Old treaty and modernized law improving relationships between industry and First Nations

Shining a light on the past reveals a history of often contentious relations between First Nations and the resource industries in Western Canada.

Particularly in BC, the legacy of exploration, extraction and production activities carried out on traditional lands has often been one laced with distrust and deception.

But thanks to legal groundwork laid a century ago, the Northeast corner of the province has been able to benefit while operating under the kind of certainty only treaties can provide. And while the rest of the province continues to invest time and energy into untangling past encroachments of resource activities onto unceded land, industry and First Nations in the Peace Region are working together to build better relationships than before.

“The difference is that we don’t have to prove that we have rights; those rights were established in 1899,” explained West Moberly First Nations (WMFN) chief Roland Willson, whose nation signed the treaty in 1914.

While 116 First Nations in BC – 60 per cent of all aboriginal people in the province – are currently at work on 45 separate treaties to determine land rights, the Treaty 8 communities are busy laying the path for future prosperity.

Treaty 8 also covers Northern Alberta, a province where many of the 47 First Nations have long-established working relationships with oil and gas producers.

Treaty 6 (Central Alberta) and Treaty 7 (Southern Alberta) are also long-established, providing certainty to all stakeholders.

Along with two other participating nations within the Treaty 8 Tribal Association in BC, WMFN has created consultation protocol and economic benefits sharing agreements with the provincial government – agreements that allow those communities to move forward with industry on activities including forestry, oil and gas, wind projects and more.

In all, West Moberly sees about 1,500 to 2,000 referrals each year, many of which mean the start of productive relationships. Those are usually formalized through a memorandum of understanding (MOU), and in some cases, through a memorandum of agreement (MOA), which carry more legal weight.

“The bigger (oil and gas producers) that are developing long-term plays, we tend to have MOAs with them,” said Willson. “We’ve got some oil and gas companies that seem to be genuinely interested in the welfare of our communities, trying to help.”

On the horizon are regulations that promise to modernize the expectations around First Nations input and environmentally responsible use of Crown resources. The Oil and Gas Activities Act (OGAA) is a piece of legislation passed in BC last year that will update a 40-year-old framework.

Building the regulations has meant extensive input from Treaty 8 First Nations – something that is “certainly a new approach, from our perspective,” said OGC director of First Nations strategic planning Tom Ouellette.

“There is no doubt that things have changed over the past twenty years, from virtually no relationship to the New Relationship we see today”
-Lee Shanks

Of course, industry in the Peace hasn’t always looked to maintain healthy relationships with First Nations. Even two decades ago, the treaty rights of ‘Indians’ were often grudgingly acknowledged, and cultural or archaeological impacts were relegated to the status of afterthoughts in many situations.

“There is no doubt that things have changed over the past twenty years, from virtually no relationship to the New Relationship we see today,” said Lee Shanks, communications manager for the BC Oil and Gas Commission, making reference to the four-year old provincial initiative to settle land claims, produce treaties and build cultural understanding.

Since the OGC was established in 1998, consultation agreements have been hammered out between it and the eight BC member communities of Treaty 8, making a clear process for all stakeholders to follow.

In addition, cultural awareness initiatives and funding support for both GIS training and traditional community knowledge have helped to bridged the once-massive divide that existed between regulators and First Nations in the North.

The OGC’s focus is on getting oil and gas companies talking to First Nations. An open dialogue has produced success stories, such as Calpine Canada Resource’s re-routing of a pipeline in the Doig River First Nations traditional area. After hearing concerns about the pipeline’s proposed placement on a culturally-sensitive ridge area, OGC-facilitated meetings led to the pipeline being re-routed through a lowland muskeg area instead – to the satisfaction of everyone involved.

Many companies have worked hard to build relationships with First Nations, and the Canadian Association of Petroleum Producers has a long standing relationship with Treaty 8 that includes regular ‘Chief- to-Chief’ meetings.

But as always, there’s room for improvement. “(Some) oil and gas companies want nothing to do with us and actually go out of their way to exclude us,” said Willson.

“We have a couple companies that have long term development plans in the area that we have absolutely no relationship with.”

Willson sees the province as still being “unable to keep up with recent court decisions,” at least one of which was initiated by WMFN. Their legal petition resulted in Vancouver-based First Coal Corporation being ordered to halt their exploration work near Chetwynd, after the BC Supreme Court determined there was inadequate consultation carried out by BC’s energy ministry.

The complaint stemmed from the effect of that exploration on the Burnt Pine Caribou herd, which WMFN has a treaty right to be able to hunt.

“Because consultation lies with the province, industry sometimes doesn’t think they should come talk to us,” he said. We like to tell proponents, when they come to us, ‘We’ll put all our energies into working together, or if you choose, we can put all our energies to working against you’,” he said.

“We leave it up to the proponent. We don’t want to play games; we’re too busy.”

The WMFN has had positive relationships thus far with wind power proponents – “a big part of it is they know they have to come in and talk to us; and the more they have us on their side, the easier their application processes are,” Willson said – but feel let down by the consultation process involving another kind of turbine: the Site C hydroelectric dam on the Peace River.

“If we could build Site C without having to flood the valley, it would be no problem,” said Willson. But the fact that it will seriously fragment wildlife corridors and degrade habitat means it will have a direct impact on the band’s treaty rights to hunt wild game.

“The flooding of the valley is a completely irresponsible impact, and it’s not necessary, he said. “The impacts we are still suffering from the W.A.C. Bennett and Peace Canyon Dams have never been addressed,” Willson added.

Spanning BC and Alberta is the proposed Enbridge Northern Gateway pipeline, which would run from Edmonton to Kitimat carrying oil and condensate. While agreements have been reached with many nations along its 1,170 kilometre route, the prospect of an oil spill on land or from supertankers connecting to the pipeline continues to be a flashpoint for concerns.

A broad coalition called the Coastal First Nations has pledged to stop the pipeline at all costs, and a report last June by CIBC World Markets warned investors that the Enbridge pipeline would be delayed by tough First Nations negotiations.

The controversial nature of the project has already played a role in derailing Enbridge’s deal with Beijing-based PetroChina, who were negotiating to reserve half the pipeline’s capacity.

In Northern Alberta, Athabascan First Nations groups have been carrying out highly-publicized campaigns against oil sands developments, citing water withdrawals from the Athabasca River and high cancer rates in the area are two of the main rallying points.

In the big picture, Canada’s failure to unreservedly sign the UN Declaration on the Rights of Indigenous Peoples continues to spur unrest amongst the aboriginal population. After more than 22 years of discussion, the international agreement was signed by 143 countries in 2007. Four countries opposed the agreement at that time, and only Canada and the US have not revised their positions since then.

While that national building block has yet to fall in place, First Nations in this part of the country have been successful in upholding their rights to pursue their own institutions, economies, cultures and spiritual practices while supporting industrial activity.

Through determined efforts and patient partnerships, the relationship between industry and First Nations is bound for continued improvement.