Opportunities for billions of dollars of development could be lost if settlements cannot be struck in a timely way with aboriginal leaders.- Joe Oliver, former Federal Natural Resources Minister1
When you are talking about projects that could have a profound impact on the lives of First Nations people, you don’t just talk to us. You’re going to need to get our permission before anything goes forward. That’s just a fact of life.– Art Sterritt, Executive Director of Coastal First Nations of B.C.2
First Nations told us there has been a lack of realistic input into the Enbridge Northern Gateway proposal…It seems to me that the only license that matters is a social license. – Calvin Helin, President of Eagle Spirit Energy Holdings Ltd.3
For now, B.C.’s First Nations have the federal and provincial governments right where they want them- over a barrel. – Gary Mason4
The fate of the Ring of Fire and the jobs and revenue attached to it now rests in the hands of Ontario’s First Nations…Ontario’s economic future is out of its hands. – Ian Rogers, Law Times5
Whichever route is eventually chosen for road access to the Ring of Fire, area communities still have to give their consent for the road to cross their traditional land. 6
Opposition to these projects by aboriginal groups may doom the development of oil and natural gas pipelines and related infrastructure because neither industry nor our trading partners are prepared to stand idly by to wait out the results of judicial proceedings that can take a generation to complete. – Douglas Eyford, former Prime Minister Stephen Harper’s Special Envoy on Aboriginal and Energy Issues7
Canada’s oil export bind sours China-Credibility lost to “weak” leaders, slow progress: CNOOC -National Post headline, January 20, 2016 8
“Persuasion money”- Manitoba Premier Brian Pallister
Danegeld: a tax raised in 11th century England to pay tribute to Viking raiders to save the land from being invaded and plundered. – Dictionary
I look forward to our call and my chance to explain the duty to consult but can’t explain its mushroom effect.-Retired Supreme Court of Canada Justice Jack Major 9
Indians bands, with the assistance of Canada’s professional classes, are now naturally and understandably taking advantage of the “consult and accommodate” windfall the Supreme Court has handed them. Examples abound, and a few of them, national in scope, and (in relation to this writer) local, are adverted to above and set out below.
In April of 2010 Ogilvy Renault, one of Canada’s largest law firms, announced that Phil Fontaine, former chief of the Assembly of First Nations, had been hired as an “advisor” to help their resource company clients negotiate with Indian groups. As the Globe and Mail reported:10
Mr. Fontaine said much of the resource development in Canada over the next few years will have to involve aboriginal people. “It’s going to take place on aboriginal land and territory. So I think it’s important to develop good relationships.” He said recent court decisions now force resource companies into meaningful consultations with aboriginal groups. “I believe there has been a very fundamental shift that has occurred”, Mr. Fontaine said in an interview. “And most of industry understands the new requirements. They want to do it right.”
It’s doubtful that industry wants to “do it”, in Mr. Fontaine’s sense of the words, at all. But, as he accurately said, recent court decisions now “force” them to do it. Something that was previously so often done out of a willing sense of generosity, civic obligation and plain good business is now compulsory- “forced”. This is wrong and unhealthy.
Also telling and portentous is that Mr. Fontaine didn’t limit himself to resource development on “aboriginal land,” meaning Indian reserves only. He casually and confidently used the term “aboriginal land and territory,” meaning Indian reserves plus, in his mind (and quite legally so), anywhere else in Canada where any remotely nearby Indian band deems one of its interests to be possibly “affected.”
In British Columbia, and any other region of Canada not covered by an existing treaty, the situation is now drastically worse. On June 26th, 2014 the Supreme Court of Canada, in its Tsilhqot’in First Nation decision, referred to already, the Court made a declaration of “aboriginal title” in favor of the Tsilhqot’in Indian band, about 3000 persons in number. This small band of about to be very rich and powerful country folk now have the primary right to decide how this land is going to be used and who gets to benefit from it, if at all. This may very well include the right to levy Crown-like taxes and royalties on all economic activities taking place on it.
Described in the National Post as a “legal and economic earthquake” (earthquakes are never good things), this decision strikes a devastating, debilitating blow to Crown sovereignty over what are basically now former Crown lands in British Columbia (which comprise about 94% of the province’s land base), and a devastating blow to the B.C. economy.
Gordon Gibson, a noted commentator and author on aboriginal issues, wrote in The Globe and Mail:11
The Tsilhcot’in decision marks a very dark day for the economy of British Columbia. A new era of chaotic jockeying will open among First Nations, governments and resource proponents, casting a pall over a basic economic driver of the province…This first award of aboriginal title will surely result in a mushrooming of claims throughout B.C…The upshot will be that major resource projects, pipelines, mines and the like will face the kind of uncertainty that investors hate. (The new certainty will be more litigation.) Many projects will simply be abandoned and new opportunities will be spurned…Stand by for aboriginal title claims all along the proposed (pipeline) routes under the new law, which will allow significant new attempts at toll-gating. This will either frighten off proponents or eat up the province’s hope of tax revenues.
The decision throws British Columbia and possibly these other non-treaty areas of Canada into legal and fiscal disarray. Most of the 200 or so Indian bands in B.C. never signed treaties with the British or Canadian Crowns and thus never surrendered their “title” to the lands they historically occupied, or had those “titles” extinguished. B.C municipalities, including Greater Vancouver, all sit on unceded lands, and are thus susceptible to claims from nearby Indian tribes, now being made, arising from this newly recognized “aboriginal title.”
Indian leader and spokesman Arthur Manuel, (who died in 2017) in his Canadian and Ontario taxpayer-financed book, The Reconciliation Manifesto-Recovering the Land, Rebuilding the Economy 12 frankly and coldly described the “important leverage” Indigenous groups now have because of the business uncertainty created by this decision, and by the concept of “Aboriginal title” generally:
The basis of uncertainty is the fact that Aboriginal title is protected by the Constitution Act, 1982. These legal and constitutional facts create uncertainty, because they potentially affect resource industries’ access to our lands, where the resources are found. Provincially-created property rights like mining permits and forestry licences did not and cannot extinguish Aboriginal title, because the province never had power over Indigenous peoples and territories.
This means that the province never had the capacity to give full title to anyone who holds provincial property. This is what is creating economic uncertainty….So because that uncertainty exists, it is a financial risk for resource companies to come onto our land. They can never know if they are one court judgment away from having their multi-million and even billion dollar investments seized by legitimate title holders. (italics added)
The prospect arises of B.C. Indian bands, and Indian bands in any other part of the country not subject to a treaty, now quickly evolving into one vast class of neo-aristocratic, toll-collecting, absentee-landlord rentiers, (see below), each becoming the new fount of sovereignty exercising les droits des seigneurs over their own particular, often ill-defined and overlapping, pre-nation state swatch of local territory.
Now there is no reason why any B.C. Indian tribe would ever bother entering into the treaty-making process with either the federal or the provincial Crowns, (except for the short-term reason, as stated above, of enjoying the ongoing daily monetary and life-style fruits of the treaty -making process itself). The whole, basic point of making treaties with Indian bands has always been, in legally and morally uncertain circumstances, the attainment of undisputed Crown sovereignty over the lands in question. There’s no more uncertainty about this in British Columbia or in any other part of the country not subject to an existing treaty. There is no undisputed Crown sovereignty, and under the new law, there never will be.
The Supreme Court has ruled that Indian bands there, if they historically occupied the lands in question, in terms of, not just living in specific locations, but roaming over it for hunting, fishing, trapping and other similar purposes, now in effect own those lands. Their title to them, in many important respects, ranks ahead of the uncertain remains of Crown rights, and private property rights which directly flow from and depend upon absolute Crown rights, over the same lands.
They don’t need treaties with the Crown now.
With this decision, a legally logical extension of the principles set out in the Royal Proclamation of 1763 and Haida Nation, it’s the Crowns, now shorn of their sole and undiminished sovereign powers and authority, which need them. And it’s private property owners, the title to whose properties is derived from the Crown, who need them. All the latter’s property titles, including the titles to all those overpriced homes in Vancouver, are now in jeopardy and under a cloud. If the Crown never had title to the lands it granted patents for, then the whole chain of title to those lands, down to the present owners, comes under serious question.
Basically, in B.C., the Crown, but only where there is a “compelling and substantive” public need (more years of job-killing, Canadian taxpayer-financed litigation over that phrase), will, in essence, now have to seek and obtain treaty-like consent , from all the nearby Indian bands who claim aboriginal title to the lands in question, to do anything authoritative on that land.
Before the Justin Trudeau Liberal government disgracefully killed the Northern Gateway pipeline project in late November of 2016, called a “political betrayal of Canada’s regulatory laws”, by Gwyn Morgan, the retired founding CEO of EnCana Corp. 13, Enbridge, based on mere (!) “consult and accommodate” law, had faced the hopeless task of negotiating with about 50 different Indians bands for the right to run its proposed pipeline over each band’s often overlapping “traditional” territory. If, after all that, accommodations could not be agreed upon, Enbridge at least had the legal right to say that they had done all they reasonably could – that they had fulfilled their constitutional obligations in this regard – and that despite Indian opposition, their project could legally go ahead.
But not now. Not in British Columbia, which may have to be renamed First Nations Columbia.
Now, Indian bands there, claiming to be owners of the land, thanks to our Supreme Court in Tsilhqot’in, can “just say no!”, for whatever reason they choose, and that’s the end of the matter.
