By Bill Gallagher
Readers who have followed my tracking of the native legal winning streak will be familiar with my preferred wording – ‘Land Rights’ – being the catch phrase whereby natives typically win in the resources sector. Simply put, they have constitutionally protected land rights that the rest of us don’t have. Their powerful winning streak has continued apace since my earlier commentaries for First Nations Voice, and recently they just broke-through the 300-win mark. Thus, an update is warranted given that they have redrawn the map of Canada in terms of native empowerment. As I referenced in my first book, they are truly Resource Rulers.
My message to government, to Industry and to the public is always the same: realize that natives are resource gatekeepers and work them into projects as the key players that they are.
They have now scored major victories in every province and every industry. The heft of these legal wins, collectively, is still not properly appreciated by the powers that be, and I blame mainstream media for that lapse.
I’ve been frustrated by mainstream media in terms of getting this story line out. It’s because that industry is in freefall in terms of journalistic career choices. Who dares report, in the current environment, on major projects losing to natives? Thus we have a news dynamic that is unduly deferential to power, scared to challenge CEO’s and their corner office lawyers, with no tracking of the sequence of events (the 300 legal wins) and no analysis as to how or why natives keep winning.
I believe racking-up 300 legal wins should be a major story for mainstream media. But its not.
So, Canadians need to know why their resources sector is shrinking. And correspondingly, natives deserve credit for their ‘land rights’ legitimacy that continues to propel the rise of native empowerment right across the country. Because they’re winning by playing by our rules; and it’s now the biggest win cycle in Canadian legal history.
The pandemic has completely changed the narrative on a host of topics dealing with native empowerment. Prior to, BC interior natives had caused an uproar by instigating a rail shutdown that negatively impacted the national economy. The Unistoten were at the barricades and were not even looking to compromise. They and their eco-activist allies had put the Canadian Government over a barrel in terms of protest strategy. Tellingly, the governments of Canada and BC capitulated in a secret deal; such was the power of the native negotiating strategy.
On the east coast, natives succeeded is de-commissioning a modern pulp mill putting hundreds out of work. Northern Pulp was a notorious polluter, and in a key native legal win the court had invoked the phrase “environmental racism”. It’s a first in Canada where an in-service facility was taken down by native empowerment. To its credit, the Nova Scotia government sided with the impacted Pictou Landing First Nation. The only other example that’s comparable is the recent tribal win against the Dakota Access Pipeline in North Dakota, which is forcing an in-service pipeline to immediately shut down and empty for a one-year environmental review.
The main event out west was the recent voiding of an oil sands permit; an unheard-of event in the history of the oil patch, landing in the downtown oil sands. The Rigel project permit was voided by the Alberta Court of Appeal, essentially for intruding on the last traditional use area (Moose Lakes) of the Fort McKay First Nation. This was a tone-deaf development by the Alberta Energy Regulator, and too, the energy Industry given its collective support of the approval. Four years prior, I presented at a major conference in Fort McMurray and predicted that the day would soon come when a major project would be ‘bounced’ on account of Industry misreading the rise of native empowerment. So preposterous was my commentary that I made headlines in the Edmonton Journal. Yet here we have a project, planned for years, that failed to pass-muster in the powerful inner sanctum the western sedimentary basin – the vaunted oil sands!
All these stories were squelched when the narrative turned to tracking pandemic politics.
But now we’re seeing these same types of stories written up from a U.S. perspective given the awful week pipelines had in early July: when Dakota Access, Keystone, and Atlantic were all stalled on account of social license pushback (mainly tribal empowerment). Of course, this is old news in Canada, what with the demise of the Mackenzie Valley, Northern Gateway and Energy East pipelines. Maybe we can learn from the U.S. experience, since we didn’t heed our own?
Hardly anything constructive is happening in this country. The only pipelines being touted are now owned by governments: Trans Mountain (Canada) and Keystone XL (Alberta) given that the industry proponents took write-downs and bailed. Note: not that crown ownership has actually solved the native empowerment issues impeding either project; they’re simply on life support.
In Resource Reckoning (my second book) I provided a strategic guide for proponents to follow to properly launch a resource project in the era of native empowerment. It landed at the 250 native win mark and today remains the only focused solution put forward by anyone in Canada to solve the national resource gridlock dilemma.
I’ve now just registered the title for my third book in the trilogy – Resource Requiem – which will document how and why we, as a country with the richest resource bounty in the world, have chosen, mainly through professional and political incompetence, to run this vital sector into the ground. This train-wreck of a storyline remains the biggest under-reported business case in modern Canada. Instead, we should be on top of our resources game and economically prosperous. All we have to do is show respect for the rise of native empowerment and cut natives a proper deal, so that our projects become their projects. It’s their traditional land after all and they have 300 legal wins backing their land rights up. So, until such time as mainstream media and political elites decide to focus on the native empowerment narrative, it’s a safe bet natives will keep winning (along with their eco-allies) having already tied the resource sector up in knots.