Jurisdictional Breakdown for Resource Management

Canada is a federal nation with governmental powers divided between two orders of government: federal and provincial (see Glossary for more on Canadian federalism).

Some tertiary authority is delegated to other levels of government including municipal or administrative. Canada is made up of ten provinces and three territories. In order to

convince each of the provinces to join the federation in the 19^th century, Canada developed a system of land jurisdiction that left primary responsibility for land and resource management to the provinces, including management of Crown lands (land deemed to be owned by the colonial government).

However, the impacts of resource management and development decisions have the potential to affect a wide range of people and groups who are often termed

stakeholders in Western regulatory processes. These impacts can include

environmental degradation such as lost terrestrial habitat, dammed aquatic habitat, increased road access to otherwise inaccessible habitat areas, and water and air pollution; social and community impacts such as increased population, local

development, temporary employment boom; and economic impacts, both positive and negative. Those most directly impacted include local and regional people, their

communities and culture, and the natural environment.

First Nations peoples are more than impacted third-party stakeholders in the British Columbia resource sector; they hold Aboriginal rights and title to all, or some portion, of their settled or asserted traditional territories as recognized by s. 35 of the Constitution Act, 1982. In light of outstanding title, Aboriginal rights, and Treaty rights, First

Nations have, or ought to have, a primary role in the governance of resource

management in British Columbia. Secondary actors could include a variety of

third-party stakeholders that hold no governance or legal role in the development process, including non-governmental organizations (NGOs).

Thus, the resource use sector in Canada involves four primary actors, each with their own interests, responsibilities and goals. These primary actors are:

• The provincial governments as resource “owners”, managers, and representatives of the majority public interests;

• The federal government in their role as responsible actors for “Indians and lands reserved for Indians” (Constitution Act 1867, 91 (24)), and environmental issues that have national scope: federal Environmental Assessment if triggered, endangered species, transportation, oceans, and anadromous fisheries; ⁵⁰

• First Nations as holders of Aboriginal rights and title, with livelihoods and culture tied to the land; and

• Private sector companies (in the case of private sector developments).

Local governments also have a specific permitting and, possibly, planning role that will not be discussed here since the duty to consult with First Nations rests with the Crown

50 In Canada, the federal government holds authority over aspects of natural resourcemanagement by way of: “Indians and land set aside for Indians” (via the Indian Act 1985); potential impacts to fish or marine species (Fisheries Act 1985) or ocean waters (Oceans Act 1996); potential impacts to endangered species (Species at Risk Act 2002) or migratory birds (Migratory Birds Convention Act, 1994). In the first instance, the federal government as a representative of the Crown holds a special responsibility to ensure that honourable dealings are conducted with regard to Aboriginal rights and title. Other Acts can also trigger federal participation in provincial land-management issues.

(federal and provincial governments) and the power of approval for large projects often rests largely with the provincial or federal government.⁵¹

Balancing these actors’ varied interests and jurisdictions in land use is typically sought through a consultation or co-management process. Co-management processes are typically developed where treaty rights exists (e.g., Nisga’a First Nation, James Bay and Northern Quebec) or strong cases for claim have been established (e.g., Haida, ‘Namgis, and Wuikinuxv First Nations in British Columbia). However, in areas of unceded land and existing Aboriginal title, which is the major part of land in British Columbia, consultation is generally the primary vehicle for First Nations participation in resource management. There are instances where co-management agreements and interim agreements are put in place, but these are not considered ideal. As described by Doug Aberley, Director of Treaty Negotiations Resource Department for the ‘'Namgis First Nation, “They’re not a solution to the issue of power, but they provide a short-term benefit…” (Aberley interview 2007).

As evidenced by legal judgments in British Columbia (Haida 2004; Taku 2004), authority and the power to determine the process and the goals that carry weight in resource-

51 Local non-Aboriginal governments (municipalities and regional districts) also have a role to play through regional planning, representing local labour pools and contractors, zoning and permitting processes, however their responsibilities for land regulation and consultation with First Nations are secondary to provincial and federal governments. Local non-Aboriginal government goals will not be distinguished in this work. Further, the public and local community interests are sometimes represented by non-government organizations (NGOs), but will be framed in this paper under the interests of the provincial or federal government.

based decision-making primarily rests with the Province. Requirements for licencing and approvals are typically outlined at a very high level through provincial guidelines or Acts. For example, the primary regulatory process for many development projects in British Columbia occurs under the Environmental Assessment (EA) Act. Such projects could include:

• New or redeveloped mine projects.

• Energy projects greater than 50MW installed capacity.

• Development projects with the potential to impact fish-bearing waterways.

The various provincial ministries responsible for individual jurisdictions in British Columbia often place little emphasis on the inclusion of First Nations in their existing guideline documents. The British Columbia Ministry of Energy, Mines and Petroleum Resources (BCMEMPR) provides proponents with a guide to permitting steps, where neither consultation nor First Nations are shown in a figure depicting the Summary of Mines Act Permit Review Sequences (see BCMEMPR 1998). In a flow chart that depicts the British Columbia Environmental Assessment (EA) process, consultation with First Nations is shown as input to three stages in the EA approval process:

1) prior to Application,

2) during the 30 – 75 day application review period, and

3) during the 45 to 60 day project report review period (BCEMPR 1998).

Proponents are required to invite First Nations to be part of an overall Project Review Committee. The time limitations for review, as described as a firm requirement of the

EA process, have significant impact on First Nations’ ability to participate meaningfully, an issue that will be discussed more fully in later sections.

Permits for construction and operation of a large development project would typically trigger this Environmental Assessment (EA) process, which would involve local governments and First Nations input. Before the EA process begins, there is an application phase and qualifying test to ensure that a company has the basic

requirements to proceed, operate and complete a project. Similar to the ruling in the Dene Tha’ case (Dene Tha’ 2006) that states the need for early involvement, it is during this pre-application phase when initial engagement with First Nations governments ought to occur in order to include their perspectives, knowledge and concerns prior to the planning and development process being established and underway.

No language is provided in the British Columbia Environmental Assessment (EA) process guidelines stating that First Nations consultation must be adequate or

meaningful, or that adequate and meaningful agreements with First Nations must be reached prior to Ministerial approval. This lack of clarity in the EA leaves open to question what extent the goals and objectives of First Nations will be considered in the development consultation process in British Columbia.