I had the opportunity to co-chair the 15th Annual Aboriginal Land Resource Management Forum in Vancouver, and to present on Implementation Measures of the Tsilhqot’in Decision.
This doesn’t count as “one of the four things I learned”, but the first thing I learned (or more accurately, was reminded of) at the Forum is that I always learn WAY more than I contribute at these events – even though I am brought in as a speaker. The diverse set of experiences and perspectives among the faculty and audience meant that there were a lot of passionate and informed conversations about the things that matter now in the Aboriginal legal landscape: consent; ownership of resources; First Nations rights to self-determination and jurisdiction; preparing for economic opportunities; and environmental stewardship/protection.
I left the Forum feeling enlightened by experiences that were shared, energized about the work that I am lucky enough to do for a living, and excited about what the future holds.
So what were my main takeaways? Here are four that spring to mind the night after the Forum:
1. We are in a time of challenges.
Many participants shared stories of challenges. Grand Chief Stewart Phillip described some of the issues facing on-reserve populations in the 1970s. One speaker talked about the hurdles First Nations face in trying to fund on-reserve housing requirements, and the disappointment of receiving AANDC “not funded” stamps on most capital plans. A story was shared about the absurdity of a smaller band being asked to review five major pipeline projects concurrently; another was shared of a First Nation that was asked to respond to 6000 referrals in one year.
2. We are in a time of change.
Early on day one, Dr. Eldon Yellowhorn described the change that BC First Nations have experienced since the arrival of Alexander Mackenzie through to today, where we are on the cusp of people of European descent no longer being the majority in Canada. But talk of change didn’t stop at history and sociology.
People discussed recent changes to environmental laws, and questioned what the Mikisew actually achieved by taking the government to task for failing to consult with First Nations before removing many meaningful protections from our federal legislation (hint: the answer to that question is answered by the fact that the legislation still stands unamended). My co-chair, Merle Alexander, described how recent tax policy was is changing how First Nations should structure their businesses. And another lawyer described a change in her developer clients’ attitudes: “The practical reality is that nothing gets developed without First Nations consent.”
Sometimes change makes things seem urgent, when in fact they are not. As Annita McPhee advised the forum: “Sometimes you need to slow down and make sure you are talking to your people. You need to keep them informed and let them make decisions. Even though the government will tell you that you are on their timeframe, you are not; they are on yours”.
3. We are in a time of uncertainty.
The general sense is that everyone – First Nations, project proponents, and government – is wrestling with what the Tsilhqot’in decision actually means for them. As Grand Chief Stewart Phillip put it: everyone is “hiding behind the rock of the status quo”.
Different speakers brought different perspectives on what it means to achieve support or consent from First Nations: some felt that consent requires a positive vote of confidence from a First Nation; others felt it means that the government or proponent has objectively demonstrated that a decision or project should be supported. The one thing that everyone agreed on was that what little certainty that existed around resource decisions before Tsilhqot’in has now disappeared.
4. We are in a time of opportunity.
A number of leaders – including former Tahltan president Annita McPhee, McLeod Lake Indian Band Chief Derrick Orr, and Kanaka Bar Chief James Frank – all shared stories of successes in their communities.
One of the core messages from my presentation was that this uncertainty is an opportunity. By creating custom-made resource regulation, environmental standards, development protocols, and general “paths to consent”, First Nations can offer developers the certainty they are seeking around development – and First Nations may be surprised at what industry will give in return. Now is the time to know what your community wants, and to not be shy in putting it on the table.
Everyone in the Forum agreed that future opportunities will include greater First Nation involvement in projects, from regulator to investor to owner. A lot of the discussion focused on the investor and ownership aspect – and many people highlighted the need for First Nations to prepare to be drivers of the economy in the coming decades. Everyone seemed to agree that this will require First Nations to access capital in unprecedented numbers and sometimes creative ways.
I always look forward to participating in these conferences because I enjoy sharing my thoughts and experiences, but I always leave these conferences feeling guilty for taking more than I give. This was certainly the case again, and I thank all of the participants (both faculty and attendees) for sharing so openly and making my experience at this event such a rich one.