Can First Nations veto resource developments?

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We saw a national headline that read: “One in six First Nations vows to block pipelines; all claim veto power.” 

To the first part of that, you could argue: “OK, so five out of six are not vowing to block pipelines.”

But the second part is more problematic: “All claim veto power.”

Though First Nations have won key court battles on their rights and title, the courts so far have not held that they have veto power over pipeline or other projects.

The Supreme Court of Canada did not go so far in its key decisions on First Nations rights and title. It held, rather, that the Crown owes a duty to consult, and where appropriate, accommodate Aboriginal peoples when their rights may be affected by a Crown action or decision.

The lawyers tell us that such duties do not impose a requirement on the Crown to reach agreement with Aboriginal groups (Ottawa can always decree that a project is in the national interest). Nor do these duties grant a veto to Aboriginal groups.

Well, maybe.

But corporate lawyers would do well to remember that Aboriginals have in recent years won more than 200 victories in court.

First Nations might hold veto power in practice, if not in legal theory. They know how to hold up projects for a long, long time.

They can go to court themselves, too, as the Squamish Nation did on June 15 to challenge the Kinder Morgan/Trans Mountain pipeline expansion. They did so as Prime Minister Trudeau is wrestling with a decision on the line.

In the end, companies that view lawyers and courts as a way to get projects done on First Nations territories need to hear some advice from author Bill Gallagher (Resource Rulers: Fortune and Folly on Canada's Road to Resources).

A headline on a feature that Gallagher wrote for Corporate Knights Magazine says it all:

“Canada’s First Nations hold all the cards on the road to resource development going forward.”

Gallagher concluded: “Working with progressives, natives and environmentalists may actually prove to be the only way to go after all. . . . There’s an easier way to do business than by butting heads with massively empowered First Nations. That’s because the latter have redrawn the map of Canada—one native legal win at a time.”

And so, in that “One in six First Nations” story above, Perry Bellegarde, national chief of the Assembly of First Nations, told a Senate committee that Canada’s resource wealth cannot be unlocked without permission of individual First Nations communities.

“You’ve got 634 First Nations in Canada. You’ve got a 130 of them saying very clearly no. But you also have some other (First Nations) saying very clearly yes.

“But before you try to build anything, build a respectful relationship with indigenous peoples and indigenous governments.”

And there’s the key: not lawyers and judges but respectful relationships. Many First Nations are interested in development. There are good examples among BC’s 203 First Nations.

But, as they will tell you, it all begins with genuine consultation and accommodation.  Without that, “veto” could become a tough reality.

 


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