Infringement of Aboriginal Title from Shell Canada in the Klappan Sacred Headwaters

Posted by admin on Feb 23rd, 2005

February 23, 2005

Via facsimile and post-403.691.3997
Clive Mather, President & CEO Shell Canada
Shell Canada Limited
P.O. Box 100 Station M
Calgary, Alberta
T2P 2H5

Dear Mr. Mather:

Re: Infringement of Aboriginal Title from Shell Canada coalbed methane operations in the Klappan (Tl’abane) Sacred Headwaters

I am writing to bring your attention to a very serious matter, your company’s infringement of our Aboriginal Title and Rights resulting from your ongoing exploration of drilling for coalbed methane in the Klappan-Groundhog coalfield underlying the Tl’abane Sacred Headwaters which is my family’s traditional territory and the Stikine, Skeena and Nass watershed.

Consider this “notice” that you have been made aware that my relations assert a constitutionally-protected Aboriginal Title and Right to the portion of the Klappan-Groundhog coalfield that lies within the Tl’abane Sacred Headwaters (our traditional territory) including areas you were granted tenure in through Order in Council (OIC) 777 approved and ordered on July 22, 2004.

Any meaningful inquiry on your part, or discussion with elders or representatives of our family trapline territory (which has not occurred) would have made you aware that the Alec and Andrew Dennis family has occupied this territory since time immemorial and have never ceded, surrendered or abandoned our rights and title to this territory. The
Dennis family trapline territory is within the larger Tl’abanotin (Klappen People) territory, granted and authorized by traditional Tahltan laws (governance rules) in place since time immemorial and it is we whom have acted as steward and government over these sacred headwaters. In other words, you are now aware of our strong prima facie case of Aboriginal Title and Rights.

You should also be aware that no consultation about, or accommodation of, our Aboriginal Title or Rights or interests occurred prior the OIC being issued and Shell being granted drilling and exploration rights for petroleum and natural gas in our territory, despite the fact that courts have held that such actions constitute prima facie infringements of our Aboriginal Title and Rights.

Furthermore, no consultation about, or accommodation of, our Aboriginal Title and Rights, has occurred prior to the commencement of field operations. In fact, our family became aware of Shell’s intent to operate in our territories when bulldozers and fellers began building a road though traditional campsites located at the junction of the Stewart Cassiar highway. These operations began when our family was away attending the funeral proceedings of a closely related elder in Dease Lake and burial at Cassiar cemetery. When questioned about the authority to build this road, it became clear that Shell and its contractors had not obtained the required BC Forest Special Use permit authorizing their activities.

Shell Canada’s current operations are already impacting upon our aboriginal interests. The well site and roads impact some of the prime hunting, camping and traditional uses areas important to our family and many other Northern BC First Nations since time immemorial. First Nation, including our family, continue to use these areas through till the present day. These areas are, and remain, traditional migratory routes for generations of people and wildlife.

We hold these river headwaters as Sacred to T’labanot’in and the overall Tahltan Nation. We further find the overall cumulative impacts of the many mega-projects proposed for in this area, as a violation of sustainable use and stewardship principles far beyond the public good and as an infringement of our constitutionally protected Aboriginal title and

As you know, courts have held that:

a.. The Crown’s duty to consult and accommodate arises before First Nations prove their rights or title. And, “if consultation is to be meaningful it must take place at the stage of granting or renewing licences.” (Haida Nation. BC and Weyerhaeuser, 2004 SCC at paras 44, 76)

b.. Aboriginal Title encompasses the right to exclusive use and occupation of the land for a variety of purposes, the right to choose to what uses the land can be put and affected First Nations have legally recognized rights to a meaningful say in decisions made regarding the use of lands and resources within their territories (Delgamuukw v. B.C.,[1997] 3 S.C.R. 1010 at paras 117, 166-169)

c.. Tenures granted (or replaced) without adequate consultation with and accommodation of affected First Nations could be struck down as defective (Haida Nation. BC and Weyerhaeuser, 2002 BCCA 462 at paras 66 & 123)

d.. The Crown is obligated to demonstrate that both the process by which the Crown allocated the resource and the actual allocation of the resource reflect the prior interest of the holders of Aboriginal Title to the land. (Delgamuukw at para 167)

In light of these court decisions clarifying Crown, and potential third-party obligations to our Nation and family we hereby put Shell-Canada on notice that we are exploring the full range of legal and other options to vigorously defend our Aboriginal Title and Rights against infringements related to your petroleum and natural gas rights and any alienation of resources from our territory.

We now consider you to be aware of the existence of evidence of our prima facie case related to Aboriginal Title and Rights, of existing and potential infringements on our Title and Rights related to your activities in our territory, and of the inadequacies of the consultation and accommodation in relation to granting and replacement of tenure rights
within our territory.

Furthermore, we want to clarify that neither the Tahltan Band Council, the Tahltan Nation Development Corporation, the Iskut Band Council nor the Tahltan Central Council have the legal authority to represent our interests. As such, any past, present or future discussions or agreements with representatives of these organizations cannot be deemed to be consultation or accommodation of Dennis family territorial rights or interests. In fact, Tahltan individuals who have to date engaged with Shell-Canada and the Crown in relation to fossil fuel issues had no right or title, mandate or authority to make deals without the consent of our traditional representative with authority over the family territory.

Such authority was never granted, nor did the elected representatives consent to any agreements.

As your lawyers will inform you, Band Council’s and their representatives are creations of the Indian Act. They only have authority in relation to reserve lands. Furthermore, Band Councils only have authority if acting in compliance with the governing statute which states:

Exercise of powers conferred on band or council
(3) Unless the context otherwise requires or this Act otherwise provides,
(a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and
(b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councilors of the band present at a meeting of the council duly convened.

If you are not already aware, there is an ongoing dispute about the actions of representatives of the Tahltan Band Council, Iskut Band Council, Tahltan Nation Development Corporation and the Tahltan Central Council.

Representatives of these organizations appear to have been acting beyond their authority in their engagement with Shell and other resource companies intent on operating in our territory. We are in the process of correcting this internal problem.

Given the following failures by the Crown and Shell, we therefore notify you that we hold all agreements made between Tahltan, Shell Canada and the BC government to be null and void with respect to the Klappan-Groundhog coalfield underlying our Tl’abanot’in traditional territory-Tl’abane Sacred Headwaters.

§ Shell-Canada and the Crown’s failure to consult with, or accommodate the interests of the Tl’abanot’in Dennis people prior to the acquisition of petroleum and natural gas rights in our territory, and

§ Shell-Canada and the Crown’s failure to conduct a due diligence investigation into the validity of claims by Tahltan representatives claiming to have the authority to act on behalf of those holding Aboriginal Title and Rights in the area known as the Klappan Groundhog coalfield in which Shell was granted interests by the Crown through the
OIC interests.

If you have any questions about the above issues, particularly the strength of the evidence of our Title and Rights we encourage you to raise them with Oscar Dennis, our designated spokesperson and we will arrange to address your questions as part of an agreed upon consultation process.

We look forward to your prompt reply.

Please contact Oscar Dennis our designated spokesperson at Box 22, Iskut BC VOJ 1K0 250-234-3161, oscardennis at to discuss how you will be seeking workable accommodations of our Title and Rights.

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