VICTORIA — The Globe and Mail
When Enbridge Inc. officials went to scope out a terminal site for their proposed Northern Gateway pipeline in Kitimat, they needed access to Crown land that is subject to land claims by the Haisla First Nation. With a provincial permit in hand, their crews pulled out chainsaws and felled ancient cedars to help with their mapping. Fourteen of the trees that were cut down had been marked in some way by the Haisla people long before British Columbia became a colony.
The trees were regarded by the Haisla as living evidence of their aboriginal rights and title, and the destruction was a serious breach.
The relationship might have been salvaged, but Enbridge officials made a hash of it. They offered some cash and requested a cleansing ceremony to address the loss of legally protected, culturally modified trees. The Haisla dismissed the company’s response as presumptuous and condescending. Today, Enbridge officials are unwelcome on the land where they hope to build a new marine terminal at the end of their proposed $7.9-billion pipeline project.
“They have been asking for meetings. We have refused everyone,” said Chief Councillor Ellis Ross. “So many mistakes had been made, we had been so angered, but I think that was one of the biggest mistakes they made. You might as well have come into our archives and burned our documents.”
This is the same First Nations community that is at the centre of development for liquefied natural gas, having worked amicably with both the B.C. government and LNG proponents. The Haisla have said “yes” to a partnership in developing one fossil fuel and “no” to another.
For the federal government and Alberta’s energy sectors, this offers some useful lessons in how to successfully conduct resource development in B.C.
The pipeline route may look relatively straight on a map, but the legal landscape is a twisted maze. One-third of all of Canada’s Indian Act bands are in B.C. – 203 different governments, almost none of them with a treaty. Because they never signed away their rights and title, those communities without a treaty have a claim to traditional territories. If that wasn’t complicated enough, those claims sometimes overlap.
The lack of treaties in B.C. isn’t new – achieving certainty over the land and resources was an opportunity missed more than 150 years ago. What has changed is case law that has, over the past 23 years, defined aboriginal rights and title. That means in most of the province, you cannot make a move on Crown land without grappling with First Nations’ interests.
The B.C. government has been working with more than 40 First Nations to open up energy corridors for natural gas, benefiting from the groundwork laid by natural gas companies more than a decade ago.
It isn’t always successful and there are weak spots, but there is a relationship there. With Enbridge, as with the federal government, that is not the case.
“I try to explain this to Canada,” Mr. Ross said. “There has been a lot of hit and miss, but since 2004 we are working our way through rights and title with B.C. and today, we have an extremely good working relationship with B.C.”
Ottawa has really only stepped up engagement with B.C.’s First Nations in the past year. It wasn’t until May 27 that the federal government announced its “first step in establishing the tools needed to support a deeper collaboration with First Nations” with the creation of a new Vancouver-based major projects office, and a tripartite forum to tackle issues related to the development of energy infrastructure and natural resources.
Those initiatives, long overdue, are unlikely to head off a major conflict over the Northern Gateway project. First Nations are entrenched in opposition to Enbridge, to the point that Premier Christy Clark’s government has distanced itself from Ottawa and Alberta’s efforts to find a corridor for heavy oil to the West Coast. Ms. Clark would like to keep oil and gas apart. However, her minister for aboriginal affairs, John Rustad, has some advice for those who would like to develop energy projects in B.C.
“When you are trying to do something significant on the land base, our approach is you need to be out, right at the get-go, talking to First Nations and listening to the things they are saying … and then you need to be partners with them,” he said. “That’s a path that has opportunities to be successful.”