Dan George: Court case threatens Indigenous benefits

This guest column by our Alliance chair, Chief Dan George, appeared in The Vancouver Sun on 10 August 2018:

First Nations’ successes in more than 200 court cases across Canada have established, defined or expanded our title and rights when it comes to resource development on our unceded territories.

They have, for one thing, established our right to consultation and accommodation. The parameters of consultation and accommodation, the concept of “free, prior and informed consent” from the United Nations Declaration on the Rights of Indigenous Peoples will continue to evolve through the courts and through negotiation.

Generally speaking, the courts have resulted in favourable decisions for First Nations and have forced governments and corporations to accept that consultation and accommodation are a right, and not some inconvenience that can be easily dismissed or disregarded.

First Nations have learned through those 200-plus cases how to engage the courts and present their cases effectively. Most of these cases have been to protect rights that were ignored by Industry and governments. Where Indigenous entities have not always derailed resource developments that they oppose, they have certainly provided many risks and delays to resource projects.

That sword cuts two ways, though. It has also negatively affected those Nations that were and are in favour of the challenged developments.

As supporters of responsible LNG development, and its associated natural-gas pipelines, we have misgivings, to say the least, about a new court challenge of TransCanada’s Coastal GasLink pipeline that would serve the LNG Canada project in Kitimat.

Michael Sawyer of Smithers, a home-builder and former environmental consultant, argues that the Coastal GasLink pipeline should have faced a federal environmental review under the National Energy Board instead of a provincial one.

His argument has been rejected by the NEB, which said Sawyer was not able to convince them that the gas line should be a federal project. Sawyer was quoted by news media as calling that ruling “complete and utter bullshit.”

So now he is seeking leave to appeal that decision to the Federal Court of Canada.

As The Vancouver Sun notes: “The National Energy Board rejected a similar challenge by Sawyer against another LNG pipeline, TransCanada’s Prince Rupert Gas Transmission pipeline. But in a major legal win last year, the Federal Court of Appeal ruled the NEB had erred and must consider whether the pipeline fell under federal jurisdiction.”

Sawyer’s issue may be an important jurisdictional and technical issue, but technical it is. The pipeline project has already been put through the hoops of a provincial environmental review that included First Nations concerns.

And the pipeline is supported by 19 of the 20 First Nations in B.C. through whose territories the line will run. The 20th has not publicly addressed the pipeline — but has long come out in favour of the LNG development the line will serve.

Those 19 Nations alone stand to receive up to $1 billion in benefits from the pipeline, in contract and employment opportunities. They see the pipeline as a way of partially assisting with poverty and social issues, and building careers.

One of the 19 is my own nation in B.C., the Ts’il Kaz Koh First Nation (Burns Lake Band).

As a First Nation directly impacted by the pipeline route, we think a robust environmental assessment has happened.

We have participated to ensure impacts are minimized. We have negotiated benefits our communities need.

And any further delay on the pipeline will simply further delay benefits to our communities.

The danger too, of course, is that Sawyer’s case will mean another delay not just for the pipeline, but also for the $40-billion LNG Canada project.

That project promises further benefits for First Nations, and has worked closely with affected First Nations as it moves toward a Final Investment Decision later this fall.

These backroom strategies by the Sawyers of the world and their eco-activist allies do little to improve the environmental assessment process but have the potential to have serious negative impacts on our communities by delaying the benefits.

Dan George is chief of Ts’il Kaz Koh First Nation and chair of the First Nations LNG Alliance.

The column as it appeared in The Vancouver Sun