today Fort Simpson is known as Port Simpson but since the Lax Kw'alaams inhabit Port Simpson it is also known as Lax Kw'alaams.
More importantly, both the Lax Kw'alaams as well as the much larger Tsimshian FN (inclusive of both the Metlakatla FN and the Kitselas FN, which have already signed project benefit agreements withe Petronas) have over-lapping land claims inclusive of Lelu Isle. Info is freely available at BC Treaty Commission website.
Not withstanding that the Lax Kw'alaams likely would not be able to meet the SCC`s "Exclusivity Test", they also cannot initiate an aboriginal land title claim in the Courts with these over-lapping FN land claims. Dead in the water right there.
As for any potential litigation arising out of likely eventual CEAA certification of Petronas - no such litigation was ever commenced (or even hinted at) arising out of last years BC EAO enviro certification of the proposed Petronas LNG project.
Ergo, I guess we will both agree to disagree.
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