LNG: First Nations skin in the game

In our last blog, we looked at employment issues — “sustainable/long-term jobs instead of intense short-term labour opportunities” — addressed in the joint report we prepared with the BC Ministry of Energy, Mines, and Petroleum Resources.

Now for a look at First Nations and government relations, and Indigenous governance:

First Nations representatives at our regional sessions last fall spoke of a need to improve First-Nation and government relations to ensure there is better alignment on assessing LNG projects.

Among the key issues: government’s strength-of-claim approach to First Nations title and rights when it comes to resource development, and how First Nation consultation is carried out in relation to strength-of-claim analysis.

(Some background: The BC government’s Environmental Assessment Office has a guide to consulting First Nations that says in part: “The scope of consultation is based on an assessment of the strength of claim, and the seriousness of potential impacts upon the asserted rights. In the case of proven Aboriginal Rights or Treaty rights, the scope of consultation is based on the seriousness of the potential impact on the right.”)

The regional sessions that led to the joint report were told that this approach:

  • Creates an adversarial environment between First Nations within adjacent areas and an exclusionary environment between neighbours;
  • Limits and minimizes legitimate environmental concerns from those that have a ‘weaker’ claim; and
  • Provides little incentive for a First Nation to be inclusive or amenable to resolving shared territory issues.

Further, the hearings were told that conflict-resolution tools or processes are not readily available between government and First Nations or between First Nations.

Under the headline “What’s Working,” the report said:

“When multiple First Nations work together they are more successful in creating opportunities to protect the environment and maximize economic benefits for each member nation. Recent examples of this include the innovative environmental monitoring initiatives in Tsimshian territories, and the Carrier Sekani Tribal Council’s recent government-to-government agreements.”

And the report cited some other “factors of success”:

  • Continuity of the parties (individuals) at the table contributes to successful processes such as regulatory reviews and government-to-government negotiations and implementation.
  • Consistent capacity enabled by consistent funding ensures continuity and the ability to see a project through.
  • Success happens if the parties are really committed to working with each other.
  • Partnerships built with strong relationships are the best foundation to overcoming the many challenges natural-resource development projects face.

The report went on to make a number of “suggestions”:

  • Government-to-government relationships should be refreshed due to new leadership both provincially and in many First Nation communities.
  • BC and First Nations should co-create a road map on how to engage First Nations in collaborative engagement processes – including permitting, benefit agreements, UNDRIP principles, and timing.
  • BC should further engage with First Nations on its approaches for the development and use of strength of claim and assess whether process improvements can be made so that consultation with First Nations is more transparent.
  • BC should develop integrated policy on how to apply UNDRIP across all ministries in collaboration with First Nations.
  • Government should invest in nation building in order to enhance capacity, skills, knowledge, economic opportunities, and the integration of Indigenous views into decisions related to major projects in traditional territories.
  • Government could improve its internal capacity to engage with First Nations (to ensure engagement is undertaken at an appropriate and consistent level).
  • BC should explore integrated planning around critical infrastructure such as pipeline placement.
  • First Nations need to resolve shared territory/overlaps amongst themselves.
  • Government should look for ways to enable resolution to shared territory conflicts.
  • Government should research and analyze the challenges of those projects that did not go forward, to inform policy development, regulatory approaches or new mandates.
  • The province should explore potential of new models to support public and First Nation equity participation in LNG projects (e.g. a new Crown corporation).
  • BC should identify appropriate opportunities for Government, First Nations and Industry to convene or engage.

We see some promise in the ideas of how First Nations and government can work together to make the whole process of consultation work more smoothly and transparently, although we accept that in practice there may be no one-approach-fits-all model.

Consultation and a ‘modern government-to-government relationship’ are parts of the BC government’s new Draft Principles that Guide the Province of British Columbia’s Relationship with Indigenous Peoples.

Premier John Horgan noted: “It is important to emphasize that these principles are draft, and provide a starting point for necessary conversations with Indigenous peoples and First Nations leadership.”

We also see much promise in the proposition that BC should explore ways to support First Nations equity in LNG projects. We have seen, and applaud, the number of Nations who are seriously interested in equity participation rather than accepting simple, but often inflexible, benefit agreements.

As one chief has put it: “You have skin in the game, you get to call some shots.”

You’ll find the full report, on recommendations for the future of LNG projects and ongoing engagement with First Nations, as a PDF at https://bit.ly/2MfHbGm.

And we look forward to more, in concert with the BC government.