For example, in May, 2015 the Lax Kw’alaams band, near Prince Rupert, purported to veto the B.C government-backed plan of Pacific NorthWest LNG to export liquefied natural gas from a site at the mouth of the Skeena River. The company had planned to spend about $36 billion, while adhering to the strictest environmental conditions, to construct the necessary facilities. The 3600 member band, turning a deaf ear to the environmental assurances of B.C. and LNG, by shows of hands, turned down an offer of about $1-billion, to be paid over 40 years, (about $320,000 per person), plus about $100-million worth of Crown land. 14
They also turned a deaf ear to Premier Christy Clark’s (as she then was) promise of, for the benefit of all of British Columbians and Canadians generally, three operating plants by 2020 and the creation of 100,000 jobs.
The federal government’s heavily conditional approval of the project in September of 2016 also left them similarly unmoved. (Why should they care about anybody or anything but themselves? They get their funding no matter what.)
For the project to have gone ahead, and for any similar B.C. project similarly vetoed by an Indian band to go ahead, the Crown, not the private proponent, would have to choose to take on the onus and the battle of proving a compelling and substantive public need for the project. And that becomes a political decision, and a decision involving more investment-killing delays and uncertainty, and a decision involving the rule and discretion of men, not the rule of law.
And again, it was that fatal combination of delay and uncertainty, resulting in “the reduced attractiveness of the Canadian market for investment”,15 that killed the project and all those jobs. In late July of 2017, Petronas, the project proponent, diplomatically announced that, because of “a lengthy regulatory process” during which “market conditions turned unfavorable”, 16they were cancelling the whole thing.
In its most recent survey the Canadian Association of Petroleum Producers forecast that oil and gas capital expenditure in Canada will fall to $44 billion this year, nearly half the $81 billion spent in 2014.
CAPP blamed the dramatic change in part, on “continuing uncertainty” in Canada’s policies and regulations, which are seen as “increasingly more stringent and costly.”
While politicians blamed poor global LNG conditions for the Pacific NorthWest decision, similar projects have gone ahead in Australia and the U.S. 17
A recent example of this job and investment-killing and racially divisive chaos resulting from Tsilhqot’in (and more of the same to come from UNDRIP) is the Wet’sewet’en hereditary chiefs’ not unreasonably claiming absolute veto power over the passing of the Coastal GasLink pipeline through their “traditional territories”.
Interestingly, what Quebec separatists sought for decades, and seemingly, thank God for Canada, have been unsuccessful in attaining: independence and the right to be maitres chez nous – has been handed to B.C. First Nations by the Supreme Court, and with the apparent general approval, or at least definite lack of serious protest or concern on the part of all the same political elites who fought the separatists and fought for Canadian unity all those years.
In March of 2015, in keeping with all of the above, the “Tsilhqot’in National Government” issued the Affirmation of the Nemiah Declaration, a “law…enacted pursuant to the inherent jurisdiction and law-making authority of the Tsilhqot’in Nation and the declaration of aboriginal title” granted by the Supreme Court.” This “law”, amongst other things, prohibits commercial logging, mining and mining exploration, commercial road building ,dam construction and recreational skidoos and ATV’s in the 1700 square-mile “Declared Title and Rights Area”.
(Yet, despite their phony “independence”, B.C. First Nations still demand full services from B.C. and Canadian taxpayers! For example, the Kwadacha Nation, about two hours by air from Prince George, population 400, is demanding a full-time RCMP detachment.
Chief Donny Van Somer said he’s been attempting to get a full-time police presence since he was first elected nine years ago. He said that the province has dragged its heels.18
This is hypocritical. This is “independence” totally on the Canadian taxpayer’s dime.)
Expect, sooner or later, if this is not stopped, the entire province to be legally balkanized and thusly comprised of numerous “Declared Rights and Title” areas, being blanketed with such private property-attacking, job-killing, revenue-destroying “laws”.
From whence then, in light of this, and in light of similar acts like the Lax Kw’alaams’ development-killing veto decision, above, will the revenue come to pay the transfer monies still payable to these Indian bands, and to pay for services and programs to which all British Columbians are supposedly entitled? Again, from the unfairly and increasingly burdened, ordinary, non-Indian Canadian taxpayer.
In late 2015, following the logic of Haida Nation and Tshilqot’in, and casting doubt on the validity of the titles of every private property owner in the province, two B.C Indian bands near Kamloops sued for a declaration of title over nearby private property owned by a mining company that was proposing an open-pit copper and gold mine there. Some of the property is within the municipal bounds of Kamloops. Well, the Kamloops area can, for a very long time, forget about the jobs, investments and tax revenue that would have resulted from that undertaking.
In 2016 the Tsilhqot’in band, to ratchet up pressure on their fellow Canadian citizens- on Canadian taxpayers- to pay them danegeld money- (The “Crown” is not a disembodied, impersonal thing possessing money plucked from trees. The “Crown” is all of us!)- started a lawsuit claiming ownership of about 130 private land holdings, mainly ranches, in the area the Supreme Court declared that they have aboriginal title to. Declared good neighbour Chief Joe Alphonse about the original Crown land grants from the 1800’s for these private landholdings:
It’s the province who issued those properties without consultation, without any input from First Nations. We feel that they have to pay. 19
Some mining companies in B.C. are now being approached by Indian bands demanding “access payments” for permitted exploration activities on Crown (?) land, demands often accompanied by the threat of work interruptions if the payments are not made.20
No properly functioning government or business- no properly functioning modern society- can operate in such an irrational, uncertain, retrograde, illiberal, medieval-like environment. Hence Mr. Gibson’s description of this decision as presaging dark days for the B.C. economy. And I would say darker days for progress in relations generally between the Indian and non-Indian Canadians affected by this madness. (See The Amygdala Factor-Our Civic Duty to Give No Legal or Political Effects to Race Thinking, below.)
The $8 billion, nearly 1200 kilometer proposed Enbridge pipeline would have delivered nearly 525,000 barrels of petroleum a day from Edmonton to a tanker terminal on the B.C. coast. As the Canadian Press wrote:21
The federal government claims Canada is losing billions of dollars a year because western Canadian oil is not reaching markets overseas. Enbridge has said Northern Gateway is expected to grow the Canadian GDP by more than $300 billion in 30 years.
As the Globe and Mail reported in the summer of 2010, one of those Indian bands, the Wet’suwet’en, now, thanks to the Supreme Court of Canada, one of the sovereign owners of B.C., went to Calgary “in hopes of persuading energy companies to boycott the project.” The Globe continued:22
About 140 km of (the pipeline) would be built on Wet’suwet’en traditional territory, and the group believes the environmental approval process for the pipeline will infringe on their constitutional rights, since it does not include a mandate to look into aboriginal rights and title.…A spokeswoman with the Canadian Environment Assessment Agency said the review process “has proven over time to be an effective means” to consider environmental and social impacts. The panel’s findings will be used by the government “to fulfill its legal duty to consult and, where appropriate, accommodate.” …(The pipeline) will cross the land of 50 first nations. Thirty have signed “protocol agreements” that allow discussions with Enbridge and provide funding for local traditional knowledge studies. Enbridge has not yet, however, signed a single access and benefit agreement with native groups.
In June of 2014 the National Energy Board, after hearing hundreds of witnesses, Indian and otherwise, receiving thousands of written submissions, and after many days of live hearings involving full and thorough examination and cross-examination of expert witnesses, and after a more than sincere and good faith attempt to “consult and accommodate’’ all the Indian bands along and near the pipeline corridor (as part of their now-futile attempt to get them on board they offered them a $100 million dollar trust fund and a 10% equity stake) approved the construction of the pipeline.
In any other modern country that would be enough for something so massive and beneficial as this undertaking to go ahead. But not in the new Supreme Court-created Canada.
In June of 2016 the Federal Court of Appeal, in an extreme example of excessive judicial activism, quashed the permit issued by the federal government for its construction, (the permit had over 200 conditions that Enbridge had to meet, all based on the extensive hearings and consultations held under the auspices of the National Energy Board.)
The Court ruled 23 that despite the eighteen years of consultations and hearings on the part of Enbridge, despite the years of danegeld offerings by Enbridge, the federal government (not Enbridge!) had “failed in its duty to consult First Nations prior to issuing a cabinet order approving the $7.9 billion pipeline.”24
Then, as referred to above, in late 2016 the Justin Trudeau Liberal government killed the project, shockingly heedless of and indifferent to Enbridge’s loss of the $500 million it had spent over those many years seeking government approval for the project, (which heavily conditional approval it had obtained!), the $2 billion in direct and indirect benefits that would have gone to aboriginal groups,25 and the fact that it had been the federal government’s so-called failure to properly consult, not Enbridge’s.
This is shocking and insane. The federal government had clearly over-delegated to Enbridge its responsibility to consult and accommodate Indian bands, which had done more than a thorough job of it. “First Nations along the way would have had to hide in space to not have an opportunity to have their say.” 26
It’s completely unreasonable that a large and responsible company like Enbridge, which was proposing a science-based and science-approved multi-billion dollar project of undoubted economic benefit not only to itself, but to British Columbia, Canada and to thousands of individuals and businesses that would have benefitted collaterally, was prevented from constructing this project by these new, practically unworkable and insane laws, by these small, technically illiterate, Indian bands. and by the sovereignty-wrecking and economy-killing Trudeau federal government.
