Proactive consultation leads to beneficial partnerships

altonPhoto source: CTV

By Joseph Quesnel, AIMS Fellow

Controversy has arisen over a recent Nova Scotia government legal brief that described a Mi’kmaq community as a “conquered people.” Nova Scotia Premier Stephen McNeil, who is also provincial minister of aboriginal affairs, is expected to publicly apologize today (Thursday) for the comments at a public event.

However, what is more important is the context in which the comments were said and what is says about the provincial government’s attitude towards consulting with First Nations.

The brief – which came from the provincial Department of Justice – asserted that the Crown’s obligation to consult extended only to “unconquered people,” and that the band’s submission to the Crown in 1760 negated its claim of sovereignty and negated government’s constitutional duty to consult the First Nation. Alex Cameron, counsel for the department, said Mi’kmaq treaty rights were terminated because of hostilities between the Indigenous communities and the government. This argument flies in the face of a landmark 1999 Supreme Court judgment that treaty rights were not extinguished in the Maritimes.

The context of the comments is a decision by the Sipekn’Katik Indigenous community to ask for a judicial review of a provincial permit approving the controversial Alton Gas storage project. The company involved wants to store natural gas in three underground salt caverns near the Shubenacadie River. Mi’kmaq groups are concerned about the discharge of salty water into the river.

The larger and more important point is that the Nova Scotia government is finding reasons not to consult with First Nations in the province. The province showing good will towards the bands would be a way of building long-term relationships. Simply put, if the provincial government is open to negotiations and is a good faith partner, it will likely lead to more mutually beneficial economic partnerships between resource companies and Indigenous communities. Many bands live near natural resource developments. The National Centre for First Nations Governance says that consultation signals respect for Aboriginal rights, which is of course good for relationship building. Government denial of Aboriginal rights and obstructionism creates bad blood and a future unwillingness to deal as good faith partners.

Political stability is one major factor that third-party investors look for when deciding over investment in projects. One important aspect of that is unresolved concerns by Indigenous communities. The Fraser Institute’s Global Petroleum Survey and its Survey of Mining Companies list Aboriginal consultation protocols and disputed land claims among major concerns when deciding to invest.

Atlantic provincial governments need to learn from Nova Scotia’s mistake and develop proactive consultative relationships with their Indigenous communities. The future of Atlantic resource development depends on it.

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