November 20, 2018

Committee on the Elimination of Racial Discrimination (CERD)

Human Rights Treaties Division (HRTD)
Office of the United Nations High Commissioner for Human Rights (OHCHR)
Palais Wilson - 52, rue des Pâquis
CH-1201 Geneva (Switzerland)

UNOG-OHCHR
CH-1211 Geneva 10 (Switzerland)
Via email: cerd@ohchr.org

RE: Canada and BC governments’ failure to implement CERD Recommendations &

elevation to Early Warning Procedures and Urgent Measures
(CERD/C/CAN/CO/21-23)

Dear Mr. Amir, Mr. Kut, and Mr. Marugán:

We write concerning Canada’s failure to respond to critical recommendations on the rights of
Indigenous peoples in British Columbia made during CERD’s August 2017 review of Canada. It
is our view that, given this failure to respond, these cases should be elevated to
consideration under the Early Warning Procedures and Urgent Measures.
The Union of British Columbia Indian Chiefs (UBCIC) is an organization in Canada which
works collectively amongst Indigenous Nations in BC and acts as an advocacy body to provide a
cohesive voice (regionally, nationally and internally) in support of Indigenous Nations and
communities, and to promote and protect each Nation’s exercise of Sovereignty within their
traditional territories.
Last year, CERD called on Canada to report back within one year on the implementation of
recommendations regarding the Site C dam and the Mount Polley mine disaster (20 e & f):
 20. Recalling its general recommendation No. 23 (1997) on the rights of indigenous
peoples and reiterating its previous recommendation (see CERD/C/CAN/CO/19-20, para.
20), the Committee recommends that the State party:
(e) Immediately suspend all permits and approvals for the construction of the Site C dam.
Conduct a full review in collaboration with indigenous peoples of the violations of the
right to free, prior and informed consent, of treaty obligations and of international human
rights law from the building of this dam and identify alternatives to irreversible
destruction of indigenous lands and subsistence, which will be caused by this project;
(f) Publicly release the results of any government studies of the Mount Polley disaster
and the criminal investigation into the disaster, before the statute of limitations for
charges under the relevant acts expires.
The one-year mark has passed, and Canada has not only failed to implement these
recommendations, but has, in the case of the Site C dam, actively worked to perpetuate the harms
caused by the dam.
Regarding Recommendation 20(e), the UBCIC has been deeply engaged in supporting the Treaty
8 First Nations in opposing the devastating Site C dam. UBCIC Resolutions, most recently
UBCIC Resolution 2018-05 “Support for Treaty 8 Litigation and Public Opposition to Site C,”
mandate the UBCIC to do this work.
Last year, the province of British Columbia elected a new provincial government whose leaders
had publicly opposed Site C as a violation of Treaty rights. Despite this, the new provincial
government announced in December 2017 that construction of the Site C dam would continue
despite opposition by First Nations and CERD’s August 2017 call for a halt to the project. As a
result, the West Moberly and Prophet River First Nations have now launched a civil suit on the
basis of Treaty rights violations. As the case is not expected to come before the courts until the
end of 2019, if not longer, the First Nations asked the court for an interim injunction to halt
construction, or at least protect areas of greatest cultural and ecological significance, while the
case is in progress – this request was denied.
We understand that the International Convention on the Elimination of All Forms of Racial
Discrimination applies to the State as a whole, and that federal and provincial governments are
both implicated in the reporting, recommendations, and follow-up. While the UBCIC welcomes
that the federal government of Canada chose not to oppose the injunction, CERD should be
aware that the injunction continues to be opposed by the provincial government of British
Columbia and its corporate entity, BC Hydro. The province of BC can be held accountable for
BC Hydro’s oral statements, and also for the province’s own written submission, which echoes
many of the same arguments made by BC Hydro in Court, some of which are outlined below.
There is an unacceptable and disconcerting gap between BC’s political commitments and
rhetoric concerning reconciliation and Indigenous rights, and the province’s and BC
Hydro’s legal arguments in the current injunction hearings.

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These arguments are consistently diminishing the rights of First Nations and freezing those rights
in the past. This is harmful not only for the Treaty 8 First Nations, but for all First Nations across
British Columbia and Canada. A few examples from the injunction hearing are outlined below
that illustrate how far this Crown corporation’s legal arguments are from the espoused
commitments of the BC government:

• BC Hydro explicitly claimed in court that Treaty 8 was never intended to protect First
Nations' "practical, traditional, cultural, or spiritual connection to any land." This is an
arbitrary, one-sided interpretation of the Treaty that runs contrary to the principles of
Treaty interpretation already recognized by the courts, and contrary to the spirit of
reconciliation.
BC Hydro is asserting, in effect, that the "meaningful right" protected by the Treaty can
be reduced to the simple act of hunting, fishing or trapping devoid of the traditional
knowledge, protocols and oral histories that make these acts so meaningful and essential
to First Nations. This cynical denial of Indigenous peoples' own understanding of their
rights is the basis for BC Hydro's unscrupulous denial of the crucial importance of the
Peace River Valley to Treaty 8 Nations.
BC Hydro actually goes so far as to claim that a right can still be meaningfully protected
even when the practice is disrupted for a generation or longer. This is what BC Hydro is
saying when it claims that fishing rights are "compatible" with the flooding of the Peace
Valley because the people of West Moberly will be able to fish in the reservoir that is
created - something that BC Hydro knows may not be safe or possible.