The latest research from the Conference Board of Canada projects that the Trans Mountain expansion project would generate more than 800,000 person-years of employment over the next 20-plus years, and nearly $47 billion in revenue that would help pay for services such as health care, schools and infrastructure to make the transition to a lower-carbon economy. 27
The proper governance of our country has reached a ridiculous and sorry state. Naïve, almost infantile, flower-child idealism is seriously damaging everything that has made our country great!
The Enbridge and recent similar situations elsewhere in the country (see below) are setting a new template for obstructionism and for unjustified and harmful Indian demands all across Canada.
Globe and Mail energy reporter Shawn McCarthy wrote that there were then “about $300 billion in potential mining and energy projects across Canada that require consultation with native communities.28 What a toll-gating, danegeld, windfall for Canada’s Indians! What a disaster for economic development in Canada and for the ability of our governments to raise desperately needed tax revenues for the benefit of us all!
It’s often stated by Indian elites that their objections to certain new projects going ahead are based on concerns for the environment. But all too-often their objections are based on purely mercenary calculations. This was revealed in an article in the Globe and Mail on February 5th, 2013 reporting on the setting up by some prominent B.C. and Alberta Indian and non-Indian businessmen of “Eagle Spirit Energy Holdings Ltd.”, a company “quietly working to create a first nations-owned energy corridor across northern B.C. that could serve as a physical line across the province to move natural gas, electricity and oil.29”
Said Dave Tuccaro, a northern Alberta Indian entrepreneur who, according to the article, has built a “nine-figure empire on the oil sands”:
I see us (Indians) owning pipeline projects. I see us owning oil sands. I see us owning refineries. I see us owing a lot more than we have now.
Clearly the basic business plan of Eagle Spirit Energy Holdings Ltd., which will no doubt be copied by Indian entrepreneurs across the country, was to use the consult and accommodate weapon, and now, in B.C., the additional aboriginal title weapon, to sabotage Enbridge, and then, once that was done and the field was clear, step in and seize the opportunity for itself. (Well, it turned out that it was the federal government that did the sabotaging, so the field is now clear.)
In line with Eagle Spirit’s plans, as reported by the Canadian Press,30 the Wet’suwet’en and several other B.C. Indian bands whose “traditional territory” covers about a quarter of the pipeline route exercised their Haida Nation-created de facto veto power (and now their Tsilhqot’in-created legal veto power) and officially rejected the entire Enbridge project! The bands announced that: ”…the project is now banned from (their) territories under their traditional laws.” Said Peter Erickson, one of the chiefs:
We do not, we will not allow this pipeline…we’re going to send the message today to the federal government and to the company itself: their pipeline is dead. Under no circumstances will that pipeline be allowed…Their pipeline is a pipe dream….
So much for the Canadian GDP being grown by $300 billion over the next 30 years. (Oh well, that didn’t matter to any of those bands elites. They receive and control their government transfer payments – all their “honour of the Crown” and Indian Act entitlements – in any event. It’s only the vast majority of powerless band members, our Crown treasuries and the rest of Canadians who would suffer.)
So much for ultimate Crown sovereignty in Canada as well. That Haida Nation de facto veto power, combined with Tsilhcot’in aboriginal title, plus now, the United Nations Declaration on the Rights of Indigenous Peoples, (UNDRIP), now adopted by British Columbia and promised to all by the Panglossian Justin Trudeau on behalf of the federal government, (see discussion of the economically suicidal UNDRIP in chapter 50, below), will, as stated, have to be regarded for all practical purposes as a legal veto power.
A few days after the Wet’suwet’en group handed down their sovereign decrees against the Enbridge pipeline the Burns Lake band, whose “traditional territory” was along the proposed Enbridge pipeline route, announced that they were withdrawing their previous support for Enbridge and now throwing their support behind a new “First Nations-backed…$18 billion pipeline proposal” being put forward by, surprise, Eagle Spirit Energy Holdings Ltd, in partnership, at the time, with the Vancouver-based Aquilini Group.
As reported by Postmedia News:31
The Aquilini family, which owns the Vancouver Canucks as well as a vast array of development and agricultural companies, said it will underwrite the estimated $18 billion pipeline proposed by Eagle Spirit Energy as long as it gets support of all First Nations through whose territory the pipeline would travel…At a press conference in Vancouver attended by at least 20 aboriginal chiefs from B.C., Calvin Helin, and the president of Eagle Spirit Energy, said the group has the support of 30 First Nations in B.C…“First Nations told us there has been a lack of realistic input into the Enbridge Northern Gateway proposal,” Helin said…He likened Enbridge’s consultation with aboriginal groups to be the equivalent of “beads and trinkets” in return for exacting a route that would carry dangerous goods that could ruin a First Nations territory. (B.C. aboriginal groups) also opposed the idea of transporting raw bitumen in pipelines. As a result Eagle Spirit would build a refinery to process the oil into light crude for transport, Helin said…” Reporters questioned (in their usual softball fashion in this area) what expertise either Eagle Spirit Energy or Aquilini have in the area of energy transportation. “You can buy just about any experience you need”, Helin said.
In other words, no aboriginal experience or expertise is needed, because non-aboriginals will provide it, illustrating again the absurdity of Indian “self-government”, so entirely dependent is it on non-Indian professionals and technocrats for its functioning, and even its very existence.
In the same article Mr. Helin said that “his group has the support of the majority of First Nations in B.C. and is working on the rest to get…the social license to operate within their territories.”
(How disappointing to see Mr. Helin a part of this, after all he wrote about band council corruption and cronyism in Dances With Dependency (above). Relying on the concept of the “social license”, something unknown to the law, and able to be used as a coercive, danegeld tool only because it is protected by the fears and dictates of political correctness, is the opposite of the self-reliance and high moral values he called for in that book. I guess the money and power siren calls of his self-described “Indian Industry” were just too loud and persistent for him to resist.)
Expect to read and hear more about this new, devolutionary, anti-Crown sovereignty, quaintly neo-Marxist concept of the “social license,” this new power being assumed by the “people” (as in “power to the people!”). Well, only the Indian people of Canada actually, the rest of Canadians are totally excluded from this exciting new development in grassroots democracy.
It’s shameful that respectable Canadian businessmen such as the Aquilini family, whose success is based on the stable and predictable rule of law, would associate in any way with Indian entrepreneurs that would employ such an anarchistic, bullying, economy-wrecking concept as the “social license.” It’s shameful and demoralizing that our non-Indian elites are standing by timidly and passively and are not aggressively challenging this concept and nipping it in the bud.
Lawyer Paul Cassidy, of the Canadian blue chip law firm McCarthy Tetrault (sadly and ironically for Canada, like all of Canada’s big law firms, a huge technocratic enabler and beneficiary of the consult and accommodate industry, of which the bogus and harmful “social license” notion he complains of is an integral part), wrote:
To allow individual matters to be decided by an unlawful and unelected population would be non-transparent and anti-democratic…Social license endorses unpredictability, partiality and violation of the rule of law. 32
There should only be one license requirement for a business undertaking- a government license! A license based on compliance with government-passed black-letter laws and regulations. A license from a government that represents all the people, without regard to race, creed or colour. That is the only true “social” license there can properly be in a country ruled by law.
And, expect to see all this as the new business modus operandi for an Indian-owned or controlled business crushing the competition: subject the would-be competition (“the target”), to endless, go-nowhere consult and accommodate behavior, or aboriginal title claims (as the case may be), which the target pays for, and then, when the target has finally run out of money, or gotten thoroughly discouraged, given up and left the field, the Indian business moves in and appropriates the business opportunity for itself.
This is exactly what is happening in the Kinder Morgan-Trans Mountain pipeline situation. (See below.)
Canadians will more and more be seeing Indian bands aggressively carving out for themselves in this way larger and larger chunks of our natural resources sector.
On December 12th, 2013 the Globe and Mail33 reported the ongoing efforts of Indian bands in British Columbia to, with the aid of federal government loan guarantees, take large ownership stakes in certain liquefied natural gas projects being planned there. As the Globe reported:
The bid to raise financing comes as the Assembly of First Nations launches an effort to forge an aboriginal national energy strategy, which would be based on treaty rights, sustainable development and the need for impoverished communities to benefit from the massive resource development that Canada expects over the next decade…“What is absolutely clear is that unless First Nations are included as full partners in development, the prospects for projects proceeding are negligible”, said Dave Porter, chief executive of British Columbia First Nations Energy and Mining Council.
(Note and cry of alarm to reader: No treaty and no part of the “honour of the Crown” principle, (see below), obligates the Crown, on behalf of all Canadian taxpayers – all Canadians generally – to give such extraordinary and unusual- such fiscally improvident- such fundamentally and unhealthily race-based and race-motivated – financial guarantees. Indigenous business groups are now overtly suggesting that giving these guarantees is a necessary part of the “reconciliation” duty of Canadians. Complain loudly to your M.P. if you hear that they are actually going to be given! If these folks want to turn their backs on their fellow Canadians like this, let them do it entirely on their own dime! )
Again, referring directly to the sword-of-Damocles-danegeld factor, the clearly expansion-of-empire- minded Mr. Porter said:
…in my view Canada will not reach its full economic potential until it reconciles the place of First Nations, which means direct involvement in joint planning, joint decision-making , and the sharing in the benefits. And that means more than jobs and contracts, it means ownership.
