Gallagher's Resource Rulers - Condensed and Critiqued
By William Walter Kay
Estimates as to the number of resource and construction projects thwarted by Canada’s eco-native alliance run into the hundreds. Whatever the tally it is clear environmentalism has fashioned a formidable weapon out of a faction of the Aboriginal population.
Bill Gallagher’s Resource Rulers: Fortune and Folly on Canada’s Road to Resources (2012) is perhaps the sole book taking singular aim at this issue.
Gallagher is a lawyer, strategist and facilitator, and a former energy regulator and treaty negotiator, with 30 years of experience in native relations.
Although the book is rich in detail, Gallagher is far from a detached observer. While the situation is beyond worrisome, the triumph of the eco-native is not the fait accompli Gallagher alleges.
The following seven articles condense and critique Resource Rulers.
TABLE OF CONTENTS
Economic Damage Caused by Eco-Aboriginal Obstruction
Gallagher's Media Analysis
Notable Political Conversions
Native Violence 1990-2008
Blarney Bill's Great Native Legal Winning Streak
The Real Native Legal Victories
Aboriginal Opposition to Environmentalism
Economic Damage Caused by Eco-Aboriginal Obstruction
Gallagher claims the rise of native empowerment: “has littered the landscape north of the Trans-Canada with project ‘trainwrecks’.” Here are some his examples:
Quebec’s first native land claim settlement (with the James Bay Cree and the Inuit) was signed in 1975. After signing the James Bay Cree fired off one legal challenge after another alleging breeches; keeping a dozen lawsuits in the mix at any time.
In 1989 Quebec Premier Bourassa set out to “conquer the north” with the Great Whale hydro-project. The James Bay Cree countered with sophisticated eco-activism, media messaging and legal challenges. They paddled their odeyak from James Bay to New York City to embarrass the Quebec Government and to give New Englanders (Hydro Quebec’s customers) second thoughts. This concerted bureaucratic and legal attack killed Great Whale in 1994.
The Lower Churchill hydro-project was to be launched by Quebec Premier Bouchard and Newfoundland Premier Tobin at a ceremony in 1998. However Innu blocked their cavalcade on route to the venue. The protest made national news and the project was aborted on that day. (It has since been revived.)
Also in 1998 the James Bay Cree consolidated their legal assault into one massive lawsuit demanding more revenue sharing, sustainable resource development, preservation of trap lines, and the cessation of clear-cutting.
In 2000 the Cree repudiated the James Bay Agreement and concentrated their attack on Quebec’s forest industry; clear-cutting being the cause celebre. They lobbied US legislators to countervail Quebec lumber exports arguing that Quebec’s lax environmental rules were a trade subsidy. They picketed Home Depot’s AGM.
In 2002 the Cree signed a new deal with Quebec whereby they would receive $3.5 billion over 50 years. In return they dropped all litigation and agreed to participate in environmental reviews for new hydro-projects. This deal kick-started Hydro Quebec’s multi-billion dollar Rupert and Eastmain Rivers projects.
(A coalition of 17 enviro-organizations denounced these hydro-projects as sources of flooding, mercury pollution and watershed impairment. Hydro Quebec countered that these energy sources were climate-friendly and Cree-sanctioned.)
Part of the backdrop to the native-led anti-construction campaign in Ontario’s Haldimand Tract was that, pursuant to Ipperwash Inquiry recommendations, Ontario Government officials were expected to resolve native disputes through facilitation, negotiation and/or the courts.
The Haldimand Tract delineates a 200-year-old land grant to the Mohawk Six Nations. 95% of this land was sold by Mohawk chiefs. The remaining 5% remains within Six Nations Reserve – Canada’s largest native community. (There are 29 ongoing disputes regarding Haldimand Tract lands.) The non-native Municipalities of Brantford and Caledonia lie within the original Haldimand Tract.
For three years Six Nations ‘land protectors’ disrupted real estate development in Brantford beginning with a shutdown of a shopping mall construction site in October 2007. Across Brantford natives demanded prior consent (and fees) for any new construction projects. The police had no plans to budge the native protestors. City Council asked for Armed Forces assistance. One company cancelled its head office construction project and sued for $10 million. By 2009 the Brantford Expositor was publishing monthly summaries of native disruptions.
The court proceedings, wherein the City of Brantford sought to enforce its by-laws in the face of native disruptions, ran from May 2008 to November 2010. The judge appointed an amicus to advise the court, then ordered the parties into facilitation, and eventually defused tensions by handling matters in chambers.
In February 2006 in Caledonia a multi-house construction project (Douglas Creek Estates) owned by Henco Industries was barricaded by natives from Six Nations Reserve. An April 2006 raid by the Ontario Provincial Police was violently repelled by a larger native contingent. Sympathy protests sprang up, including a rail blockade which stopped 50 trains and stranded 3,500 travellers. Natives arrested for such actions were quickly released. 100 Ontario chiefs came to Caledonia to support the blockaders. In May 2006 the Ontario Government froze development of Douglas Creek Estate.
In May 2007 railroads and highways were blocked in solidarity with the Caledonia occupation. The situation escalated when natives occupied another Caledonia construction site and seriously assaulted one of the owners. Non-natives began talking about forming militias. The Ontario Government then bought Douglas Creek Estates from Henco (for $15.8 million) and allowed the natives to remain.
In 2011 Ontario’s Energy Minister stated he was not prepared to “risk lives” to finish the Niagara hydro transmission corridor. The two towers yet to be erected to complete this $116 million project are the toppled ones still barring the entrance to Douglas Creek Estates.
Ontario mining explorer, Platinex Inc. was harassed by natives supported by eco-activists. In 2006 a Superior Court Judge complained the Ontario Government had failed to maintain a supervisory presence in the dispute despite Platinex’s numerous requests. He added:
“One of the unfortunate aspects of the Crown’s failure to understand and comply with its obligations is that it promotes industrial uncertainty…”
The Ontario Government subsequently bought Platinex’s interest in the disputed properties in a multi-million dollar settlement.
