Resource Development and Indigenous Peoples: Finding the path to co-operation – by Assembly of First Nations National Chief Shawn A-in-chut Atleo

This speech by Assembly of First Nations (AFN) National Chief Shawn A-in-chut Atleo was given at the Joint Law Society of Upper Canada and Indigenous Bar Association Luncheon on September 9, 2011 in Toronto, Ontario.

“Environmental groups and industry have far too often
rushed to impose their values and their views on our
interests…. Permit me to lay out a new path for you:
a path that guards Indigenous economic interests, our
rights, and our sacred commitment to the health of the
planet. A plan that is confident in our ability to be
major players, and one that is optimistic about creating
hope and opportunity for our children and their children.”
(AFN National Chief Shawn A-in-chut Atleo)

Resource Development and Indigenous Peoples: Finding the path to co-operation (September 9, 2011)

First of all, I want to thank the Law Society of Upper Canada and the Indigenous Bar Association – President Margaret Froh for the kind invitation to speak to you today.

Today, I want to challenge all of us to set aside some misconceptions and false choices.

I’d like to set out for you a path of cooperation as opposed to conflict, and to envision a future of mutually supportive commitments to economic development and governance.

Some of you might already be saying to yourself, “Well, heard that before!”

But I am speaking about a major shift, a massive transformation … one that I believe is possible, even essential, and it does not require new ideas.

After all, this was the vision of our ancestors who entered into Treaty and other alliances – trade, economic and military alliances. Their vision is still instructive.

First, they understood, there was no difference between a rights agenda and an economic agenda. They would have rejected that false choice. They are the same agenda obviously.

Second, they would have rejected the false choice between the environment versus economic development.

Our ancestors were committed to ‘sustainable development practices’ that respect our traditions and our world view that includes all things living and non-living – long before that concept was articulated by non-aboriginal scientists.

Our agenda is, and always has been, unique.

It respects each Nation’s right to advance development agendas that accord with the community’s views and values. Environmental groups and industry have far too often rushed to impose their values and their views on our interests.

They too often show too little respect for our interests, which include fostering positive relations with our neighbours, feeding our families and offering hope and opportunity to our young people.

So here too we reject the attempt to impose this false choice on us.

Permit me to lay out a new path for you: a path that guards Indigenous economic interests, our rights, and our sacred commitment to the health of the planet. A plan that is confident in our ability to be major players, and one that is optimistic about creating hope and opportunity for our children and their

The Assembly of First Nations is committed to supporting our families and communities and new approaches to education and health. We help build capable governments and institutions. And we work hard to advance economic and environmental partnerships to address our communities’ needs, including our right to safety and wellness.

We believe it is the moral imperative of our leadership to fight for better education and to foster a better quality of life for our people who are too often the poorest of the poor in a rich country built on our traditional homelands.

There is a compelling economic and political argument for action. If we can close the gaps in employment and education we can add $300 Billion to Canada’s economy, and save another $115 Billion in public expenditures that result from First Nation poverty.

And now, more and more, we are seeing strong legal reasons to bring First Nations fully into the economic livelihood of this country. Whether it is logging in Grassy Narrows territory in northwestern Ontario, Nuuchah-nulth fisheries in my home community at Ahousaht, or the recent decisions in Bastien and Dube that speak to our right to participate in the commercial mainstream – more and more we are seeing our rights upheld and affirmed, accompanied by a clear directive for industry and government to work with us.

The government estimates that there will be $400 Billion of resource-based economic activity in Canada in the coming years. Much of this will take place on or involve the traditional territories of First Nations.

This – along with our young and growing population, Canada’s future workforce – make us major players in the economy now and in the future. We have much to gain by working together and a lot to lose if
we don’t – because those projects can not and will not take place without our agreement, without our involvement and without our active engagement from start to finish.

Let me cite two examples of how not to do it, how the old way inevitably leads to misunderstanding and confrontation, wasted time and wasted money on all sides, and, ultimately, the death of sensible economic
development partnerships that could have brought benefit to all.

The first is the KeystoneXL pipeline. Confrontation was created through inadequate consultation, failure to listen, and insensitivity to our rights and culture. The problem with this project and many others is that to this point – the effort required to address concerns simply hasn’t been there. Massive development projects like this one typically have a planning process that spans decades. Despite this, too often First Nations are never considered in the planning. There seems to be a sense that at the late, last stages our consent can be sought or bought. This does not work. We are forced to react and to fight to protect our interests.

