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Lost opportunities: Misunderstanding First Nations and resource development

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According to the Fraser Institute, it is only First Nations’ stubborn insistence on non-existent rights and blindness to inevitable benefit that prevents them from being a willing partner to resource development.

Released yesterday, the report, Opportunities for First Nation prosperity through oil and gas development, successfully repeats some well-known facts:

-  First Nations are the youngest and fastest growing demographic in Canada;

-  The unemployment rate on reserve is 3 times the national average;

-  There are, therefore, a lot of young, unemployed First Nations people;

-  A lot of young, unemployed First Nations people could find work on resource development projects;

-  A lack of education and training are two of the obstacles to that happening;

-  There are 600 large resource projects, worth an estimated $650 million, planned for the next 10 years in Canada; and,

-  Those projects will take place on or pass through traditional territories. 

Actually, the report scrupulously avoids mentioning traditional territories or even land claims.  Instead, the report acknowledges the “proximity of First Nations communities to energy development” and the “notable geographical relationship between First Nations communities and energy development in western Canada.”

These language choices make it seem like resource extraction from First Nations lands is a heretofore-unnoticed coincidence rather than the historical economic narrative of this country.

A couple of other seemingly minor turns of language reflect the report’s belief in inevitable economic benefit without any negative environmental or social consequences. 

“As,” the report says, “tables 1 and 2 demonstrate, the number of First Nations expected to benefit from oil and gas resource development in western Canada is significant.”  If you look at those tables, you see that the number of First Nations “affected” is indeed significant, but only the Fraser Institute “expects” all of them to benefit, despite the frequently contrary experiences of First Nations to date.

And later: “Tables 3 and 4 demonstrate the current employment and demographic picture for First Nations identified as benefiting from proposed oil and gas development in Canada.”  So, First Nations are -- present tense -- benefiting from proposed development.  Magical.

The report does acknowledge a few obstacles to benefiting from development and, with seemingly no irony, suggests that if only First Nations could see that the Harper government is there to help -- with workfare and the First Nations Education Act -- most of those would be overcome.

The one obstacle that neither government nor industry can overcome are the “many First Nations communities that are opposed to resource development.”  

Worse, “these First Nations have utilized the courts to delay and halt resource development.”  The nerve.

And to top it off, “(t)he courts have also created doctrines, such as the duty to consult, that have expanded the rights of First Nations.”  

Here, the report strongly suggests that Section 35 of the Constitution is an empty provision that, unfortunately for everyone, was populated by an invention of the courts.  In other words, there are no existing Aboriginal or treaty rights recognized and affirmed in the Constitution, just this one doctrine that an activist judge created from thin air.

And the failure of the Crown to respond is now harming -- no, not First Nations -- industry: “Until governments, both provincial and federal, outline specific policies and methods to fulfill the duty to consult, there will continue to be ambiguity for industry partners regarding how to fulfill that duty.”

The author is apparently unaware that the Supreme Court has already made it clear that industry can never fulfill that duty; it is solely the Crown’s responsibility.

By way of recommendations to industry, the report cites a 2008 report by Natural Resources Canada that ignores questions about First Nations rights and instead provides an uninspired call for good communications.  This is harmless, save for what it leaves out of the equation -- an understanding of the context, the law, and the roles, responsibilities and rights of the various players -- much like the Fraser Institute’s own report.

Flowing from these recommendations, the author ends with the lament that, “…in order for any communication and project to be successful, both First Nations and industry members need to be willing partners.”

But First Nations are failing to be a willing partner.

Apparently, that willingness would be present if only they understood, as the Fraser Institute does, that they have no inherent rights, that the duty to consult is an inconvenient invention, that the Harper government and the extractive industries are only there to help, and that the only consequences to development are its inevitable economic benefits.

If only those stubbornly blind First Nations would understand.

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