First Nations’ Remarkable Legal Winning Streak – by Shiri Pasternak (The – April 10, 2014)

‘Resource Rulers’ says industry ignores at its peril wave of ‘native empowerment.’

When news media pay attention to books about Indigenous people in Canada, they tend to select those that stick to a particular script. Flanagan, Alacantra and Le Dressay’s Beyond the Indian Act, Widdowson and Howard’s Disrobing the Aboriginal Industry, and Calvin Helin’s Dances with Dependencyall received extensive coverage by the national press upon release.

These books, while different in content, share in common the characterization of Indigenous economies as dependent systems. The solution to achieving self-determination is always conflated with free market access. And while these authors are careful to situate the poverty in First Nations communities within a historical context of land dispossession and legislative discrimination, they are equally careful to avoid analyzing inequalities in systems of free market capitalism.

Now it is Bill Gallagher’s self-published book Resource Rulers that is getting all the attention. It is an engaging read that argues the legal winning streak of First Nations in resource conflicts (he counts over 150) should put industry on notice to comply with their expanding obligations to Indigenous peoples. Each chapter in the book surveys a different region or province, highlighting what Gallagher perceives to be the key legal victories of “native empowerment.”

Striking a tone of caution to industry regarding native rights, is Resource Rulers thematically apiece with the usual populism described above? A frenzy of recognition initiatives by the B.C. government renders this question particularly pertinent: is this kind of recognition of legal rights the tipping point to a changing landscape of Crown-Industry-Indigenous relations in the province? Or is it just more of the same?

An insider’s perspective

Gallagher, a self-described authority on native claims in the resource sector, has worked for industry as a mediator in “defusing” conflict between Indigenous peoples and government in regions and industries across the country. He has an insider background for this work, having practiced corporate law in Calgary and worked as an energy regulator in Ottawa and a treaty negotiator in the Prairie provinces.

Rather than hardening his perspective, however, his experience has given him particular insight into resource conflict negotiations. Unlike other books on Indigenous rights, Gallagher does not restrict himself to the major Supreme Court of Canada cases on Aboriginal title and rights. Instead, he focuses much of his discussion on lower court decisions, injunctions and judicial reviews, and environmental review processes, providing a refreshing take on what is happening on the ground across the country.

For example, in the chapter on the Maritimes, he recounts a fascinating history of the Sable Island pipeline, disrupted by Micmac bands based on a judicial review that was then leveraged in the courts against the National Energy Board for failure to consult the local nation. The court victory, Gallagher points out, was a major business story and demonstrated that government and industry ignored natives to their own peril.

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