The end of one year and the start of a new year gives a person reason to think carefully over what the highlights and accomplishments of the year were on First Nations rights. It also makes you wonder what the issues and solutions to the ongoing struggles to protect and maintain aboriginal rights and title will be in 2012. I struggled coming up with a “Newsmaker of the Year” and could not think of one First Nations leader that has dominated the media and advanced our causes as First Nations in Canada.
I could however think of the many issues that dominated the 2011 media: Missing and Murdered Women, Attapaskiwat, Enbridge and the Gateway project, Taseko and the “New Prosperity Mine”. I could think of Court cases won-Halalt on consultation on ground water, Ahousaht fishing case, Bastien on moneys earned on reserve, Tsilqot’in injunction against Taseko, and court cases lost-Law kw’alaams and their commercial right to fish.
2011 was indeed a continual struggle by First Nations people to assert their rights and title through inquiries, court cases, assertion of rights, signing agreements for revenue sharing like on the New Afton Mine, or trying to work collaboratively with the government of BC on forms of “shared decision making” like the Sts’ailes and the Taku.
s. 35 of the Constitution recognizes and affirms rights and title. The Supreme court of Canada in cases like Delgamuukw said these constitutional rights are subject to reasonable infringement for a compelling and substantial legislative objective and must be consistent with the special fiduciary relationship between the Crown and Aboriginal peoples. It seems that the Crown thinks any economic objective is one that allows infringement of title and so First Nations have to rise up and fight against the continual attempts by the Crown to abrogate or derogate from our rights and title. This was never the intent of Delgamuukw but it is the reality of what First Nations are dealing with.
The latest attempts by both the Federal and Provincial Governments is to find ways to make decisions on development projects “quicker”. This includes the Environmental Assessment processes and other legislative permits and licenses. Both governments qualify this by saying they do not want to take short cuts and each project must be looked at fully, but it has to be done in a shorter time frame. So far, neither government has made moves to change legislation to do so, but it can be expected in the near future.
When I hear these announcements I know that the government’s main objective is to get economic development projects going to stimulate the economy regardless of the effects of the project on the rights of First Nations and the public in general. Money is most important without balancing the environmental and social impacts.
The second thing I think about is how do they think they can do this. Both of the governments have cut back on staff and what staff is there are stretched to the limit. In BC, the Ministry of Forestry and Natural Resources Operations was given extra money to bring in temporary staff to deal with the backlog of applications but this will not happen on a regular basis. So their own capacity to make decisions is limited and yet they chose to try and rush the process for a quicker decision. I know that means that a lot of things will be pushed through without proper analysis. One only has to reflect on Joe Oliver, Minister of Natural Resources remarks this week that he is going to make changes so that the Joint Panel hearings on Enbridge’s Gateway Project won’t take18 months. Which would mean of course that everybody who wants to be heard won’t be. Only further proof the federal government is not concerned about proper processes and their legal obligations to consult honourably.
But most importantly, I think about First Nations and how can First Nations keep up with shorter timelines and a greater number of applications for development. How many First Nations have the capacity to deal with all the referrals and processes they have to be involved in? Some First Nations may have one person on staff to do referrals. Other First Nations use their treaty staff or economic development staff to respond to referrals. Other First Nations have their band manager respond. In the north where there are so many referrals, it is an impossible task to respond to all referrals. The courts have been clear, First Nations cannot frustrate the consultation process and must participate in the process. Without the money to fully staff a large enough natural resource/consultation office, how can a First Nation meet short turn around times when they are struggling to keep up with existing time lines?
The governments do not normally give money to First Nations for consultations. The environmental process usually provides some funding but it is never enough to hire the experts needed to review very technical reports and for the First Nations to do there own internal reviews with the staff, chief and council and community members. The cost of consultation has largely been the cost of the First Nation itself. Companies and other third parties have given money to First Nations to consult, but this is not a given and not every company will do so.
A First Nation must and wants to protect its rights and titles, but when the proposed development will infringe on the First Nations rights, should the financial responsibility be with the First Nation? In my mind and in many First Nations, the obligation should be on the government. Some First Nations insist that a Participation Agreement be signed and that the company must pay a fee set out by the First Nation before they will even participate in a process to look at the project’s impacts on the First Nation’s rights. The Tseil Waututh in their Stewardship Policy (www.twnation.ca/en/About%20TWN/~/media/Files/Stewardship%20January%202009.ashx) set out fees they expect. There was a huge uproar in the lower mainland when they unveiled their policy, yet that was the only way Tseil Waututh could participate in consultations.
I have advocated for a long time with the provincial government that they should have a First Nations consultation fee on every application and that fee will change depending on the complexity of the application. It is one way of ensuring that a First Nation can fully be involved in. So far, that hasn’t happened.
The province pleads poverty and says they cannot afford to provide funding to First Nations for consultations. But the risk they take is that the First Nations take them to court for lack of consultation and the time and expense of that and the project delay is a far greater cost to them. When you look at some of the agreements they have negotiated for example with the Taku (www.newrelationship.gov.bc.ca/shared/downloads/signed_TRTFN_BC_LRMSDM_agreement_.pdf) or the Nanwakolas (www.newrelationship.gov.bc.ca/shared/downloads/nanwakolas_SEA_amended_OCT_2011.pdf ), they have provided funding for the First Nation to participate in the processes established, yet they haven't done that with all First Nations.
In the Sts’ailes agreement s. 12.5 (http://www.newrelationship.gov.bc.ca/shared/downloads/stsailes_mou_final...)the government provides money for revenue sharing to them. They insist that the First Nation must use this money for their participation in the “Shared Decision Making” process they have established. So what the government is saying is that we will share money with you but we insist that you use it to work with us. If this was true revenue sharing, the First Nation should be able to use the money for whatever purpose they needed it for. I am sure that we will see more agreements along this line, that the only way revenue sharing will happen is if you use some of it for the shared decision making/consultation process agreed to. The Supreme Court of Canada is clear, the Honour of the Crown is at stake in fair consultations. Is it honourable to give money to the First Nation and insist they spend it on a legal obligation like consultation?
As we watch the drama going on in Kitimat Village and the Enbridge pipeline, can you imagine the kind of money it takes for a First Nation to take the proposal, evaluate it, and determine the negative impacts on their rights? I can hear clearly the elder who said “the pipeline is like a double barreled shot gun running through our lands…” Being able to understand any development in our territories and study the possible impacts is critical to raise concerns, and determine whether a project should go ahead or not.
The Honour of the Crown must ensure that there is sufficient time, money and resources for the First Nation to review whatever application it is being forced to deal with. If the Federal and Provincial government wants to condense time lines to get earlier approvals, they better to prepared to provide a lot of money to First Nations to keep up with the pace, seriousness of the application and be prepared to give extensions to time lines so they First Nation can work within their communities.
The Universal Declaration of Indigenous Rights calls for the “free, prior and informed consent” of the First Nation. Can the governments justify quicker time lines and still say that they have the free, prior and informed consent of the First Nations and that their duty to consult and accommodate has been fulfilled to ensure the Honour of the Crown? I would think not.
I started out by asking “When will the war on rights and title be over”? I think it is a long way from being over if the governments are intent on condensing processes to get quicker decisions. I also think that as long as governments think they can justifiably infringe every right of First Nations, they will be challenged again in court and their powers confined. After all, why enshrine rights and title in the constitution if the governments can take away those same rights through development. As long as governments are on this track, it is incumbent on First Nations to keep up the battles to defend their rights and title until the war is won. We owe that to future generations and to warriors past, we owe it to ourselves to ensure our way of life and to continue to exercise our rights, it is who we are.