It is a pleasure to be with you here in Banff today.
I was invited to come here to discuss First Nations policy considerations related to energy development. I will focus on the North and two key areas land claims and the regulatory environment. I’m going to touch on self-government and explain how First Nations are becoming actively involved in policy development. And, before I finish, I’m going to suggest four simple principles that will help us all to work together for mutual benefit.
Indigenous people are among the largest landholders in the world. In Nunavut, the Inuit control more than 200,000 square miles of land, of which 22,000 square miles include mineral rights. In the Yukon, First Nations control about 16,000 square miles of land, two-thirds include surface and subsurface rights.
Kaska Traditional Territory
The Kaska Dena, who I represent, have lived in their traditional territory for tens of thousands of years. This territory consists of 93,000 square miles of beautiful, rugged, resource-rich land which covers about 10 per cent of B.C., 25 per cent of the Yukon, and extends into western adjacent parts of the Northwest Territories.
The Kaska traditional territory includes some of the most distinctive biodiversity on earth.
It is also home to the biggest concentration of large animals in the world, including 22,000 moose, 15,000 elk, 7,000 stone sheep, 4,000 caribou and Canada’s highest concentration of grizzly bears.
In the heart of this territory is the Muskwa-Kechika Management Area, the largest publicly-administered district in North America. Scientists have told me that this land could one day support oil and gas operations to the tune of 500 million dollars per year, as well as mining and forestry development.
Needless to say, these natural riches present daunting challenges at a time when we are still struggling to balance a desire to maintain the traditional Kaska culture, care for the land and build stability for subsistence economies.
With such abundant resources, the pressure to develop our lands is immense. Take, as an example, the northern natural gas pipeline projects.
According to one report, by the end of the decade, the Alaska Highway Pipeline and the Mackenzie Valley Pipeline combined will provide, fully, 15 per cent of all new gas supply required to address North America’s growing energy needs.
Such developments may well bring opportunities. In the Northwest Territories we see the profits from resource development building a self-sufficient and powerful region that is contributing to national economic growth. It has been projected that diamond mines and oil and gas developments in the Northwest Territories will add more than $65 billion dollars to Canada’s Gross Domestic Product. A substantial number by all counts.
Still, the questions remain: Where do we, as aboriginal people, fit in developing these resources? How will we translate such opportunities into the economic clout and the political independence we so desire?
We are not opposed to development. We are willing to share our resources with others throughout Canada and the world but we will only do so in a way that favors our long-standing and deeply held values. Values like sharing, respect, and cooperation. And we will do so in a way that will leave a legacy for future generations.
To create the foundation for growth, we are well aware that, first and foremost, we must resolve the outstanding land claims that create an uncertain future for our people and an uncertain investment climate for business.
Land Claims
The Kaska land claims are part of the first comprehensive claim accepted by Canada under its 1973 policy. Still, Kaska claims remain unresolved. And while we are not satisfied with the slow pace of land claim negotiations — it shouldn’t take 30 years to bring these matters to resolution — it is our view that the acceptance by the federal government and the following years of negotiations, clearly establish our right to say how our traditional territory and our resources are used.
We have a right to govern ourselves, manage our resources and guide our economies, just as we have for centuries.
The process continues to be challenging. Despite the fact that Kaska land claims remain unsettled, the federal government is attempting to devolve the unsurrendered traditional Kaska territory to the Yukon government.
If we are able to settle our land claims, the Yukon Act will come into effect next April, giving new powers and responsibilities to the Yukon government by transferring the administration and control of lands, water and resources matters that were previously under the jurisdiction of the federal government. If Kaska claims remain unsettled, we intend to challenge the legal validity of devolution.
We are encouraged that many First Nations’ land claims are being settled. Of the 14 First Nations in the Yukon, eight have concluded final agreements and four are finalizing settlements. Although the claims of the two Kaska First Nations in the Yukon, and the transboundary claims of the Kaska Dena Council are unsettled, I remain hopeful these claims will also be resolved in the not too distant future.
