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Bill Gallagher says locking up First Nations support goes a long way to tempering environmental movement opposition
Canada is orchestrating a big push to accelerate development of its natural resources, but behind the hype there is a shifting and tense legal landscape. First Nations are on a big winning streak in the courts that has empowered them to have a say on projects in big parts of the country.
The tension is pushing corporations to spend huge dollars to keep the peace and move projects along in areas First Nations claim as their traditional lands.
But the approach is piecemeal and there have been few consistently successful strategies. Tension, frustration and confrontation abound. Lawyers, consultants and vested interests fuel and feed off the tension, making it hard to come up with solutions.
Many projects worth billions of dollars have been delayed or sunk altogether. They include scores of mining, forestry and pipeline projects such as the now-shelved Mackenzie Valley gas pipeline in the Northwest Territories. The Northern Gateway pipeline could be next unless accommodation is found with opposed First Nations in the B.C. interior and on the coast.
Bill Gallagher, a former federal government regulator, oil and gas lawyer, treaty negotiator, and author of a new book, Resource Rulers, Fortune And Folly on Canada’s Road to Resources, argues there is a better way.
“The current situation in terms of access to resources, with the overarching tensions, has become unsustainable,” Mr. Gallagher said in an interview. “That is the key to the whole thing. Recognizing that Plan A has not worked, let’s put a Plan B together.”
The good news: Canadian First Nations are not opposed to development.
The wakeup call: Corporate interests need to accept what the courts already have – that First Nations now hold the balance of power in deciding the fate of Canada’s resource projects because they have rights that others don’t.
It’s a power Mr. Gallagher says is backed up by 170 legal victories – the biggest winning streak in Canadian legal history – that give First Nations a say in how resources are accessed and developed in every region of the country.
The wins are underpinned by the Canadian constitution. When it was repatriated in 1981 by the Liberal government of Pierre Trudeau, First Nations won the inclusion of aboriginal and treaty rights, as well as blanket protection in the Charter of Rights and Freedoms.
These key measures today comprise the fundamental law of Canada and form the underpinnings of the ensuing native legal winning streak, Mr. Gallagher writes in his book.
The new landscape means the “minimalist approach” used by many resource companies in dealing with Canada’s aboriginals is inadequate.
The new approach will have to involve revenue sharing, building trust and treating First Nations as full partners, perhaps even invite them to be co-applicants before regulatory boards – that’s what it will take to win backing for pipelines in the future, including Northern Gateway, he said.
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