A proposed change to the Environmental Assessment Act would prevent U.S.-based groups “from being participating Indigenous nations under the EAA.”CHAD HIPOLITO/The Canadian Press
British Columbia intends to block U.S. tribal groups from participating in environmental assessments for projects developed in the province, saying it is working to rewrite the law to codify that change.
At least three U.S.-based groups have claimed the right to shape decision-making in B.C., based on claims that their historical territory includes land that is now inside Canadian borders. One of those groups, the Confederated Tribes of the Colville Reservation, won a landmark 2021 case before the Canadian Supreme Court, which said one of its Washington State-based tribes should be considered aboriginal peoples of Canada.
In the wake of that decision, U.S. tribal entities have sought to intervene in a B.C. port expansion, mining projects, forestry work and the provincial school curriculum.
However, in late January, the province issued a letter stating it intends to limit the influence it gives those outside B.C. A proposed change to the Environmental Assessment Act would prevent U.S.-based groups “from being participating Indigenous nations under the EAA,” says the letter, a copy of which was obtained by The Globe and Mail.
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It was sent to the Southeast Alaska Indigenous Transboundary Commission. The province sent letters to 20 U.S. tribes and more than 65 B.C. First Nations whose territory includes land where U.S. groups have asserted rights.
The province wants to ensure consultations with U.S. tribes “take place outside of the framework established by the Environmental Assessment Act, while continuing to meet constitutional obligations,” the B.C. Environmental Assessment Office said in a statement.
The change would formalize a series of temporary orders made by the province in 2024 and 2025.
For Indigenous groups, consultation is a lesser form of involvement, offering an opening to provide comment on a proposed project but less ability to alter outcomes.
Participating Indigenous nations, by contrast, can influence whether a project is subject to environmental assessment, are able to conduct that assessment on their own and can refuse consent to provincial recommendations on a project.
In B.C., some Indigenous leaders praised the province for formalizing a two-tier system that treats U.S.-based groups differently.
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“This approach is consistent with the Premier’s commitment that First Nations located in B.C. must always be the priority and primary focus of all levels of government,” Chief Clarence Louie and Chief Robert Louie, members of the Chiefs Executive Council of the Syilx Okanagan Nation, said in a statement.
“Consultation with U.S. tribes can and must differ from consultation with Indigenous groups in Canada.”
B.C. says it has a long history of consulting with tribal interests in the United States through agreements with Alaska and Washington State.
The province has also offered more direct consultation with U.S. tribes, but in a manner different from how it works with Indigenous groups inside the province. It says its position is backed by the Supreme Court of Canada, which in its landmark 2021 decision, R. v. Desautel, said “the scope of the Crown’s duty to consult” with groups based outside the country, “and the manner in which it is given effect, may differ.”
The Mining Association of British Columbia, in a statement from president Michael Goehring, said it supports what B.C. is doing, calling it a direction that “is entirely appropriate and reasonable. And most British Columbians and BC First Nations will find it entirely appropriate and reasonable.”
In the U.S., however, tribal groups say B.C. is disregarding the principal finding of the Supreme Court’s decision, that “ ‘aboriginal peoples of Canada’ means the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, and this may include Aboriginal groups that are now outside Canada.”
“They’re ignoring everything that was put in place that said that we should have a right at the table,” said Esther Reese, president of the Southeast Alaska Indigenous Transboundary Commission, or SEITC.
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In some cases, she said, groups in the U.S. stand to see a greater effect from Canadian resource projects than people in Canada. She gave the example of the Eskay Creek mine, which is being redeveloped by Skeena Resources Ltd. in partnership with the Tahltan Nation, which is headquartered in Dease Lake, B.C.
That mine is situated in a watershed that drains across the border into Alaska.
B.C. issued the Eskay project an environmental assessment certificate late last month. In its reasons for that decision, it said appropriate efforts had been made “to mitigate impacts,” while “the duty to consult and accommodate the Alaska Tribes has been adequately discharged.”
But there are no Canadian “First Nations below the Eskay Creek mine,” Ms. Reese said. ”It’s going to be us. We are going to be the ones that feel any impact.”
Without the ability to be a participating Indigenous nation, ”the consultation is not real consultation, because it will not lead to any substantial change,” added SEITC executive director Guy Archibald.
He argued that it is a mistake to see Alaska tribal nations as a proxy for American interests.
”We understand the well-deserved anti-United States sentiment going on in Canada,” Mr. Archibald said.
But “our tribes are independent sovereign governments,” he said. “We are not the U.S. government. And we share a responsibility to steward these waters. We must be allowed to do so.”