Tseshaht First Nations Chief Councillor Hugh Braker is pressing the BC government for answers.
Braker issued a letter March 9 to John Rustad, minister of Aboriginal Relations and Reconciliation. The letter comes after a meeting with Rustad where Braker raised two points that required clarification.
“Firstly, I asked you why the province takes the position that it can grant water licenses to water located on reserve without the consent of the First Nation and without consulting them.”
“Secondly, I raised with you the position taken by B.C. Timber Sales that the duty of consultation owed to Tseshaht is low, because Tseshaht is only a “shoreline people” and our title did not extend into the interior of Vancouver Island away from the seashore.”
The water licenses specifically concern McCoy Lake, which 99 per cent of the people involved concur is part of the Tseshaht reserve, said Braker. He said Tseshaht’s use of the lake was through tupaati, hereditary privileges or prerogatives that govern ownership.
Since the 1940s, without the knowledge or consent of Tseshaht, the province has been granting water licenses of McCoy Lake water for private residential home use, livestock and farm irrigation. Tseshaht wants B.C. to cancel those licenses and stop issuing them. It’s up to Tseshaht Nation if they want to issue water licenses from their own resources, Braker said.
The Nation is worried that the lake has been polluted by cattle farming and farm fertilizers, that the lake is filling in and the fish are becoming less abundant. Braker knows there are fish runs on the lake, specifically Dog fish and Spring. He said he’s seen the runs himself and once a number of years ago when the creek was dry he witnessed the remains of a fish weir.
Tseshaht only set up weirs where there were fish, said Braker.
Tseshaht has raised the issue a number of times. Even Fisheries and Oceans Canada knew about Tseshaht concerns, as evidenced by documents that are in Tseshaht’s possession. McCoy Lake is just one of nine specific claims Tsehshat has with the federal government, even though the province claims a right to grant water privileges.
In a Jan. 28 letter from Deputy Minister Tim Sheldan of the Ministry of Forests, Lands and Natural Resources Operations, the province says it’s willing to discuss matters, but “we advise that the province does not share the view that there is basis for immediate cancellation of the water licences. The province takes this position based on its understanding of the history of the reserve creation process, related jurisprudence and their recognition that the province was able to grant water privileges to others for water sources located on reserve lands.”
That claim, Braker said, is “fundamentally wrong,” according to case law and statute.
Braker wants the province to “do the right thing” and avoid a court battle. It’s not a giant claim, said Braker, but Tseshaht has secured the services of a law firm in Vancouver to represent them in this matter.
But, he said “I would really like to avoid a confrontation.”
As for the position B.C. Timber Sales is taking that the duty with Tseshaht is low on the consultation spectrum, because it does not have village sites away from the shoreline, Braker said the province need only look to the Supreme Court of Canada’s Williams decision (Tsilhqot’in) for instruction.
The SCOC wiped out the postage stamp approach the province has taken to Aboriginal title, applying title to wide tracts of territory, not limited to village sites or specific fishing areas.
In Tsilhqot’in, the court determined that a First Nation can claim land title even if the land is used only some of the time. Title includes the right to benefit from the land and the right to use it, enjoy it and profit from it.
Braker asked Rustad if BC Timber Sales, an arm of the provincial government, was following B.C. policy in its approach to Tseshaht, and if it was not, then why is B.C. Timber Sales permitted to apply a discredited policy?
Braker acknowledged that it sometimes takes time for changes in policy to trickle down to the local people. “I appreciate that,” he said. But it has to trickle down.
Cedar is a pillar of Nuu-chah-nulth culture, he said. Throughout the Nuu-chah-nulth territory there are archeological sites, caves, where there is information and materials important to the Nuu-chah-nulth peoples. And when logging gets too close to these sites, the alarm bells start going off, Braker explained.
For Tseshaht, that makes BCTS’ obligation on the spectrum of duty to consult on the high end.
Tseshaht has secured a lawyer at Mandell Pinder in Vancouver on this issue.
