School of Resource and Environmental Management, Simon Fraser University, Burnaby, BC, Canada
* E-mail: murray_rutherford@sfu.ca
On 23 July 2001, four members of the Indigenous Secwepemc Nation were arrested for occupying the ‘Skwelkwek’welt Protection Centre’, a protest camp established by the Secwepemc at Sun Peaks Ski Resort in south-central British Columbia (BC) (British Columbia v. Billy, Sauls, Manuel Jr., and Willard, 2003). Sun Peaks Resort Corporation had obtained approval from the BC provincial government to expand an existing ski area known as Tod Mountain into a major all-season destination resort. The Secwepemc protestors challenged the expansion of the resort, claiming that not only was it within their traditional territory, but that it was also within an area surveyed in 1862 by the British colonial government as a ‘reserve’ for the Neskonlith peoples (the Neskonlith are one of 17 bands of the Secwepemc Nation) (St. Pierre, n.d.). According to a brochure issued by the Skwelkwek’welt Protection Centre and the Neskonlith Band:
With ongoing urban and rural encroachment, Skwelkwek’welt is one of the last places in our territory where we can still hunt for food, gather medicines and continue to practice other Secwepemc cultural traditions. This area is particularly important for our children and youth who have been continually learning, practicing and returning to many of our Secwepemc cultural practices, many of which are dependent on our access to and use of our land.
(St. Pierre, n.d., p. 1)
The arrests in 2001 at Sun Peaks did not resolve the dispute, and over the ensuing decade there were further arrests for occupation of the protest camp, blockades of the road to the ski area and conflicts between Indigenous and non-Indigenous people at the resort village (Albinati, 2017). Despite the protests, the expansion of Sun Peaks Resort proceeded.
The conflicts at Sun Peaks are not unique in recent BC history. In Melvin Creek Valley, a remote alpine region north-east of Whistler, members of the St’át’imc Nation established a camp in 2000 to protect their territory and stop a proposed new four-season mountain tourism development called Melvin Creek/Cayoosh Mountain Resort. The proposed resort would have included 14 ski lifts and more than 14,000 bed units (Cole, 2012). The St’át’imc also set up an information blockade that temporarily closed a local highway (CBC News, 2000). Despite this opposition, the BC provincial government issued a Project Approval Certificate for the resort. Five years later, however, the provincial government issued an order prohibiting construction, to allow time for the province to fulfil its legal obligation to consult with the St’át’imc. That order is still in place and the resort has not been built. As recently as 2012, the camp established by the St’át’imc to protect the valley remained in place and was occupied (Cole, 2012).
At Apex Mountain near Penticton, BC, the Penticton Indian Band and the Lower and Upper Similkameen Bands blockaded the main access roads to the Apex Mountain Ski Resort for more than a month in 1994, contesting land ownership and protesting against a CA$20 million expansion programme being undertaken at the resort. The developer was unable to obtain the international financing that it had arranged for the resort expansion, and subsequently went into receivership and the resort was sold. The receiver unsuccessfully sued the province, claiming that the developer’s losses arose from the blockaded road and the government’s failure to deal quickly with the blockade (Apex Mountain Resort Ltd. et al. v. HMTQ, 2000).
In the Purcell Mountains of south-eastern BC, at the proposed location of the Jumbo Glacier Resort, the Ktunaxa First Nation issued a ‘Qat’Muk Declaration’ in 2010 stating that Jumbo Valley is the home of the Grizzly Bear Spirit, and proclaiming a refuge area ‘consisting of the upper part of the Jumbo valley’ and a buffer area ‘consisting of the remainder of the Jumbo watershed … so that the Grizzly Bear Spirit, as well as grizzly bears, can thrive within and around Qat’muk’ (Ktunaxa Nation, 2010). When the BC government approved the proposed resort, the Ktunaxa petitioned to the Canadian courts to overturn the approval on the grounds that the government had not met its duty to consult and accommodate the Ktunaxa, and that the construction of the resort would violate the constitutionally protected religious rights of the Ktunaxa people (see Owens and Rutherford, Chapter 32 of the present volume, for a detailed discussion of the conflict over the Jumbo Glacier Resort).