Then there is the case of the mining development in the Tsilhqot’in territories in my home province. Incredibly, an enormous mining project was prepared with no interaction with the First Nations communities on whose land it was going to be built, a territory that had deep spiritual meaning to the people and also provided them with food and a way of life. The mine would have poisoned a pristine environment that supported these communities for centuries.

Years of planning by government and the private sector ignored these peoples, peoples with an intimate knowledge of every aspect of the territory, peoples who had fought the Tsilhqot’in wars over a century ago defending their way of life and their lands. Quite incredible to imagine that this is still happening in the twenty-first century in Canada.

The Tsilhqot’in did participate later in the environmental assessment process and everyone from the very, very elderly to small pre-school children spoke about their sacred lake and their concerns.

This led to a scathing environmental assessment – the Environment Minister at the time, Jim Prentice, called it one of the most severely critical he had ever seen. We supported the local leadership in demanding that the Government of Canada stop the project. And they did. It was a difficult decision for the Government in these challenging economic times and in the face of immense pressure from industry and the provincial and municipal governments.

Now, only a few months later, a “revised” proposal has again come forward seeking government approval. Again, there has been no direct engagement, no discussion or negotiation with the Tsilhqot’in – so of course again there is immediate resistance and an apparent path of conflict ahead. This pattern is
absolutely absurd and will never produce mutual benefit.

There is another path. The United Nations Declaration on the Rights of Indigenous Peoples compels both states and Indigenous peoples to work together in mutual partnership and respect. It also sets out the
standard of free, prior and informed consent.

Canada and other states have said they want to constrict this standard – saying that it is an impossible threshold, too close to a ‘veto’ and therefore unacceptable. Again, I ask you to set aside these misconceptions.

“Free, prior and informed consent” can work. It is clearly established in international human rights standards. The right of Indigenous peoples to approve or reject activities that affect their rights is a fundamental element of self-determination. It is also an important safeguard for other Indigenous rights by ensuring we are included in the development and decision-making process.

It is clear, we have work to do in creating understanding of this standard. At the Commission on Sustainable Development’s Working Group on Mining, the delegations from Canada, Australia, New Zealand and the US asked for the removal of “free, prior and informed consent” regarding Indigenous
and local communities.

Yet as you know, the 2004 Haida Nation decision, the Supreme Court of Canada ruled that the nature and scope of the Crown’s Duty to consult would require “the full consent of [the] aboriginal nation …on very serious issues”. The Government of Canada has not addressed this criterion of “consent” and instead has worked to narrow the definition of “very serious issues”.

Canada’s “Updated Guidelines for Federal Officials to Fulfill the Duty to Consult”, released last March, does not address the right of Indigenous peoples to free, prior and informed consent, except to note Canada’s concern about such consent being “interpreted as a veto”.

Canada’s Guidelines also state that the UN Declaration “does not alter the legal duty to consult” in Canada, yet the Supreme Court of Canada has ruled repeatedly that declarations and other international instruments are “relevant and persuasive sources for interpretation” of human rights in the
domestic context.

This approach of denying or minimizing our rights is both misinformed and, frankly, dangerous. All governments have a clear role to play in ensuring sustainable resource development including respect for fundamental human rights which include international indigenous human rights standards. We have a clear right to determine the course and shape of development in our territories and to benefit from development activities in our lands.

The Courts have been clear, the precedents in Human Rights law are clear, the common sense test of what is meant by “consent” is clear. We need to move down the path that these tests dictate. IT is time to bring Canadian law in line with the international instruments and case law recognizing indigenous land rights and jurisdiction. We must not slide down the old slippery slope towards new conflicts. We must march forward on a new path.

This new path provides an avenue for developing mutual understanding. It requires us to work with federal and provincial governments to review and revamp regulatory systems. It is a useful and appropriate tool for defining and regulating contractual relationships. It can guide resource development
projects to ensure an open, ongoing and equitable relationship between business, First Nations and government parties. The right to consent, and the freedom to withhold it, can represent the start of discussions and a powerful means to build the confidence of First Nations and to create successful, mutually beneficial projects.

Put simply – it is about building relationships; it is about respect … it requires discussion early and discussion often. And clearly – it just makes sense.

From oil and gas to wind and solar, First Nations are participating in, and even leading the development of new opportunities for our peoples, but only when government and industry work with us.

