LNG exports will impede fishing rights: First Nations

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The Allied Tribes of Lax Kw'alaams are claiming title to Lelu Island and Flora Bank in the Port of Prince Rupert, arguing in a court filing that a proposal to export liquefied natural gas would interfere with aboriginal fishing rights.

Pacific NorthWest LNG, led by Malaysia's state-owned Petronas, is seeking to build an $11.4-billion export terminal on Lelu Island in northwestern British Columbia. The island is located next to Flora Bank, which contains eelgrass vital for nurturing juvenile salmon in the Skeena River estuary.

"The aboriginal rights of the plaintiffs have never been lawfully extinguished," according to the notice of civil claim filed by Lax Kw'alaams Mayor Garry Reece and the nine-community Allied Tribes of Lax Kw'alaams. "The construction and operation of the project would damage important fish habitat on and adjacent to Flora Bank, which would interfere with the plaintiffs' fishing rights."

The defendants in the case in B.C. Supreme Court are the federal and B.C. governments, the Prince Rupert Port Authority and Pacific NorthWest LNG.

The elected Lax Kw'alaams Band Council views Flora Bank as off-limits for development, but has not taken a position yet on whether to rule out Lelu Island as the site for the export terminal.

The aboriginals say they are worried about Pacific NorthWest LNG's plans to construct a suspension bridge and trestle-supported jetty over the northwest flank of Flora Bank, a sandy area that is visible at low tide.

Lelu Island and Flora Bank have been labelled as federal Crown properties by the administrator, the Prince Rupert Port Authority. The court filing, however, argues that members of the Lax Kw'alaams hold fishing rights "and rely on them for their cultural and spiritual identities, and to feed and sustain their families."

Greg McDade, a lawyer who represents the Lax Kw'alaams, submitted that the construction and operation of an LNG terminal "would fundamentally change the nature of the subject lands and thereby interfere with the plaintiffs' aboriginal title."

The plaintiffs are seeking a court declaration to state that the Lax Kw'alaams hold aboriginal title, and also want the Petronas-led consortium to obtain consent from the Allied Tribes before proceeding. B.C. Supreme Court has jurisdiction over aboriginal title.

In voting in May, members of the Lax Kw'alaams declined to provide aboriginal consent by overwhelmingly rejecting Pacific NorthWest LNG's $1-billion cash offer over 40 years. The B.C. government is also willing to transfer to the band 2,200 hectares of Crown land, valued at $108-million, spread over the Prince Rupert harbour area and other property near Lax Kw'alaams.

The B.C. government issued a statement late Friday, in anticipation of the court filing on Monday. "Our view is that negotiation is the best way to reach agreements that work for all parties. The B.C. government, the Lax Kw'alaams First Nation and Pacific NorthWest LNG all share a common goal to increase economic development in the region," said B.C. Natural Gas Development Minister Rich Coleman. "We all agree this can, and must, be done in a way that protects the marine environment and fish habitat."

But in the court filing, the Allied Tribes say their territory includes land and land covered by water situated within its traditional boundaries, so the LNG export proposal amounts to trespassing.

All the industry excitement over B.C. LNG will be for naught if First Nations don't support the industry, warned Merle Alexander, a law firm partner at Gowling Lafleur Henderson LLP, who is an expert in aboriginal resource law.

There are 20 B.C. LNG proposals, though fierce global competition means only three or four stand a chance of launching, industry experts say.