Party of One (38 page)

Miles of wetlands and waterways were contaminated, and the cleanup costs topped a billion dollars. Complicating that operation, tar sands oil sinks in water, rather than floating like conventional oil. Investigation of the catastrophe showed that Enbridge had violated several laws involving pipeline management. And even though it had been twenty-five years since the
Exxon Valdez
disaster in Prince William Sound, the damage to the marine environment on the west coast was still visible. People remembered.

With all the risks, First Nations were still willing to support responsible resource development and even become directly involved in sustainable projects, as Eyford reported to the prime minister. But not as coolies. “There is an interest in borrowing capital at preferred rates, backed by a federal government guarantee, for the purpose of obtaining an equity position in partnership with industry stakeholders,” Eyford wrote. This was a position that Eyford indicated was supported by industry. But according to First Nations negotiators, it was not supported by the central federal agencies in Ottawa: Finance, the Treasury Board, and the PCO. Eyford would later revise his interim report and say in his final report that Aboriginal communities had not expressed an interest in obtaining a federal loan guarantee to obtain equity interest in pipelines or LNG facilities, although in future Canada might be asked to consider such proposals. For now, this was “a proposal without a project.”

Nevertheless, industry stakeholders knew that First Nations could delay or prevent projects without using the courts, and they wanted the Harper government to do more to find an amicable solution. Their own token efforts to involve First Nations had failed. Both the Athabaska Chipewyan and the Fort McKay Nations
had pulled out of the Joint Oil Sands Monitoring Program. They had left because the program was mere window dressing. As the Harper government itself had reported to the United Nations, emissions at the tar sands are expected to soar over the next thirty years, so why go through the charade of protecting the environment with scrupulous monitoring?

Simply put, the energy companies didn’t think the federal government was reaching out for partners. Nor was industry Harper’s only critic. Eyford reported, “Alberta and British Columbia conveyed their views that the Government of Canada does not effectively engage First Nations.” They too believed the Harper government should be doing more to identify ways for Aboriginal groups to become partners in the development of oil and gas. Both provinces saw themselves as pursuing “creative, flexible and innovative approaches to improve their relationships with Aboriginal peoples.” But according to Eyford, the provinces believed, “Canada is either unable or unwilling to adopt similar approaches.” The problem of “limited presence on the ground” was affecting Canada’s relationships with Aboriginal groups. Both provinces also wanted more information, earlier, about federal initiatives so they could coordinate activities in support of development.

British Columbia’s first priority was to move as quickly as possible with LNG development. Provincial representatives were even worried that the controversy over Northern Gateway could cause First Nations to resist LNG the way they were rejecting bitumen. First Nations were concerned that if energy corridors were constructed for gas pipelines on their territories, oil pipelines would soon be built alongside them. First Nations also felt they had a lot to contribute to pipeline and marine safety initiatives because of their knowledge of and connection to their traditional territories. The chiefs had company in complaining about Stephen Harper’s unilateralism. The British Columbia government expressed
frustration that it had not been consulted on the announcement of an expert marine safety panel. Eyford suggested that Canada should address First Nations issues through early engagement, to build a relationship between the two parties, as well as reconcile the rights of Aboriginals with the needs of all Canadians. It was good advice but offered late in the day.

