Resource sector about to witness new era of native empowerment

By Barbara Yaffe,

Vancouver Sun columnist

Reprinted with permission

Protesters demonstrate against the Enbridge Northern Gateway Pipeline in Vancouver in 2013. The proposed $5.5-billion project would pipe Alberta oil 1,200 km across Alberta and B.C. to Kitimat, from where the oil will be shipped overseas by oil tankers.

It all began back in October 2006 when an 82-year-old aboriginal man took his folding chair to a Canfor logging road in northeastern B.C., and got comfortable.

George Behn’s quiet act of protest has led to another signal from the courts that, when resource developments challenge treaty rights, the latter almost always prevails.

Author Bill Gallagher has been documenting aboriginal legal challenges involving development projects going back to 1985. He categorizes the one involving Behn, which concluded last month, as: “Native legal win No. 190.”

He compares the litany of aboriginal victories to a popcorn maker: “The rulings came slowly at first; now they’re at full tilt.”

Gallagher believes the court cases tell a story of continued ignorance and naiveté on the part of both business and government.

“It’s as if the (aboriginal) winning streak has made little or no impact on their thinking, in spite of the fact many resource projects have crashed and burned along the way.”

In the Behn case, B.C. taxpayers are now responsible for a $1.75-million payout to a logging company because the Crown failed to sufficiently consult the Fort Nelson First Nation regarding its treaty rights.

Behn had two trap lines in the area where Moulton Contracting planned to log. Thus, when Moulton showed up with its logging equipment, there was Behn, in his folding chair.

The court found the government had granted the timber licences to Moulton without consulting the Fort Nelson First Nation “in a manner sufficient to maintain the honour of the Crown.”

Provincial officials had been warned by Behn that he would thwart any logging, but only after the ministry had granted the timber licences.

The province did not warn Moulton about a potential problem until after it had moved its equipment to the site.

Moulton had not sought its own assurances from the B.C. government about prior consultations with local aboriginals.

Nor had it done its checking with the Fort Nelson band.

All this, laments Gallagher, illustrates a casual attitude that governments and businesses in Canada continue to exhibit with regard to economic development on Crown land.

Moulton Contracting wound up suing both the government and the aboriginals (and Behn later sued Moulton), but only the case against the government was successful.

In 2012, Gallagher, a former oilpatch lawyer and treaty negotiator, wrote Resource Rulers: Fortune and Folly on Canada’s Road to Resources, a book about the power of treaty rights in modern-day Canada.

The Kitchener-based author calls aboriginal entitlement “the biggest under-reported business story in Canada of the last decade.”

When I interviewed Gallagher in 2012, he reported having documented 150 legal wins for the aboriginal side. He has documented another 40 since.

“I believe we are about to witness the apex of the rise in native empowerment in the Canadian resources sector,” Gallagher said recently, referring to the oilsands that are also on treaty land.

He says the Behn case is worth studying because it shows how one elderly aboriginal man with a couple of traplines created “a major liability for B.C. taxpayers.

“If just one trapper can generate this much legal vindication, imagine what an entire First Nation can accomplish, or a group of First Nations aligned with eco-activists.”

He notes that the threat of aboriginal legal action could derail a host of proposed projects in B.C.

Among them are the Enbridge and Kinder Morgan pipelines, the New Prosperity Mine, the Jumbo Glacier Ski Resort, the Site C Dam, and the Mount Klappen open-pit coal mine.

byaffe@vancouversun.com

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