It’s all anti-competitive and market-fixing in intent and practice, terribly unfair to non-Indian businesses and morally very questionable. But, given the proliferation and acceptance of affirmative action – type, two-tier justice thinking about all matters Indian, not to be challenged or criticized – and all perfectly legal.
In 2016 the federal Trudeau government hampered Eagle Spirit Energy’s plans by, partly to please B.C. Coastal First Nations, imposing a moratorium against oil-tanker traffic off the northern section of the B.C. coast. Again, purporting to extend the consult and accommodate obligation to the passing of legislation, the big players behind the Eagle Spirit venture, using their First Nations “partners” as a front and as the mouthpiece, announced their plans to sue the federal government for “an absolute lack of consultation” with First Nations.
Scaling the heights of hypocrisy and faux-concern for the national welfare , Woodland Cree Chief Isaac Laboucan-Avirom, speaking about the lawsuit and the “ill-conceived” moratorium, said:
I think it’s for the betterment of the country that we do challenge it. The decision to do that impairs not only the people on the coast but it impairs the diverse Canadian economy. 34
In March of 2018 they did indeed sue the federal government for this, with the support and involvement of Eagle Spirit, the latter of which continues its efforts to build its version of the Enbridge pipeline. 35One of the lead plaintiffs was the same Lax Kw’alaam band that vetoed the $36 billion Pacific North West LNG proposal. (What happened to their vaunted concern for being stewards and protectors of “the land”? There was no concern about impairing the diverse Canadian economy then! ) They allege in the lawsuit that the federal government’s tanker ban constituted “an unjustified infringement on the plaintiffs’ Aboriginal rights and title”, (which, given the disastrous state of the law, it probably is.)
Such rich, mercenary, vulture-like hypocrisy on the part of them all.
In 2017 Kinder Morgan Inc., having received permission from the federal government to expand their pipeline from Alberta to the British Columbia coast, found itself the subject of 12 (!) First Nations lawsuits, alleging, amongst other things, lack of adequate consultation and objections based on aboriginal title. A legal brief filed by one of the Indian bands, the funding for which comes in part from the income taxes paid by those workers who may be losing their jobs because of these claims, correctly argued that the court challenges created “significant uncertainty around the pipeline”, and suggested that there was a likelihood that the pipeline “will not get built, and certainly not on the schedule that Kinder Morgan is suggesting…”
It went on:
Likely outcomes (for the pipeline expansion) include a permanent rejection if aboriginal title is recognized, or an interim injunction while a title case is being heard…Combined with significant political and reputational risk, it is our opinion that the project faces material risk. 36
In these situations, such delay is equivalent to cancellation.
And effective cancellation is indeed what occurred when, on May 29th, 2018 the feckless, cowardly, irresponsible and incompetent Justin Trudeau federal government felt compelled to effectively nationalize this pipeline project just to keep it limping along. Kinder Morgan, justifiably fed up with the delays caused by Ottawa refusing to exercise its paramount legal jurisdiction to make the project happen under Kinder Morgan’s aegis, and exasperated by the state of the Haida Nation-caused law, had announced that it would pull out of the project by May 31st unless legal clarity and certainty had been established by then. It was not, and there was no way it was could be. First Nations rights to delay to death are constitutionally entrenched. Hence the citizens of Canada are now, at exorbitant cost, the not-so-proud owners of this project.
On August 30th, 2018 the Federal Court of Appeal, in a blazing demonstration of Haida Nation’s economy-wrecking power and effect, ruled that Canada had “failed to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns”, and had thus failed to properly discharge its duty to consult. The Court nullified the permit to build the pipeline!
And now, these Kinder Morgan pipeline killers, as stated above, are cynically and opportunistically, under the guise of “reconciliation”, moving in to pick up the pieces of the pipeline venture they destroyed and become new majority owners of it, backed up of course (although no one will say it) by Canadian taxpayer guarantees!
From the National Post, July 3rd, 2019:
An Indigenous-led group plans to offer to buy a majority stake in the Trans-Mountain pipeline from the Canadian government…The group, called Project Reconciliation, aims to submit the $6.9 billion offer as early as Friday…and start negotiations with Ottawa two weeks later. Trudeau’s government , which bought the pipeline last year after its owner, Kinder Morgan Canada, gave up trying to get the expansion approved, has already been touting First Nations participation…Project Reconciliation hopes to buy 51 per cent of the pipeline this year for $2.3 billion and roughly half the expansion project for $4.6 billion. It would finance the deal through bank loans underwritten by commitments from oil shippers. The government would retain 49 per cent. 37
If this shameful denouement occurs- a direct and logical, coercive outcome of the danegeld consult and accommodate de facto veto power held by First Nations generally- then these particular First Nations involved, which have no money, no capital, no assets, no expertise, no experience in operating a pipeline, will have been handed, essentially for free, majority control and ownership of this huge, critical-to-the-national-interest undertaking. And they will be mere Potemkin, figurehead, passive, “rentier”, (see Thomas Piketty discussion below), virtually-absentee, race-based owners, relying 100% on Canadian taxpayer-backed loans and “bought” non-Indigenous technocratic assistance. This will artificially drive up costs and otherwise benefit no one.
What an insult to Canada’s reputation as a place to do business! What a pathetic, to-be-avoided place Canada presents itself to the international investment community!
A situation similar to (former) Kinder Morgan-Trans Mountain and to the late Enbridge Northern Gateway project happened in the northwestern Ontario “Ring of Fire” mineral deposit area.
An American company, Cliffs Natural Resources, was considering spending millions of dollars to develop its “Far North” Black Thor chromite ore deposit. In addition to the new mine itself, if the overall project went ahead, Cliffs was to have built and operated a ferrochrome smelter in Sudbury, having chosen that location over Greenstone (in the Lake Nipigon area), Timmins and Thunder Bay, because that location made the most economic sense.
Before Haida Nation a company planning an expensive undertaking like a smelter would be, in conjunction with regulatory authorities, the sole arbiter of where it was going to be located.
Not any more, according to former Ontario Cabinet Minister George Smitherman, a paid consultant to the Municipality of Greenstone and, more importantly, to the Matawa Tribal Council, an association of the nine Indian bands in the Black Thor area. As reported in January, 2012 in Northern Ontario Business, Mr. Smitherman’s position on behalf of his clients was that:
…First Nations will have the ultimate say on how the Ring of Fire mineral developments will unfold, and that includes the location of a proposed ferrochrome smelter…
Mr. Smitherman knew his law well. And so according to him and his clients economic sense be damned. As the former Crown Cabinet Minister ominously said before the Sudbury decision was announced:
…If the company persists in seeing the decision narrowly on the basis of (hydro) power, then this has great project risk…the Matawa tribal chiefs won’t stand for the extraction of a resource from their traditional territories to watch it trucked past their door…the First Nations are the big X factor in the advancement of the Ring of Fire development…Anyone who hasn’t figured that out is in for a rude awakening…
And right after Cliffs’ announcement that its smelter would be built in Sudbury two of the Indian bands that make up the Matawa Tribal Council, Aroland and Marten River, issued a press release denouncing Cliffs’ choice of Sudbury and declaring that they would only support the project if the smelter was built near their reserves. Aroland chief Sonny Gagnon declared:
…Ontario needs to deal with First Nations first rather than taking orders from Cliffs. We want the refinery in Aroland territory, and we want the highest standard of environmental review for the project…
Reporting the press release, Sudbury newspaper Northern Life wrote:38
…Gagnon used the term “conflict chromite” when describing the Ring of Fire, saying the decision to build the smelter in Sudbury was something he was never going to support.“ Cliffs refinery could generate income, prosperity, sustain livelihoods, and support First Nation development, but now it’s at risk of being an unregulated environmental disaster and contributing to serious Aboriginal rights abuses and conflict”, Gagnon said.
The irrationality inherent in these statements – the all too familiar, reckless, ridiculous (and as usual, unchallenged) hyperbole (the sudden comparison of the situation to that of “conflict diamonds” in Africa) – the suggestion that there would be an environmental problem in Sudbury but there wouldn’t be one in Greenstone – in this climate of higher court and Crown-encouraged derogation of Crown sovereignty and the rule of law, boded very ill for the future of this project.
On May 19, 2012 The Sudbury Star39 reported the threat made by Neskantaga First Nation chief Peter Moonias to do “…whatever it takes to be consulted about the Cliffs Ring of Fire project… actions could include blockades and even acts of mischief.” The Star continued:
Thursday (Moonias) wrote Natural Resources Minister Michael Gravelle reiterating his position that (the)…government breached their constitutional duty to consult with aboriginal people… Mooney asked Gravelle for assurances no Ministry of Natural Resources permits will be issued to Cliffs until there has been “meaningful discussion” with Neskantaga and other first nations.
These legally-based economic threats and these implied and express threats of illegal behavior are ominous and deeply troubling. The Matawa Tribal Council was clearly saying through Mr. Smitherman,-and these chiefs were clearly saying- “we demand to be cut in on this deal on our terms or else we’ll tie you up with illegal activity and the consultation and accommodation process indefinitely, and your project will never go ahead.”
As Mr. Smitherman threatened, the countless individuals and businesses who were hoping to derive some economic benefit from this huge project – the various governments that were hoping to derive some desperately needed tax revenue from this massive undertaking- did indeed get that “rude awakening.”