One of Eyford’s most strategic observations was that Canada approaches resource development from a national or global perspective, but there was no common First Nations perspective because of different cultures and traditions among Aboriginal communities in BC. However, the bands united around the common concern that, in the big picture, the risks of resource development would outweigh the benefits. There was a selling job to be done here, and failing that, a path that would lead straight to the courts. Eyford noted that Aboriginal groups in BC have generated almost all the landmark Aboriginal rights litigation in Canada. Many tribal councils believe that the development of oil pipelines is an opportunity to gain “greater judicial certainty about the nature and content of Aboriginal rights, including title.” In other words, they were not going to be induced to support a project simply with the offer of a job. They were looking for linkage to other key issues. Important land claims remained to be settled, nation to nation, and Ottawa was moving at a snail’s pace on that front.
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Another significant observation made by Eyford was that First Nations were not opposed, per se, to economic development in their traditional territories. But Ottawa had been treating them as an afterthought. In fact, the constitutionally protected Aboriginal and treaty rights required that they be involved at the outset with project planning; that their rights be acknowledged before projects proceed; and that the projects undertaken respect “the long-term sustainability of the environment and their communities.” Aboriginal Canadians see themselves as stewards of the
environment, a conviction that is integral to their identity. Eyford understood that and recommended to the prime minister cultural sensitivity training “at all levels” of the federal government to improve the negotiation process.

The lack of credibility of the Harper government was a deeply rooted problem. Eyford noted that the First Nations peoples had a deep mistrust of Stephen Harper after the aggressive passage of Bills C-38 and C-45 and the profound legislative change they created. If, for example, the Northern Gateway Pipeline went through a community, community consent was no longer needed, just the consent of the individual people whose property the pipeline traversed. Changes were also made to the Indian Act without proper consultation. The Canada–China Investment Treaty signed in September 2012 was adopted without consulting First Nations, even though it affected their constitutional rights.

Finally, after a promise of greater consultation, Harper made surreptitious, unilateral changes to the contribution agreements with Canada’s 630 bands.
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These contribution agreements were their primary source of income. In the 2013 appendix of conditions attached to the documents, there were a number of provisions never seen before, and the bands were in turmoil about whether to sign. The bottom line was that the conditions in the appendix could be interpreted as requiring bands to support omnibus legislation and proposed resource developments as a condition of accessing their funding. First Nations believed that the federal agenda was designed to develop the projects at the expense of the environment and to find a way to force First Nations to go along. But as Eyford noted in his report, failure to explain the rationale for the legislative changes would only harden attitudes and entrench the positions of the First Nations.

The 2013 federal budget raised more red flags for Canada’s Aboriginals. Despite promises, the document included almost
nothing new that would alleviate poverty for First Nations. Instead, it introduced “workfare” for native youth. Without prior consultation with native leaders, the government announced $241 million over five years for a native youth job-training program. Bands could only access the money if they made it mandatory for youth on social assistance to participate in the program.

Workfare seemed an odd way to recognize self-determination or mend a broken relationship. The elephant in the room was the fact that there is a third level of government in Canada with constitutional protection, which many have argued should be getting transfer payments not handouts. What this centuries-old injustice requires is a visionary and a peacemaker, not a federal government that perpetually tries to strong-arm opponents into submission. Three former prime ministers—Brian Mulroney, Jean Chrétien, and Paul Martin—all denounced the Harper government’s unilateral approach to the First Nations relationship.

K
ITIMAT
,
WHICH
IS
both the intended terminus for the Northern Gateway Pipeline and the proposed location of two LNG plants, is within the traditional territory of the Haisla Nation. In March 2013, the federal government unilaterally announced that Kitimat would become a public port. The chief of the Haisla Nation only learned about the decision when he read about it in the newspaper. It was not a confidence builder.

On April 24, 2013, the chief councillor for the Haisla Nation, Ellis Ross, wrote a zinger to the minister of transport, Denis Lebel, and the then minister of natural resources, Joe Oliver. The Haisla were unpleasantly surprised by the announcement that Kitimat would be designated a public port under the Canada Marine Act, wrote Ross. “Canada had ample opportunity to apprise the Haisla Nation of its intention to establish a public port at Kitimat prior to making its public announcement. Your choice not to do so
underlines a profound lack of understanding of the legal relationship between your government and the Haisla Nation.”

