Permits for the extractive project in the Garnet Valley were approved in August by ‘B.C.,’ amid rejections from local governments and community groups

First People’s Law Report: IndigiNews – syilx Okanagan leaders are rejecting a proposed gravel pit mine in their homelands, as one expert says the province is violating its own Declaration on the Rights of Indigenous Peoples Act (DRIPA) by moving the project forward.

Permits for the aggregate mine slated for the Garnet Valley were approved by “B.C.” in August, after the project was widely opposed by First Nations, local governments and community groups.

Penticton Indian Band (PIB) — along with the Lower Similkameen Indian Band (LSIB), the District of Summerland, the Penticton Chamber of Commerce, the Regional District of Okanagan-Similkameen, the B.C. Wildlife Federation, and others — have all expressed concerns about the project.

In November 2019, the province passed DRIPA into law. The act establishes the 2007 United Nations Declaration on the Rights of Indigenous Peoples as the province’s framework for reconciliation.

“DRIPA has rules that are laws,” said James Pepper, director of PIB’s natural resources department, in an interview. 

“And they appear to have ignored them all.”

Pepper said the approval in particular violates DRIPA’s Article 26 — which states that “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.”

“Are they being compliant with Article 26 here? Not even close,” said Pepper. “Is that meaningful consultation? Absolutely not.”

‘A significant impact’ on title and rights

With a potential lifespan of 65 years, the mine —  estimated to produce roughly 30,000 tonnes of gravel a year according to filings — has also sparked a public letter-writing campaign demanding the Ministry of Energy, Mines and Low Carbon Innovation reverse its decision.

A gravel pit mine is a type of open pit mine created to extract gravel and sand — materials used by industry for various purposes — from the earth. The process involves clearing the land of natural vegetation and can be disruptive to water sources and wildlife.

“The proposed development and its operation will have a significant impact on the syilx title, rights, interest and economy,” said PIB Chief Greg Gabriel in an Aug. 30 statement.

“Our syilx Elders strongly advise that this area is an important place for Food, Social and Ceremonial activities and the valley is a well-known and important place for ungulates and other important wildlife.”

Other concerns raised by PIB include that the mine’s operations will threaten existing conservation efforts, disrupt cultural practices, impact species-at-risk habitats, and harm the water and ecosystem.

“When we see major developments in that area, we reject them,” said Pepper.

The mine is on three private lots on Garnet Valley Road in syilx Okanagan territory, although the proponents of the mine are based out of “Winnipeg,” according to a provincial filing report.

The gravel pit is planned for a 16-hectare area that’s been described as an environmentally sensitive region because it contains “significant ecosystems, and critical habitat for rare and red-listed wildlife species,” according to the District of Summerland.

‘That’s where all the deer would winter’

But the valley doesn’t just hold environmental significance, Pepper explained. “There’s also a very broad and wide variety of cultural interests there.” The proposed mine is near nʔamtiw̓s, a sacred place where syilx Okanagan people have hunted and harvested roots, berries and medicines for thousands of years.

“The fact that (the mine) is within the vicinity of nʔamtiw̓s, an important and sacred place for the syilx people, has enough merit on its own to put an immediate stop to this,” said LSIB Chief kalʔlùpaɋʹn Keith Crow in a Sept. 4 statement.

PIB Councillor Tim Lezard — whose responsibilities include natural resources, infrastructure and housing — said his family would hunt and spend winters in the Garnet Valley, long before the development of houses, agriculture and tourism sites.

“That’s where all of the deer would winter there,” he said. “There’s less and less of that.”

The roughly 16-kilometre-long valley stretches north of “Summerland” into a critical wildlife corridor near “Peachland.” The area “is some of the most productive, and important, remaining ungulate winter range in the south Okanagan,” Pepper said.

“They want to put in a giant industry on a one-way road, in the heart of an ecologically and culturally sensitive area,” he said. “We pushed back … the whole community pushed back.”

In 1990, the newly opened Highway 97C, or Okanagan Connector, severed the wildlife corridor at its north end, making migration for ungulates such as deer, elk, caribou and moose even more difficult. 

“Caribou used to go back and forth,” Pepper explained. “This highway created some major issues, which makes the Garnet Valley that much more important, because they have to go up and turn around. They can’t cross the highway — not effectively.”

The Garnet Valley is a mixed landscape of open forest, sensitive wetlands, and unique south-facing grasslands, noted the BC Wildlife Federation. Mule deer frequent the area in winter and early spring to feed and give birth.