Such conflicts between Indigenous people and those who wish to develop or exploit natural resources are taking place in many areas of the world, as Indigenous people assert their rights and ownership in the face of development pressures. The issues for winter resorts are perhaps less widely publicized than those for industrial developments such as logging, mining and dam building, but examples involving winter tourism can be found in places as far removed from BC as New Zealand, where there are mountains sacred to the Māori people (Ruru, 2004), or the Australian Alps, which have been occupied by Aboriginal people for millennia (Walker, n.d.), or the Patagonian resort city of Bariloche in Argentina, where the Mapuche people have ancestral lands and rights (Renaud and Guyot, 2010), or the mountain peaks in Idre, Sweden, where Sami people carry on traditional reindeer herding practices (Engström and Boluk, 2012).
In this chapter I discuss the Indigenous rights of First Nations people in BC, their efforts to assert those rights as they plan for, manage and use their traditional territories, and the implications for winter resort development. Although the provisions of the Canadian constitution that specifically support claims of ‘Aboriginal’ rights and title (Indigenous rights) are unique to this country, international principles of Indigenous rights, including the right of free, prior and informed consent, are universal.
The roots of modern conflicts between First Nations and winter resorts in BC can be traced back to European colonization of what is now the province of BC in the 1800s, and the accompanying forced displacement of Indigenous people, along with the denial or restriction of their rights to enjoy and use their territories as they had in the past. Before discussing this colonial history and the evolution of the recognition of Indigenous rights in the Canadian legal system, I begin with two quotes from First Nations leadership groups in BC describing their perspectives on Indigenous rights and the appropriate relationship between First Nations and the Canadian federal and provincial governments. The first quote comes from an ‘Aboriginal Title and Rights Position Paper’ issued in 1985 by the Union of British Columbia Indian Chiefs (a society formed by leaders of First Nations in BC):
The sovereignty of our Nations comes from the Great Spirit. It is not granted nor subject to the approval of any other Nation. As First Nations we have the sovereign right to jurisdictional rule within our traditional Territories. Our lands are a sacred gift. The land is provided for the continued use, benefit and enjoyment of our people, and it is our ultimate obligation to the Great Spirit to care for and protect it.
....
Aboriginal Title and Rights means we as Indian people hold Title and have the right to maintain our sacred connection to Mother Earth by governing our territories through our own forms of Indian Government. Our Nations have a natural and rightful place within the family of Nations of the World. Our political, legal, social and economic systems developed in accordance with the laws of the Creator since time immemorial and continue to this day.
Our power to govern rests with the people and, like our Aboriginal Title and Rights, it comes from within the people and cannot be taken away.
(UBCIC, 1985)
The second quote comes from a 2014 meeting of the BC First Nations Leadership Council and First Nations Leaders, at which they identified four fundamental principles to govern the relationship between Canadian governments and First Nations in BC:
1. Acknowledgement that all our relationships are based on recognition and implementation of the existence of indigenous peoples inherent title and rights, and pre-confederation, historic and modern treaties, throughout British Columbia.
2. Acknowledgement that indigenous systems of governance and laws are essential to the regulation of lands and resources throughout British Columbia.
3. Acknowledgement of the mutual responsibility that all of our government systems shall shift to relationships, negotiations and agreements based on recognition.
4. We immediately must move to consent based decision-making and title based fiscal relations, including revenue sharing, in our relationships, negotiations and agreements.
(First Nations Summit, 2015, p. 1)
Indigenous people lived in the area now known as Canada for thousands of years before European explorers and settlers arrived. As with other Indigenous societies in the world, Indigenous people in Canada developed close relationships with the living and non-living environment, and their cultures and communities included self-governance institutions that cultivated and managed those relationships. The first European explorers reached Vancouver Island and the Pacific Coast in the late 1700s. Early explorers and the settlers that followed them introduced smallpox and other diseases that decimated the populations of local First Nations communities. Colonial laws and government were imposed upon the survivors. The colonial and succeeding Canadian governments also forcibly displaced First Nations people from their lands and territories onto relatively small ‘Indian Reserves’, freeing up the rest of the land base for settlers and resource development. For most of what is now the province of BC, this displacement took place without treaties with the affected First Nations.
