On July 2, the federal government announced several major investments for the Canadian west, including a proposed West Coast oil pipeline with a possible Indigenous equity stake and upgrades to the Port of Vancouver–Roberts Bank trade corridor.
Shortly after, the critiques began to roll in.
Lyackson First Nation, based on Vancouver Island with territory around Valdes Island, said the announcements were made without direct consultation, despite the project being physically across the Strait of Georgia on the mainland.
Other First Nations soon raised similar concerns.
The Tsawwassen First Nation, whose treaty lands may be affected by the proposed southern pipeline route that will terminate at Roberts Bank, stated it wasn’t consulted. It said it would assess potential impacts on treaty rights, lands, waters, fisheries, and all the usual fare before taking a position.
More interesting than whether these concerns are reasonable or not is how they expose the new economic and political mechanisms of B.C. as First Nations jockey for position to demand a price before major projects are built.
Reconciliation has narrowed from the official goal of correcting historical and current wrongs perpetrated against Indigenous peoples into a pay-to-play model that increasingly resembles rent-seeking.
‘F—k you, pay me’ strategy is getting expensive
The incentives are all there.
Project proponents need legal certainty and physical access. Under the BC NDP government, this increasingly extends beyond consultation and simple “engagement” to the need to gain permission (by whatever deal necessary) from the Indigenous community claiming the territory where the project is located. Often this takes some form of partnership involving a combination of capacity funding, compensation, revenue sharing or equity. Ottawa’s own description of the pipeline emphasizes consultation, Indigenous equity, loan guarantees, and partnership.
The emerging unofficial rule strikes uncomfortably similar to a line from the classic mob film, Goodfellas: “F— you, pay me.” Because once you strip away the binders and bureaucracy, the situation looks a lot like a shake down. But even questioning this state of affairs draws attacks, and accusations of being hostile to reconciliation or outright racist, rather than a rational inquiry into public governance.
The Supreme Court has stated that Crown consultation with Indigenous peoples is a process, not a guarantee of a particular outcome. It requires good faith and, when warranted, accommodation. The B.C. government, enabled by the federal government, has gone much further.
Sections 6 and 7 of the 2019 Declaration on the Rights of Indigenous Peoples Act (DRIPA) allow cabinet to authorize joint or consent-based statutory decision-making agreements between the province and Indigenous bodies. Under a consent-based agreement, a project or land use can’t proceed without approval of the Indigenous group. Without consent, the project is essentially vetoed.
This did not descend from the clouds as natural law; it was a deliberate legislative choice by the NDP government, apparently enabled by the federal government. In essence, Indigenous consent requires lucrative financial deals for major projects to proceed. And the BC NDP government has created a chokepoint for major projects, with the costs and risks borne by industry and citizens.
The Eskay Creek mine in northern B.C. is a case in point.
Under the Eskay Creek section 7 agreement, Tahltan consent was required for the project to move ahead. The Tahltan approval process was tied to an Impact Benefit Agreement negotiated with the mine proponent, Skeena Resources. As part of a reported nearly $2 billion in benefits that would flow to the community under the agreement, the company also advanced the Tahltan government $40 million to be disbursed to community members before they voted whether to approve the project.
In all, Skeena Resources and other sources estimate life-of-project benefits for the Tahltan community will reach $1.2 billion in cash, $570 million in contracts, and more than $184 million in wages.
Separately, Tahltan will also receive 37.5 per cent of the provincial mineral tenure tax, which is estimated to reach as much as $1 billion. While $1.19 billion in revenues are projected for the province during the life of the mine.
Co-management breeds distrust, cynicism
Apart from money, there is the question of authority. In northwest B.C., for example, the province has launched joint land-use planning across roughly 16 million hectares with five First Nations, while new mining-tenure registrations are paused across just under one-third of the planning area.
The province says it will engage local municipalities and tenure holders, but the framework remains government-to-government; local governments do not legally qualify. If co-management becomes the operating principle, it risks transferring public control over public land to small Indigenous groups (with no democratic duty to the public at large), before British Columbians have even seen the final map.
This model will only continue to sow distrust and cynicism over dealings with First Nations. There may never have been a point in modern B.C. history when reconciliation has been under more scrutiny, or at greater risk of becoming a toxic word.
There was no need for it to be this way.
Other models based on cooperation and good faith have shown a better path for reconciliation. The Haisla, for example, conceived of the Cedar LNG project, secured 50.1 per cent ownership, approved the project through a community vote, and borrowed $1.4 billion to finance their stake. That is true ownership and real risk-taking, because the Haisla carry downside risk if the project fails.
The Nisga’a Nation has partnered with Western LNG and Rockies LNG on the Ksi Lisims LNG project, which is proposed for Nisga’a treaty land. Ksi Lisims and associated infrastructure are expected to attract more than $30 billion in investment if they proceed. These examples reflect First Nations seeking to build and be productive partners, rather than simply charge tolls for access.
An owner only gets paid if an enterprise succeeds, while a landlord gets paid regardless.
Reconciliation needs an end game
By pursuing sweeping changes to land use and opening the door to the pay-to-play model, the NDP government also risks amplifying inequities between First Nations. The NDP approach rewards litigation and strategic geography in a manner that advantages Indigenous communities with the leverage and resources to hire experienced negotiators.
First Nations more poorly positioned economically have far fewer opportunities to develop projects or negotiate revenue.
The federal Community Well-Being Index shows greater variation among Indigenous communities than among non-Indigenous communities. Turning reconciliation into a preordained hierarchy based on project location is manifestly unfair and destined to fail.
This process needs stronger conflict-of-interest rules, greater transparency and more disclosure from all parties at the table. And we need to know the final destination of reconciliation. Surely this is not it.
Reconciliation in this model has become an industry, rather than a settlement, and its business case depends on never finishing the job.