Duty to consult first nations adds time, cost, confusion for developers
Developers know that part of getting a project off the ground is going through an approval process with the applicable local government. They know they have to pay the costs of having their projects assessed and monitored, through application fees, building permits, development levies and the like. What's new is that first nations are now being recognized as a level of government -- whether de facto or real -- that has to be consulted
Tara Marsden, representing the Nadleh Whut'en, asks whether Enbridge will respect the Nadleh's request for free,prior, and informed consent from them and other Nations before the Northern Gateway project can proceed at Enbridge's 2009 AGM.
There is nothing new about development fees. Or the grousing that goes with them.
Developers know that part of getting a project off the ground is going through an approval process with the applicable local government. They know they have to pay the costs of having their projects assessed and monitored, through application fees, building permits, development levies and the like.
Nobody likes such fees, of course, but they only really become an issue when they start driving business away.
What's new is that first nations are now being recognized as a level of government -- whether de facto or real -- that has to be consulted. And to their shock and quite legitimate consternation, other parties are starting to realize that the new requirement is going to add time, costs and confusion to the process.
No one should be surprised by the news last week that a North Shore first nation, the Tsleil-Waututh, is charging the Village of Belcarra $36,000 to review a $6-million water pipeline project.
The fees are a natural outgrowth of the court decisions over the past five years that ruled governments at all levels have a duty to consult first nations before allowing developments that affect their traditional territories.
Even though that duty has not been defined as the power to veto a project, it still represents more work for project proponents and first nations alike.
The Tsleil-Waututh decided in January to start charging fees to cover their costs for consulting. Taken by itself, it's a reasonable decision. It is expensive to effectively assess development proposals, either through assembling in-house expertise or by hiring outside consultants.
But the Tsleil-Waututh represent just the tip of an iceberg that threatens to rip a deep gash in the provincial economy.
The Tsleil-Waututh are just one of more than 100 bands in B.C., many of which have overlapping claims to traditional territory.
So the nightmare scenario for developers -- whether a private company, a municipality, as in the case of the water project for the Village of Belcarra or a Crown corporation, such as BC Hydro -- is that the duty to consult means they have to consult each first nation with a claim to the territory in which they hope to build.
Each of those first nations can legitimately claim to have costs in reviewing the proposal along with their own idea of what constitutes a harm or a benefit. In the case of a major project, such as the proposed Enbridge Northern Gateway pipeline from the oilsands to Kitimat, those costs may be considerable.
Failing to pay the fees demanded, reasonable or not, may result in court challenges based on whether the proponent engaged in meaningful consultation. The proponent may win in court. But the only certain outcome is more delay and higher costs.
So the nightmare scenario for the provincial economy is that the uncertainty of outcome and the certainty of higher costs related to the court-ordered duty to consult starts to drive investment away.
All of this adds impetus to the argument that we need to achieve certainty over our land base through the settlement of land claims.
Yet immense a challenge though that is, settling land claims won't by itself make this new problem go away.
Even with all the overlapping claims resolved, adding another layer of government will add to the cost of doing business.
In that scenario, no one wins.
cmcinnes@vancouversun.com
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This is not a "new" problem
If you do your homework, you come across the policies that were implemented to create unfair advantages for White people and disadvantages for Native people. John Lutz in his book "Makuk" explains how this happened in the last hundred years or so in BC. Helen Buckley shows that a parallel paradigm occured on the Canadian Prairies throughout that same time in her book "From Wooden Ploughs to Welfare."
Duty to Consult, in name only, is new. The treaties are over a century old and only now that the resources have become important to non-Aboriginal people are they becoming "important." In areas where treaties haven't been made, well, that's a whole other problem.
What's important is that non-Native Canadians understand what has been happening for the last hundred years, not what "seems" to have been happening in the last 5-10 years because that's not the entire picture.
The whole story is that FINALLY, after a hundred or so years, First Nations are recognized as having legitimate claims to the land beneath their feet, the air they breath, the food and water they eat and drink. Industry, driven by popular need, is at the forefront of changing that system.
The change can be positive or negative. By consulting with First Nations, and I mean really consulting - not the bullshit of starting mining and then sending an ex officio "executive" to chat with Band representatives - the results, for everybody, can be positive.
Native people want to be included, the same as anybody who sees the world developing around them.
By saying that the Duty to Consult is problematic makes it a problem in the eyes of Canadians who are not as knowledgeable of the circumstances. By making it problematic in the mind's of Canadians, then the popular drive that industry and government thrive on will, like it has in the past hundred years, attempt to cut down Native people like it has done to the trees.
Duty to Consult is progress. Digging big holes and leaving the people living nearby to deal with the mess afterwards (like the bioaccumulation of toxins) is not.