Another mining company under similar pressure, God’s Lake Resources, was also bought out by the Ontario Government just as the company was: “canvassing security companies to ensure the smooth completion of its drill program.”
The plan for BC’s Kemess North Mine was to render the waste rock inert by dumping it into the frigid depths of Duncan Lake. The mine’s proponent detailed several ways of proceeding each with a level of Aboriginal involvement.
During the review, natives stated that water was sacred and that the destruction of a lake violated Aboriginal values. A Northern Miner editor responded:
“Why exactly a government-funded environmental panel comprised of university educated professionals should blithely accept that stone-age inducing, shamanistic values such as “water is sacred” should automatically trump the values of Western civilization and modern science, is unstated. Pity.”
(The intrusion of animistic religion into environmental reviews is normal. One mining executive, commenting on a BC environmental review, quipped:
“There’s things that went on in there like people talking about speaking to bears. So it’s pretty hard to talk science.”
As well, a large section of the Voisey Bay Environmental Impact Statement is devoted to the spiritual/cultural significance of bears.)
The Joint Review Panel (JRP) recommended Kemess North not be approved because each of the proponent’s own proposals assumed a level of Aboriginal involvement while all relevant Aboriginal groups opposed the project. In 2008, based on the JRP recommendations, the Federal and BC governments issued a joint press release rejecting Kemess North.
Taseko’s Prosperity Copper-Gold Mine proposal required dumping waste rock into Fish Lake, BC. Taseko agreed to transport fish from that lake to a nearby man-made lake. Taseko also offered generous Impact Benefit Agreements to local natives who steadfastly opposed the mine for spiritual/cultural reasons.
Taseko complained that one Joint Review Panel (JRP) panelist was biased because she was also manager of Tahltan Heritage Resources Environmental Assessment Team (THREAT). The JRP said her background as the Tahltan’s in-house environmentalist was why she was hired. Taseko’s court challenge on this issue was abandoned. (Gallagher chalks this up as a major native legal win.)
In 2010 the JRP declared:
“…the Project would result in significant adverse environmental effects on fish and fish habitat, on navigation, on the current use of lands and resources for traditional purposes by the First Nations and on cultural heritage…”
In November 2010 Ottawa shot down the Prosperity Mine proposal dealing a major blow to BC’s promised mining renaissance and to BC’s credibility. (The province had already issued a licence for this project.)
In 2004 Anadarko pulled out of a Northwest Territories gas field after enviro-native activism thwarted the completion of a 40-kilometre pipeline needed to tie the field into the grid. Anadarko walked away from a $150 million investment.
Legal challenges opposing oil sands development have been launched by: Woodland Cree, Beaver Lake Cree, Chipewyan Prairie Dene, and Athabasca Chipewyan always: “in tandem with eco-activist campaigns.” These native bands also front lawsuits through which environmentalists pressure Ottawa to more stringently enforce the Species at Risk Act. Eco-activists and “downstream” natives envision a regime wherein natives are employed as enviro-stewards.
This anti-oilsands campaign receives elite international support. The British Bank, Manchester Cooperative, as part of its contribution to WWF’s ‘toxic fuels’ campaign, donated $200,000 towards the Beaver Lake Cree’s court challenges.
Anti-oilsands activists and their native allies received more elite attention during a private audience with US House Speaker, Nancy Pelosi in 2010.
On Oscar Night 2010 several eco-activist and native organizations ran a full-page ad in Variety magazine beginning:
“Canada’s Avatar Sands - Where Indigenous Peoples in Canada are endangered by toxic pollution and future oil spills.”
Avatar won three Oscars including one for its art director who hailed from Alberta and who admitted the oilsands provided inspiration for his set designs. Avatars’ Hell Trucks are dead ringers for oilsands machinery.
By casting natives as land protectors, Avatar brought indigenous rights to the forefront. Director James Cameron earlier made headlines by supporting natives fighting a dam in Brazil. Six months after Oscar Night he took his eco-aboriginal message to the inaugural World Indigenous Leadership Summit.
In 1977 the Mackenzie Valley Gas Pipeline (MGP) was postponed for ten years because the: “social impact would be devastating and it (MGP) would frustrate the goals of native claims.”
After 1977 a proliferation of boards, mandates and court challenges transformed the Northwest Territories into one of Canada’s most difficult regions for gaining project approvals.
In 2002 bureaucrats devised a “Cooperation Plan” to merge the 8 public hearing boards, 6 regulatory agencies and 3 government observer teams working on the MGP approval process.
In 2004 Deh Cho First Nation demanded their land claim be settled before the environmental review, knowing this would invalidate the Cooperation Plan. Canadian Parks and Wilderness Society’s (CPAWS) press release stated:
“CPAWS supports the Deh Cho pipeline action: the Dehcho First Nations have currently protected about 50% of the land in their territory through their interim measures agreement and the NWT Protected Area Strategy.”
In 2005 the Prothonotary’s Office in Vancouver ordered the Federal Government to hand over five years of records relating to how they selected the members of the MGP Joint Review Panel (JRP). Bureaucratic chaos ensued. Ottawa cut the Deh Cho two cheques: one for $16.5 million for their participation in the pipeline review, and another for $15 million for economic development.
Elizabeth May of the Sierra Club of Canada and Carl Pope of the US Sierra Club then penned an open letter directed at Exxon telling them to give up on the MGP or face more litigation and delay.
In 2006 the Dene Tha’ First Nation complained they were not informed about the MGP environmental review. (They had been left out because they are situated below the NWT-Alberta border.) A Federal Court judge sided with the Dene Tha’. Ottawa cut the Band a $25 million cheque to smooth things over but the decision was a setback for the JRP process.
The JRP was now years behind its original timeline. Its budget had tripled. All the while TransCanada Pipelines had been picking up the costs of the Aboriginal Pipeline Group (APG) – a consortium of native bands who supported the pipeline. (By 2012, the cost to TransCanada was $140 million.)