• In its oral arguments, BC Hydro has also demonstrated disrespect for the wisdom of First
Nations elders and tradition keepers, treating their oral evidence as little more than
hearsay.

• BC Hydro has also repeatedly characterized West Moberly’s concerns about the clearing
of forests as an aesthetic issue, not a rights issue. In response to Justice Milman’s
question about planned clearcutting interfering with the exercise of fishing rights, the BC
Hydro lawyer stated, “Perhaps you have to draw a distinction between aesthetics and
harvesting rights.” Diminishing peoples’ human rights’ as an “aesthetic” concern is
demonstrative of the ongoing discrimination against Indigenous peoples perpetuated by
Canadian governments.
These examples illustrate just how far the Crown’s actions are from the commitments that the
Government has made to the people of BC. UBCIC has called on the government of BC to
publicly denounce these statements that diminish Indigenous rights in an open letter to the BC
Supreme Court, and to apologize formally for the disrespect shown to the Treaty 8 First Nations.
As of the date of this submission, there has been no meaningful response from the provincial
government.

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The injunction hearings outlined that the affected First Nations have been clear that their goal is
protect the Peace Valley and the ability of future generations to exercise their rights. UBCIC is
concerned is that as the province and BC Hydro succeeded in their arguments, and the injunction
was denied, that irreparable harm will be done before the court is able to rule on this crucial
outstanding issue of the impact on Treaty Rights. Furthermore, we anticipate that in the event of
the court concluding that the dam does violate Treaty rights, the province will use any additional
public investment in the construction of the dam as an argument that remedy should be in the
form of compensation and not in the form of protecting the Valley as the First Nations want.
UBCIC firmly believes that the Site C dam is a profound violation of the Treaty
relationship and, as stated your Committee, a violation of the human rights of First
Nations. Consistent with the UN Declaration on the Rights of Indigenous Peoples, the dam
simply should not proceed when free, prior and informed consent has not been given.
BC Hydro has consistently defended itself by claiming that its meetings with First Nations
constitute meaningful consultation. However, BC Hydro's arguments in court demonstrate a
profound disrespect for Indigenous knowledge and an inability to listen to and learn from our
elders. BC Hydro's arguments in court cast doubt on the corporation's ability or intent to engage
in anything resembling meaningful consultation. BC Hydro's actions also clearly illustrate why
government cannot rely on consultation processes controlled by project proponents to protect
First Nations’ rights. We have long insisted that governments must uphold the minimum
standard of free, prior and informed consent as set out in the UN Declaration.
Regarding Recommendation 20(f), four and a half years have passed since the Mount Polley
Mine disaster, and yet since then no fines, no charges, and no penalties have been levelled
against the company at fault. Certainly, no findings of studies or investigations have been made
public, as CERD so strongly recommended. It seems that the company is getting away scot free.
This is unacceptable when the people and environment are directly impacted by this spill.
There can be no lasting reconciliation while Indigenous peoples’ rights are being trampled
upon, diminished, and frozen in the past. There can be no trust in these governments while
the words they say to the public ring false in the court rooms where Crown corporation
lawyers perpetuate neo-colonization.
We are gravely concerned at Canada’s disregard for the CERD recommendations and the rights
of Indigenous peoples in general. We urge you to take this under the deepest consideration, and
we look forward to your response on this pressing concern.
On behalf of the UNION OF BC INDIAN CHIEFS

Grand Chief Stewart Phillip Chief Robert Chamberlin Kukpi7 Judy Wilson
President Vice-President Secretary-Treasurer

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CC: Right Honourable Justin Trudeau, Prime Minister of Canada
Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General, Canada
Honourable John Horgan, Premier of British Columbia
Honourable David Eby, Attorney General of British Columbia
National Chief Perry Bellegarde, Assembly of First Nations
Regional Chief Terry Teegee, BC Assembly of First Nations
First Nations Summit Task Group
Kim Minkyong, Office of the High Commissioner on Human Rights
Chief Roland Willson, West Moberly First Nation
Chief Kirk Tsakoza, Prophet River First Nation
Reidar Mogerman, West Moberly Legal Counsel
Tim Thielmann, West Moberly Legal Counsel

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