In 1866 the British colonies of Vancouver Island and British Columbia merged to form a new Colony of British Columbia, and in 1871 that new colony joined the confederation of Canada, becoming Canada’s westernmost province. Canada is a federal state, with a constitution that allocates distinct, although not always unambiguous, jurisdictional powers to the federal government and the provincial governments. The federal government was allocated authority over ‘Indians, and Lands reserved for the Indians’ (Constitution Act, 1967, s. 91(24)), but other sections of the constitution gave the provincial governments broad powers over natural resources and lands owned by the provinces (Muldoon et al., 2015).
Under the terms of confederation, the province of BC retained ownership of most of the land previously held by the British colonies that had merged to form BC. As a result, more than 90% of the current land area of BC is controlled and managed by the province as provincial ‘Crown Land’ (BC, n.d.a). Most of this land is claimed by First Nations as unceded traditional territory (areas they occupied, governed or used in the past, and sometimes currently). However, BC has granted resource tenures to these lands to non-First Nation settlers, their descendants and subsequent immigrants, allowing resource extraction, tourism development and other uses. The province has also granted outright ownership of lands to private individuals or corporations.
First Nations in BC have long claimed rights to the lands from which they were displaced, and have contested Crown ownership and grants of tenure to these lands. The provincial and federal governments paid little attention to these claims until the Supreme Court of Canada issued a landmark decision in 1973, in a lawsuit commenced by Nisga’a chief Frank Calder and other Nisga’a elders. The Calder lawsuit asked the court for a declaration that the Nisga’a held Aboriginal title to their ‘ancient tribal territory’ and that the title had never been extinguished (Calder et al. v. Attorney-General of British Columbia, 1973). The lawsuit was partially successful, in that the Supreme Court ruled that Aboriginal title did exist in Canada prior to colonization, but the judges were evenly divided on the question of whether Nisga’a title had been extinguished by colonial laws and the confederation of Canada as a nation.
In 1982, 9 years after the Calder decision, a new provision was added to the Canadian constitution that specifically recognized and affirmed ‘existing’ Aboriginal rights (Constitution Act, 1982, s. 35). Since that amendment, the success of First Nations in pursuing claims of Aboriginal rights and title has improved dramatically. The constitutional amendment opened the door for the courts to revisit the question of Aboriginal rights and to define the nature and extent of those rights.
The modern era of Indigenous rights in Canada began with the ‘patriation’ of the Canadian constitution from Britain in 1982. Until that time, Canada’s constitution was the British North America Act, 1867 (subsequently renamed the Constitution Act, 1967), an Act of the British Parliament that joined several British colonies together in 1867 to form the Dominion of Canada. More than 100 years later, in 1982, at the request of the Canadian government, the British Parliament passed legislation that formally transferred to Canada the power to control and amend its own constitution. At the same time, several new provisions were added to the constitution, including a new section concerning the rights of Aboriginal peoples:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.
(Constitution Act, 1982)
The meaning of the term ‘Aboriginal peoples’ is defined in s. 35(2) as ‘the Indian, Inuit and Métis peoples of Canada’. However, it was left to the Canadian courts to interpret the meaning of ‘existing aboriginal and treaty rights’ and to determine the legal implications of this constitutional recognition and affirmation of rights. Many of the subsequent court cases that have clarified the meaning of section 35 originated with disputes and lawsuits in BC, because unlike much of the rest of Canada, only a small portion of BC is covered by treaties with First Nations.
