Thursday, August 28, 2014
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Al Hudec: First Nations need consultations, not confrontations

Al Hudec, National Post

Prime Minister Stephen Harper has urged First Nations to embrace energy projects as the key to aboriginal economic and social progress. The Prime Minister needs to understand, however, that the pipelines to the West Coast will only happen when Canada changes its approach to aboriginal engagement.

British Columbia’s aboriginal leaders fully understand what the projects mean for training, jobs and contracting opportunities and are not necessarily opposed to the projects, where they are given the opportunity to participate fairly in the benefits. But they need strong assurances that the pipelines can be built in a way that is environmentally sustainable. They need to be involved in the decision-making process to a degree that permits them to trust in its legitimacy and integrity.

Mr. Harper needs to heed the advice provided to him last month by Doug Eyford, a respected Vancouver lawyer. In his report, Mr. Eyford provided a broadside critique of Canada’s limited and overly legalistic view of its constitutional duties to First Nations. He provides a road map of the steps that Canada must take to demonstrate leadership in resolving aboriginal concerns.

Canada’s current approach relies on the environmental assessment process as the sole forum for consultation. This is not adequate given the long history of perceived indifference and disrespect that overshadows the relationship with First Nations. The formality and technical focus of a regulatory hearing is not a forum to build trust. It is a confrontational setting that inhibits dialogue and impedes relationship building. Consultation within the context of an environmental hearing is intrinsically limited because it focuses the debate around compensation for impacts and not on the broader sharing of benefits necessary for aboriginal support.

Issuance of a permit is only one step within a broader process of community engagement and does not equate withthe issuance of the social license necessary to proceed with a project. Canada needs a sustained on the ground presence in aboriginal communities from the early planning stages through project implementation if it is to develop a strong working relationship with First Nations leaders.

Currently, there is confusion about the roles of governments and industry in Aboriginal consultation. Many proponents wrongly assume that government will lead, and that industry’s role will be limited to procedural aspects of the duty to consult. As a result, and this is perhaps Mr. Eyford’s most damning critique of government’s performance: “There are compelling examples of projects being compromised prior to commencement of an environmental assessment because aboriginal communities were not effectively engaged at the outset.” In reality, project proponents are being expected to lead, manage and fund most, if not all, aspects of aboriginal engagement.

First Nations communities facing poverty and serious social problems need financial help now, and are in no position to take the substantial risks that equity can entail.

Canada needs to develop a framework clearly setting out the respective roles and responsibilities of government and industry in aboriginal consultation on major resource projects. At minimum, the federal government needs to assess early on whether proponents are starting off on the right foot with First Nations and advise a change of course where necessary or appropriate.

There are limits to what industry should be expected to do. Difficult issues arise where the asserted territorial claims of competing First Nations overlap. Mr. Eyford’s solution is to suggest that Canada should undertake strength of claims assessments to determine the appropriate apportionment of benefits. However, as he realizes, aboriginal rights are site, fact and group specific and relate to the distinct practices, customs and traditions of each community.It is a difficult and time consuming process to gather and weigh the evidence necessary to adjudicate such claims, and when the stakes are high, resolution does not come easily.

In terms of financial benefits to First Nations, although there is a certain ring to the concept of equity ownership, other concepts such as revenue sharing or sharing through a simple contractual entitlement to a stream of future payments may make more sense. First Nations communities facing poverty and serious social problems need financial help now, and are in no position to take the substantial risks that equity can entail.

Canada’s pipeline projects are time sensitive opportunities.Our government and industry officials need to forge strong working relationships with impacted First Nations, communicating honestly about project risks and delivering on promised benefits.

Al Hudec is a Vancouver lawyer with Farris Vaughan Wills & Murphy LLP. He works with First Nations leaders in their dealings with government and project proponents.

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