“This is not a money issue: this is environmental and cultural.”

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The Lax Kw’alaams, an aboriginal group in British Columbia, were offered a compensation package of over $1 billion for allowing a liquefied natural gas project on their territory. They refused. Earlier this month, they exercised their right to free, prior and informed consent (FPIC) and voted against the proposed project due to concerns about environmental and cultural impact. In voting against it, they sent a strong and indisputable message: their environment and culture do not have a price tag.

The proposed project is the Pacific NorthWest LNG facility and the Prince Rupert Gas Transmission Pipelines. The Pacific NorthWest LNG project is a joint venture: Malaysia’s Petronas is the majority owner; other owners include Sinopec, JAPEX, Indian Oil Corporation and PetroleumBrunei. Both the export LNG facility and portions of the pipelines will be located in Lax Kw’alaams territory, land over which they claim aboriginal title. If proven, this means they have a right to use and control the land, and, absent a compelling and substantial public purpose consistent with the government’s fiduciary duty, their consent is required before any extractive projects on their territory can be approved.

Pacific NorthWest LNG has been consulting and engaging with the Lax Kw’alaams since 2011. As a result of this engagement, the environmental assessment process was put on hold twice, and in 2014 an aspect of the project was redesigned in response to concerns raised. The changes, however, were not sufficient to assuage the Lax Kw’alaams concerns, resulting in the vote against the project.

The outstanding environmental concerns will have a severe impact on the Lax Kw’alaams livelihood. The impacts include clearing the island where they harvest traditional medicines and plants, resulting in their inability to do so; damage to marine resources including the Skeena River salmon, which is the second-largest salmon producing river in British Columbia; and increased greenhouse gas emissions.

A press release prepared by the Lax Kw’alaams explains the Skeena River’s cultural significance. “The significance of the Skeena River estuary to area First Nations cannot be overstated. Lax Kw’alaams is bound by the traditional law of all Tsimshian and up-river communities to protect the fisheries resource – including the salmon and all other species – for future generations. This is a first line of defense in respect to the aboriginal food fishery, a fishery which has sustained coastal and upriver first nations through the millennia.”

This vote is not, however, the end of the story. Shortly after the vote, the British Columbia premier signed a development deal with Pacific NorthWest LNG, a strong signal that the province is forging ahead. The Provincial Government has acknowledged that further consultation with First Nations groups is required.  Four other Tsimshian First Nations groups have been consulted by Pacific NorthWest LNG. Two groups, the Metlakatla and the Kitselas, signed impact benefit agreements in December. Two others, the Kitsumkalum and Gitxaala, have not yet announced their decisions. Though the Lax Kw’alaams have voted against the project at this time, they have not closed their mind to the prospect of reaching an agreement. But, they do have some non-negotiable positions to ensure the protection of their environment and culture.

To proceed the project also requires approval from the Canadian Environmental Assessment Agency (CEAA). The CEAA is expected to issue its decision in the fall. If the project moves forward without the consent of the Lax Kw’alaams and other affected First Nations, there is potential for a long legal battle. The duty to consult with a group asserting aboriginal title is protected under the Canadian Constitution, and there is supportive precedent.

The future of the project thus remains unknown. However, this vote is, in and of itself, remarkable. EarthRights International works with communities around the world who have not had an opportunity to exercise their FPIC, and, as a result, are experiencing the negative environmental and cultural impacts of extractive industry projects. This vote shows the power of the Lax Kw’alaams to come together and assert their rights to ensure the protection of their environment and culture. We hope that consultation continues and that any final decisions ensure the FPIC consent of all groups that will be affected by the proposed project.

For further information see the Lax Kw’alaams Bulletin, and articles by the Globe and Mail, here, here, and here.

Written by Tamara Morgenthau, a Cooperating Attorney in our Washington D.C. office. Tamara is a lawyer licensed to practice in Ontario, Canada. 

Image by Josef Hanus / Shutterstock.com.

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