In 2009 the Assembly of First Nations boasted:
“The Mackenzie Valley pipeline project cost increased from $1B to $10B between 2001 and 2008 and has been delayed well over 20 years due to a failure of First Nation participation.”
As of 2010 MGP had 56% native support versus 44% native opposition (calculated along the right of way.) The National Energy Board approved the MGP but stipulated that construction must begin by 2015 for the approval to remain valid. In 2011 Shell put its MGP-related holdings up for sale. MGP now seems further away than ever. For similar reasons offshore drilling in the Beaufort Sea seems even further away.
One northern resource activity enjoying some success despite eco-native opposition is diamond mining. Tellingly, Gallagher stresses that the approval process diamond miners face is ‘political’ not ‘legal.’ Neither the NWT’s famous 1997 Environmental Agreement, nor the Impact Benefit Agreements entered into, were or are legally required by any legislation or regulation.
Gallagher's Media Analysis
Gallagher believes the economic damage caused by eco-aboriginal obstruction is: “the biggest and most under-reported business story of the past decade.” He does not explicitly suggest this systematic under-reporting results from media bias.
Some in the mainstream media are critical of native activism. Gallagher culls two Globe & Mail editorials from 2007 warning of a slide toward a too militant agenda.
The National Post has consistently criticized the rise of native empowerment. This paper argued that BC’s 2002 referendum on aboriginal issues was neither racist nor unfair and reminded readers that British Columbians had been denied a say on the Nisga’a Treaty.
More typical of mainstream media coverage is this June 5, 2000 editorial passage from the Montreal Gazette:
“For too long, ‘sustainable development’ has been a pious slogan that politicians use to mask their environmental inertia. Thanks to the Crees’ adroit dealing with the corporate world, the slogan ‘sustainable development’ may at last acquire some substance.”
Gallagher notes the “never-ending” coverage given to the trial of Syncrude for the accidental killing of a few ducks in an oilsands tailing pond, adding:
“…the twists and turns of that legal process, playing out monthly as a major media event, accorded eco-activists complete public relations immunity from anything industry might assert in its defense. Indeed in the court of public opinion, it was as if both the energy industry itself – and the oil sands – that were on trial.
The influential British weekly The Economist repeatedly weighs-in with unflattering coverage of the Canadian Aboriginal situation which they frame as an international social justice story wherein Canada always gets a black eye. The magazine also reinforces the myth that natives have a veto power over resource development.
To his credit, Gallagher exposes the CBC’s eco-aboriginal bias. The CBC article “Alberta oilsands pond sludge oozes into the bush” (November 15, 2010) was criticized by the CBC Ombudsman for being insufficiently reported. (The story focussed on Aboriginal fears about toxins in the traditional food chain and quoted a native Councillor saying: “I feel like I want to cry. I grew up on the land. That’s the way I was brought up – to live off the land.”)
Another example of CBC bias came from a The Current story on cancer clusters downstream from the oilsands. On this program, Dr. Steve Hrudey, a medical authority, concluded that a recent Royal Society study did not established causality. The Current claimed Hrudey had urged further study when in fact he said ample research had been done. According to Hrudey, the CBC:
“…knowingly skewed the message of the story to fit their invalid and unsubstantiated view of the circumstances surrounding the existence of an unusual cancer cluster in the largely aboriginal community of Fort Chipewyan which they would attribute to oil sands contaminants.”
CBC’s Ombudsman sided with Hrudey and further faulted The Current for not informing their audience that the original ‘research’ alleging a cancer-oilsands connection had been debunked by Alberta’s College of Physicians and Surgeons.
Sadly, much of Gallagher’s media analysis is taken up with fawning over the environmentalists’ “savvy messaging.” He lauds ForestEthics’ full-page ad in USA Today in 2009 denouncing the Tar Sands. This was followed up by a ForestEthics/Sierra Club ad pressuring Secretary of State Clinton to block the Keystone XL pipeline. (The latter ad did not even mention natives.)
Gallagher lauds inordinate praise on an eco-campaign against an allegedly caribou-threatening pulp mill. ForestEthics ran ads in the New York Times under the heading ‘Victoria had a dirty secret’ showing a scantily clad woman wielding a chainsaw. Consequently, Victoria Secret Catalogues stopped buying paper from the mill. (There was zero native involvement in this lengthy digression.)
Notable Political Conversions
One Gallagherian motif is the transformation of Canadian politicians from pre-office opponents of native empowerment into in-office enablers of the same.
In 1968 newly-elected PM Trudeau opposed special status for any group. He set out to abolish the Indian Act with his assimilationist 1969 White Paper. This was immediately countered by the Red Paper from the newly-founded National Indian Brotherhood (forerunner to the Assembly of First Nations). Harold Cardinal, a Cree from Alberta, published “The Unjust Society” to counter Trudeau’s “A Just Society.”
Such natives had allies entrenched within the Ottawa establishment. The government funded Hawthorne Report (1965) advocated a ‘Citizens Plus’ program of augmenting the segregationist Indian Act with a myriad of affirmative action programs for Indians. (The term “First Nation” had yet to be popularized.)
Ultimately Trudeau and his disciples converted to the cause; partially because natives became a useful foil against Quebec separatism. Quebec natives claim 75% of Quebec’s landmass as traditional territory. Prior to the 1995 Quebec independence referendum the Quebec Cree held their own referendum wherein 96% of Crees rejected Quebec independence.
The Liberals referred the issue of Quebec separatism to the Supreme Court in 1998. The Court unsurprisingly stated that Aboriginal rights must be factored in when determining Quebec’s boundaries should Quebec secede from Canada. This ruling de-stabilized the separatist movement.
The Clarity Act (2000) further turned Quebec natives into a “poison pill” against separatist efforts. The Act forces Ottawa, when negotiating Quebec independence, to consider Aboriginal resolutions and land claims.