In addition to houses and agricultural land, the mine site is surrounded by a network of streams and vital riparian areas, with the nearby Eneas Creek having been revitalized as wildlife habitat over the past seven years by Okanagan Similkameen Stewardship and other conservation groups.

Pepper said that the mine’s operations will not only deter deer from the area because of high industrial activity, but it will further disrupt their migratory pathway and eventually remove the habitat altogether — something he described as “death by a thousand cuts.”

“We call it cumulative impact,” he said. 

“There’s all these compounding things that are — they’re not killing an animal, but they’re having impact.”

Mounting cumulative impacts have — and continue to — affect Indigenous title and rights, and how syilx people practice their culture, Lezard said.

“Like James said, every little cut counts.”

‘It’s shocking that they issued a permit’

PIB’s reserve land spans nearly 19,000 hectares, making it the largest reserve in the province, bordering the District of Summerland to the north. 

The area where the mine is located falls under part of PIB’s specific land claim against the federal government to “deal with past wrongs against First Nations”known as a “commonage” claim.

A commonage claim is a type of specific land claim made by First Nations against the Government of Canada regarding the administration of land and other assets. 

While a comprehensive land claim deals with “the unfinished business of treaty-making in Canada,” the Government of Canada says that “a specific claim could involve the failure to provide enough reserve land as promised in a treaty or the improper handling of First Nation money by the federal government in the past.” 

Historically, the unceded syilx Okanagan lands allocated by the government for PIB’s reserve once extended all the way to “Peachland.”

“But over the years, they’ve taken it back and shifted,” said Lezard.

In the late 1800s, white settlers made “a series of oral agreements with syilx groups,” which were later broken as the settlers gradually acquired land in what is now known as the Summerland District, according to the Summerland Museum. 

“(Summerland) was all reserve — that was all traded away,” said Lezard. “The old Indian Agents, they were friends with the ranchers.” 

The government continued to take away more and more PIB land, eventually establishing the towns of “Peachland” and “Summerland” in the early 1900s.

Pepper said the government appropriated lands that were not theirs to take, but PIB is working to claim those lands back.

In December 2011, PIB filed a specific claim with the Minister of Aboriginal and Northern Development Canada. Four years later, “Canada” accepted the specific claim for negotiation. Finally, in 2019, PIB and “Canada” signed a negotiations protocol to come to a mutual agreement to find a solution to this claim.

“Canada has accepted, ‘Yes, you’re right, we were in error,’” said Pepper.

When the numbered company behind the mine first proposed the project last December, Pepper said PIB immediately rejected it. 

When the First Nation received a referral about the project — a Crown consultation process — it continued expressing its disapproval.

“They want to use some resources, so they give you 10 to 30 days to respond to the letter that they give to you,” Lezard said. “Everytime they do a referral, your rights need to be addressed. 

“This is all of our territory.”

Pepper said the province “completely ignored” PIB’s rejection of the mine, instead issuing the permit “against the will of all of the local residents.”

“There’s more than enough aggregates in the south Okanagan,” he said, noting that PIB already has their own aggregate site. 

“It’s completely unnecessary from a resource perspective.”

But Derek Holmes of the Langley-based Holmes Mining Consultants, which is the agency representing the proponents of the Garnet Valley gravel mine, told IndigiNews that the south Okanagan “absolutely does” need another aggregate mine.

“It’s a non-renewable resource. They’re finite, and they take a long time to permit,” said Holmes.

“You have to start early, and people have to keep going. This will not be the last one in the south Okanagan.”

The Ministry of Energy, Mines and Low Carbon Innovation said in an email the proposed mine “went through a rigorous technical review process, as well as a comprehensive consultation process with First Nations and local communities” before being approved.

“Perspectives shared by First Nations during consultation were reviewed and considered in the decision,” a ministry spokesperson added. “All comments and concerns received from the public were also reviewed and considered. Permit conditions were crafted to mitigate the concerns and minimize risks.”

But Pepper said he doesn’t believe that the government practised its due diligence to scrutinize the mine’s potential environmental and cultural impacts.

“There’s no way they considered everything, including the PIB cultural concerns,” he said. “It’s shocking that they issued a permit.”

PIB has now inquired about how the province actually came to its decision, Lezard and Pepper said.

Pepper accused the government of “ignoring their own duties towards reconciliation and restitution,” and instead “plowing ahead” with a project that would only offer “short-term economic gains.”

