Canada: Report To Prime Minister: First Nations Engagement Is Necessary To Enable Energy Export Potential

A recent report commissioned by the federal government suggests that Canada must change its relationship with First Nations if the country is to develop the infrastructure necessary to increase energy exports.

British Columbia is home to vast natural gas reserves. Economic growth from the development and export of oil and gas from British Columbia and Alberta will benefit all of Canada. Almost all energy exports from Canada currently flow to the U.S. Expanding the export market requires the construction of pipelines and coastal terminals to enable shipping to overseas markets. Already, there are proposals for two oil pipelines, an oil refinery, at least ten natural gas liquefaction facilities, and six natural gas pipeline projects in British Columbia. Any project approval process will require engagement of First Nations, and any project will have a much greater chance of proceeding if the project has First Nation support.

Against that backdrop, Prime Minister Harper appointed Douglas Eyford in March 2013 as his special representative on west coast energy infrastructure, to identify approaches to meet Canada's goals of expanding energy markets and increasing aboriginal participation in the economy. Mr. Eyford met with over 80 groups, including First Nations, provincial officials, federal officials, and industry. On December 5, 2013 he released his report - Forging Partnerships, Building Relationships: Aboriginal Canadians and Energy Development1.

The Report reflects the challenging state of relations between First Nations and Canada. The Crown has a legal duty to consult First Nations when considering a decision that may affect asserted or established aboriginal rights or title. The Report recommends that the federal government shift from a focus on solely meeting its legal duty to consult to a broader engagement with First Nations to develop the relationships necessary to reconcile aboriginal interests with those of Canadians as a whole.

The challenges highlighted in the Report are familiar: the need to protect the environment, the lack of First Nations capacity to engage in meaningful discussion about proposed projects, the need to provide meaningful opportunities for First Nations to benefit from development of projects, and the need for much greater federal coordination with the province and First Nations. The Report reflects industry frustration that Canada is not doing enough to resolve aboriginal rights claims in British Columbia. Both the Alberta and the BC governments indicated a need for Canada to work more closely with each province to address aboriginal issues.

Mr. Eyford makes recommendations along three themes: building trust, fostering inclusion, and advancing reconciliation. The recommendations will not be surprising to anyone who has been involved in economic development on the land base in British Columbia. They reflect a need for better sharing of information about oil and gas development, inclusion of First Nations in developing the emergency response measures for oil and gas activity, more education and training to enable aboriginal people to be involved in economic development, a need to better enable First Nations to access capital to be involved in projects, and a need for earlier engagement with First Nations, including engagement outside formal regulatory processes.

Some of the recommendations call on Canada to catch up with British Columbia by looking beyond treaties as the only means of reconciling aboriginal and Crown interests. Over the past decade, BC has pursued numerous agreements with First Nations outside the treaty process as a means of engaging with First Nations and facilitating capacity building, economic and social development. Most importantly, such agreements have helped to foster more constructive relationships between the province and many First Nations.

Anyone familiar with land claims in British Columbia recognizes the challenge of overlapping territorial claims by First Nations. As major projects are proposed, these territorial disputes are often highlighted. The Report acknowledges the ideal that such disputes be resolved among First Nations themselves and recommends Canada encourage and support aboriginal initiatives that have the potential to address shared territory or overlapping claim disputes. However, the existence of those disputes does not absolve the Crown from its duty to consult. The Report urges Canada to be more active in assessing the strength of competing aboriginal claims, to better guide consultation efforts and the apportionment of benefits. 

The Report recommends strength of claim assessments be undertaken in conjunction with British Columbia where appropriate. This makes sense since both British Columbia and Canada are the "Crown" and have a legal duty to consult when making a decision that may affect aboriginal rights or title. The possibility that Canada and British Columbia could each prepare strength of claim assessments that then conflict is untenable. It would result in the Crown disagreeing with the Crown.

British Columbia has already undertaken significant work to assess the strength of aboriginal rights and title claims in various parts of the province, but the inventory of such assessments is far from complete. Additional assessments need to be expedited and any work by Canada should be closely coordinated with British Columbia and ultimately shared with First Nations to invite discussion and move forward in reconciling the competing interests.

Overall, the Report is a call to action for the federal government to recognize both the legal and social reality that the development of the energy export infrastructure requires a new relationship with First Nations. That relationship cannot be focussed solely on satisfying any legal duty to consult, rather the federal government must engage more fully with First Nations to start to build relationships that will enable a more open and constructive discussion when projects are proposed.

Many First Nations can rightfully complain that government's relationship with them is driven by a project proposal. Government is initiating contact with the First Nation as an effort to see a project succeed. The relationship would be much different  if the federal government had a more engaged relationship with a First Nation before any project proposal, a relationship where Canada and the First Nation were already discussing the economic and social needs of the First Nation and how to best reconcile competing interests. In that more engaged relationship, a new project proposal might be a means to realize some of the goals that had already been identified by the First Nation.

The federal government has not made any commitments to the Report's recommendations other than to say they are reviewing the Report. British Columbia and aboriginal leaders have proposed that a Crown-First Nations tripartite energy working group be mobilized to advance energy-related issues. The Report recommends that Canada participate in such a working group as a venue for open and practical dialogue about each party's issues and interests and as a means to advance the recommendations in the Report.

There is no question that relationships between Canada and many First Nations in British Columbia need to improve. The Prime Minister recognized that imperative when he asked for the report. The real work lies ahead in effectively responding to the report and undertaking the effort necessary to effectively engage First Nations in the many opportunities arising in Canada's energy sector.

Footnote

1 Forging Partnerships Building Relationships: Aboriginal Canadians and Energy Development, available online at http://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/pdf/publications/ForgPart-Online-e.pdf.

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