Premier David Eby is drawing a line in the sand on the issue of consultations with First Nations in and outside of B.C.
But the federal government will need to weigh in on the issue as well, says Robert Louie, chief of the West Bank First Nation, as a Supreme Court of Canada decision in 2021 that recognized American aboriginal rights in Canada has opened a “Pandoras Box" that could prove to costly, confusing and divisive.
“I think the federal government has to understand the transborder Pandora’s Box that’s open,” Louie told BIV News. “If they haven’t developed a policy, they should be developing a policy immediately to deal with this because this is huge.”
In an agreement hastily prepared with the Syilx Okanagan Nation, which represents Sylix people on both sides of the border in the Okanagan region, Eby has clarified his government’s position on consultations with First Nations, when American Indigenous people have claimed interests in B.C.
“While there is in some limited circumstances a legal obligation to provide notice to aboriginal groups located outside Canada about projects proceeding in British Columbia, First Nations located in B.C. must always be the priority and primary focus of all levels of government including the province of B.C.,” Eby and Louie said in a joint statement.
Chief Clarence Louie of the Osoyoos Indian Band and Tribal Chair of the Syilx Okanagan Nation said he wants to see other politicians also clarify their positions.
“All party leaders, both provincially and federally, must clarify their positions on transborder consultation with US Tribes,” he said in a press release.
“We thank David Eby for his recognition and respect of the Syilx Okanagan Nation’s representative role in relation to Sinixt people in Canada in Syilx Okanagan Territory, and we believe all party leaders should publicly affirm and extend this same respect to all First Nations on the Canadian side of the border.”
The declaration was prompted when the Syilx Okanagan Nation learned in September that the Mountain Resorts Branch planned to include the recently formed Sinixt Confederacy in consultations over the planned expansion of the Big White Ski Resort. The Sinixt Confederation was formed by the Confederated Tribes of the Colville Reservation in Washington State.
Louie said it's unnecessary to include the Sinixt Confederacy in consultations on the Big White Ski Resort expansion because the rights of Silyx-Sinixt people on the U.S. side of the border are already represented by the Syilx Okanagan Nation.
The Syilx Okanagan Nation includes the Okanagan Indian Band, Osoyoos Indian Band, Penticton Indian Band, Upper Nicola Band, Upper and Lower Similkameen Indian Bands, Westbank First Nation and the Colville Confederated Tribes in Northern Washington State.
“We’re the rightful speakers, so how do you now get U.S. tribes involved in the expansion of Big White?” Louie said.
The newly formed Sinixt Confederacy was set up to assert the rights of the Sinixt people in the U.S. as a result of the 2021 .
That decision upheld the right of an American -- Richard Lee Desautel of the Lakes Tribe in Washington state -- to hunt elk in B.C. without a licence because the Lakes Tribe is a successor group to the Silyx (Sinixt) people whose traditional territory included the Okanagan region of B.C.
The Sinixt Confederacy is now trying to expand and assert their rights beyond just hunting in B.C., Louie said.
“They’re all U.S. citizens and they set up an office in Nelson B.C. and they’re asserting that the Desautel case goes beyond hunting,” Louie said. “What the Sinixt Confederacy and the Colville Confederated Tribes are trying to do is to take that court case and say, ‘Now we’ve got all aboriginal rights and it spills into aboriginal title.’”
Indeed, the Sinixt Confederacy are using the Desautel case to try to assert broader rights in Canada.
The confederacy notes on its website that the Jay Treaty of 1794 between the U.S. and Britain allowed for free passage between Canada and the U.S. by the Sinixt people who occupied both sides of what would eventually become the Canada-U.S. border.
“The U.S. respects this treaty,” the Sinixt Confederacy says. “Canada does not. Canadian First Nations can travel freely across the boundary to the U.S. to study, work or retire. American tribal people cannot do the reverse.
“When we Sinixt travel to 80 per cent of our traditional territory in Canada, we must do so as visitors. We require a government-issued passport or enhanced driver’s license. We must have plans to return to the United States.
“In the aftermath of the Desautel decision, we are working with the Canadian government to make it easier for Sinixt people to travel, work and stay in our Canadian homeland, for as long as we wish. We must be treated as Canadians – as an Aboriginal Peoples of Canada.”
Following the 2021 Supreme Court decision, Dwight Newman, professor of law at the University of Saskatchewan, wrote a legal brief warning of the implications of the decision.
“The case has much wider ramifications than first apparent,” Newman wrote in Understanding the Implications of the 2021 Decision in Desautel. “It is a precedent-setting case on the potential for Indigenous groups located outside Canada to hold constitutionally protected Aboriginal rights in Canada.”
Since then, a number of American tribes have been pointing to the Desautel case to assert their rights in Canada, including the right to consultation over resource projects in Canada.
Tribes in Alaska are using that Desautel case to assert their right to deeper consultations over the Eskay Creek mine project, for example.
“We now have a mess,” Newman said in an email to BIV News in response to the more recent case involving the Sinixt Confederacy.
“We can likely anticipate many more challenging transborder consultation issues and transborder rights claims issues,” Newman said. “This instance is just one of several that have already occurred, and more will follow.
“It is arguably problematic for politicians to be asked to make commitments on consultation approaches with particular First Nations in the middle of an election campaign when they do not have access to all of the pertinent legal advice they otherwise would have.
"That said, developing a policy process on how to deal with the legal complications arising from the Desautel decision, such as referenced in the joint statement but perhaps needing more general consideration, is a good and even necessary idea.”