That path of consultation and co-operation is driving dozens of projects in mining and forestry, from northern BC – to the Ring of Fire here in Ontario – to northern Quebec.

But let me clear, and say again: They will proceed only with the full participation of First Nations.

We can move from poverty to prosperity in ways that are responsible, sustainable, respectful of our rights and mutually beneficial to all parties.

We appreciate that the private sector seeks certainty and guidance in understanding the practical requirements of indigenous rights. Much is available in the growing body of international norms and
jurisprudence and we’re working hard to make this fully accessible and straight-forward.

This is one of the main reasons why the AFN held the highly successful International Indigenous Summit on Energy and Mining in June in Niagara Falls. We co-hosted the Summit with the National Congress of American Indians. Their president, Jefferson Keel and I were co-chairs.

President Keel emphasized that it is our sovereign duty as the First Nations of this land to be responsible for the management of our energy and natural resources. First Nations and American Indians must do so together, across North America, across borders not of our making. The Obama administration sent several key officials to our Summit because the United States is fully aware that both First Nations and American Indians have become key partners in providing future energy security for North America.

As a result of the collaboration between the AFN and the NCAI, our organizations agreed to chart a path for tribally-driven development of Indigenous resources on Indigenous territory in North America where
the Indigenous nations are ready, willing and have a central role.

The Caucus of Indigenous Leaders of First Nations and Tribal Nations in North America unanimously stated the desire and commitment to build indigenous capacity to negotiate the terms of energy development.

Based on the dialogue at this event, the AFN and the NCAI are working to foster Indigenous participation in all aspects of energy and mineral development on Indigenous lands in a way that works for us, our nations, the environment and our economies.

The AFN and the NCAI are now collaborating to:

• examine the possibility of a North American Indigenous Task Force on Energy, comprised of representative organizations;
• participate in global leadership forums to help promote awareness of strategies that include Indigenous peoples;
• And to build specific capacity through the creation of an Indigenous Virtual Institute on Energy and Mining. This Virtual Institute will work to:

o Build expertise, literacy and education regarding tribal energy and mining development, particularly among Indigenous nations and peoples;
o Assist Indigenous nations in building and strengthening business acumen;
o Engage private industry and federal agencies to help enhance the capacity of nations; and
o Enable tribes and Indigenous nations to track and take advantage of existing market trends and opportunities such as debt financing, power export, and carbon markets.

This Institute and all of our follow-up efforts from the Summit will strengthen the capacity that is needed for First Nations to come to the table with equal bargaining power as government and industry to ensure that consent is the hallmark of our business relationships. The Institute will enable First Nations to engage at the earliest point of consideration and exploration right through to de-commissioning. First Nations can become the drivers of initiatives, identifying both the trouble spots and the opportunity before projects designs are finalized.

These are the first important steps in the transformation that I see as essential.

Essential for indigenous rights and survival;

Essential to create a path of mutual respect and cooperation, as opposed to perpetual conflict;

And essential to generate mutually beneficial outcomes – building indigenous economies and playing an increasingly important role in the broader Canadian and North America economies.

In the two months since our Summit in Niagara Falls, I am pleased to report that those efforts are ongoing and we are gaining support on an almost daily basis. We have rapidly increased our work with international interests across North America and far beyond. Through strategic engagement with China and the China Investment Corporation – an Indigenous trade and cultural mission is confirmed for this October. Two years ago China invested $1.7 Billion in a single mining interest in Canada – the role of
Indigenous peoples must be to directly engage, and that is exactly what we are doing to advance and protect our interests.

Canada has recently strengthened trade relations with a number of South American interests. We have increasingly close relations with Indigenous peoples across South America as well as states including Brazil and others that offer a potential for billions in two-way trade with Canada.

A delegation of Amazonas from Brazil attended our Summit in June. They are very interested in cooperating with First Nations to develop green energy projects.

Brazilian companies already active in Canada, such as Vale. Vale is one of the largest mining companies in the world, and it’s recognizing the important role of Indigenous peoples. They participated in our Summit and are now a major sponsor of the “One Laptop Per Child” program operated by the Belinda Stronach Foundation (providing laptops to Indigenous schools).

The new path I am describing begins always with First Nations at the table and the parties reaching their destination by finding First Nations consent and a mutually beneficial sustainable relationship.