Trudeau’s most profound legacy was his entrenching of Aboriginal rights, treaty rights and land claims agreements into his Constitution Act (1982). (For the Act’s relevant sections see footnote 1.)
Since 1982 native rights have been for the courts to define and the flood of coordinated and politically motivated litigation has been a godsend for lawyers. In 2005 BC Union of Indian Chiefs, Stewart Phillip, boasted:
“…there are another 34 cases before the (BC) courts, the majority are resource related… We have the best legal minds in BC on our side.”
By 2007 there were 793 land claims actions before Canadian courts.
BC Premier Gordon Campbell began his career as an outspoken opponent of native privilege. In Campbell et al v AG BC et al (2000) BCSC opposition leader Campbell personally launched a lawsuit challenging the constitutionality of the Nisga’a land claim settlement (the first BC Treaty in 100 years). He lost.
During the 2001 BC election natives picketed Campbell’s campaign bus and newspapers regularly relayed native threats. Campbell won the largest majority of votes in BC history.
Campbell then held a referendum on native rights. Church groups, human rights groups and even professional pollsters (the latter being especially scathing) campaigned for a boycott of the referendum. (The turnout was only 38% but of those who voted 80% supported Campbell’s position)
When the inevitable conversion came a chastened Campbell: a) apologized to BC natives; b) had BC Hydro compensate two native bands for flooding of their lands; c) settled a claim with two bands regarding the legislature lands; d) appointed a native as Lieutenant Governor; and e) signed the Tsawwassen Treaty.
Campbell was re-elected May 2009 but resigned eighteen months later in the wake of the eco-aboriginal defeat of the Prosperity Mine. According to Gallagher, Campbell resigned because he “realized the eco-activists will never come on side.”
In a 2004 open letter Calgary MP Jim Prentice criticized the Liberal’s Tlicho Settlement which transferred 39,000 square kilometres of the Northwest Territories to the Tlicho Band along with $150 million. He asked:
“Why has a nation of 32 million people accorded such rights to a community of 3,500?”
A year later Indian Affairs Minister Jim Prentice pressed for similar deals. In 2007 he sought legislation to facilitate the resolution of land claims. In 2010 Environment Minister Jim Prentice bemoaned how “perception has a way of becoming reality” and as such Canada will remain a global poster child for environmentally unsound resource development. He resigned in 2010 shortly after acquiescing in the decision to kill the Prosperity Mine.
Prime Minister Stephen Harper won the 2006 election after denouncing the Liberal’s $4.5 billion Kelowna Accord with natives. One of his fist prime ministerial acts was to pen an open letter criticizing native fishing privileges.
Initially Harper’s government rejected the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – a manifesto promoting indigenous cultural traditions and land claims. Harper’s Indian Affairs Minister, Chuck Strahl warned that endorsing UNDRIP could give anyone of over 600 First Nations a veto over any legislative or administrative matter.
Ultimately Harper succumbed to international pressure and Canada endorsed UNDRIP in late 2010 alongside a press release assuring us:
“We are now confident that Canada can interpret the principles expressed in UNDRIP in a manner that is consistent with our constitution and legal framework.”
While UNDRIP is an “aspirational document,” hence not legally binding, in the hands of native strategists it portends a remarkable toolbox.
Further examples of sudden political conversions are found in the drafting and posting of ‘First Nations consultation policy guidelines’ by all three prairie provinces over a several month period (2007/8).
Native Violence 1990 - 2008
Gallagher comments that the real-politick issue often underlying negotiations with natives regarding resource projects is fear of native violence. The fear is warranted.
Pre-1990 the most notable native confrontation was a 1974 armed blockade of a road near Cache Creek, BC to protest poverty on the Bonaparte Indian Reserve.
The Oka Crisis, in the summer of 1990, lasted 78 days and compelled the deployment of 3,700 Canadian Army soldiers. The dispute erupted after a municipality sought to expand a golf course onto an area Mohawk protestors dubbed the “Sacred Pines.” Sympathy blockades popped up along major highways.
In Oka’s aftermath, the Royal Commission on Aboriginal Peoples (RCAP) was launched in 1991 under the watch of native leader George Erasmus. RCAP spent 5 years and $95 million to propose recommendations that were roundly dismissed as too ambitious and costly.
In 1995 natives occupied part of a former army base that had since been converted into Ontario’s Ipperwash Provincial Park. (Before WWII the area was part of a native reserve.) An unarmed native protestor was shot and killed by an OPP officer.
Also in 1995, during a 31-day stand-off with native protestors at Gustafsen Lake, BC the RCMP fired 65,000 rounds of ammunition. The dispute started over access to a sun-dance site on a privately owned ranch. The Chief of the nearby Canoe Creek Band complained the RCMP were being too patient with the protestors.
Again in 1995, a protest at a proposed mine site in Labrador saw 100 Innu and 60 RCMP officers square off with sharpshooters placed on hill-tops.
By the late-1990s the national news regularly reported on native-related lobster wars, fishing wars, wars-in-the-woods, pipeline sit-ins and mine blockades.
One flashpoint was Burnt Church, New Brunswick and here the Supreme Court bears some responsibility for the mayhem.
Back in 1985, the Court held that Dummer’s Treaty of 1752 was still binding. The Chief Justice added that: “None of the Maritime treaties of the 18th century cedes land” and he re-confirmed “the principle that Indian treaties should be liberally construed.”
Following this line, in 1997 a New Brunswick Queen’s Bench Judge ruled:
“Indians in New Brunswick can harvest any and all trees they wish on Crown lands as an appurtenance to their land rights under Dummer’s Treaty.”
Then in R. v. Marshall (1999) the Supreme Court decided Dummer’s Treaty established an Aboriginal right to make a moderate livelihood (“but not the accumulation of wealth”) from fishing. The non-native commercial fishing industry was aghast, and they quickly got the matter back before the Court citing a host of issues begging clarification.
