Thursday, August 21, 2014
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The elephant in the room: First Nations issues

Drew Hasselback

Financial Post

LNG is B.C.’s future, and governments at all levels are anxious to streamline development. Enter the federal government, which recently announced two new measures designed “to engage and involve” First Nations in energy projects.

The question is whether these initiatives will provide substantial change to the status quo.

“I don’t think we’ve had a really good understanding of what government is doing, if anything, to actually streamline the process of approving projects,” observes lawyer Tom Isaac, a partner with Osler, Hoskin & Harcourt LLP who specializes in aboriginal law.

It’s an alarming thought. Governments at all levels may be excited about liquefied natural gas, but Mr. Isaac points out that in the absence of concrete steps to accelerate consultation, the status quo prevails. This leads Mr. Isaac to ask: “Isn’t the First Nations issue the elephant in the room?”

Let’s look at what the government announced.

A new “tripartite forum” will provide a way for leaders from the federal government, the B.C. government and First Nations to share information, identify common interests and align efforts on issues directly impacting aboriginal participation in natural resource projects and infrastructure.

Then there’s the new Major Projects Management Office West, which aims to identify “concrete action” that will help win First Nations support for energy projects. “A key function of this office will be to facilitate meaningful engagement and ongoing dialogue with key partners such as industry, First Nations and the Government of British Columbia and to address the unique elements of energy exports in B.C.,” according to the federal government’s news release.

If you are not used to the jargon-heavy language that envelops aboriginal consultations, the announcement probably reads thin. But even a tiny step forward is movement in the right direction. Truth be told, it’s hard to rush the duty to consult. It’s a game of inches, not yards. Seen in that light, the federal government’s moves aren’t as vapid as they may seem at first blush.

Establishing a Western projects office, and including First Nation consultation as one of its objects, is both a symbolic and practical recognition that the balance of Canada’s economic power has shifted westward, says Gavin Dirom, president and chief executive of AME BC, the key industry association for the province’s mineral exploration and development industry. The mining industry has a long history of dealing with First Nations in B.C., and it has championed the need for a special Western project office for years.

“Industry for several years has been trying to encourage the federal government to set up something like Major Projects Management Office West so we can have some efficiency or some coordination between the files that we’re doing,” Mr. Dirom says.

Last year, the federal government asked Vancouver lawyer Douglas Eyford to recommend ways aboriginals can better participate in Western Canadian energy projects. In December, he produced a 58-page report that said Canada needs to build trust with aboriginal Canadians to foster their inclusion into the economy. Building trust requires dialogue, and inclusion requires collaboration.

Fostering aboriginal participation in the energy sector will contribute to reconciliation between native and non-native communities. To those ends, Mr. Eyford recommended the creation of a permanent B.C. projects office and the tripartite forum.

The new measures reflect what some are calling a “whole government” approach to approving projects. Rather than have developers seek approvals from several different government agencies, the hope is to come up with a single-window or office that can harmonize or at least streamline the various application processes.

“Project proponents will often start the process early and begin pre-application consultations to build a relationship themselves,” says David Bursey, who practices energy and aboriginal law with Bull, Housser & Tupper LLP in Vancouver.

By having a central office to coordinate talks and reviews, the crown will be able to step in to ensure that a project proponent is building relationships with the appropriate First Nations and agencies, he says. “Federal and provincial crown agencies can assist with identifying the groups who need to be consulted, and to help assess the strength of the claims that may be brought forward in the process of a project review.”

So these measures deliver some immediate benefit. But looking back at the original question, are they enough? As it turns out, maybe there’s little to fear from the status quo.

One of the ironies of B.C. is how relatively successful the First Nations consultation process has become, even though aboriginals have ceded no territory to the crown by treaty. A couple of decades ago, this sparked a panicked rush to sign treaties to address questions of certainty over land title. Yet the panic subsided when all parties realized it will take years — perhaps even centuries — to sort out all the land claims affecting B.C. The crown, industry and aboriginals now realize they can generate quicker benefits by signing project-specific deals, rather than sweeping, all encompassing land claim treaties.

That’s the lay of the land in B.C. Government might not be able to nudge the elephant out of the room. But maybe it doesn’t need to.

Whatever Trevor

Dis is Trevor.

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