(Updated at 2 p.m. Monday to include comments from Sinixt spokeswoman Marilyn James)
A B.C. Supreme Court judge has dismissed the Sinixt First Nation’s constitutional challenge against logging in the Slocan Valley.
In his oral ruling Friday, Justice Peter Willcock found the Sinixt “are not a group capable of sufficiently precise definition with respect to their membership,” according to a news release from their lawyer.
The Sinixt petitioned for a judicial review of a timber sale license awarded last year to Sunshine Logging of Kaslo. They said they had a constitutional right to be consulted before B.C. Timber Sales granted the license for Perry Ridge, which is part of their traditional territory.
While the Crown agency said it met its statutory requirements for First Nations consultation, the Sinixt are not officially recognized by the provincial or federal governments. The attorney-general’s ministry successfully argued in court the Sinixt did not have standing to support their claim.
However, Nelson lawyer David Aaron, who represented the Sinixt, said the judge failed to consider historical factors that have affected the band, including the establishment of the international boundary through their territory and subsequent restriction of movement, as well as the Crown’s “failure to provide adequate reserve land and protect tranditional village sites and burial grounds.”
“These are all factors that lead to the historical disenfranchisement of the Sinixt from statutory rights in Canada,” Aaron said in a statement.
“This is the historical context within which the proceedings were advanced on behalf of a collective that lacks legal capacity to sue in its own right.”
Aaron said the Sinixt will consider their appeal options once they’ve reviewed the written judgement.
Sinixt spokeswoman Marilyn James says she was disappointed but not surprised by the ruling.
“Indian people are losing in the courts all the time,” she said. “Why should we be any different?”
The Sinixt held a vigil Saturday morning on the Perry Ridge forest service road. James said she “felt a lot better after going up spending time with the land and people, being thoughtful and praying for that place.”
A protest camp established by the Sinixt and their supporters last fall was removed peacefully after the courts prohibited any work from proceeding until the constitutional question was resolved.
James did not rule out re-establishing the camp, but said they have to review the judgment first.
It’s not clear if or when Sunshine Logging plans to begin logging. The company did not immediately return messages from the Star.
The case was heard in Vancouver over nine days beginning in January with two adjournments.
The Okanagan Nation Alliance and Colville Confederated Tribes sat in on the proceedings but did not actually intervene. Neither group supported the Sinixt’s position.
James says that the Westbank First Nation, which belongs to the Okanagan Alliance, was consulted about the timber license beforehand and commented that it fell within their land claim, but did not raise the Sinixt’s environmental concerns.
“Our views supported the Western toad, the sculpin, bull trout spawning grounds, and heritage sites,” she says. “That’s not driving their interests, but it is driving ours.”
James says despite being touted as a path to First Nations reconciliation, the treaty process allows bands to capitalize on areas they don’t have vested interests in.
She added, however, that she’s pleased with the community support the Sinixt have received.