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Even with UNDRIP, DRIPA, barriers to economic reconciliation remain

Government-backed loans would help First Nations take equity stakes in major projects, advancing meaningful opportunities for project participation
Merle Alexander is principal of the Indigenous Law Group at Miller Titerle + Co.

With Canada’s National Day of Truth and Reconciliation approaching, it may be timely to ask where Canadian governments and businesses stand with respect to reconciliation efforts, beyond declaring holidays.

Reconciliation with First Nations may mean different things to different people, but for Sharleen Gale, chief councillor for the Fort Nelson First Nation and chairperson of the First Nations Major Projects Coalition, it doesn’t mean much without an economic component. 

“There’s no full reconciliation with Indigenous people without economic reconciliation, and one promising route is full engagement with the Canadian economy, not just through labour participation,” Gale told BIV.

In 2019, the B.C. government formally enshrined into law the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) through the provincial Declaration on the Rights of Indigenous People Act (DRIPA). The province is currently in the process of aligning provincial laws with DRIPA.

In 2021, the federal government followed suit by implementing UNDRIP at the federal level. Earlier this year it released an UNDRIP action plan.

Merle Alexander, principal of the Indigenous Law Group at Miller Titerle + Co., said British Columbia has devoted more resources to – and made more progress on – DRIPA than the federal government has on UNDRIP, and adds that the private sector, in some cases, is even further ahead than government when it comes to using UNDRIP as a roadmap for doing business with First Nations.

“I think that British Columbia is devoting much more substantial financial, human, organizational, structural support to embrace UNDRIP legislation than is the federal government,” Alexander said.

“Monitoring both processes really closely, I think the change is fairly minimal so far at the federal level. Whereas I can see ministry-to-ministry in British Columbia that they are really rethinking how to restructure the way they engage on everything.”

He cites, for example, a $200 million Declaration Act Engagement Fund provided by the B.C. government to help First Nations in B.C. engage in DRIPA implementation.

“There’s no counterpart, nor are there even close to the financial resources being put into the action plan at the federal level,” Alexander said.

That said, Alexander said he finds it “underwhelming” to see that, since DRIPA was implemented in B.C., there has been only one “consent-based” agreement made, as per Section 7 of DRIPA. That would be the Tahltan First Nation’s consent agreement with respect to the Eskay Creek mine.

When an environmental certificate or resource permit is issued, it requires the approval of the relevant provincial minister. Under Section 7 of DRIPA, relevant First Nations are also required to sign off on the certificate or permit. Alexander said he expected there would have been more than one Section 7 consent agreement by now.

Last year, he said his firm negotiated three consent-based impact benefits agreements between businesses and First Nations – a sign that the private sector may actually be ahead of government in some cases when it comes to using UNDRIP as a guide when working with First Nations.

Since December 2022, about a dozen reconciliation agreements of different varieties have been signed between the B.C. government and First Nations. (In some cases, the federal government is also signatory.)

They range from land transfers – 7,800 hectares of ranch lands, as well as grazing licences, transferred to the Stswecem’c Xget’tem First Nation as part of treaty negotiations with the Northern Secwepemc te Qelmucw, for example – to major title and governance agreements, like the Haida Nation Recognition Act.

The act, passed in the B.C. legislative assembly, formally recognizes the Haida’s inherent right to self-determination and governance, and acknowledges the Council of the Haida Nation as the Haida’s governing body. 

The B.C. government also signed the Blueberry River First Nations Implementation Agreement, which includes a $200 million restoration fund and puts limits on certain activities within Blueberry River First Nation traditional territory. It protects more than 650,000 hectares of land from any new oil and gas or forestry activities. 

This agreement was in response to a B.C. Supreme Court decision that found the cumulative impacts of decades of industrial development and resource extraction in traditional Blueberry River First Nation territory constituted a breach of the nation’s Treaty 8 rights.

Through agreements like these, First Nations in B.C. are gaining more control over what goes on in their traditional territories. As Gale points out, many First Nations are supportive of industrial development, but they want greater involvement in these projects as shareholders.

The First Nations Major Projects Coalition (FNMPC) assists First Nations in becoming partners and taking equity positions in projects across Canada. One project is the Coastal GasLink pipeline, which will provide natural gas to the LNG Canada and Cedar LNG terminals in Kitimat.

TC Energy Corp. (TSX:TRP) has agreed to divest 10 per cent of the pipeline to First Nations, and the FNMPC has been working with the CGL First Nation Limited Partnership (FNLP) to try to facilitate the purchase of that stake.

Gale said there are many opportunities across Canada for First Nations to become equity partners in various major projects, but a big challenge is raising the necessary capital.

“We did a research report that shows, in the next decade, that there’s going to be about 470 natural resource projects that are planned or occurring on Indigenous lands in Canada, and this represents about $525 billion of capital investment,” Gale said. “And about $50 billion could be eligible for equity transition for the Indigenous nations.”

But First Nations have historically had a hard time borrowing from banks, partly because reserve lands are classified as federal Crown lands.

“Because of the Indian Act, we can’t use our lands for collateral,” Gale said. “I don’t think that most Canadians realize that the Indian Act is actually standing in our way and has long prevented us from accessing competitively priced capital for investment in economic development.”

Gale’s organization would like to see federal and provincial government-backed loan guarantees that would allow First Nations to borrow the money needed to buy equity positions in major projects in their territories. Without being able to take ownership stakes in projects, nations may end up not supporting them, she said.

“If Indigenous nations don’t have access to capital, I don’t think that they’re going to give their consent any longer for projects to be built in their territories.”

Major agreements signed between B.C. and First Nations since December 2022:

  • More than 7,800 hectares of ranch lands and grazing licences for 56,000 hectares transferred to the Stswecem’c Xget’tem First Nation as part of treaty negotiations with the Northern Secwepemc te Qelmucw. The land included the former BC Cattle Co., which Ross Beaty sold to the province for $16 million to facilitate the transfer.
  • The Blueberry River First Nations Implementation Agreement includes a $200 million restoration fund and limits certain activities within traditional territory.
  • A B.C. government transfer of 20,000 hectares of “waterfront and prime forestry lands” to the Babine Lake First Nation as part of a “foundation agreement,” which is described as “a phased approach to implement Lake Babine self-governance, title and other rights.”
  • Two provincial parks – Sooke Mountain and Discovery Island Marine – added to the land parcel for potential inclusion in treaty negotiations with the T’Sou-ke Nation and Songhees Nation.
  • As part of a specific land claim, the B.C. government will provide 44,266 hectares of Crown land to five Treaty 8 First Nations – Blueberry River, Doig River, Halfway River, West Moberly and Saulteau. Federal government will also provide a cash component as part of the settlement.
  • A shared land and resource decision-making agreement with the Nlaka’pamux First Nation that includes the Boothroyd Indian Band, Lytton First Nation, Oregon Jack Creek Band and Skuppah Indian Band located along the Fraser and the Thompson rivers.
  • B.C.’s Haida Nation Recognition Act recognizes the Haida’s inherent right to self-determination and governance, and acknowledges the Council of the Haida Nation as the governing body. B.C. and the Ottawa jointly recognized Haida rights and title with inherent rights to governance and self-determination through the Nang K’uula Nang K’úulaas Recognition Agreement.
  • Ts’uubaa-asatx First Nation land transfer of 31 hectares of Crown land, valued at $1.6 million, in the Cowichan Valley to the Ts’uubaa-asatx as part of an incremental treaty agreement.

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