By then disputes between natives and non-natives over tree and lobster harvesting had spawned a wave of violence, sabotage and barricades. The epicentre of the violence was the native town of Burnt Church (unemployment rate - 80%). Some 3,000 natives from across Canada participated in Burnt Church activism.
The Court, shaken by the violence, issued Marshall (2) stating:
“The September 17, 1999 majority judgment did not rule that the appellant (Marshall) had established a treaty right “to gather” anything and everything physically capable of being gathered.”
The Court explained native rights did not apply to logging, mining or gas extraction:
“…nor was the argument made the exploitation of such resources could be considered a logical evolution of treaty rights to fish and wildlife or to the things traditionally ‘gathered’.”
The New Brunswick Government then guaranteed native loggers access to Crown timber near their communities equalling 5% of annual allowable cut while the Federal Fisheries Minister negotiated a Band limit on fishing (for personal food and ceremonial purposes only) and a $20 million cash settlement. These deals calmed the situation in New Brunswick but not elsewhere.
In 2001 BC native strategist George Watts declared: “We will do harm to this province if you are going to do harm to us…That is not a threat it is a promise.”
In 2005 David Dennis of the Westcoast Warrior Society was arrested in Vancouver with 14 rifles and 10,000 rounds of ammunition.
In 2006, Chief Mike Metat stated that “direct action has been a means to force the developer to the table” and that native leaders would go to jail to force Ontario to “safeguard the environmental integrity of their traditional lands.” (Metat heads the Nishnawbe-Aski Police Services Board!)
2006 saw a major outbreak of native violence in Caledonia, Ontario. Throughout 2006/7 newspapers ran stories about natives blocking, or threatening to block, various development projects.
The Assembly of First Nations (AFN) planned a National Day of Action for April 20, 2007. Upon hearing this Indian Affairs Minister Prentice quipped:
“I hope none of the $27 million in grants and contributions received annually by the AFN will be used in planning illegal blockades.”
This statement may have given pause to native leaders as few of the threatened blockades materialized. However, Ontario native activist Shawn Brant, a veritable fountain of threats, organized a 30-hour blockade of a main CN rail-line. After CN sued Brant for damages AFN Chief Phil Fontaine complained:
“I was really disturbed when I heard CN was going to start suing the people who were responsible for the obstruction of their ability to make money.”
On June 30 a CN spokesman expressed frustration that despite two court injunctions illegal activity continued on their properties.
Shawn Brant’s sentence for his National Day of Action blockade (and an earlier one) was ‘time-served’ (his pre-trial 57-day incarceration) plus a 90-day conditional sentence to be served on his reserve.
In 2008 prairie chiefs held a planning session in Edmonton where they threatened direct action. Two weeks later they led a series of rolling blockades along proposed pipeline right-of-ways.
Blarney Bill's Great Native Legal Winning Streak
In the book’s glowing Preface Professor Alan Cairns claims a constitutional change has crept over Canada through Supreme Court judgements anointing natives as de facto Resource Rulers. This may be the old prof’s dream but it is not reality, yet.
Gallagher claims natives are on a 150-case “legal winning streak” (a phrase he re-uses forty times). He does not say when this “streak” began although he claims the Paulette case (2) was “one of the very first native wins.” This case was a loss for the native side. Several of the 45 cases Gallagher cites were native losses. There has been no winning streak. The following are some of the cases he cites:
In Brokenhead Ojibwa First Nation v Attorney General of Canada (2009) Manitoba natives demanded consultation regarding pipeline construction. The Federal Court slapped them down stating:
“The Treaty One First Nations are simply not correct when they assert in their evidence that a duty to consult is engaged whenever the Government of Canada makes ‘any decision related to lands in our traditional territories inside the boundaries of Treaty 1.’ There is no at-large duty to consult that is triggered solely by the development of land for public purposes. There must be some unresolved non-negligible impact arising from such a development to engage the Crown’s duty to consult.”
Gallagher lists as a “high profile victory” (p. 258) an injunction, granted to Musqueam First Nation, blocking the sale of two federally-owned buildings in Vancouver. Gallagher neglects to inform us that this injunction was overturned (CPW v. Musqueam First Nation FCA 2008.)
On page 267 Gallagher states:
“On October 28, 2010 the Supreme Court of Canada issued yet another major ruling broadening the scope of native consultation and accommodation.”
He could only be referring to Rio Tinto Alcan Ltd v. Carrier Sekani Tribal Council 2010 SCC where the Court ruled BC Hydro did not have to consult with natives regarding an electricity purchase agreement.
In City of Brantford v. Montour et al ONSC (2010) Brantford’s controversial by-laws were upheld in a ruling that stressed:
- Six Nations activists blockaded construction sites in a manner to which the accusations of civil conspiracy and public nuisance had merit; and
- The native’s land claim was “exceedingly weak” for numerous reasons, one being that for 150 years they did nothing to indicate to innocent third party purchasers that there was any problem with the title to their lands.
The 2006 Ontario Court of Appeal decision concerning the Caledonia occupation (see above) was no legal victory. The Ontario Government purchased the disputed property, and then refused to prosecute the native occupiers as trespassers. The Six Nations’ claim to this property was not adjudicated upon.
In 2007 a BC Supreme Court Judge (after a 339-day proceeding) issued a decision impacting 45% of the Nemaiah Valley. Gallagher calls this a huge win but the Judge explicitly stated that his ruling was “non-binding.” The judgement has the status of a mere legal opinion.
Bennett Environmental Inc. built an incinerator for treating contaminated soils in New Brunswick. Environmentalists fretted over what might be going up the smokestack. Three First Nations towns, none closer than 32 kilometres from the incinerator, worried about the pollution’s impact on traditional food sources. In 2003 eco-activists chained themselves to Bennett’s office doors.
In May 2004, days before a federal election call, Federal Environment Minister David Anderson announced an environmental view of the incinerator (then 97% completed with $27 million having been spent) citing concerns over trans-boundary pollution. The proposed review would also address native issues related to traditional foods. Environmentalists organized a native-led march to the bridge linking NB to Quebec to highlight the trans-boundary issue.
