Rethinking the Role of Aboriginals in Resource Development - Four Waves, Four Conditions
Article originally published in Oilweek Magazine's July 2015 edition. Digital editions of their magazines can be found here.
How a new age of aboriginal resurgence could help - or hinder - crude oil pipeline developments
By: Sebastain Gault
The
Canadian oilpatch was dumbstruck by incoming Alberta Premier Rachel Notley’s
pre-election announcement that her government would withdraw support for
Enbridge’s Northern Gateway Pipeline.
“It’s not
worth it,” she flatly told the Calgary Herald with respect to this critical
solution to the industry’s acute market-access predicament. She justified her
position by suggesting that she considered First Nations opposition intractable
and noting the “intense” environmental sensitivities in British Columbia.
Shortly
after the NDP’s orange crush started giving Calgary energy executives the
blues, the Pacific Coast band of Lax Kw’alaams unanimously rejected the $1.1
billion offer from Petronas-led Pacific Northwest LNG to site its liquefaction
terminal on Lelu Island near Prince Rupert, B.C.
As
Canada’s oil and gas export industry starts diversifying from the shrinking
American market to the expanding Asian markets, getting aboriginal buy-in for
the requisite infrastructure has proved extremely difficult. Some
businesspeople and media even regard Canada’s resource economy as a victim of hostage-taking
by obstructionist, if not extortionist, demands.
PARADIGM SHIFT
There’s
something significant going on in the aboriginal world, which needs to be
viewed with a historical frame of reference. From demonstrations of indigenous
identity (Idle No More) to landmark court decisions regarding un-extinguished
land title (Tsilhqot’in Nation v. British Columbia) over thriving aboriginal
businesses, First Nations are experiencing a profound transformation of their
social, economic and political structures, leading some observers to
characterize the growing commercialization of First Nations as “red
capitalism.”
First
Nations communities may still rank at the bottom of social and economic
indices, but a resurgence is underway that merits being called a comeback, as
author John Ralston Saul describes it in his recent book The Comeback: How
Aboriginals are Reclaiming Power and Influence.
The
direction of the comeback is clear. Past legislation like the Royal
Proclamation of 1763 and, post-Confederation, the Indian Act of 1867 greatly
lessened the economic and political autonomy of aboriginal societies. “We have
begun to rebuild the legal and administrative foundation to support market on
our lands,” says aboriginal property rights crusader and visionary Manny Jules.
“Once we restore our property rights to our lands, I believe we will unleash a
wave of First Nations creative and entrepreneurial spirit.”
The big
goals – political self-determination, improved intergovernmental relations,
cultural and linguistic renaissance, re-invigorated self-esteem – require First
Nations to achieve economic self-reliance, and progress toward these goals is
evident in many places.
Innovation
in real estate law is enabling some aboriginal citizens and corporations to
sidestep century-old rules against on-reserve property ownership. Like
mainstream Canadian homeowners, some can now borrow against their property as
collateral.
Some bands
are lessening dependency on federal transfers by implementing in reserve
taxation. Others are tapping bond markets in order to self-fund market-building
services and infrastructure projects on their reserves.
In short,
proponents of development who don’t take account of this unfolding paradigm
shift and continue to ply the old “beads and trinkets” approach do so at their
peril.
STRATEGIC OPPOSITION
Other key
comeback milestones include the Supreme Court of Canada’s Haida Taku River and
Mikisew Cree decisions of 2004 and 2005. These stipulated that the Crown had a
“duty to consult” or “accommodate” wherever government-sanctioned activities
might adversely impact aboriginal or treaty rights.
When
advancing projects within tight geographical limits, industry has largely come
to grips with the ruling. But University of Calgary professor Tom Flanagan points
out how difficult things get with pipelines that cross traditional territories
of multiple First nations. Each stakeholder tends to hold back, suspecting that
the last to sign up get the best terms. As a result, the duty to consult in
many circumstances results in First Nations gaining a de facto veto on
development, something the judgements had not intended.
Douglas Bland, former chair of defence studies at Queen's University, recently published Time Bomb: Canada and the First Nations, which imagines what a civil war - like rebellion of disaffected aboriginal groups would look like - and how to prevent it.
Douglas Bland, former chair of defence studies at Queen's University, recently published Time Bomb: Canada and the First Nations, which imagines what a civil war - like rebellion of disaffected aboriginal groups would look like - and how to prevent it.