The first major legal case to consider s. 35 of the Constitution Act, 1982 was R. v. Sparrow (1990). In that case, the Supreme Court of Canada ruled that a First Nations fisherman was not bound by Canadian legal restrictions on the length of fishing nets because he had an Aboriginal right to fish that had existed since before contact with settlers, and that right continued to the present day. That right was recognized and affirmed by s.35 of the Constitution Act, 1982. The judges in the Sparrow case explained that the Canadian government has a fiduciary (or ‘trust’) responsibility to Aboriginal people that requires the government to act honourably and in good faith. The nature and extent of this ‘honour of the Crown’ and the associated fiduciary responsibilities described in the Sparrow case were clarified and expanded upon over the ensuing three decades in a series of judicial decisions involving Aboriginal fishing rights, hunting rights and title to lands.
To briefly summarize the main principles outlined in these cases, Aboriginal rights exist in Canada because Aboriginal people were exercising these rights before contact with colonial settlers. Aboriginal title is a particular form of Aboriginal right that arises from historical occupation of lands and the exclusion of others from using those lands. Canadian governments have the authority to infringe on Aboriginal rights, including Aboriginal title, but only when the infringement is for a legitimate and compelling government objective such as environmental protection or, in some circumstances, economic development. In addition, before making any decision that may infringe on Aboriginal rights, the government must consult with potentially affected Aboriginal people, and may be required to provide appropriate ‘accommodation’ to compensate for any infringement. The degree of consultation and accommodation that is required varies with the nature and strength of the asserted Aboriginal right and the degree of infringement. The legal principles described above were articulated by the Supreme Court of Canada in the cases of R. v. Sparrow (1990), R. v. Gladstone (1996), R. v. Van der Peet (1996) and Delgamuukw v. British Columbia (1997). In 2014, the Supreme Court extended this line of reasoning by declaring that the Tsilhqot’in people have Aboriginal title to a specific portion of their traditional territory (Tsilhqot’in Nation v. British Columbia, 2014).
The Canadian court cases interpreting s. 35 of the Constitution Act, 1982 and defining the nature of Aboriginal rights in Canada were decided in the context of evolving international norms concerning the rights of Indigenous people. Together, domestic court cases and international norms are pushing Canadian federal and provincial governments to adopt new approaches and policies in their interactions with First Nations. Internationally, although Canada initially opposed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) when it was adopted in 2007, the country subsequently changed its position and became a supporter of the declaration (United Nations – Indigenous Peoples, n.d.). The Canadian House of Commons has now passed a bill that would require the federal government to ensure that the laws of Canada are ‘consistent’ with UNDRIP. That bill is currently under consideration by the Senate (CBC News, 2018a).
Many of the articles of UNDRIP are relevant to the issues discussed in this chapter, but several stand out:
Article 10 – Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Article 19: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Article 26:
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Article 32:
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
(United Nations, 2007, Article 10, p. 5; Article 18, p. 6; Article 19, p. 6; Article 26, p. 8; Article 32, p. 9)
In 2017 the Canadian federal government issued a set of ten ‘Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples’ (Department of Justice Canada, 2018) The preamble to these principles declares that they are ‘rooted in section 35’ and ‘guided by’ UNDRIP (Department of Justice Canada, 2018, p. 3). Three of the principles are particularly salient for the discussion in this chapter:
Principle 6: The Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources.
Principle 7: The Government of Canada recognizes that respecting and implementing rights is essential and that any infringement of section 35 rights must by law meet a high threshold of justification which includes Indigenous perspectives and satisfies the Crown’s fiduciary obligations.
Principle 8: The Government of Canada recognizes that reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous nations, that promotes a mutually supportive climate for economic partnership and resource development.
(Department of Justice Canada, 2018, Principle 6, p. 12; Principle 7, p. 14; Principle 8, p. 15)
In May 2018 the BC provincial government issued its own ‘Draft Principles that Guide the Province of British Columbia’s Relationship with Indigenous Peoples’ (BC, n.d.b). The provincial principles are almost identical to the federal principles, with minor modifications to reflect the provincial context and the role of the provincial government rather than the federal government.