PIB wrote to the ministry officer who approved the project, outlining its reasons why the government should not proceed, Pepper said. 

He said he’s also spoken with concerned residents in “Summerland” shocked that their letters to the government didn’t stop the mine being greenlit.

“I’m like, ‘Well, this is what it’s like,’” he said. “This is how it is — it’s sad.”

Holmes said he hasn’t spoken to PIB throughout the process, but noted that the agency has “addressed archaeological concerns on-site.”

“It’s private property,” said Holmes.

“(PIB) may not want it for other reasons, other than that. I don’t know. We would be a competitor to them in the marketplace.”

But PIB isn’t trying to stop other developments in the Garnet Valley to protect their revenue, Pepper said. 

“(PIB’s) trying to save the plants, animals and water, because there’s hardly anything left,” he said. 

“You can’t have unlimited growth, and not expect there to be issues.”

‘The decision was made rashly’

Although no major excavation work has been conducted at the mine site yet, District of Summerland chief administrative officer Graham Statt said there’s “absolutely nothing preventing them” from starting work on the controversial gravel pit.

Holmes confirmed that as of Oct. 22, no excavations have taken place at the site.

“We do understand that this fall, they might begin construction on the access road into the mine site,” Statt told IndigiNews.

On Aug. 23, the district’s mayor said “the decision was made rashly,” in a letter to the mines ministry. 

Statt said district concerns about the mine include its off-site impacts such as public safety, noise, dust, nuisance and impacts to road infrastructure. 

“It’s obvious that they haven’t considered any cumulative effects,” he said. “The only one that’s not considering cumulative effects of the development is the province — at least that’s what appears to us.”

While he understood the community’s initial concerns during the application process, Holmes said that he was surprised that the public’s attitude towards the mine did not shift after the permit was approved.

“We already went through a public consultation process, and answered everybody’s questions,” said Holmes.

Numerous signs rejecting the mine have been put up along Garnet Valley Road by the Concerned Citizens of the Garnet Valley.

The Garnet Valley Agri-Tourism Association is another local group leading a campaign to stop the project from proceeding. 

Local winery owner Steve Lornie, a member of the association, said it is applying in court for a judicial review of the province’s decision-making process before approving the mine — so a judge can examine whether the approval was “done properly, whether anything was missed, whether our concerns were addressed,” Lornie said in an interview with IndigiNews.

One of the major worries amongst the community, Lornie said, is the impact that the mine’s heavy trucks and machinery will have on the safety and condition of the winding Garnet Valley Road, which is also used by bikers and pedestrians.

“It’ll get pounded to bits and pieces with heavy truck traffic. We waited a long time to get it paved,” he said.

“It’s also very narrow in places …  In places, there’s no shoulder. And yet, if you have trucks going both ways, you’re going to have a disaster.”

But Holmes said that as long as truckers follow the rules, “there shouldn’t be any problems.”

“As for travelling on public roads, people do it all the time,” he said.

Lornie believes the legal effort will be successful in shutting down the project, because “the process was not followed properly.”

“Our concerns — which were many and are serious concerns — were either not addressed or they were improperly addressed,” 

But Statt said the probability the province walks back on its approval “is extremely low.”

“I think that they would say that they are making a decision … based on the need for broader gravel demand, now and into the future,” he said.

Statt added he would not be surprised if the matter escalates into civil disobedience, given the amount of outrage in the community.

“We have told the minister that when we met,” he said. “I think it could eventuate into those kinds of activities.” 

Within the PIB community, Pepper said there have been meetings of Elders and land defenders who say they’re “ready to take action” if the province does not overturn its decision.

Pepper believes the province “made a mistake” — but one that is not too late to fix. 

“I know it’s hard to admit that, but they’re going to have to find the right way to acknowledge their error and withdraw their approval for this,” he said. “If they are unwilling to do that, this is not the end. PIB is not alone in this.”

Author

AARON HEMENS, LOCAL JOURNALISM INITIATIVE REPORTER

Aaron Hemens is an award-winning photographer, journalist and visitor in unceded syilx Okanagan territory. He is Filipino on his mom’s side, and has both French and British roots on his dad’s. As a settler, he is committed to learning and unlearning in his role as Storyteller for the Okanagan region, and to accurately and respectfully tell stories of Indigenous Peoples throughout the area. Aaron’s work is supported in part with funding from the Local Journalism Initiative in partnership with The Discourse and APTN.