Mainstream
Canadian society is largely oblivious to the frustration and bitterness brewing
on reserves among aboriginal people – especially among the burgeoning youth
population – who feel excluded from the wealth and opportunity enjoyed by most
Canadians. Bland explains how a few attacks on the commodity-moving
infrastructure – railways, pipelines, roads, power lines – could quickly
paralyze the country’s resource economy. His book suggests that aboriginal
resistance to new pipeline projects, however irksome, is less worrisome than
the possibility of First Nations anger escalating to outright violent
disruption of existing infrastructure.
By availing
themselves of extreme measures, even radical factions within aboriginal
communities know they risk inciting retaliation of disproportionate force from
Canada. Their militancy could inadvertently set their development agenda back
dramatically.
In this regard,
University of Saskatchewan professor Ken Coates writes in #IdleNoMore: And the
Remaking of Canada that “[First Nations] eschew the surprisingly easy tactic of
closing down highways and rail traffic and almost never engage in acts of
violence and civil disobedience.” In his
view, “The surprise is not that there are occasional protests and conflicts …
It is remarkable that there are so few.”
GREEN FRIENDS
The
location of their traditional territories in the vicinity of so many
prospective resource projects gives First Nations tremendous legal and
political leverage in advancing demands.
With land
reserves totalling over 6.5 million hectares in aggregate – much of it home to
valuable commercial timber, arable land and mineral deposits – Canada’s First Nations
are learning to think and act like resource owners.
Notwithstanding
the ongoing migration of aboriginals from reserves to urban areas, they feel
deeply responsible for the environment of their patrimony. Many have no plans
to leave, so it’s little wonder they are demanding assurances from industry of
minimal disturbances to land, air and water.
In this
vein, First Nations have mad common cause with large environmental groups like
Greenpeace and the Suzuki Foundation to hold undesirable development in check.
This alliance has resulted in a real win-win relationship: First Nations gain
access to professionally managed, deep-pocketed, internationally connected
lobbying organizations, while environmentalist groups can parlay their
financial and operational support of indigenous causes into reputational
capital.
As former
Canada West Foundation president Roger Gibbins has pointed out, “The catch is
that the alignment of interests extends only so far.” Whereas environmentalist
groups are anit-development, First nations actually do want and need
development, albeit on their terms.
“At some
point the marriage of convenience will break apart,” says Mount Royal
University professor Frances Widdowson, author of Disrobing the Aboriginal
Industry: The Deception Behind Indigenous Cultural Preservation.
Environmental
concerns play a central role in aboriginal opposition to the Northern Gateway
project. When asked about Premier Notley’s decision to de-prioritize the
government’s position on Northern Gateway because of deep aboriginal concerns
over environmental risks, Widdowson draws a parallel to the City of Calgary’s
negotiations with the Tsuu T’ina First Nation over reserve access for the new
ring road.
In that
case, she says, the city negotiators felt Tsuu T’ina’s demands were unrealistic
and ended up walking from the table, possibly forfeiting the whole enterprise.
“When it
suddenly looked like the project would be dropped, the reaction was ‘Whoa, wait
a minute!’”
Tsuu T’ina
returned to the table with a better offer, and eventually a deal was reached.
With this comparison, Widdowson suggests that the withdrawal of the
government’s endorsement of Northern Gateway might send a powerful message to
aboriginal communities along the right-of-way: if you don’t show greater
flexibility at the bargaining table, you might end up without an equity stake
or other economic spinoffs at all.
FOUR WAVES, FOUR CONDITIONS
If you
listen to Calvin Helin, Author of Dances with Dependency: Out of Poverty
through Self-Reliance and son of a hereditary chief of the Gitga’at tribe of
the Tsimshian First Nation, the ring road analogy just isn’t applicable here.
Helin is
chair of Eagle Spirit Energy Holdings, which, in partnership with the Vancouver
– based Aquilini Group, seeks to build a pipeline to source partially upgraded
oilsands bitumen from Alberta for export to Asian markets or possibly to new
refining facilities at Grassy Point, near Prince Rupert. The project is in
direct competition with Northern Gateway.
He shrugs
off suggestions that B.C. First Nations are trying to extract better terms in
exchange for their approval under the guise of environmental concerns. He also
dismisses the view that they’re somehow anti-business.
“First
Nations are not anti-development. They need development,” he says. “The
unemployment in communities is over 90 percent in some places. But development
has to be done responsibly, with the greatest respect for the culture and
traditions.”
To this
end he points out the media “under-reported” that the Lax Kw’alaams community
awarded the Eagle Spirit project permission to move to the next step in the
approval process, which is the signing of an exclusivity and benefits
agreement. “This occurred just days after the community’s rejection of the
Petronas offer,” he says.
