The Law Courts building, home to the B.C. Supreme Court and the Court of Appeal, is seen in Vancouver in November, 2023. Decisions in the B.C. Supreme Court and the B.C. Court of Appeal have upheld the right of the Sinixt to participate in a judicial review of the Record Ridge magnesium project.DARRYL DYCK/The Canadian Press
Courts in British Columbia have twice upheld the right of a U.S.-based Indigenous group to join legal proceedings against a magnesium mine that the province had authorized to begin construction near Rossland, B.C., this month.
The Record Ridge magnesium project, backed by Calgary-based W.H.Y. Resources Ltd., has been under development for two decades. The company has co-operated closely with B.C.’s influential Osoyoos Indian Band, on whose territory the project lies.
But that territory is also claimed by the Sinixt, a group under the Washington state-based Confederated Tribes of the Colville Reservation that won status as an Aboriginal People of Canada in the landmark 2021 Canadian Supreme Court decision. That decision, known as R. v. Desautel, was based on the Sinixt’s historical use of lands north of the 49th parallel.
Decisions in the Supreme Court of B.C. and the B.C. Court of Appeal have now upheld the Sinixt right to participate in a judicial review of the magnesium mine. That tribe is working alongside an advocacy group from Rossland that has raised alarm about the proposed mine’s risk to the environment, local air quality and tourism.
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The Sinixt want a formal environmental assessment of the mine – which could take years to complete – and succeeded last month in securing a temporary injunction against its construction.
“We should be able to be part of the judicial review when it comes to environmental impacts and assessment of our lands, water and resources,” said Jarred-Michael Erickson, who chairs the Colville Tribal Business Council. It’s not yet clear “if we’re completely going to block it,” he said.
But, he added: “We do have a moratorium on mining on our traditional territories and that includes north of the border.”
The Sinixt have become “allies” of the Save Record Ridge Action Committee, said Ben Isitt, a lawyer for the group, which has worked alongside the tribe in legal proceedings against the mine and has the backing of Tourism Rossland and RED Mountain, a ski resort.
The Record Ridge deposit is located seven kilometres from Rossland, a 19th-century gold rush town in southern B.C. that is now known for its outdoor pursuits in the Kootenay mountains.
“The economy of Rossland is severely threatened by the mine project,” Mr. Isitt argued. But while residents have concerns about the potential damage to air and water quality, the Sinixt can draw on the additional weight of Indigenous status to raise concern about environmental issues.
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Corporate advocates, by contrast, liken the proposed open-pit mine at Record Ridge to a gravel quarry that, they say, will produce a lightweight metal valuable in the green economy.
The rights asserted in Canada by U.S. tribal groups have angered Indigenous and political leaders in B.C., where the province has promised legislative changes to explicitly exclude U.S. tribes from formal participating nation status in environmental assessments.
In an affidavit filed earlier this month as part of the W.H.Y. Resources case, Osoyoos Indian Band Chief Clarence Louie wrote that his band does not accept that Colville tribes “or any other U.S.-based tribe has any right to be consulted in respect of matters which impact the Nation’s Territory on the Canadian side of the U.S.-Canada border.”
The Osoyoos conducted its own review of the W.H.Y. Resources project and has corporate interests in its construction.
The Desautel decision confers a right for U.S.-based Sinixt members to hunt on traditional lands in Canada but not to assert land claim-style rights, argued Joan Young, a McMillan LLP lawyer who acts for W.H.Y. Resources.
“This is a much more narrow victory than they would like to assert,” she said.
In Canada, there has been “all this talk about reconciliation and wanting to involve Indigenous groups and having them drive their own economic agenda,” she said. At Record Ridge, “we actually have a project that does that with their support – and we have a U.S. tribe coming and opposing it. That’s a problem.”