Head of pipeline group slams feds

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The spokesman for a powerful industry group says the federal government is responsible for disputes between First Nations and resource companies.

David MacInnis, president of the Canadian Energy Pipeline Association (CEPA), says First Nations are often at odds with resource companies not because they have problems with the projects industry is proposing, but because Native leaders need leverage to get governments to the table to negotiate land claim and self-government agreements.

MacInnis said resource companies understand that it's a smart business tactic to hold up projects if the government is not at the land claim or self-government tables.

"First Nations, no one can fault them and no one does fault them for trying to use the opportunity when a project is being built on their land to try and get some attention paid to their land claim issues. The problem comes because too many First Nations in this country don't have a good enough reason, quite frankly, to trust the federal government, [trust] that the feds are going to deal with their land claim issues in a timely manner," he told Windspeaker March 22.

CEPA is the voice of Canada's major transmission pipeline companies. Its member companies transport more than 95 per cent of the crude oil and natural gas produced in Canada.

Its president claims First Nations and industry have much in common in their frustration with Ottawa over these matters. His members, like First Nations, he said, often see government regulators as a common enemy.

MacInnis hoped that the new Smart Regulation implementation plan, (launched by Treasury Board March 24, after Windspeaker's deadline) would help smooth the way for projects involving First Nations' land, and in particular, one of the largest projects ever proposed involving First Nations' land, the Mackenzie Valley pipeline.

"Quite frankly, we hope that what they do is say, 'We need to get First Nations and industry at the table and figure out who should be responsible for what and then work on developing some of these solutions.'"

The resource industry, said MacInnis, thinks government should "de-couple land claims from self-government negotiations."

"Governments, specifically the federal government, need to give First Nations a reason to come to the table and sit down and get involved in land claim talks. Because, quite bluntly, governments haven't always seemed to be willing to get right into negotiations and don't seem to be looking for a timely settlement," he said. "Our point is that when development projects are proceeding, what we find, for example, when our member companies are negotiating benefit agreements with First Nations, First Nations will be saying, 'We like this but we really need the feds to start moving on our land claim issues.' Our point is that land claim and benefit agreements are two separate things. Negotiate one with us and one with the feds."

He put the responsibility for moving these matters forward solely on federal politicians.

"It's time for politicians to just say, 'Look, it's an issue, it's real, First Nations have waited long enough. Let's get on and settle this.' And quite frankly, in this day and age, of all the reasons that are put forward, money or cost of settlement, is the worst one. We've seen record surpluses. Let's put some of that money to good use," he said.

"It doesn't matter whether it's Liberal or Conservative governments. There's been a lot of talk on First Nation issues. It's time for some action. I'm tired of the foot-dragging. But I'm also being quite selfish because the slow action on the part of political leaders, federally, provincially and territorially, on the various aspects of First Nation issues is causing problems for companies who are looking to work on First Nation lands and whose projects are getting held up."

Recent court decisions have stated that effective consultation with First Nations must come before resources are harveted from their lands. MacInnis said government officials have tried to hand that responsibility to companies.

"The government of Canada right now, via the National Energy Board, has come out and told industries regulated by the National Energy Board that the responsibility for proving that the federal government has consulted effectively with First Nations on projects, that responsibility lies with the companies," he said. "What's supposed to happen is there's supposed to be government-First Nation consultation and then an industry-First Nations consultation. So therefore the government says, 'One thing you guys have to do is make sure the First Nations are happy with the consultation undertaken by the feds.' Our point is-you've got the fiduciary responsibility. It's not up to us to prove that First Nations think that you've done your job."

First Nation leaders frequently complain that bureaucrats do not rush to embrace the spirit of court decisions that go in their favor, as so many have. The leaders complain that federal officials instead come up with overly complex processes that will allow the status quo to remain despite the court rulings. MacInnis said he's seen that happening and he thinks it has a negative influence on the business community.

"If there's a degree of uncertainty caused for First Nations it trickles down and industry notices. To get certainty you need decisions that are reached using clear principles which are clearly communicated, enforceable, have timelines attached so that you know that if it's a regulatory process you can move through it within a certain period of time," he said.

"The chiefs, the band councillors, First Nation people and our companies are all on the same page. There's a high level of frustration with the process. Things have got to be improved. We're just missing opportunities as a country. Too often, especially when the focus is so narrow on something like land claims, it's seen as a First Nations' issue andnon-First Nation Canada doesn't have to worry about it. Well, you know what? That's not true. It's all of our problem. It impacts all of us."

The highest court in the land has ruled that the federal government has a trust-like responsibility to protect the interests of First Nations, MacInnis said, and it's time for the government to live up to that responsibility.

"Everybody knows what the fiduciary responsibilities are, including the federal government," he said. "The point is to start following through on those responsibilities."