- Category: ANALYSIS with Bill Gallagher
- Created: Wednesday, 21 August 2013 13:57
- Published: Wednesday, 21 August 2013 13:57
- Written by Administrator 3
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Analysis by Bill Gallagher: Lawyer / Strategist / Author
Resource Rulers - Fortune and Folly on Canada’s Road to Resources
Here’s the corporate / native scorecard as the dog days of summer wind down.
It’s not just rust that never sleeps; native strategists have never been busier:
Labrador: Two native lawsuits recently launched challenging Nalcor’s Muskrat Falls hydropower project. Of special interest is Nunatsiavut’s assertion of the (less litigated) duty to accommodate. The other suit is NunatuKavut (Labrador Metis) asserting shortcomings in the duty to consult. These two lawsuits arrive at a critical juncture for this hotly-debated project given: 1) Hydro-Quebec’s simultaneous legal win over its control of transmission line access; 2) plus Hydro-Quebec’s recent litigation asserting control over the entire expanse of Churchill Falls watershed rights. Bottom line: if ever a project needed native support - it’s Muskrat Falls.
New Brunswick: After a protracted series of June/July protests in Kent county that saw 31 arrests, a seismic truck incinerated, and a major RCMP presence around Elsipogtog (Big Cove First Nation); fracking protests are planned to resume in the fall when SWN Resources returns. In the meantime AFN/NB has just issued its key conditions for supporting TCPL’s Energy East Pipeline and proposed Irving Canaport expansion. All told, this charged native empowerment atmosphere is hardly the welcome mat that this ‘nation building’ project needs in order to gain ‘social licence’ from impacted First Nations. TCPL & NB will have its work cut out.
Quebec: Buried under the Lac Mégantic rubble are a series of recent native lawsuits that went under-reported as a result of that atrocious industrial accident. Rio Tinto’s Iron Ore Company mine faced a 2nd lawsuit (the first for $100 million) (the 2nd against a proposed expansion) brought by Uashat Mak Mani-utenam (Sept-Isles) and Matimekush-Lac John (Schefferville). The combined effort appears to be targeting Rio Tinto’s proposed share sell-off in Iron Ore Company, with native press releases declaring the that intent is to “raise red flags for any potential purchaser”.
Simultaneously, Strateco Resources lost its lawsuit (native legal win # 186)
whereby it had hoped to stay afloat financially in the face of Cree opposition to its Matoush uranium project in the Otish Mountains. The Quebec Ministry refused to issue the required permit (in the face of Cree opposition) and thus drew litigation demanding interim compensation, which the Crees joined in on. Already having spent $125 million, this scenario is a prime example of the Crees as ‘Resource Rulers’. (This litigation might well have had something to do with securing Grand Chief Matthew Coon Come’s re-election that coincided with Strateco’s legal loss.)
Ontario: In spite of encouraging sound-bites emanating from the Ring of Fire re-engagement process, nothing has really changed as the project remains mired in both native and junior mining litigation. Thus with no end in sight to the ongoing cross-pile of litigation, the Ring of Fire remains firmly on the back burner. Moreover Mushkegowuk Council is advancing a new Treaty 9 interpretation case involving recently discovered diaries that purportedly reflect a more native-friendly version of what was said at the time of treaty making (the long lost evidence is apparently a diary of one of the treaty commissioners). Since the new case involves Ontario, Canada, and two mining exploration companies; its outcome likely portends even more trouble ahead for the Ring of Fire. The case was launched, coincidentally, just as De Beers unearthed its biggest diamond ever at its Victor mine - weighing in at 35 carats. All of the forgoing litigation is situated within Treaty 9 - thus to be continued.
The Prairies: Manitoba Hydro gained Environment Act approval for its Bipole III transmission line - initially proposed to run north/south along the east side of the interlakes; but after native and stakeholder opposition, it’s now going to swing around the west side of these lakes. The additional re-route costs are touted to be in the $1B range. That puts this project in the same league as Muskrat Falls when it comes to natives forcing late-addition project compromises. The actual license is replete with conditions requiring Manitoba Hydro to address concerns raised by First Nations, Metis communities and local Aboriginal communities about potential adverse effects on the exercise of Aboriginal treaty rights. (excerpt Lic # 3055 Aug 14 2013).
Alberta: Fast becoming the land of official inquiries (pipeline integrity review, emissions inquiry); there’s a demand for an inquiry re: SAGD seepage (Cold Lake First Nation); and a demand for buffer zone (Ft McKay First Nation); with a major Metis hunting rights appeal pending. All the while, the legal vice is tightening around the oilsands where an array of native litigation proceeds apace targeting ‘core traditional lands’ and ‘cumulative impacts’ (Beaver Lake Cree First Nation). Alberta is clearly the domain of the corporate litigator’s toolbox; but industry appears to be paying a high price given the win/loss record they’ve racked up.
British Columbia: The new Clark majority government hasn’t stopped proposed pipelines and mines from stumbling into in the native empowerment crosshairs:
Mt Klappan coal mine served with an eviction notice in the Sacred Headwaters (Tahltan First Nation); so too were pipeline right of way contractors (Yinka Dene Alliance); public hearings re Taseko’s New Prosperity mine have turned adversarial, and even the Nisga’a are suing BC over its approval of Avanti’s proposed Kitsault mine alleging failure to consult (where a modern treaty settlement is in effect).
International: Bruce Power backed-off its latest effort to transport radioactive steam generators to Sweden (for recycling) which move drew strong Mohawk opposition. And Ottawa’s trade deal with China (Foreign Investment Promotion and Protection Agreement) is the subject of a high profile legal challenge, citing duty to consult, filed by the Hupacasath First Nation situated on west Vancouver Island.
Conclusion: My thesis in ‘Resource Rulers’ - that it’s natives who determine resource outcomes - appears to hold water right across the country. Without a doubt, it remains the biggest under-reported business story of the decade.