On November 19th 2013, Cliffs cancelled the Black Thor project, citing, amongst other reasons, “the uncertain timeline and risks associated with the development of necessary infrastructure to bring this project online.” In September of 2014 Cliffs announced that it was looking for a buyer for its Ring of Fire properties. In March of 2015 it agreed to sell its interests in the very fireless Ring of Fire to Noront Resources, a former competitor, for a fraction of its investment.
The transaction closed, but over the preliminary objections of chief Sonny “conflict chromite” Gagnon. “First Nations must have input on the terms of reference, and the time to understand exactly what’s being proposed” he thundered. Whined Neskatanga chief-elect Wayne Moonias, borrowing a page from chief Gagnon’s Book of Irrational Hyperbole:
It feels like Noront Resources and the Ontario government have put a gun to the heads of Northern Ontario First Nations40.
Poor Cliffs lost over $500 million on the Ring of Fire investment. Getting out on a “few cents on the dollar” basis, it sold its interests for $20 million- a 96% loss (!)41 It was in Bankruptcy Court in Quebec. And these First Nations bands, who bore a great deal of responsibility for Cliffs’ troubles, and who hadn’t invested or lost a penny, and for whom life would go on as before regardless of whether the project went ahead or not, had the gall and the overweening, irresponsible, spoilt and childish sense of entitlement to paint themselves as hard-done-by victims!
(Chief Wayne Moonias continued his “emperor only in his own mind” ways in 2016 by issuing a “cease and desist” notice to Noront Resources, which company had the temerity to start a lawfully authorized drilling program in what Chief Moonias described as Neskatanga’s “traditional lands” without getting consent from the band first.
“It’s offensive on our end to receive a notice that’s basically telling us “by the way we’re going to be drilling,” Moonias said. “They haven’t asked us for our consent, they haven’t engage with us in a way we expect, so it is very troubling.”) 42
In June of 2017 the Ontario Wynne government, totally in thrall to the cowardly notion that it could not proceed with the construction of an access road to the Ring of Fire without the consent of all the First Nations “nations” through whose “traditional lands”, (i.e. in any other era, ordinary Crown lands), the road would pass, admitted that it could not provide to anyone any time line for anything, disgracefully admitting that they were, in their minds, essentially helpless to control the situation- that they were not masters in their own house! 43
The Black Thor project was a victim partially of the downturn of the mining economy in Canada, lower world chromite prices and other “non-First Nations” factors. But there’s no doubt that it was also the victim of the delays and economic uncertainties – the total inability to plan or predict costs – the reckless, ceaseless and unchecked demands from these Indian bands for essentially “free” and risk-free ownership and control rights, (even to the point of wanting to have a say in how and when poor Cliffs could, with its tail between its legs,make its exit!)-caused by the Haida Nation inspired, non-Indian elites supported, “consult and accommodate” danegeld-chokehold, legal and economic environment now scuttling resource development across Canada.
A further example of this is the never-built and likely never-to-be-built Mackenzie Valley pipeline. Because of the huge delay in getting approval for this massive project, which would have contributed so much to the Canadian economy, much of the delay caused by objecting Indian bands, so much time went by that the underlying market conditions, the existence of which were necessary for the project to be successful, disappeared. The fracking revolution in the United States, lower gas prices and inflation all combined to suddenly make it no longer economically viable. (Inflation alone raised the cost of it some $16 billion in 2007 to over $20 billion in 2013.)
Referring first to Enbridge’s then-proposed pipeline and then to the Mackenzie project David Collyer, which words could equally apply to the (former) Kinder Morgan pipeline expansion project, President of the Canadian Association of Petroleum Producers, said in the Globe and Mail:44
There are windows in which these things can happen and in which there is momentum to make them happen. If we miss those windows, many factors come into play and it’s difficult to resurrect these projects… And I would say that Mackenzie was an example of a very difficult process of getting alignment among all the stakeholders to move that project forward, including First Nations. We don’t have the luxury, oftentimes, of waiting until everybody’s ready. The market isn’t very empathetic to our challenges in Canada in terms of getting things off the ground.
Unfortunately for the fate of these near-national proposed undertakings, and for us all, Indian band elites do have that morally very hazardous “luxury.” With the late-2014 collapse of oil prices the “windows” for these projects may have passed, at least for the foreseeable future.
Moody’s Investors Service Inc. said that the “vast majority” of (proposals for North American liquefied natural gas export projects) face outright cancellation…Many sponsors, including those in the U.S., Canada and Mozambique that have missed that window of opportunity as oil prices have declined- will face a harder time inking the final contracts, most likely resulting in a delay or cancellation of their projects.45
See also Jeff Lewis’ OPEC pivots to Asia-Pacific markets,46 describing how “Asia’s biggest oil companies are leaving Canada behind” by, to Canada’s obvious detriment, buying more and more oil from OPEC and other non-North American suppliers.
Now the market has shifted dramatically, narrowing the window of opportunity for an industry that insists wider access to global markets is key to boosting prices for Alberta’s landlocked oil.” ( italics added)
Gwyn Morgan, founding CEO of EnCana Corp. describes this situation of almost willful political and legal paralysis as “the biggest trade gift from one country to another (the U.S.) because of our own self-inflicted inability to access offshore markets with Canadian oil”, and, a “ruinous giveaway of billions of dollars to the Americans”.
Mr. Gwyn further wrote:
The result has transformed regulatory proceedings that would have taken weeks into multi-year events with sky-rocketing costs that either delay or kill the project… and has led Canadian oil and gas producers, including my former company EnCana, to move tens of billions of investment dollars and many jobs south of the border. 47
But all this is no problem for Indian band elites. Like the ever-grasping Neskatanga band chiefs, they continue to receive their big, tax-free salaries and their guaranteed band entitlements, and otherwise, personally, they continue to be all right Jack.
It’s only their people, and the rest of Canadians, who will suffer.
In October of 2017 the same merciless, money-burning delays finally scuttled Trans-Canada Corp’s plan for its proposed Energy East 4000 kilometer pipeline that would have shipped Alberta oil eastward, to refineries and export terminals in Eastern Canada. But naturally, “… native leaders want(ed) to ensure that they see some benefits from the $12 billion project and they would present a challenging obstacle for its completion if they are excluded.”48
Trans-Canada had the near-hopeless task of satisfying, not only the National Energy Board and the provinces and municipalities through which the pipeline would have crossed, but 180 (!) different Indian bands along the way, all of which had been saying that they would have been “affected” by the pipeline and all of which had been demanding their own unique toll-gating, danegeld package. And none of these 180 bands had to care a whit about what Mr. Collyer said about “market timing,” or any other such quaint “Eurocentric” notions.
As Denise Restoule, chief of the French River Dokis Indian band said of a similar project her band finally permitted to proceed:
…the developer had to be patient and work to understand the culture and political realities of the reserve to succeed…the developer needs to develop a relationship with the First Nation, and not just send some documents and say you’ve been consulted…they need to understand their values and what is important to them. And once they understand where the community is at, then real discussions can start to work on developing a real partnership.
In Quebec, the Assembly of First Nations of Quebec and Labrador, (AFNQL), had passed a resolution opposing the Energy East project, despite Trans Canada, as a response to feedback, having made about 700 route changes, having engaged with 166 Indian communities, and having funded 66 “traditional knowledge” studies.
Ghislain Picard, Regional Chief of the AFNQL said:
Now that our chiefs have decided to reject the pipeline, we will be asking that Quebec and Canada respect such a decision if they are to fulfil their constitutional obligations and if they are to respect the United Nations Declaration on the Rights of Indigenous Peoples. 49
The chief of the Mohawks of Kanesatake, Simon Serge Otsi, had declared that he planned to question the very legitimacy of the National Energy Board hearing process itself.
“They have no credibility to speak to the First Nations,” he said.
Mr. Otsi said the project requires First Nations consent, something that was raised by Mi’kmak communities at the public hearings earlier this month in New Brunswick.
“These are our lands. We never ceded them. We never surrendered,” he said. 50
Our present-day Canada could never have been brought into being if the self-entitled, self-centred, selfish, national interest-sabotaging claptrap like that exhibited by Ms. Restoule, the AFNQL and chief Simon Serge Otsi immediately above had always been the Canadian norm.
These elite Indian band representatives are no longer victims talking. They are cock-of-the-walk, clear winners of the judicial wars of the past thirty years talking and acting as such. These are people placed by our higher courts into positions of awesome power and control over the rest of Canada – power and control in no way democratically based – people who are making no bones about the fact that are going to exploit this new position handed to them countrywide – to the maximum – with no moderating consideration of the whole country’s best interests.
But, as stated above, they really can’t be directly blamed for the situation. They probably never expected so much real power to be handed and surrendered to them so quickly. It’s a bit similar to the French Revolution, where, to their shock and amazement, the revolutionary leaders found themselves holding complete power, in relation to which Edmund Burke, in Reflections, wrote:
They could not be expected to bear with moderation, or to conduct with discretion, a power which they themselves, more than any others, must be surprised to find in their hands…Who could flatter himself that these men…would not be intoxicated with their unprepared greatness?…Who could doubt but that, at any expence to the state, of which they understood nothing, they must pursue their private interests, which they understood but too well?