Bennett won their legal challenge (at which three First Nations intervened) against this duplicative late-in-the-day environmental review. Environment Canada appealed this decision and Bennett won again.
When CN sued Shawn Brant (see above) Brant countersued for $10 million. CN immediately had 20 of 21 of Brant’s pleadings (allegations) struck down.
There is another genre of cases within Gallagher’s canon which are “victories” for someone but not natives. Three examples:
Gallagher gives a lengthy account of the 1998 victory of the eco-Astroturf cabal, Friends of the Lubicon (FOL), over forestry giant Daishowa.
From 1991 to 1994 the FOL carried on a boycott campaign against Daishowa by approaching Daishowa’s corporate customers and by picketing stores where Daishowa products were sold. 50 companies joined the boycott.
Daishowa sued FOL in Ontario Supreme Court alleging the torts of intimidation, conspiracy, defamation, and interference with contract.
Daishowa won only the defamation suit. (They were awarded $1 because FOL accused them of genocide.) Daishowa lost on all other counts. The issue was free speech and the Judge ruled that FOL’s activism was a protected form of speech.
The media coverage chased Daishowa away from its 10,000 square kilometre timber grant.
This was a free speech victory and an eco-victory but not a native victory.
In Kelly v. Alberta ABCA 2009 the issue was how close must landowners live to a sour gas well before they are granted standing in an environmental review process. The Court made passing reference to a ‘Dene Tha test’ before determining that Kelly et al did inhabit the Protective Action Zone and thus must be included in participant involvement programs. The applicants were NOT natives.
In Great Lakes United and Mining Watch Canada v Minister of the Environment, FC 2009 the court ordered the Minister to collect and report data on waste disposal from Canadian mines. There were no Aboriginal groups involved in this case and the ruling made no reference to Aboriginal rights.
Another subset of cases within Gallagher’s anthology make for dubious contributions to his great “native legal winning streak” thesis:
The Sable Island Gas Pipeline crosses treaty land in Nova Scotia. In 1998, after the pipeline received environmental approval, all thirteen Nova Scotia chiefs joined both opposition parties at an anti-pipeline protest outside the Nova Scotia Legislative Assembly.
Gallagher declares the subsequent legal challenge a double legal win because: a) natives were able to launch a judicial review after being only intervenors in the regulatory proceedings (a right normally given to parties to the proceedings); and b) the court found the pipeline’s proponent had not complied with a review panel recommendation. Neither issue set any native legal precedent. Moreover, despite the lawsuit the pipeline is up and running – it had barely been stalled.
The cases of two besieged Ontario mining companies, Platinex and Frontenac, were heard together by the Court of Appeal. Among the issues was the fate of two native blockaders incarcerated for disregarding contempt of court injunctions. (Thousands rallied at Queen’s Park on behalf of “Canada’s political prisoners.”)
Platinex conceded the two had spent enough time in jail. The Court deemed that the time already served by the native leaders was sufficient punishment and the two were released to a tumultuous reception on the courthouse steps.
Frontenac Ventures moved to have their antagonist re-incarcerated to serve his full 6-month sentence. The Supreme Court of Canada dismissed the appeal without reasons. Gallagher seems to interpret this as meaning native protestors may flaunt contempt of court orders without fear of incarceration – bad advice.
While several Supreme Court decisions from the 1996-2006 era are technically Aboriginal wins, the awards were paltry – like the right to snare squirrels in a park.
East Coast decisions granting natives forestry rights stressed that because there was no traditional native commercial-scale logging, there is no current Aboriginal right to engage in such logging. Thus, Aboriginal wood harvesting rights apply only: a) for personal uses such as shelter and fuel; b) to traditional territories, and c) if done not-for-profit.
Likewise, across Canada the Aboriginal right to hunt is limited to the right to hunt for subsistence.
Moreover, Aboriginal land rights are NOT common law property rights. They are collectively held by the Band and extend only to the exercise of traditional practises.
In short, half the cases in Gallagher’s “native legal winning streak” are native losses or not really native cases at all or cases of dubious precedence or puny reward.
The Real Native Legal Victories
There have been a spate of spurious pro-native court judgements albeit none are constitutionally irreversible.
Most of the actual native legal victories are confined to non-treaty areas of BC.
In MacMillan Bloedel v. Mullin BCCA (1985) natives declared Meares Island a “tribal park” and banned clear-cut logging. The BC Court of Appeal expressed annoyance that land claims were being ignored while logging continued and halted clear-cutting on the island.
In Delgamuukw v. British Columbia (1997) the Supreme Court legitimized ‘Aboriginal title’ and provided a test whereby it might be established. At the same time, BC’s economic development was deemed a sufficiently valid legislative objective to compel intrusion onto Aboriginal title. The issue became one of “accommodation” which was deemed to mean consulting Aboriginals regarding development. Accommodation might in some circumstances entail compensation.
In Apex Mountain Resorts Ltd. V. British Columbia 2001 BCCA the appellants lost their ski resort because the Province failed to ensure their access road remained unimpeded by Aboriginal blockades. The issue narrowed to the contractual relations between Apex and the BC Government withthe trial judgeconcluded:
“I find that it (Apex) appreciated the access risks if faced before it acquired the resorts and again immediately after it initially announced its expansion plans. I find that nothing the government did or said misled the plaintiff.”
The Court of Appeal chose not to question these factual findings.
In Haida Nation v. British Columbia (2004) the Supreme Court of Canada blocked an otherwise routine timber licence sale (from MacMillan Bloedel to Weyerhaeuser) because the sale had gone forward without meaningful consultation with natives. However, the Court stressed:
“This process does not give Aboriginal groups a veto over what can be done with land pending final proof of claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights and then by no means in every case.”