Through direct action, court decisions, negotiations with the federal and provincial governments, and government-to-government agreements such as treaties and protocols, First Nations in BC are attaining greater control over their traditional territories. They are also developing comprehensive and specific land use plans for their lands, including federally designated ‘reserves’, and the much larger territories that First Nations occupied and used before contact with Europeans. Land use planning on First Nation reserves is authorized by the federal Indian Act and the First Nations Land Management Act. The latter legislation enables a First Nation to institute a land management regime for a reserve by developing and adopting a land code that includes rules and procedures for use and occupancy as well as rules and procedures for dealing with revenues from natural resources. Although it may be unlikely that areas on reserves in BC would be considered for winter resort development, it is possible that a First Nation could allocate particular sites on a reserve for hotels, housing or other facilities to support winter tourism.
The authority for First Nations to develop more comprehensive land use plans for their traditional territories comes from inherent Aboriginal rights and title, and from treaties and other government-to-government agreements. Many First Nations in BC have developed such land use plans. For example, in 2006 the Líl’wat Nation of the St’át’imc people (whose members established the protection camp in the Melvin Creek Valley discussed in the introduction to this chapter) issued a ‘Vision and Plan for the Land and Resources of Líl’wat Nation Traditional Territory’ (Líl’wat Nation, 2006). The plan ‘focuses on the land and waters of the Traditional Territory at a strategic level, and provides high-level land allocation and resource management direction’ (p. 9). The plan begins with a strong declaration of Líl’wat authority:
The Líl’wat Nation has aboriginal title to, and aboriginal rights throughout, our Traditional Territory, our T’micw. We have never ceded, surrendered or abandoned the rights to our Traditional Territory. Similarly, our aboriginal rights to this Traditional Territory have not been extinguished. As is amply illustrated through the archaeological, ethnographic, and oral history records on the land, we can conclusively demonstrate our aboriginal rights and title interests throughout the area.
(Líl’wat Nation, 2006, p. 12)
Six land use zones are established under the Líl’wat plan: ‘Líl’wat Nt’ákmen (Our Way) Areas, Líl’wat Collaborative Management Areas, Líl’wat Cultural Education Areas, Líl’wat Stewardship Areas, Líl’wat Conditional Economic Development Areas, and Líl’wat Managed Resource Use Areas’ (Líl’wat Nation, 2006, pp. 56–57). Among the defined potential uses are ‘Low-impact tourism and recreation’ and ‘Intensive tourism and recreation’. The plan and the accompanying zoning map specify where on the landscape these uses may be permitted and where they will be prohibited.
In addition to and in coordination with such broad land use planning, First Nations in BC have also established specific protected areas in their territories. The ‘Qat’Muk Declaration’ of the Ktunaxa Nation, establishing a refuge area in the Jumbo Valley and a buffer area around that refuge, is an example of a protected area unilaterally declared by a First Nation. Other examples include ‘tribal parks’ such as those declared by the Tsilhqot’in Nations and the Tla-oh-qui-aht Nation (Groenewoud, 2018). These protected areas would fit within the International Union for Conservation of Nature’s (IUCN) definition of Indigenous Community and Conserved Areas: ‘natural and/or modified ecosystems containing significant biodiversity values, ecological services and cultural values, voluntarily conserved by Indigenous peoples and local communities, both sedentary and mobile, through customary laws or other effective means’ (IUCN, 2010). The Indigenous Circle of Experts in Canada uses the term ‘Indigenous Protected and Conserved Areas’ and defines these areas as places where ‘Indigenous governments have the primary role in protecting and conserving ecosystems through Indigenous laws, governance and knowledge systems’ (ICE, 2018, p. 35). First Nations have also joined with federal and provincial parks agencies in co-management arrangements for protected areas in their traditional territories. One important type of co-managed protected area in BC is the ‘Conservancy’ designation that was added to the BC Park Act in 2006. Conservancies ‘are intended not only to achieve conservation goals, but also to accommodate social, ceremonial, and cultural uses of First Nations, and sustainable small-scale resource development’ (Stronghill et al., 2015, p. 40).
