Xat'sull First Nation has filed a Judicial Review with the BC Supreme Court against BC's Ministers' of Mines/Critical Minerals, Environment/Parks; the Deputy Permitting Officer, Major Mines Office and Mount Polley Mining Corporation (MPMC) to raise the height of the dam at the Tailings Storage Facility that so devastated Xat'sull's territory in August of 2014 and that is still harming the Nation's rights, culture and way of life
The provincial decision makers allowed this work to proceed without an environmental assessment which is legally required in the circumstances. In addition to the judicial review, Xat'sull will also seek a court injunction which will be filed in the coming days preventing construction of the dam raise until court proceedings have concluded
The recent decisions authorize the dam to be raised by 4 metres and MPMC has signalled an intent to raise the dam by a further 13 metres in the near future and to expand pits at the mine. Guidance from the Court is needed to ensure the Province of BC abides by its' legal obligations to conduct environmental assessments before this work is authorized
"The decision of the Province to authorize MPMC to raise the height of the dam at its' TSF/Tailings Storage Facility is a serious failure to prevent potential impacts to Xat'sull's Aboriginal rights, reconciliation with Xat'sull after the 2014 disaster and the implementation of UNDRIP", states Kukpi7 (Chief) Rhonda Phillips of the Xat'sull First Nation
Xat'sull is not surprised but extremely disappointed with the Province of BC for approving the dam raise without:
* following the legally required environmental assessment process
* discharging the duty to consult
* seeking to obtain Xat'sull free, prior and informed consent which the Province of BC is obligated to do under its' legal commitments to the Declaration on the Rights of Indigenous Peoples Act
The environmental assessment process is transparent, allows for public participation and asks "bigger picture" questions, such as whether the TSF even should be expanded in the first place. Instead of following that process, the Province of BC authorized the TSF dam raise based on narrow design and engineering considerations under BC's Mines Act
Xat'sull recognizes the need for mining and the Nation's members benefit from the materials that mining provides. We are not opposed to development but we support development that is responsible, sustainable and carried out in partnership with Indigenous Nations - development that respects our rights, our lands, and our future. But as people who have lived in harmony with these lands and waters since time immemorial - Xat'sull must be part of sharing how development happens. Any development must make sure it protects Aboriginal title and rights, the health of the community, and the well-being of key species of salmon, moose and caribou.
"The decision to allow Mount Polley to raise its' TSF dam without seeking to obtain Xat'sull First Nation's consent is nothing short of unconscionable", said Kukpi7 Phillips. "This demonstrates a lack of understanding of the long-term negative impacts of this project to our traditional territory and disrespect for Xat'sull First Nation and its' people
The decisions to approve the dam raise at Mount Polley suggests the Province may no longer be committed to upholding its' legislated commitments to implement the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) under the Declaration on the Rights of Indigenous Peoples (DRIPA). BC is at risk of losing the progress that it's made towards reconciliation
The manner in which the Province of BC has responded to the Mount Polley expansion project application and engaged with Xat'sull - including the EAO's very problematic engagement in which Xat'sull participated in good faith nonetheless - is not consistent with how it engages with other governments, showing a lack of respect for First Nations' as equals
"The Province of BC continues to demonstrate that it is unwilling or unable to responsibly regulate mining in our Territory, with its' past actions and its' recent decision to expedite natural resource projects to stimulate economic growth in response to the current political and economic climate", said Kukpi7 Phillips. "This moment is about more than one mine. It's about the legal and moral obligation to uphold Indigenous rights across BC and beyond. We need to maintain balance in decision making to ensure short term decisions do not have long-term negative consequences for generations to come"
Following the Province of BC's unilateral regulation of resource extraction activities in the Territory - many Xat'sull members' are no longer able to fully or meaningfully exercise their Aboriginal title and rights, as physical disturbances in these areas disrupt essential rituals and seasonal gatherings, eroding Xat'sull's profound connection to the land and their ancestors
The Province of BC has a responsibility under DRIPA to consult and cooperate with Xat'sull in good faith to seek to obtain its' free, prior and informed consent before proceeding further with the expansion project
Xat'sull will continue withholding consent for the Mount Polley Mine expansion until Xat'sull's serious concerns are adequately addressed, and the lawfully-required environmental assessment process is followed. The time is now for BC to live up to its' commitments to DRIPA and meaningful reconciliation with First Nations in BC
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