The Haisla Nation had asserted a powerful claim of Aboriginal rights and title to its entire traditional territory. Chief Ross continued, “The new regulatory regime that you are contemplating has the potential to infringe our aboriginal rights and title and, accordingly, cannot lawfully proceed absent appropriate consultation and accommodation.” Ross said the Haisla Nation was already working effectively with stakeholders Rio Tinto Alcan and Shell Canada in Kitimat to regulate non-toxic LNG cargoes. The Haisla didn’t need the heavy hand of the federal cabinet intervening. He concluded that Canada was advancing the public port proposal to further its tar sands agenda, which would see “pernicious hydrocarbons, in particular diluted bitumen” move through their territorial lands and waters.

Ross reminded the cabinet ministers that the Haisla Nation had been instrumental in getting the parties to agree on an appropriate regulatory framework for the Douglas Channel. Canada had promised that the Haisla would sit on the relevant task force, and had then excluded them. This was “discourteous.” Canada had also refused to engage in meaningful consultation on the Northern Gateway Project, a project that, in the Haisla Nation’s view, was a threat to them, the more so because the review process on the project was, in their opinion, deeply flawed.

Ross ended his letter with the words “You are, with all respect, not acting in accordance with the honour of the Crown. Please review this matter and re-engage with the Haisla Nation but this time on the footing of equality, legality, and respect.” From the Haisla’s perspective, and given the Harper government’s objectives, Canada should have involved them in the decision. As Eyford put it, “This has undermined relations and created suspicion about the Government of Canada’s motives and agenda.”

No one knew the territory better than First Nations. They wanted a role in monitoring pipelines and tanker traffic, and in providing emergency response, demands that industry supported. Instead, the Harper government said it would not fund or participate in a proposed working group on that subject. Eyford expressed the bottom line with a flourish of understatement: “Northern Gateway appears to lack a critical mass of support among British Columbia First Nations.”

The Carrier Sekani Tribal Council was every bit as forceful as the Haisla’s. They thanked Eyford for meeting them in Prince George in May 2013 during an internal planning session on pipelines, but they had a message to deliver. The chiefs wanted to assure Eyford that they were not anti-development. They wanted him to know that they were prepared to work with companies that offered sustainable development. They would also work with the Crown on ensuring their people benefitted equally from development in their territories, but the Crown had walked away, unwilling, in their view, to negotiate a fair deal.

The chiefs were also concerned that loans owed as a result of fruitless negotiations were a burden to the First Nations. They were well aware that their rights and title were enshrined in the constitution, and supported by the United Nations Declaration on the Rights of Indigenous Peoples, which Canada had endorsed. On behalf of the chief, the council wrote, “Governments on countless occasions have broken promises and the level of trust is diminutive.” They pointed out that the Conservative government did not implement the Kelowna Accord or keep its promised commitments of $5 billion in extra funds when they took office.

The Carrier Sekani position on the transport of bitumen through their territories by Enbridge was an absolute “no,” at any price. That was partly because of their low opinion of the firm: “This company has a terrible safety track record and is one of the
most deceitful organizations that we have ever dealt with since the industry entered our territories. We are not holding out for a better deal as some have presumed. In this situation, no means no.” In an interview in April 2014, Enbridge CEO Al Monaco observed, “We probably should have spent more time building trust.”

According to the chiefs, some industry players had acted in good faith, but others had not. They had watched as industry extracted resources from their lands “and governments continue to accrue benefits while our communities still live in third-world conditions.” This time, revenues had to be shared proportionately. The chiefs also noted the 30 percent cuts to band and tribal council funding that the Harper government had made. The Assembly of Manitoba saw its funds cut by 80 percent.

First Nations peoples were “appalled at the comments by Minister Joe Oliver who labelled us as radicals.” They found his attitude towards their communities racist. “We cannot understand why we would be considered radicals for standing up and protecting our rights in our own lands. We are protecting our lands, waters and resources for all our children’s children.” They asked for a public apology from Minister Oliver for his disrespectful comments, and then watched as the Prime Minister Harper promoted him to the post of finance minister after the late Jim Flaherty’s retirement.