The preceding discussion makes it clear that any attempt to develop a winter resort in BC without the free, prior and informed consent of potentially affected First Nations would be unjust and unlikely to succeed. How Canadian federal and provincial governments will navigate the distance between the Canadian legal doctrine of ‘justified infringement’ and the international principle of ‘free, prior and informed consent’ remains to be seen. But several lessons can be drawn from the experiences of winter resorts and First Nations in BC and the evolution of Canadian law concerning Aboriginal rights and title discussed in this chapter. In outlining these lessons, I use the Canadian term ‘First Nations’, but the lessons are relevant for other settings in the world where non-Indigenous developers of winter resorts interact with Indigenous people.
First, developers should avoid locating proposed winter resorts in areas that are of cultural or environmental importance to First Nations. Avoidance is the preferred mitigation strategy in environmental impact assessment, and the logic applies here as well. This recommendation may seem simplistic and obvious, but the historical record of proposals and projects in BC and elsewhere in the world shows that it is a lesson that developers have been slow to learn. To be fair, sometimes information about the locations of sacred or otherwise important Indigenous sites may not be disclosed to the public and may be known only by Elders or specific knowledge keepers. However, the comprehensive land use plans that First Nations in BC have prepared for their traditional territories typically indicate broad zones or areas where particular types of development and land use may be acceptable or not acceptable. More detailed information may become available with early consultation with the affected First Nation(s).
The second lesson flows from the first: developers should determine which Indigenous people claim rights or territories in the area in which they are considering a project and should contact them at the beginning of the project development process, rather than after initial plans have been formulated. Although First Nations in BC normally receive ‘referral notices’ from government staff when the government begins to consider an application for approval of a project, the developer should engage with First Nations long before this point. Under Canadian law the ultimate obligation is on the provincial and federal governments to consult and accommodate Aboriginal people before making any decision that may infringe on their rights, but non-governmental proponents should institute their own consultation and collaboration processes before applying for governmental approvals. By doing so they may identify ways to avoid or alleviate the concerns of First Nations, or to provide benefits and compensation for impacts that cannot be avoided but that might be mitigated. Early consultation and discussions may also reveal opportunities for partnerships, joint ventures and other forms of collaboration. Some First Nations may wish to develop winter resort opportunities on their own, but they may still call on the non-Indigenous tourism industry for expertise, investment and other support.
Often, consultations lead to impact benefit agreements between developers and First Nations. For First Nations, potential benefits may include direct monetary payments, jobs and job training, transfers of land, dedicated business opportunities associated with the development, and construction of community facilities and infrastructure. For developers, there are potential benefits beyond simply obtaining consent, including the opportunity to train and work with a local and expert workforce and the possibility of jointly developing and offering cultural tourism products. Several sets of ‘best practices’ for impact benefit agreements have been published based on the wide body of experience in BC and elsewhere (Cascadden, 2018).
The recently approved Valemount Glacier Destination Resort in the traditional territory of the Simpcw First Nation in eastern BC, near Jasper National Park, provides an interesting contrast to the story of the struggle over the Jumbo Glacier Resort mentioned above and discussed in Chapter 32. For the Valemount project, the developer contacted and began discussions with representatives of the Simpcw Nation soon after the site was first suggested for a resort (Oberti Resort Design and Pheidias Group, 2016). These discussions eventually led to a Memorandum of Understanding and an Impact and Benefits Agreement. The Simpkw will receive revenues from the resort and property within the resort village (BC, 2017; Matthews, 2017). The Master Plan for the resort includes the construction and operation of an interpretive centre devoted to the Simpkw in a prominent location (Oberti Resort Design and Pheidias Group, 2016). In addition, as part of the accommodation for the Valemount Resort development, in 2018 the province transferred Crown land to the Simpkw in another part of their traditional territory (CBC News, 2018b). The transferred land ‘includes a historical village site on the banks of the Fraser River, as well as several hunting and fishing camps’ (CBC News, 2018b).
As a final lesson, it is imperative that governments and resort developers deal with past and ongoing infringements by existing winter resorts on the rights of First Nations. Article 28 of UNDRIP clearly sets out the rights and responsibilities:
Article 28: 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
(United Nations, 2007, p. 8)
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