And, as land claims are resolved, First Nation governments assume province-like responsibility for oil and gas resources on settlement land. So, there is no longer an emerging third level of government.
Aboriginal self-government is a reality. In the Yukon, we now have 15 governments, 14 First Nations and the Yukon Territorial Government, that are seeking some commonality of purpose in charting the course for the future.
Aboriginal self-government represents a fundamental shift in the exercise of power. Local control and management of resources — with a fair share of benefits — is now an expectation.
It creates a new level of complexity as this transition of power occurs against a regulatory backdrop that has long been criticized as being too complicated and too time-consuming. And no wonder when one considers the number of acts that regulate oil and gas activity in the North.
Regulatory Environment
If we are to be successful in the days and years ahead, we need to find a holistic approach to policy development that is appropriate for all of the North. An approach that is certain, clear, and consistent across borders.
How do we begin? Recent experience serves to illustrate the effectiveness of a negotiated process.
Two pieces of legislation especially relevant to this audience were generated through a negotiated process the YukonOil and Gas Act and the proposed Yukon Environmental and Socio-economic Assessment legislation.
These two pieces of legislation create a common regulatory regime for the Yukon so the same laws apply across territorial and First Nation government jurisdictions.
In November 1998, the federal government transferred authority for oil and gas activity to the Yukon when the Yukon Oil and Gas Act came into effect. The Act was crafted through a co-operative effort. First Nations governments and the Yukon government worked together to create a consistent regulatory approach that would apply throughout the territory.
The Kaska agreed to the devolution of oil and gas management but on the condition that Kaska consent be required for any oil and gas activity in their traditional territory. We were successful in our negotiations and the Act now states that no oil and gas activity will be permitted without Kaska agreement. So we are becoming architects of policy, and we play an important role in project approval.
Under the Yukon Oil and Gas Act, a benefits agreement is required for any exploration or development work that exceeds one million dollars in any 12-month period. These agreements deal with consultation, training, employment, and contracting opportunities.
First Nations and government also worked together to create the Yukon Environmental and Socio-economic Assessment legislation.
This legislation will implement what is commonly referred to as the Development Assessment Process — a single, mighty mechanism to assess the impact of activities. It will largely replace the Canadian Environmental Assessment Act in the Yukon.
It was introduced in the House of Commons earlier this month and, once it is in place, First Nations will have increased involvement through a new formal review system.
And as the Development Assessment Process begins its journey through Parliament, strong, supporting statements are being made by the courts.
For example, a recent B.C. Court of Appeal decision, the Haida decision, made it plain and clear that there is a requirement that consultation will take place in advance of development even in traditional territory where aboriginal title has not yet been established
In the Haida decision, the province’s highest court confirmed that both the province and Weyerhaeuser owe legally enforceable fiduciary duty to the Haida — and that both the province and the company have a legally enforceable duty to consult with the Haida with a view to accommodate their rights and interests.
This decision reflects a great wave of change that is upon us.
So we are faced with a confounding problem. How do we proceed in an environment where there is an absence of the certainty that you and I both seek?
As I said, First Nations are increasingly becoming the architects of policy. For the ongoing international policy debate to be valid and useful, it needs to involve all levels of government — federal, provincial and territorial and, of course, First Nation governments.
Like most First Nations, the Kaska Dena generally support sustainable economic development.
In our view, sustainable development means ensuring that the land will be passed down to future generations in the way we received it.
Sustainable development means development does not undermine the ecological and social systems that our communities depend upon.
Sustainable development also means that development does not infringe on our rights.
In short, sustainable development is neither fast, nor easy, nor simple — but it is the only form of development that we will permit on our land.
And, while our land claims remain unsettled, we know that if we don’t maintain a dialogue with industry and government on major projects we may find that activities will be planned in our territory without our involvement, so we must work together.
So how should we proceed?
I said at the beginning that I was going to give you four simple principles that highlight how we can work together for mutual benefit.