There was a lot of interest in our Energy and Mining Summit at the Council of the Federation meeting held a couple months ago in Vancouver. The Premiers and Territorial leaders unanimously agreed to support next steps and the development of our Virtual Institute on Energy and Mining. We hope to launch the Institute within a year, possibly at the 2012 Annual General Assembly here in Toronto.

We are also working very closely with the Federal Government. We have carefully constructed our work to build on key elements of transformation – the apology to survivors of residential school – including the commitment to reconciliation – and Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples. These realities, along with the evolution in affirmation of our rights in section 35 and subsequent Supreme Court decisions, create the framework and the confidence to achieve real change.

On this basis we have set out a practical and balanced agenda through a Joint Action Plan with Canada. The Plan commits to addressing key interests including education and community safety right upfront as well as committing to improving negotiations leading to fair and expeditious settlement and transforming policies to unlock First Nation economic potential.

Let me say a few words on a subject that is close to my heart, at the top of my agenda. First Nations leaders clearly instructed the AFN almost 2 years ago to make education our top priority – we know the status quo is utterly unacceptable. This comes decades after the movement known as ‘Indian control of Indian education’ – these same objectives apply today – but today we have to push farther. The past decades have seen improvement due to our own educators and leaders taking charge and nurturing
our kids – we’ve seen post secondary graduation rates grow from a handful to tens of thousands – a remarkable achievement.

But too many of our children today are still facing a future without decent schools, and we owe them the same opportunity as every other child in this country.

As the Auditor-General pointed out repeatedly – the system is fundamentally flawed. There is no stability, no fairness and no accountability to our children and our communities for the way education is funded. There are no stable transfer arrangements supporting secondary and tertiary education, as enjoyed by every other families’ children across the country. Our schools are funded through annual contribution agreements that do not cover many essential elements such as libraries,
science equipment, computers.

Capital funding of our schools has failed to keep pace with basic needs of repairs, maintenance and, of course, population growth. The end result is simply unacceptable. Again, this is why I see the need for massive transformation – grounded in our rights and responsibilities and focused on delivering opportunity and nurturing the success of our kids.

With education and training, our young people can fill the growing labour force gap in Canada – especially in the west and the north. The mining industry alone will need 100,000 workers by 2020. Many First Nations communities are located near resource and green energy development. With the proper approach and investment, we can be partners in the next natural resource boom and the creation of clean, green energy for generations.

The Joint Action Plan also commits to transforming and improving negotiation processes. The AFN worked with the Government of Canada in the creation of the Specific Claims Tribunal. We see the same potential of improving the comprehensive claims policy. Our objectives are clear – we must create the conditions for fair, expeditious settlement.

No one has an interest in endless negotiation – we must establish good faith processes with a clear mandate to reach just conclusions. This is the way forward.

We have also worked very hard to build a national treaty strategy. Treaties are and will always be the basis of the Crown-First Nation relationship for many parts of Canada. We are all Treaty people. We’ve pulled together Indigenous Treaty leaders and are working with them to advance the concept of a Treaty Tribunal. Again a mechanism that will give effect to rights, to achieve change and to move beyond perpetual negotiation, stalling and lack of recognition.

First Nations from coast-to-coast-to coast are pursuing self-determination. This pushes us far beyond the constraints of the Indian Act and towards the affirmation and realization of our rights, our governments, our economies and our cultures.

We are advancing new approaches based on our rights that build capacity, dispute resolution and affirm direct engagement, as we are doing by taking forward our challenge on child welfare to the Canadian Human Rights Commission.

Through the dedicated efforts of professionals such as those of you here today, through the determination of our youthful leadership and by being grounded in our rights and our traditions – we will succeed. We will unlock economic potential and we will again realize our place as Indigenous Nations within Canada and North America.

Experience has shown that getting past conflict requires bridge building, mutual respect and, often, putting deposits in a joint ‘trust’ account to build opportunity and success. We must commit to the effort required to turn around the situation for the Tsilhqotin and others.

We must not stoke the fires of conflict and division but light the fires of peace and friendship. We need to engage in dialogue about economic potential in our territories and the potential to yield benefit for all of the surrounding communities.

Following this new path will affirm and strengthen First Nations, reduce conflict, and allow us to build a stronger, more prosperous, fair and just country for all the citizens of this land. The year ahead could be a milestone in the rebirth and resurgence of our economies. We can and we will become the new drivers of Canada’s economy, one built on the foundation of our rights, title and jurisdiction. And we invite those who embrace the values of foresight and fairness to travel with us.

Kleco kleco!