In Musqueam Indian Band v. British Columbia the BC Court of Appeal set aside a sale of the Point Grey Golf Course (from UBC to the BC Government) because the land was the subject of a land claim. The matter was later settled out of court.
There have been several notable native wins outside BC.
In Union of Nova Scotia Indians v. Canada 1997 the expansion of a gypsum mine required dredging a channel. The Nova Scotia Government approved the dredging despite native concerns about their traditional fishery. The natives further contended that the environmental review lacked procedural fairness. The Federal Court concluded the Crown failed to honour its fiduciary duty to protect Aboriginal interests from the unwarranted adverse effects of the project.
(A competing company later successfully negotiated an Impact Benefits Agreement with natives offering jobs and a royalty on tonnage produced.)
A late-1990s pro-native judgement from the Newfoundland Court of Appeal regarding the Voisey Bay mine contained these gems:
“They (Innu and Inuit) are understandably pre-occupied with the protection from adverse environmental effects…
Heritage of the environment is a legacy to be preserved for all…
Environmental impact translates into agonizing problem for generations yet unborn”
This ruling imbued the natives-as-stewards trope with judicial credibility.
In 2005 the same Court granted the Labrador Metis Nation the right to be consulted regarding the Trans-Labrador Highway’s potential impact on fish habitat. The Supreme Court of Canada declined to hear an appeal of this case.
In 2001 Alberta’s Athabasca Chipewyan First Nation (AFCN) successfully challenged a National Energy Board decision allowing BC Hydro to sell power into US markets. The Federal Court of Appeal ruled:
“Since its completion in 1967, the Bennett Dam has altered the natural flow of the Peace River. The AFCN submitted that this altered flow has resulted in significant changes to the ecosystem on its traditional and reserves lands …Delta watersheds have been dried out with grassland being replaced by brush and shrubs. Wildlife populations, including fish, waterfowl and muskrat have declined.”
Given the 1,000 kilometres separating the Bennett Dam from AFCN territory, the FCA signalled that, regarding natives, they held an expansive view of causality.
Also regarding Alberta natives, the 2005 Supreme Court case, Mikisew Cree First Nation v. Canada, was a native legal win but one whose importance is exaggerated.
All Numbered Treaties contain a clause like:
“(Indians) shall have the right to pursue their avocations of hunting and fishing throughout the tract surrendered …saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining lumbering and other purposes…” (Emphasis added.)
The issue in Mikisew was whether the government could “take up” land to build a road alongside the Mikisew reserve. The Supreme Court blocked the road construction, in part because:
“Treaty 8 therefore gives rise to Mikisew procedural rights (e.g. consultation) as well as substantive rights (e.g. hunting, fishing and trapping rights). Were the Crown to have barrelled ahead with implementation of the winter road without adequate consultation, it would have been in violation of its ‘procedural’ obligations, quite apart from whether or not the Mikisew could have established that the winter road breached the Crown’s ‘substantive’ treaty obligations as well.”
(Mikisew must be confined to its facts. The road was originally planned to run straight through the Mikisew reserve where it would have cut across trapping lines. As well, enforcing standard prohibitions on discharging firearms near roadways would have diminished hunting rights. The Mikisew Band were initially given less consultation regarding the roadway’s design than a non-native community would have been given in a similar situation. Last minute alterations to the road design did not expunge these defects. The Court made repeated references to the high-handed behaviour of the authorities.)
In De Beers v. Mackenzie Valley Environmental Review Board et al (2007) NWTSC De Beers sought regulatory certainty but instead got a judgement endorsing native and environmental priorities. Here’s a sample of the Court’s mindset:
“Parliament also intended that the preservation of social, cultural and economic well-being of the residents of the region and the importance of conservation to well-being and way of life of aboriginal people be taken into account.”
In Qikiqtani Inuit Association v. Minister of Natural Resources NUCJ 2010: the court blocked seismic testing because:
“Inuit state that the seismic testing will impact on migration routes and will drive marine mammals away from these areas for some time…
The opportunity to participate in the hunt, an activity which is fundamental to being Inuk, would be lost…
The loss extends not just to the loss of a food source, but to loss of a culture. No amount of money can compensate for such a loss.”
Two months later the disputed region was designated a future national marine conservation area.
Aboriginal Opposition to Environmentalism
Gallagher, to his credit, does relay examples of environmentalist versus native conflict.
In 2008 the Ontario Government proposed a Far North Bill so as to:
“…protect at least 225,000 square kilometres of the Far North Boreal region under its Far North Planning initiative … Permanently protecting these lands will also help a world wrestling with the effects of climate change, as they are a globally significant carbon sink. Protecting this region is a key part of the Ontario government’s plan to fight climate change.”
During Standing Committeehearings CPAWS promised a future where:
“First Nations will be enabled to establish and manage a permanent network of interconnected protected areas – areas free, essentially of industrial development. That would be consistent with the Premier’s vision.”
While the Bill won favour from those natives who had merged their agendas with the eco-activists, other natives expressed misgivings. Grand Chief Beardy stated Nishnawbe Aski Nation’s position on the Far North bill:
“I want to make it very clear that at no point have I said that NAN has endorsed, has supported or has been behind this legislation… (The bill) has the potential to block us from developing our communities …
In August 2009 Nishnawbe Aski Chiefs-in-Assembly condemned the Bill. This did not prevent its passage into law.
Another enviro versus native conflict erupted in 2008 after Ottawa announced an oil lease auction for the Beaufort Sea. This was welcome news for many northern natives but the WWF lobbied to block the auction contending that oil development threatened the habitat of ice dependent species. Nellie Cournoyea, CEO of Inuvialuit Regional Corporation, responded:
“The Inuvialuit are sick and tired of having their future economic well-being blindsided by southern-based environmental organizations that poke their self-righteous noses into someone else’s backyard without either having the decency to consult with the people that live there or offer any realistic alternatives to their economic challenges.”
As well, many disputes Gallagher chronicles arise from conservation authorities clashing with natives over alleged illegal fishing and hunting etc. However, Gallagher does not to frame these conflicts as disputes between environmentalism and natives.
