As if the David Eby government didn’t already have enough problems of its own making on the Aboriginal rights and reconciliation file as a result of DRIPA.
Now a critical minerals mine that is supported by the Osoyoos Indian Band is being challenged by an American tribe asserting Aboriginal rights in the West Kootenays.
Eby’s government is now taking flak for not having objected to the Sinixt Confederacy to being added as a respondent in a judicial review that seeks to halt the mine project, or at least send it back to regulators for a full environmental review.
The Record Ridge Mine — a small magnesium mine near Rossland — is facing a judicial review in which the Save Record Ridge Action Committee (SRRAC) is challenging the permitting of the mine. That review is to be heard next week.
The project received provincial approval and a Mines Act permit. The SSRAC is challenging the mine’s permitting, arguing it should have gone through a full B.C environmental assessment.
Complicating matters is the fact the Sinixt Confederacy – established recently by members of a Washington State tribal group to assert Aboriginal rights in B.C. – was added as a respondent in the case.
In summarizing the parties’ positions, the B.C. Court of Appeal noted that the Sinixt oppose the mine project proceeding.
The Sinixt’s assertion of rights in B.C. was bolstered by the 2021 R. versus Desautel Supreme Court of Canada decision that found a member of the Colville Confederated Tribes in Washington State had Aboriginal rights to hunt in B.C.
That ruling has become a wedge for the Colville Confederated Tribes, via the Sinixt Confederacy, which now has an office in Nelson, to assert its Aboriginal rights in B.C.
This is causing some friction with B.C. Aboriginal groups.
Chief Robert Louie of the Westbank First Nation has argued it’s unnecessary to include the Sinixt Confederacy in consultations on the Big White Ski Resort expansion, for example, saying the rights of Syilx-Sinixt people on the U.S. side of the border are already represented by the Syilx Okanagan Nation.
Critical minerals mine caught in crossfire
Caught in the middle of all of this is a quarry that West High Yield Resources (TSX-V:WHY) wants to build just outside of Rossland. The ore would contain high amounts of magnesium – which is on Canada’s critical minerals list – as well as silica, iron and nickel.
WHY Resources values the raw ore at $1,500 per tonne, and has an offtake agreement with Galaxy Trade and Technology, a joint venture of American and Chinese companies, which would sell the ore to third party processors.
It would be more accurate to call the project a quarry than a mine. Ore would not be processed on site, so there would be none of the chemical processing typically associated with a gold and copper mine, and no tailings pond.
“It’s a large gravel pit,” said Trevor Argue, general manager of Skemxist Solutions, the business unit of the Osoyoos Indian Band that would build and operate the quarry.
The quarry would have annual production of 63,500 tonnes per annum, which is below the 75,000 tonne threshold that would normally trigger a full environmental review under the Environmental Assessment Act.
The project is fully supported by the Osoyoos Indian Band. In fact, the quarry would be built and operated by the Osoyoos band’s company, Skemxist Solutions. Revenue from the work would flow to the Osoyoos Band.
The project’s capex is small compared to most mines – about $30 million. WHY Resources also has ambitions of building a US$250 million magnesium oxide processing plant, though it has not yet decided where to locate it.
“We’d like to put it in Canada, right in Trail, because it’s already zoned,” said WHY Resources CEO Frank Marasco. “But if we can’t get into Trail, we’re going south, to the U.S.”
The project would employ 25 to 40 workers during construction, and around 45 ongoing once in production, Argue said.
“So the First Nation owned company is doing literally 100% of all work at the mine, including the trucking away from the mine site when that happens,” Argue said.
“Over the years, you’re talking hundreds and hundreds of millions of dollars, not just economic benefit to the Osoyoos Indian Band, but employment opportunities.”
Osoyoos Band objects to Sinixt interference
The Osoyoos Indian Band is incensed that the Sinixt Confederacy was added as a respondent in the judicial review application, and it blames B.C.’s attorney general for allowing that to happen.
A letter to Attorney General Niki Sharma – co-signed by Marasco and Osoyoos Chief Clarence Louie – points out that Eby has previously said his government gives precedence to B.C. First Nations in transboundary Aboriginal rights questions.
Louie and Marasco therefore question why the B.C. attorney general consented, or didn’t object, to the Sinixt Confederacy being named as a party respondent in a judicial review application against the mine.
“When WHY Resources counsel objected to the Sinixt Confederacy’s participation as party respondent and advised A.G. counsel to reconsider their support, your counsel refused to do so,” they write in their letter to Sharma.
“This is the furthest thing possible from placing the interests of BC First Nations as ‘primary priority and focus’ and we can only assume that neither you nor Premier Eby has been made aware of what is occurring here.”
The issue was raised Monday in the B.C. Legislature by Scott McInnis, who is the Conservative opposition critic for Indigenous Relations and Reconciliation.
“A U.S.-based tribe…is actively trying to disrupt a vital critical mineral mine within the Interior,” McInnis said. “The mine is co-owned by WHY Resources and the Osoyoos Indian Band. My question to the attorney general: why is she letting this happen?”
In defending the B.C. government’s position, Tamara Davidson, minister of Environment and Parks, said the BC EAO has a duty to consult with all First Nations, including those on the American side of the border.
“The EAO will continue to fulfil 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 those rights to be impacted by a proposed project,” she said.
“There is a duty to consult, to a certain extent, through the environmental assessment process,” McInnis conceded when I spoke to him by phone.
“This is a completely separate litigation matter. The attorney general consented to allow the Sinixt Confederacy to be a respondent in this litigation, a decision which they certainly did not have to make.”
Tom Isaac, a lawyer specializing in Aboriginal law, thinks the Eby government should be pushing back more.
“I think there is a basis upon which to push back on some of the suggestions in Desautel, and some of the findings in Desautel, of whether it fully applies to things like an environmental assessment,” Isaac said.
But the federal government also needs to start pushing back, as it was Section 35 of the Canadian Constitution Act that led to the Desautel decision, which promises to have far-reaching consequences.
“Are we just accepting Desautel without pushing back on it?” Isaac wondered. “We’ve got to be the only state on the globe…where we have acknowledged constitutional rights to non-Canadian citizens.”
“I don’t know where this goes,” McInnis said. “Aboriginal rights include Aboriginal title, so is there a possibility, down the road, where the Sinixt file claim of Aboriginal title in Canada as a U.S. tribe?
“This is not going away. There are examples of tribes in Alaska that are looking to gain a foothold in British Columbia, Washington. This is very serious.”
Nelson Bennett’s column appears weekly at Resource Works News. Contact him at [email protected]
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