B.C. companies nervous over Supreme Court decision in favour of First Nations

B.C. businesses worry a landmark high-court decision released Thursday that broadens First Nations’ land rights could create barriers to development and stall key industrial projects worth billions of dollars.

Proposed projects that could be affected include Enbridge’s $7.9-billion Northern Gateway oil pipeline, Kinder Morgan’s $5.4-billion Trans Mountain oil pipeline, and tens of billions more in liquefied natural gas plants and gas pipelines.

Mining and forestry projects could also be at risk.

Hours after the decision was released, the first challenge was issued by the Tahltan Nation, which announced it was preparing a title and rights case to stop the $789-million Fortune Minerals’ Arctos Anthracite coal project in their traditional territory in northern B.C.

However, industry representatives also cautiously offered the opinion that the decision could provide more clarity on how resource development must be conducted with First Nations, which could end up being a positive for the province.

The unanimous Supreme Court of Canada ruling largely accepted a 2007 B.C. Supreme Court interpretation of what aboriginal title means for the Tsilhqot’in in central B.C., rejecting a far more narrow view delivered by the B.C. Court of Appeal in 2012. Ultimately, it granted the Tsilhqot’in title to 1,750 square kilometres of largely undeveloped land.

“A person could be optimistic about it and say this helps clarify the ground rules … Maybe this is going to help projects move forward,” said Lael McKeown, a past president of the Kitimat-Terrace Industrial Society and a construction business owner with her husband Dave.

“The other thing is, there should be an expectation that First Nations, as they are given more control of the land … they also assume the responsibility of maintaining a level of resource development so we can sustain our economy,” said McKeown, who sits on an Enbridge-organized community advisory board for Northern Gateway, which was meeting in Prince George this week.

McKeown said another positive to her is the ruling states that public interest can override when First Nations’ consent is not obtained for project development. However, the ruling stressed that was only in cases where there was proper consultation and where there was a “compelling and substantial” public interest.

Terrace and other northwest B.C. communities such as Kitimat and Prince Rupert are just emerging from a serious downturn in the forest sector with the help of prospective LNG projects (backed by global energy heavyweights such as Petronas, Shell and Chevron), but also a rebuild of Rio Tinto’s aluminum smelter, Imperial Metal’s Red Chris gold and copper mine and the prospective Northern Gateway oil pipeline.

“With the LNG possibilities, this is the first time there’s been huge optimism in the area. It would be pretty dampening to have (the court decision) stall some LNG projects because we only have a small window of opportunity to make them happen if we are going to get our niche of global market,” said McKeown.

“Obviously this decision has a big impact on resource extraction,” she said.

Enbridge had not responded by The Sun’s press deadline to requests for comment.

Other B.C. businesses and industrial groups said Thursday they were still reviewing the decision given its complexity and ramifications for business and industry, issuing a stream of cautiously-worded statements.

“Our initial view is that today’s Supreme Court decision is an important clarification of aboriginal title and provides for greater certainty around the application of provincial law and regulation on the land base in British Columbia,” said B.C. Business Council president Greg D’Avignon.

He noted that B.C. companies have already reached hundreds of beneficial agreements with First Nations, and the province is using tools such as revenue-sharing to reconcile economic activity with aboriginal rights and title.

The Council of Forest Industries warned that regulatory certainty is a critical factor in the forest industry’s ability to do business. “Today’s decision further emphasizes the importance of working closely with First Nations and building on the important relationships we have worked hard to establish over the past decades,” said COFI president James Gorman.

Mining Association of B.C. president Karina Brino acknowledged the decision confirms that resource development over land where aboriginal title is asserted must, by law, be preceded by meaningful consultation.

Kinder Morgan Canada president Ian Anderson said the decision aligns with the value the company places on developing strong relationships with its aboriginal partners. “We aim to connect directly one-on-one with aboriginal communities to address concerns, and look for opportunities with mutually beneficial outcomes,” he said.

Some northern B.C. First Nations that have opposed the Northern Gateway pipeline said the decision signalled the project’s death knell; however, they remain open to other resource projects such as LNG.

Lake Babine Nation Chief Wilf Adam said the decision confirmed that aboriginal title is a reality in British Columbia, and that it extends well beyond First Nation’s traditional village sites.The First Nation of 2,400 members is also opposed to the Northern Gateway project, and has had concerns about mining projects. “In my opinion on this decision, Northern Gateway is dead,” said Adam. “They will never get approval from us.”

He stressed that the B.C. and Canadian governments, and companies that want to develop in Lake Babine’s traditional territory, must start acknowledging its aboriginal title claim by engaging respectfully and proposing meaningful accommodation.

“At a minimum, meaningful accommodation means that any development must be sustainable and safe for our land and resources, and that it must provide significant economic benefits to Lake Babine,” said Adam.

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