Pro-resource First Nations can’t be ignored
Canada has adopted onesided consultation processes that favours First Nations that oppose resource extraction at the expense of those that support such projects. That was the finding of a judge recently in a rebuke to the federal government for its treatment of the Ermineskin Cree Nation.
Their case makes explicit what many of us have observed over the years: Indigenous people who support resource development do not fall comfortably into mainstream Canada’s idealized version of what Indigenous people should and shouldn’t do, and they are therefore ignored.
This particular claim saw the Ermineskin Cree, one of the four Nations of Maskwacis in western Alberta, contest a designation order that the federal Minister of the Environment, Jonathan Wilkinson, had placed on the Phase II expansion of Vista coal mine in July 2020. This subjected the mine to a full federal impact assessment — something the Impact Assessment Agency itself recommended against — which had the practical effect of stopping the activity.
Yet the federal government never consulted the Ermineskin, who had negotiated Impact and Benefit Agreements (IBA) with Coalspur Mines, the project proponent, in its consideration of the order. The judge concluded that this was wrong: the Crown had a duty to consult with the nation as its decision meant that valuable economic, community and social benefits were lost to Ermineskin.
This is a revelation in itself. Courts regularly restrict projects that impact Aboriginal and treaty rights; in this case, however, it was the restriction — the designation order — that was quashed. But the bigger story is the way the minister handled the process. As the judge pointed out, the federal government decided to hear only from Indigenous voices seeking to stop the coal mine through the order, but “inexplicably” froze out Ermineskin from the “very onesided process,” despite them being closer and having an obvious interest in the project.
The environment minister’s decision to grant the designation order for the Vista coal mine without regard for the Ermineskin Cree betrays the mindset of the federal government. It doesn’t consider Aboriginal and treaty rights to include economic rights when it doesn’t suit its agenda.
Rather, in this case, the federal government argued in favour of a very narrow view on what those rights constitute, namely, hunting, trapping, fishing and gathering.
On its face, this is absurd; the First Nations in Treaty 6 territory have always interpreted the treaty as affirming their right to livelihood. The judge agreed, asserting that Aboriginal peoples’ economic realities cannot be reduced to only traditional activities.
If the federal government had asked, it would have heard from the Ermineskin that the nation had balanced its concern for the adverse impacts of natural resource development with a desire to promote the economic and social well-being of their people. They considered their decision to support the project and enter into an IBA an exercise of their right to self-determination. The minister did not consider them at all.
It is novel to have these processes laid bare in a federal judgment. But we have seen the same story play out many times before: the sidelining of the elected chiefs and councillors of the Wet’suwet’en Nation in the development of a tripartite memorandum of understanding on rights and title between Canada, B.C. and the Office of the Wet’suwet’en hereditary chiefs is one example. The marginalization of the nations whose economic interests were impacted by the federal government’s unilateral decision to impose a tanker ban, through Bill C-48, on B.C.’S northwest coast is another.
But it is not only the federal government that picks and chooses favourites. Indigenous proponents of development are often derided as sellouts in social media and elsewhere; advocating publicly for extractive resource projects is a surefire way to get personally attacked. I know of elected chiefs who have received death threats because they supported a pipeline project, and of hereditary chiefs who have been stripped of their titles for supporting oil and gas.
Canada can be a very unfriendly place for Indigenous leaders looking to create jobs and own source revenues if what happens to be the best, and sometimes only, significant economic opportunity open to their communities is not seen as acceptable to voters in Vancouver, Toronto, Ottawa and Montreal.
We have not done much to make it easy for Indigenous groups to say yes to projects. On the contrary, federal and public support has been made conditional on the popular acceptance of the opportunity, whether it’s pipelines, LNG, mines, transmission lines or logging. Hopefully, this case helps turn the tide. Canada needs to respect Indigenous nations’ right to economic development, whether it aligns with popular sentiment or not.
THE MINISTER DID NOT CONSIDER THEM AT ALL.