Writer John Cassidy, in The New Yorker, reviewing French economist Thomas Piketty’s new book Capital in the Twenty-First Century,51 describing the phenomenon of how and why the top one per cent of the world’s economic class is taking an ever-larger slice of the economic pie, writes of Mr. Piketty’s positing:
…the re-emergence of a world familiar to nineteenth century Europeans; he cites the novels of Austen and Balzac. In this ‘patrimonial society” a small group of rentiers lives lavishly on the fruits of its inherited wealth, and the rest struggle to keep up.
Indian band elites have been handed positions in the Canadian economic order partially akin to those nineteenth century rentiers, except for now, their new-money, passive income, danegeld wealth is not inherited. Rather, as in the Trans Mountain situation, it is coerced from anyone nearby wanting to engage in hitherto untethered (except for the obligation to pay taxes and comply with the laws of general application), normal, entrepreneurial economic activity on their now (as decreed by the Supreme Court of Canada) “traditional lands,” and their now, in B.C., thanks to Tsilhqot’in, for many important nation-building intents and purposes, sovereign, aboriginal title-based lands.
And that coercion is a classic feature of a rentier economy, where every transaction has an element of payoff, bribery, danegeld or”rent” to it- “rent”unrelated to the value of the consideration received- “rent” paid by the more vulnerable party to the dominant one. “Rent”, characterized by Manitoba Premier Brian Pallister as “persuasion money”, $67 million dollars of which he bravely refused to allow Manitoba Hydro to pay to the Manitoba Metis Federation to purchase their promise not to, by use of their consult and accomodate cudgel, interfere in future Manitoba Hydro projects. 52 A very unhealthy, illiberal and economically retrograde situation- a situation tending none of the rentiers to economic efficiency or personal virtue. (See further comments on this in Our Liberal Values, chapter 26, below.)
As this tribute-like new money increasingly flows into Indian bands – as this new Indian band-controlled capital continues to amass and increase – this new wealth will indeed take on more and more the characteristics of the passive, indolent and civically and economically unhealthy wealth of those nineteenth century rentiers, with Indian elites, propped up by “bought,” mainly non-Indian, professional and technocratic expertise (Calvin Helin, above), acting essentially as coupon-clipping, absentee landlords.
The Mackenzie Valley, Enbridge, Kinder Morgan-Trans Mountain and Ring of Fire situations illustrate the harmful effects Haida Nation and its legal progeny are having on the carrying out of projects that are massive or national in scope.
But it’s also producing the same public and national interest-sabotaging effects at the local level.
In April, 2009 the Espanola Mid-North Monitor53 reported on a meeting between the Serpent River First Nation (SFRN), a small reserve on the north shore of Lake Huron, and the Ontario Ministry of Natural Resources (MNR). The meeting was clearly a product of the new “consult and accommodate” mandate emanating from Haida Nation. The newspaper account of it demonstrates in spades the new, puffed-up sense of grandiosity, power and unearned entitlement being shown by Indian elites towards their fellow Canadians, the pathetic, gelded, enabling passivity of the Crown in the face of it, and the chaotic, harmful and absurd consequences of Haida Nation itself, as these consequences play out in the real world, far from the beautiful Ottawa chambers of the Supreme Court of Canada.
One of the things on the MNR’s consultation agenda with this tiny band was a proposed sale by the Crown of a small piece of land to the Town of Elliot Lake, about 30 miles away from the reserve, to be used by it as a municipal access road to new lots being opened up by the Town for residential development on nearby Popeye Lake.
Whoops! As the newspaper account related, in the newly Haida Nation-opened eyes of SFRN, that might have a “possible impact” on “Serpent River Treaty and Territory Rights.” (No details of same asked for or offered – “a sacred burial site”? – a single trap line? – possibly nothing tangible at all?) Even though the MNR and the Town had deemed it appropriate, necessary and in the public interest that this land be transferred and this new public road created, that was not good enough for SFRN. Now, this Indian band, whose reserve was 30 miles away, had to be consulted and pass on it. Not surprisingly the report indicated that the band wanted to assess and discuss the possible impact of the creation of this new road on SFRN’s rights. Even though, very likely, no Indian had ever set foot there and currently, the band had no presence there whatsoever, the band self-importantly declared that …the “traditional use of the land could be lost if development there goes ahead.”
But, SFRN, being reasonable here, and notwithstanding the possible negative impact of this development on their likely non-existent “traditional use” of the land, indicated that if they could be accommodated somehow, perhaps the MNR and the Town might be allowed to move forward with their plans this century after all.
In order to get the Popeye Lake project to move forward with any development, Elliot Lake needs to involve Serpent River First Nation…Recognizing the legitimacy and discretion that SFRN has in asserting its rights, it is now becoming clear that, any economic opportunity in this project moving forward must include SFRN and its citizens….
The purport of this is unmistakable. SFRN is clearly saying, “Even though we haven’t invested a nickel into your project, and don’t intend to, and even though it has had nothing to do with us – no impact on us whatsoever – give us some piece of it or we’ll hold you up in consultation talks indefinitely.”
Danegeld, toll-gating, blackmail and extortion are all activities characteristic of pre-states and failed states. They are not characteristic of a sovereign, civilized, liberal nation-state. Such behaviour – such a situation – because of Haida Nation and its successors – is now being allowed to occur all over Canada. It shouldn’t be. It’s wrong. It’s constitutionally and economically ruinous. It’s going to create more social resentment and division. The opposite of reconciliation will occur.
Another item the MNR brought forward for consultation was a “sludge storage area” that a private business was proposing be located on Crown land near the Elliot Lake airport.
Again, like a mafia family demanding to be shown “respect” and to be “involved” in anything going on in its “territory,” SRFN band representatives simply and ominously stated that…”SFRN is willing and interested in becoming more involved with this issue.” When the essential terms to be laid down by SRFN are “money to us for nothing,” why wouldn’t they be interested in “becoming more involved”?
Then talks turned to a communications tower that Rogers Communications was proposing be installed somewhere on Crown land near a major highway. SRFN’s position: “…Serpent River will be in communication with Rogers and notification on that will follow.” (!)
A private proposal to construct a hydroelectric facility on an off-reserve river was offered up for “consultation.” On this one, SRFN indicated that they wanted to be more than just accommodated. They decided that they should have this one for themselves: exercising droit de seigneur over their “traditional lands.”
Any such development will be done by Serpent River. By keeping the development local, Serpent River will have access to the sites and keep the profits in the region. Serpent River’s pro-active attitude is paying off with communication and discussions with partners, MNR, Ministry of Aboriginal Affairs, in order to get the train moving on this subject.
Finally, his humiliation not yet complete, the no doubt red-faced and tongue-biting MNR representative told SRFN that the government was planning on dismantling a certain bridge. (Apparently the government interprets its duty to consult as applying even when it is removing its own structures and restoring things to a state of nature.) “SRFN explains how that bridge is a vital area (sic) and insists that it stays,” SRFN Chief Isadore Day (he of “First Nations are not subjects of the Crown” note) said:
If we can work around the turtles up there, you can work around the bridge.
Shortly after Chief Day delivered this authoritative engineering assessment of the safety and salvageability of the bridge, this meeting of the Haida Nation-mandated “Joint Relations Committee” adjourned for a lunch of crow and humble pie, which MNR representatives were heard saying they enjoyed very much.
Chief Day and his SRFN band continued their interfering, unneighbourly, Canadian taxpayer-financed, nit-picking behavior by, in June of 2012, announcing that they were suing the Town of Elliot Lake and the provincial government for a court declaration that their right to be properly consulted and accommodated was breached because a residential subdivision was approved without SRFN “…having a say in planning processes on lands within municipal boundaries where there are heritage and culturally significant values….”
Elliot Lake had made a decision to exempt from development certain lands possibly containing Indian “burial mounds,” but, according to the ever sensitive and opportunistic SRFN, the decision was made in a manner which insufficiently consulted and “meaningfully engaged” with it. Translation… Elliot Lake had failed to sufficiently suck up to SRFN and offer it sufficient danegeld.
Said Mr. Day, (who became AFN Regional Chief for Ontario, and in this capacity took those generous sentiments national) 54:
No longer can the City act unilaterally on our behalf. Making a decision that affects our community cannot be done without informing us and engaging us. As First Nations we have come a long way from the paternalism faced by other jurisdictions. We certainly cannot have a municipal government down-grading our jurisdiction.
By the summer of 2013 SFRN had so ratcheted up the legal consult and accommodate pressure on poor, hapless Elliot Lake that, in order to move its further cottage lot development plans ahead the Town, with shameful prodding from the provincial government, was forced to agree to give to that relatively small and distant Indian band 50% of the economic benefits to be hopefully derived from them. SFRN shouldered no part of costs or risks. Rentier-type money for nothing.
That the idea could be conceived and, worse, litigated, that a municipality might have a duty to consult nearby Indian bands about already heavily regulated municipal undertakings taking place within municipal boundaries, shows how harmful and chaotic the situation has become because of Haida Nation. (In British Columbia, this is no mere idle, alarmist speculation. With provincial Crown sovereignty and title now so severely undermined by the Tsilhqot’in decision, municipalities there, being mere creatures of Provincial creation, and with their creator’s powers, and rights of creation and empowerment, so under question, have every reason to fear for their fundamental, legal legitimacy and for the legitimacy, going forward, of all that they do.)
