How about the First Nations' economy?

Page 5

Dear Editor:

Atlantic Canada continues to reap the benefits of massive offshore oil and gas development. Projects like the Hibernia Project located on the Grand Banks off the shores of Newfoundland, has bolstered the provincial economy by providing much needed employment and business opportunities, as well as resource revenues to the provincial government. A second project, Terra Nova, is scheduled to commence 'first oil' in late 2000 on the second largest oil field offshore Newfoundland.

Likewise, Sable Offshore Energy Project, a $6.1 billion project, commenced production in 1999 and is expected to run for 25 years. Estimates indicate that more than 85 billion cubic meters of natural gas resources is recoverable. The natural gas will be transported by a sub-sea pipeline to onshore processing facilities in Nova Scotia and will then be transported by pipeline to other destinations.

Figures indicate the project has provided 1,128 direct jobs to Nova Scotians, which translates to 46 per cent of the project's workforce. Other Canadians have benefited as well with 153 people securing work on the project, representing 11 per cent of the overall workforce. Not only has there been a positive effect on the labor sector of the economy, the business sector has also benefited with expenditures of $547.1 million in Nova Scotia and $299.3 million in Canada.

What is the key to economic development in Atlantic Canada? Benefit plans and resource revenue sharing. In the mid-80s, Canada entered into separate agreements with the governments of Newfoundland and Nova Scotia to jointly manage the development of offshore oil and gas resources. The Canada-Newfoundland Offshore Petroleum Board, an independent joint board, is responsible for regulating petroleum activities and resources offshore Newfoundland. The Canada-Nova Scotia Offshore Petroleum Board manages oil and gas offshore Nova Scotia.

One of the most important features of these joint initiatives is the requirement of a benefit plan before any activity starts. The objective of the benefit plan is to provide employment and economic opportunities to all Canadians with particular emphasis on providing the local labor and business sectors first opportunity to compete on a full and fair basis.

The federal and provincial governments, through the offshore boards, have vigorously monitored and enforced the implementation of benefit plans by industry. In fact, the offshore boards have taken an interventionist approach to administering the benefit plans and closely scrutinize the development of procurement, employment and training commitments. In addition to these economic benefits, the provincial governments also receive the resource revenues to use as they see fit.

Where do the First Nations in Atlantic Canada fit in to all of this economic development? It appears that they have been left out. First Nations have not been included in the offshore decision-making process, revenue sharing or benefit plans. In fact, it appears that First Nations have not been included in the onshore oil and gas development.

On-going litigation shows that First Nations have not been adequately consulted regarding oil and gas development. The Union of Nova Scotia Indians has commenced several actions to compel meaningful consultation by the Crown.

Some First Nations have successfully negotiated agreements with industry to benefit from oil and gas development in Atlantic Canada. However, given the fact that Aboriginal and treaty rights are constitutionally protected, ad hoc consultation with industry is not enough. Cases like Sparrow and Delgamuukw clearly show that the Crown has a fiduciary duty to consult with First Nations when their Aboriginal and treaty rights are effected. The Marshall decision makes it abundantly clear that First Nations have treaty rights in Atlantic Canada that cannot be ignored. For example, in British Columbia the provincial government agreed to negotiate arrangements with Traty 8 Tribal Council to address its desire to be included in natural gas development.

An easy first step to including First Nations in the offshore oil and gas development is to include First Nations in the benefit plans. In fact, the legislation requiring benefit plans explicitly states the joint boards may make provision for the inclusion of minorities or disadvantaged groups. In the short term, First Nations may be provided access to critical employment, business and training opportunities in the petroleum sector.

An easy second step, and, I argue, a constitutionally required step, is for the federal and provincial governments to consult with First Nations to ascertain their issues and concerns regarding specific offshore oil and gas developments. Some may argue that First Nations must first prove they possess Aboriginal or treaty rights or title, pre-European contact, and that those rights are being infringed before there is a duty to consult. But one could question how the duty to consult can be interpreted in a proactive and non-litigious manner, other than through the courts, which that may decide that a First Nations has a proven and unextinguished Aboriginal right or title in Atlantic Canada.

Out of necessity, decisions about consultations need to be made now, not in 10 years when a case finally makes it to the Supreme Court of Canada. After all, the Crown must act with honor and good faith when dealing with First Nations, and the courts at all levels have expressed their preference for all parties to negotiate mutually beneficial solutions rather than litigated decisions.

In the long term, more must be done to address Aboriginal and treaty rights in Atlantic Canada. Until steps are taken to include First Nations in natural resource management, conflict and litigation will continue to dominate the economic and social agendas. If the federal and provincial governments can agree to share in the offshore resources, surely there is room to share with the Frst Nations.

T. Davis, consultant

Saddle Lake First Nation