Helin says
that the past 10, 000 years of First Nations history is made up of four periods
or waves. The First Wave ended and the Second Wave began 400 years ago with the
arrival of Europeans in North America. Like during the first “pre-contact”
period, aboriginals during the second “colonial” period were still fiercely
self-reliant; they managed to quickly adapt to new economic realities created
by the fur trade and other industries introduced by the French and British.
The real
trouble began with the Third Wave, when Britain’s Poor Law and the Canadian
Parliament’s Indian Act started shaping aboriginal policy. The fundamental aim
of these policy documents was to deal with populations “that operated outside
the accepted social structure … [and] might become a source of disorder.
Helin
spends much time explaining history because many Canadian aboriginals now see
themselves at the dawn of the Fourth Wave. This new period is marked by a
transition way from the paternalistic structures of the Indian Act toward
greater economic self-=reliance and political self – determination. And not
surprisingly, the new economic self-reliance will come from extracting and
transporting oil and gas and other resources from and across First Nations
lands.
The Eagle
Spirit team spent more than two years listening to First Nations and then
summarized the feedback into four baseline conditions that any ex-Alberta oil
pipeline must fulfill to earn social licence.
Firstly, it must satisfy world-class environmental standards that have been worked out in collaboration with First Nations. Secondly, it cannot serve the export of raw bitumen. Thirdly, it cannot connect to a marine terminal at Kitimat. And fourthly, the negotiated economic benefits for participating First Nations must be commensurate not only with the real value of transiting their territories, but also with the environmental risks.
Firstly, it must satisfy world-class environmental standards that have been worked out in collaboration with First Nations. Secondly, it cannot serve the export of raw bitumen. Thirdly, it cannot connect to a marine terminal at Kitimat. And fourthly, the negotiated economic benefits for participating First Nations must be commensurate not only with the real value of transiting their territories, but also with the environmental risks.
NOTLEY NODDING
Speaking
historically, Helin’s four conditions are a critique of Enbridge, especially of
Northern Gateway’s original community outreach program, which belonged more to
the oil paternalistic Third Wave than to the new collaborative Fourth Wave. Not
surprisingly, other project proponents with competing pipeline proposals like
Pacific Future Energy and Kitimat Clean follow Eagle Spirit’s lead in broadly
advertising their aboriginal bona fides as a major competitive advantage. (And
Kitimat Clean does not, of course, agree with Helin’s third condition.)
Stockwell
Day, current chair of Paciic Future Energy’s advisory board, shows he gets the
point about the Fourth Wave in a recent Calgary Herald op-ed, declaring, “We
need to recognize B.C. First Nations as landowners and governments. We must
recognize the true value of First Nations lands, their traditions and their
people. We must work with First Nations every step of the way – from concept to
implementation – to build any resource projects on their territory.”
This
brings us back to Premier Notley and her dismissive view of Northern Gateway –
and presumably to any green-field oilsands pipeline to tidewater.
Her first
objection stemmed from her belief that aboriginal opposition was more or less
unshakeable. Yet the success of getting aboriginal support claimed by thelike
fo Calvin Helin, Stockwell day and even Kitimat Clean’s David Black for their
projects shows that everything is in flux. Negotiations continue apace. Even
Northern Gateway may turn its consultation experience into greater acceptance.
If Premier Notley doesn’t reconsider her inflexible stand, she may be willfully
ignoring the actual development needs of First Nations.
Her second
objection about the environmental risks was really about British Columbians not
wanting to permit the export of raw bitumen. But right in the middle of the
Alberta election campaign, she stood before Edmonton’s east end upgraders and
declared, “I believe there is a better way to build Albert’s economy, to put
refineries like these at the heart of our future growth and prosperity.”
These bold
words may have horrified many sober-minded energy economists, but they were
music to the ears for these pipeline developers, all of whom include or are
exploring the possibility of including bitumen processing in their plans –
albeit for plants sited in B.C., not Alberta. Might not these plans – or even a
New Democratic Party – inspired, synthetic-crude-piping Northern Gateway –
force the premier to alter this second objection?
There
appear to be proposals on the table, acceptable to First Nations that could get
Albert’s bitumen (in value-added form) to Asian markets. More importantly,
these proposals wouldn’t require subsidies form Albert’s taxpayers and would
space the premier of criticism from former finance minister Ted Morton that
public funds are financing another “boondoggle.”
One thing
is clear: Canada needs to increase oil and gas export capacity to Asia. For
Canada, this is about nation building. What many fail to realize, however, is
that First Nations, especially in B.C., see these infrastructure projects as
integral aspects of their own nation building. For that reason, only those
projects that don’t build one nations at the expense of the other will most
likely ever see shovels in the ground.
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