Another example of this now legally plausible overreaching, occurred on June 21st, 2011, when the Batchewana Indian band, one of the signers of the Robinson-Superior treaty, essentially renounced that treaty by giving public notice that this little group of people was now demanding to be consulted and accommodated by any government, any person or any corporation that was planning any new project “in its original, traditional and historic territory,” which it said was all the lands between Sault Ste. Marie and Pukaskwa National Park, into and beyond the height of land, which would, if acceded to, extend their imperial danegeld reach into the James Bay lowlands. So much for the clear and unequivocal words of surrender in that treaty.
Haida Nation has inspired the behavior of the Indians in the examples above, characterized by a sense of totally unearned entitlement, boldness and insensitivity. Shakespeare wrote that jealousy “mocks the meat it feeds on.” Inappropriate and harmful Indian power and financial demands seem to be feeding on themselves as well, increasing steadily as they (unsuccessfully so far) try to find their outer limits.
For big projects like Enbridge’s, Kinder Morgan’s or Cliffs Natural Resources’, to those undertakings described in the above Mid-North Monitor accounts, the latter representing the necessary minutiae of everyday government-regulated, modern life in Canada, considering the overall public interest and following their own laws and procedures will no longer be enough for a government to do.
Now, in all cases public and private, the Indian danegeld factor will have to be added in, rendering planning, timing and cost analysis– rendering the very feasibility of the undertaking itself – a guessing game at best.
Feelings of resentment and anger are naturally building up in the minds of ordinary non-Indian Canadians in the face of all this, which our elites are willfully ignoring. Serious damage is being caused to the fabric of Canadian unity and tolerance. And, in addition to this perilous social damage being caused, it is damaging and will increasingly damage and hinder Canadian economic development as well.
For example, in June of 2010, the Fraser Institute reported that Ontario, as a place to conduct mining operations, has dropped from 10th best in the world to 22nd. Part of the reason, according to Fred McMahon a vice-president of the Institute: “uncertainty about native/aboriginal land claims, where Canada ranked in the bottom 10 of the 72 jurisdictions surveyed, just above Zimbabwe.” The results of the survey, reported in Northern Ontario Business,55 were further commented upon by Mr. McMahon:
It really sends a shiver through both exploration and development firms,” says McMahon, who also serves as one of the survey’s coordinators. “There is deep concern about what’s going on…Miners spend years throwing money into the ground before they start making any money from the site, and therefore they need to have faith in the stability of a jurisdiction to know their mine won’t be closed down in the future because of new land claims, new taxes won’t make it uneconomical, or that they won’t be allowed to mine somewhere after spending money there for years.
In September, 2012, Garry Clarke, the Executive Director of the Ontario Prospectors Association, said in Sudbury’s Northern Ontario Business:56
…First Nation court challenges, Aboriginal mining moratoriums, and a Ring of Fire “evictions list” from the Matawa chiefs have caused a hardening of attitudes among prospectors and exploration firms that’s having an economic impact.” “It’s causing people to leave the province,” said Clark, adding most of the Thunder Bay-based junior miners are raising money and concentrating on projects outside of Ontario. One Vancouver mining executive told Clark in July that “there are too many problems in Ontario and until you solve them, we can go work in other places.
This is exactly what is happening- not only in Ontario, but on the national level- investors either avoiding Canada, or focusing their investment dollars elsewhere.
In 2015 the Prospectors and Developers Associations of Canada gave their summary of the effects of the new “Duty to Consult” laws:
…delayed projects, increased costs, investor uncertainty and negative impacts to company and community relationships. 57
Northern Superior Resources Inc., a Sudbury junior mining company with gold claims in northwestern Ontario, after years of brown-nosing the local Sachigo Lake First Nation band with various forms of danegeld, was suddenly met with an unexpected, unilateral, greedy and exorbitant demand that it pay a 24 percent “Administration” and “Band Burden” fee (24 percent of its annual exploration budget!), and that it agree to rent an inefficient band-owned Beaver airplane, with genuine safety concerns around it, at a standby rate of $1600 a day, as conditions of being able to continue to access its claims. It refused. It didn’t have the money! These were grossly unreasonable, bad faith and unconscionable demands! As a result it was served with an “eviction notice” by the band.
Ontario, which was fully aware of the situation, like with Platinex, Frontenac Ventures and Solid Gold Resources, did nothing. Like in those cases, it favored the interests of the jobs and tax revenue killers over the jobs and tax revenue creators. In cowardly and unprincipled fashion, it sat on its hands. It refused to get meaningfully involved. Totally eschewing its duty to defend its own sovereignty and the mining rights it had granted to Northern Superior Resources, it abandoned them both.
After an unsuccessful lawsuit against Ontario58 based on the argument that it (Ontario), by allegedly failing to carry out its duty to consult, had caused compensable financial harm to Northern Superior Resources, (inexplicably, the morally repugnant Sachigo band leadership was not sued), the justly bitter and disillusioned Northern Superior Resources President, Tom Morris, said:
If you’re going to entice people like me to invest my shareholders’ money in this province, I have to have a clear understanding that if I invest that money I have a chance to see a return on it.
The way this business environment is being set up in Ontario- for all the good reasons we’ve brought up in this trial-if they’re not there, business is not going to come.
And when people begin to realize that there’s nothing here to protect my interests- any rule of law, if you will-then why would I come and invest my money in this province? That’s something I think that the government is well aware of , they just don’t wish to address it.59 (italics added)
Chinese oil and gas companies are moving their North American investment focus away from Canada to the United States.
Weidong Chen, a retired senior executive of China’s CNOOC Ltd., one of China’s top three oil and gas companies, (which shut down its Toronto office in December 2015), told the National Post 60 that the disastrous effects on his company of the world oil price crash were exacerbated by Canada’s slow regulatory approval process.
“The federal government (in Canada) is a weak government, not like China in comparison”, Chen said, Most resources are located only in Alberta…and Alberta is an inland state, they can only transport to the U.S. You go to Pacific, you have to negotiate with B.C. and B.C. has a lot of First Nations. I participated in three (annual LNG) conferences. They continuously talk about First Nations issues. I didn’t see any progress.”
While competition for energy markets is intensifying from Russia, Australia, and now even Iran, in Canada “you just go according to your own pace,” said Chen.
Chen said there is regret in some Chinese quarters about the Canadian investment spree and it’s unlikely to be repeated.
The Trudeau federal government, which in this regard can now be fairly considered as a pipeline killing, national interest-sabotaging government, putting paid to the serious remarks and concerns of Mr. Chen, (remarks no less true because the Chinese government is horrible and cruel), in January of 2016 announced that it was increasing the parameters of the regulatory oversight of all pipeline projects, including Energy East, by adding greenhouse gases as a factor to consider, (years of extra debate, cost and uncertainty there), and by ordering the National Energy Board to undertake additional consultation (!) with aboriginal groups allegedly affected by those projects- and other projects such as proposed liquid natural gas facilities. (They already have a de facto veto, and in B.C., a legal veto, on them, so what else is there to give them? Talk about the Trudeau government twisting the knife on our natural resource industries!)
Recklessly and irresponsibly giving undeserving weight and credence to the legally bogus concept of “social license”, and to the false idea that there’s something wrong with the existing regulatory process-(There’s nothing fundamentally wrong with it!- Again, merely asserting that there is doesn’t make it so! All the evidence shows that if it’s left alone by politicians to carry out its mandate i.e. assessing, based on scientific and engineering evidence, the feasibility and environmental safety of the proposed undertaking, it performs well)- the Trudeau federal government rationalized their conduct as follows:
National Resources Minister Jim Carr said the new measures were intended to “restore the public trust in the way Canada reviews and assesses major resource projects. Without the confidence of Canadians, none of these projects will move forward,” he said.
Canadian Energy Pipeline Association Chris Bloomer said his organization is open to new processes that help improve Canadians’ confidence in pipelines, but he’s concerned that people think the current regulatory process is deficient. “The broader implication is that the NEB is broken,” Bloomer said. “We don’t believe that it’s broken; the regulatory is robust and the industry does work with the NEB right across the board form existing pipelines to new pipelines.” 61
The people of British Columbia, Alberta, Ontario and of Canada generally, and our government treasuries, in these increasingly hard times, can’t afford the luxurious waste of time and money, the danegeld, the destabilized investment environment, the huge and tragic loss of jobs, (40,000 direct jobs lost in Alberta and Saskatchewan in 2015-2016! 62Do these people warrant no compassion or consideration from our national government?), the disastrous loss of tax revenues, and all the other clear and present moral, social and financial dangers inherent in the new Haida Nation-inspired, third-world style economic order, where confusion, uncertainty, unpredictability and bullying strong men rule, rather than transparency, stability and the rule of law.
In the absence of clearly-asserted Crown sovereignty, where nothing can ever be legally settled, 63a third-world form of pre-state, tribal, political and economic disorder is emerging, much like Europe in those dark ages earlier described between the fall of the Western Roman Empire and 1000 AD- much like the new post-state disorder that is emerging in Afghanistan, parts of the Middle East and Africa today- a hopeless environment for governments at all levels trying to maintain desperately needed tax revenues; trying to deliver adequate and properly-funded programs and services; trying to carry out large undertakings for the benefit of all its citizens; trying to maintain civilization as we have unthinkingly come to presume (wrongly) to be our automatic due.
