For industry and First Nations, shared wariness in search for common ground

Source: 

Mark Hume, The Globe and Mail

Date of publication: 
16 March 2009

VANCOUVER — When some of British Columbia’s top aboriginal leaders sat down with mining-industry heads in a series of meetings last week, two sides that have long been in conflict were brought face to face.

The sectors they represent have fought legal battles over proposed new mines and they have fought in remote corners of the province, where First Nations protesters have blocked access roads to stop developments they didn’t approve of.

It’s true the mining industry and First Nations have worked together on some projects, where both sides saw benefits, but there has been enough conflict to create deep feelings of wariness.

Those feelings have been exacerbated recently because of proposed new legislation that could have profound impact on the relationship between First Nations and resource industries in B.C. The idea of a Recognition and Reconciliation Act has been kicked around for the past four years, as Premier Gordon Campbell’s government seeks to establish a new relationship with First Nations.

But concerns have been heightened in recent weeks, as the proposed bill circulates prior to its anticipated introduction in the House.

First Nations leaders were alarmed recently to learn of a legal opinion sent to the Mining Association of BC that raises grave concerns about the bill.

Thomas Isaac and Keith Clark, two lawyers who specialize in aboriginal law, said a government discussion paper suggests the Recognition and Reconciliation Act will give First Nations frightening new powers.

The discussion paper uses the phrase “shared decision-making” to describe how, under the bill, First Nations and industry will deal with development projects. But the lawyers say what that really means is no decision can be made unless both sides agree.

“In short, First Nations will have a veto over every aspect of resource development in B.C.” Mr. Isaac and Mr. Clark warn.

The legal opinion also said the new bill will recognize aboriginal title throughout all of B.C. “potentially giving enormous power and control to First Nations.”

For mining executives, who are already struggling with uncertainty in B.C. over who controls Crown land, the legal opinion raises obvious alarms.

“The only certainty arising from this legislation may be the certainty that resource development will be dramatically reduced in B.C. as potential investors look elsewhere,” cautioned Mr. Isaac and Mr. Clark.

First Nations leaders were dismayed by the legal opinion, recognizing it could only frighten industry, and they spent last week conferring with business leaders. In a series of meetings they have been assuring industry a native “veto” is not in the works.

Grand Chief Doug Kelly, who serves on the political executive of the First Nations Summit, said what is proposed is a mechanism for shared decision making. It’s a blueprint for reconciliation, he argues, not a take-it-or-leave it threat.

And sticking with the status quo, he says, means only more fighting – and more investment opportunities wasted.

Grand Chief Kelly noted that in many cases mines or other developments have foundered in B.C. after long, bitter battles with First Nation communities. Wouldn’t it be better, he says, to get to a place where a mining proponent could sit down at the start of a project with native leaders, and both parties could come to a shared decision on how to proceed?

But mining executives, like a lot of people, are worried that a seismic shift in the playing field is about to take place, and they could wake up in a province where the hammer is held not only by federal or provincial government, but by First Nations as well.

First Nations leaders are working hard to dispel the sense of fear surrounding the proposed Recognition and Reconciliation Act.

“There’s a huge amount of work to do,” Grand Chief Kelly admits.