Tuesday, September 23, 2014
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Treaty expert says natives have upper hand over development


EDMONTON - A former oilpatch lawyer and federal government regulator says oilsands companies need to re-evaluate their relationships with First Nations or risk having major projects imperilled.

“There is an elephant in the room, and it is the rise of native empowerment,” says Bill Gallagher, a strategist and consultant in Waterloo, Ont., who practised law in Calgary and conducted regulatory hearings for Petro-Canada. “My theory is whoever aligns with aboriginals before a regulatory hearing has the best chance.

“I don’t relish any corporate project being in the blender at the moment.”

David Williams, a spokesman for Shell Canada, said Friday the company is working hard at its relationship with natives, and has met with many Alberta First Nations and Métis groups over the last year.

“There are many ways to look at our relationship,” Williams said. “We have some projects that are going ahead and others that are being opposed, which is fine. People will continue to work things out as they always have.

“There is a lot going on, but probably more times than not when it comes to projects, we agree (with First Nations) more than we disagree.”

Author of the recently published book Resource Rulers: Fortune and Folly on Canada’s Road to Resources, Gallagher says natives have prevailed in a preponderance of recent court challenges based on consultation and treaty rights, and that industry and government have been slow to recognize the trend.

A former treaty land entitlement negotiator for the federal government and its past director-general of northern and offshore development, Gallagher says native bands have won 40 court decisions against energy projects in the last two years, and 190 since 1985.

That translates into having won 90 per cent of the important decisions at the appellate level, federally and provincially (with the exception of in P.E.I., which has few natives and little industry), Gallagher says. These figures come from resource cases only, and do not include court cases First Nations have filed over education, residential schools or other issues, he said.

“The native winning streak has to be fundamentally and constructively addressed. It is not just Jurassic rockers that are showing up,” he says, referring to Neil Young’s campaign against the oilsands, “the Canadian justice system is wading in, as well.

“Corporate litigators who adopt the mantra of ‘We’ll see you in court’ are picking the wrong time to take on First Nations.”

Invited to speak at a recent oilsands conference organized by the Fort McKay First Nation, Gallagher says it is no longer enough for companies to merely consult with natives. He says they need to engage aboriginal bands in more meaningful dialogue and invite them to become partners and co-managers in proposed developments to be certain they get approved.

“A very sophisticated diplomacy needs to be played out,” Gallagher says. “If they think they are going to develop the oilsands going forward using the same tired tactics, they are on the wrong page. The legal arguments that are being made look pretty thin.”

In the span of three weeks last summer, two First Nations won decisions in British Columbia by arguing that proposed projects endangered a threatened caribou herd and impinged on traditional rights to hunt and fish. The latter argument has been voiced by the Athabasca Chipewyan First Nation in a legal challenge against Shell’s expanded Jackpine mine in northern Alberta.

Although they have benefited from development in the oilsands, the Athabasca Chipewyans, Fort McKay First Nation and Mikisew Crees are all fighting against energy projects, and all recently pulled out of a federal-provincial oilsands monitoring program while complaining that their recommendations were being ignored.

“I believe the First Nations have constructed an encirclement of the oilsands through a series of increasingly sophisticated legal challenges,” Gallagher says. “There are huge forces at play.”

Some projects that have already received permits are not going to happen because of native opposition, he said.

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