The Indian and non-Indian nay-sayers to pipelines and other oil and gas ventures say or imply that they are helping us all to get off carbon use. But to do that we first need efficient and affordable alternate technologies, which will take billions of dollars, public and private, and a lot of time, to create. We need maximum tax revenue now to meet these “enormous financial challenges of transitioning into emerging technologies”.
Business journalist Diane Francis (quoted immediately above) wrote in the National Post:
For many years now, many of us have warned about the hazards of this Great Canadian Oil and Gas War, but now the results are affecting every one. As the industry limps along, the Canadian dollar slumps and the country feels like it is in a recession.
What we are witnessing is a political pivot to an anti-oil paradigm that is not only foolish but ruinous…If the oil industry does not prosper then living conditions will continue to decline and more Canadians will be forced to export themselves. 64
And to obtain maximum tax revenues now, when they are so desperately needed, the state- our Crowns- must alter course in this area of Canadian life, and start to, wherever possible, stringently uphold the rule of law and always, wherever possible, promote, and err on the side of sole Crown sovereignty.
In the thirteenth century the Mongols, by terrible and cruel force of arms, created an empire that spanned from the Black Sea to China. But even they understood that to maintain that empire, and for it to flourish, there had to exist the rule of law.
Fundamental to European (trade) expansion, was the stability that the Mongols provided across the whole of Asia. Despite the tensions and rivalries between the different branches of the tribal leadership, the rule of law was fiercely protected when it came to commercial matters. The road system in China, for example, was the envy of visitors who marvelled at the administrative measures in place to provide security for travelling merchants. “China is the safest country and best country for the traveller,” wrote the fourteenth -century explorer Ibn Battuta; this was a place where a reporting system that apparently accounted for each outsider on a daily basis meant that ” a man travels for nine months alone with great wealth and has nothing to fear”. 65 (italics added)
No “access payments”, “Administration” or “Band Burden” fees tolerated there.
No “persuasion money” payments tolerated there.
The situation our elites have created has reached a terrible state when we have to learn from Genghis Khan!
And this, from Yuval Noah Harari’s Sapiens, (above), on the crucial importance, for the economy and the public welfare generally, of strong, clearly-asserted Crown sovereignty:
…But in its extreme form, belief in the free market is as naïve as belief in Santa Claus. There is simply no such thing as a market free of all political bias. The most important economic resource is trust in the future, and this resource is constantly threatened by thieves and charlatans. Markets by themselves offer no protection against fraud, theft and violence. It is the job of political systems to ensure trust by legislating sanctions against cheats and to establish and support police forces, courts and jails which will enforce the law. When kings fail to do their jobs and regulate the markets properly it leads to loss of trust, dwindling credit and economic depression. (italics added)
Our “kings” are failing to do their jobs.
Consequently, there is emerging a dysfunctional environment for modern businesses like Enbridge, Kinder Morgan, Energy East, Cliffs Natural Resources, Northern Superior Resources and countless others, which can only properly and efficiently operate in an environment characterized by economic, political and legal stability, transparency and predictability, all under the aegis of sole and ultimate Crown sovereignty, the opposite of the new environment created by Haida Nation and its jurisprudential successors and by the weak and craven response to it all by our irresponsible, almost economically suicidal, non-Indian political and bureaucratic elites.
- Mark Hume. Delays by First Nations Groups Could Kill Development Plans, Minister Says, The Globe and Mail, 12 October 2013.
- Gary Mason. C.’s First Nations Are Suddenly the Cool Kids, The Globe and Mail, 11 October 2013.
- Postmedia News, 15 April 2014.
- Gary Mason. C.’s First Nations Are Suddenly the Cool Kids, The Globe and Mail, 11 October 2013.
- Ian Rogers. Law Times, 8 July 2013.
- Road blocks to the Ring of Fire…the Road to Nowhere.Ian Ross, Northern Ontario Business, July 2017
- Justine Hunter, Ottawa to Blame for First Nations Pipeline Stand, PM Appointee Says, The Globe and Mail, 16 June 2014.
- Claudia Cattaneo, Canada’s oil export bind sours China, January 20, 2016
- From an email to the author, April 16th, 2019
- The Globe & Mail, April 7th, 2010
- Gordon Gibson. The Claims Are Just. But the Supreme Court Ruling Means Chaos, The Globe and Mail,30 June 2014.
- James Lorimer and Company Ltd. Toronto, 2017
- The Pipeline Test of Democracy, National Post, July 13, 2017
- First Nations group rebukes LNG venture, Globe and Mail, May 7th, 2015
- John Ivison, Amidst fawning, PM flails on energy, National Post, July 28, 2017
- Jeffrey Jones, Halt to $11.4 billion LNG project in B.C. dims Canada’ export hopes,Globe and Mail, July 26, 2017
- John Ivison, Amidst fawning, PM flails on energy, above
- C. First Nation community has RCMP building but not officers, Globe and Mail, August 4, 2015
- Gordon Hoekstra, Tsilhqot’in file claim to private land to preserve right to potential compensation, Vancouver Sun, July 27, 2016
- Nelson Bennett, BC government says payments for access to Crown land are not legal, Mining.Com, June 20, 2016
- Canadian Press, 11 April 2014.
- The Globe & Mail, Summer, 2010
- Gitxaala Nation v. Canada, 2016 FCA 187
- Shawn McCarthy and Jeff Lewis, Federal court quashes Gateway permit, The Globe and Mail, July 1, 2016
- See Peter O’Neil, Are taxpayer’s liable for Enbridge’s $500m in Northern Gateway’s costs?: Experts divided, Vancouver Sun, November 30, 2016
- Claudia Cattaneo, Gateway snub sets risky precedent- 18 years of work for nothing, National Post, July 8, 2016
- Murray Edwards and Brian Ferguson,Our country-and our companies-are ready for a new pipeline dialogue- The Globe and Mail, February 9, 2016
- Shawn McCarthy. The Globe and Mail, June 2011.
- Nathan Vanderklippe. First Nations Carving Out an Energy Bridge to the B.C. Coast. The Globe and Mail, 5 February 2013.
- Canadian Press, 11 April 2014.
- Postmedia News, 15 April 2014.
- Paul Cassidy, An Overuse of People Power, The Lawyers Weekly, August 19, 2016
- The Globe and Mail, 12 December 2013.
- Geoffrey Morgan, Chiefs plan to challenge tanker ban in B.C. The Financial Post, May 16, 2017
- See First Nations move on Eagle Spirit pipeline project- Guidance sought- Chiefs plan to initiate NEB’s regulatory process, Geoffrey Morgan, The National Post, July 9, 2019
- Shawn McCarthy and Jeff Lewis, Trans Mountain faces new risk from NDP, Greens, Globe and Mail, May 30, 2017
- First Nations To Offer $6.9 B For TMX Stake, National Post, July 3, 2019
- The Northern Life, May 10th, 2012
- The Sudbury Star, 19 May 2012.
- Leith Dunick, Mattawa First Nations chiefs voice objection to Noront’s Ring of Fire purchasecom, March 25th, 2015
- Rachelle Younglai, Ottawa cools to Ring of Fire potential– National Post, December 21, 2016
- Jody Porter, “Cease and desist,” Neskatanga First Nation tells Ring of Fire mining companyCBC News posted August, 17, 2016
- Road blocks to the Ring of Fire, above
- The Globe and Mail, 24 December 2013.
- Brent Jang, Global glut threatens B.C. LNG projects– Globe and Mail, April 8th, 2015.
- The Globe and Mail, July 14, 2015
- The Pipeline Test of Democracy, above
- The Globe and Mail, 9 December 2013, also the source of the Denise Restoule quote immediately below
- Shawn McCarthy and Kelly Cryderman, Long Road Ahead for Energy East, Globe and Mail, June 16, 2016
- Ross Marowits, Energy East review heads to hostile territory, The Globe and Mail, August 29, 2016
- John Cassidy. “Forces of Divergence.” The New Yorker, 31 March 2014.
- Shawn McCarthy, Metis threaten lawsuit over rejection of hydro deal, Globe and Mail, March 24th, 2018
- Espanola Mid-North Monitor, April 9th 2009.
- Mid-North Monitor, 20 June 2012.
- Northern Ontario Business, June 2010
- Garry Clarke. Northern Ontario Business, September 2012.
- Lesley Williams, The Duty to Consult and Mineral Exploration, Core Magazine, Winter 2016
- Northern Superior Resources Inc. v. Ontario2016 ONSC 3161, May 25, 2016
- Ian Ross, Junior miner appeals duty to consult case, Northern Ontario Business, August, 2016
- Canada’s oil export bind sours China, Claudia Cattaneo, January 20, 2016)
- Geoffrey Morgan, Ottawa Increases Pipeline Scrutiny- Facing Climate Test, (National Post, January 28, 2016)
- Jeffrey Jones, Psst: Alberta’s going through tough times, Globe and Mail, February 10th, 2016. “Spinoff estimates are much higher.”
- Robert Kaplan, inIn Europe’s Shadow, (above), describes Vladimir Putin’s efficient means of weakening and destabilizing neighbouring “frontier states”, like the Ukraine: create an environment where “nothing should be legally settled.”
- Diane Francis, Pipeline deals a mix of good and bad, The National Post, September 10, 20i6
- Peter Frankopan, The Silk Roads- A New History of the World, Alfred A. Knopf, New York, 2016