Working for Mutual Benefit
We call them the four C’s — communication, consultation, capacity and commitment.
Communication is a first step.
We want industry and public governments to communicate with us early and often at the pre-planning stages of a proposed project long before the work has started.
We are an oral culture, so reams of paper and thick reports do not impress us. In fact, many of our elders still prefer to communicate in our traditional language, so be prepared to provide translation services.
When you come to our communities, you aren’t dealing with an individual landowner. We aren’t just another interest group. We aren’t merely another stakeholder. We are a government, with all the responsibilities and obligations of government.
Which brings us to the second principle — consultation. As our rights, titles and interests are constitutionally protected, a higher level of consultation is required with First Nations.
For this reason, as the courts have confirmed, consultation with First Nations is significantly different from routine public consultation. When you consult with us, you are doing it to avoid infringing on our constitutionally protected rights and to ensure that our interests are accommodated.
We expect to provide meaningful input for proposed development on our traditional lands regardless of whether aboriginal title has been established. We expect consultation to involve mutually defined goals, reaching decisions by consensus, and working as full partners to determine appropriate action.
Take the time to learn about traditional land use and places in our territory that are sacred and special. And be prepared to compromise or change your plans if our input points in that direction.
At the consultation stage, we should develop a formal agreement that sets out our involvement and identifies how aboriginal interests can be accommodated. We want to be involved in collecting baseline data, and we want to own that data as well, so that we can build a database for land and resource management to be used after a Final Agreement has been concluded.
Capacity is the third principle — a clear requirement for our joint success.
In the North, our greatest resource isn’t oil, or gas, or minerals. It is our people.
Community members can provide a wealth of information about the land and resources. In the mining sector, traditional Kaska knowledge has been credited with significant mineral finds and two Kaska elders, Robert Etzel and Arthur John, have received awards for their outstanding contributions to the industry.
Industry and government can support our efforts by contributing to training initiatives early so that when you’re ready to build a pipeline, or drill for oil, our people are ready too.
Over the next ten years, the size of the aboriginal working age population in Canada will grow 3–5 times faster than the non-aboriginal population. By 2006, the total aboriginal working age population will be at 920,000.
For the oil and gas industry, there is a good fit. The traditional workforce in oil and gas is young and by 2006, about one-third of the aboriginal workforce will be under the age of 30.
A coordinated training strategy that targets aboriginal youth would go a long way towards addressing our shared needs and preparing for continuing oil and gas operations in the North.
The fourth principle is commitment.
We have come to expect that resource activity in our territory will bring jobs and training opportunities. But jobs and training alone are not enough to build sound, healthy economies. We must be full partners with industry, working together in joint ventures and strategic alliances.
We are interested in working with people who respect our values. We have had preliminary discussions with industry about establishing certification programs programs that would help identify organizations that have a good record of working with First Nations.
Organizations that invest in the communities that serve them. Organizations that support training initiatives and local employment. Organizations that are willing to invest with a long-term view.
Our experience shows that industry is open and eager to work with us. Together we are creating opportunities for new investment and economic growth in a way that respects the needs of both industry and First Nations. We’ll talk to industry about royalties, investment opportunities, or anything else that makes good business sense.
Conclusion
In summary, it is clear that First Nations are entitled to play an active role in resource development in their traditional territory. For industry and government, the key to certainty in Canada’s north lies in partnerships with First Nations. We will continue to play an important role in policy development.
And, as with any partnership, the main ingredients of a successful relationship are a mutually beneficial exchange and respect for each others’ interests.
With regard to land claims and B.C. treaties, we find ourselves at a critical threshold. We know the continued existence of unsurrendered claims will be a detriment to continued development. We invite industry to help us apply gentle pressure on government to help us conclude this unfinished business.
We are willing to share our resources with others throughout Canada and the world but on our terms, and with a long-term view, ensuring there is some lasting benefit to our people.
Mussi.