The foregoing does not describe a native versus non-native conflict as much as an environmentalist versus developer conflict cutting across Canadian society wherein the rival high commands have each recruited native auxiliaries. Environmentalists seek to block resource extraction and to contain settlement expansion by transferring a measured amount control of certain lands to native compradors predisposed against development. The lands in dispute include vast areas populated by non-natives where natives are a minority. This is the Aboriginal supremacist agenda. Not all natives support it. Only a tiny fraction of natives actively participate in advancing this project.
Gallagher is positioning himself as the go-to guy for resource companies seeking Impact Benefit Agreements with native bands residing near proposed projects. Throughout much of Canada there is no legal reason for these companies to offer the natives a dime. But Gallagher does not want the companies playing hardball. He’s a facilitator not a litigator. He must convince the companies that the natives will win in court so it is better to buy them off.
Gallagher postures as a hired gun willing to work for either side, however his writings betray a strong affinity with eco-Aboriginalism. His mantra about natives possessing a veto power over resource development is the same wishful thinking trumpeted by the AFN. He describes the intrusion of native issues into environmental review processes as “progress.” He praises environmentalist tactics and he has a curiously ambivalent take on eco-terrorism. As well, he never mentions the miniscule population sizes of the native “nations” tying up billion dollar projects. He never mentions the lack of democracy within native communities. Nor does he mention the paltry turnouts at eco-native demos which expose how thin on the ground this movement really is. He never questions the veracity of the environmental dangers being alleged by the eco-natives.
Gallagher traffics in movement folklore. In this parallel universe a clique of cunning “native strategists” lead the environmental movement and mass media around by their noses. This cabal of native strategists (whom he refers to ubiquitously without naming) are allegedly responsible for his much exaggerated native legal winning streak. Never mind that the lawyers who argue such cases and the judges who hear them, and the journalists and Profs who spin them, are 98% non-natives. (He spares but a few isolated lines on Aboriginal law’s enduring mystery – who pays for all this litigation?) Gallagher’s analysis suffers from what sociologists call “misplaced agency.” In reality, the eco-aboriginals are a puppet sub-movement of Big Green.
Of course Gallagher brays out the noble lie that hunting, fishing and trapping are still of vital economic significance to Canadian natives. (Remember, the main argument eco-Aboriginal lawyers deploy is that the impugned mine or pipeline will diminish constitutionally protected native hunting rights.) Hunting, fishing and trapping probably account for less than 5% of the food eaten by, and 1% of the clothing worn by, Canada’s aboriginals. Such activities are economic relics of negligible financial importance.
Gallagher’s website and blog (see bibliography) add little to his book. He now places the “native legal winning streak” at 191 cases but his list includes (see above) many cases which cannot be fairly described as native legal wins. His list also includes a lot of mere reaffirmations of aboriginal hunting rights. He has not digested how recent changes to federal environmental review polices might impact the eco-aboriginal campaign. He is thunderously silent on the Supreme Court’s recent Grassy Narrows decision – another native loss.
The numerous CBC radio interviews of Gallagher posted on his blog contain a few gems. For instance, did you know that most Canadians have not heard about the native legal winning streak because Aboriginals are inherently inclined not to boast? More importantly, Gallagher admitted in one interview that a native legal “win” usually results in the thwarting of what would have been a lucrative resource project in the vicinity of the victorious band. The “wins” are in fact economic defeats for the natives in question.
Gallagher’s touted solutions:
“…the traditional food chain has to be protected in a holistic manner and native rights and entitlements have to be accorded full partnership status.”
The former proposal would require protecting not just the traditional food species but their habitats as well, and the habitats of all the species upon which these favoured species rely. This would turn most of Canada into no-go biodiversity parks. The latter proposal would make native bands 50/50 owners of all resource projects. This would severely cut investor profits and complicate the management of the project. Together these proposals would kill Canada’s resource sector which, not coincidently, is what the environmentalists are striving to do.
The “Indian park” has been a conservationist goal for over a century and a half. Such Edens are off limits for development so the natives can subsist in faux traditional life-styles akin to zoo exhibits. Modern variations do not deny the natives the rudiments of modernity but the basic concept of a xenophobic tribe lording over valuable terrain remains. This is what Chief Justice Mclachlin has in mind for much of Canada. Her jurisprudential challenge is to grant natives “title” while preventing them from developing “their” land; or to grant aboriginal sovereignty while keeping aboriginals subordinate to environmental ministers.
With their other faces Mclachlin and her fellow judicial eco-activists must convince Canadians that elaborate regimes of native consultation and accommodation are part of Canada’s constitution. None of the twenty British North America Acts forming the basic constitutional of Canada were drafted with native consultation. The transcontinental railways, the national highways, and all the cities, towns and farms attendant thereto were built without consulting natives. The same can be said for innumerable mines, pipelines and dams. Socially, Canada was predicated on an assimilationist agenda with a goal of having natives become full and equal participants in the country’s economic and political life.
Judicial eco-activists began aggressively playing the native card after the 1982 passage of Charter of Rights. Ironically, their aboriginal supremacist line conflicts with the Charter’s primary provisions guaranteeing equality before the law. Furthermore, the Charter sections dealing exclusively with native rights basically promise not to subtract from existing (pre-1982) rights. The Court has ample latitude with which to adopt much narrower positions regarding aboriginal privileges while remaining within the letter of the Charter.
The ultimate political arena is the Supreme Court appointment process. The Court should be populated with judges favouring the pro-development, anti-racist positions held by the vast majority of Canadians. Unfortunately we are burdened with a legacy of Liberal Party appointees who do not share such views.
Woe betide western Canada should the Harper Tories lose in 2015.
1. Relevant sections of the Constitution Act 1982:
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights and freedoms that pertain to the aboriginal peoples of Canada including: …Royal Proclamation of October 7, 1763 …or any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.
35. Existing aboriginal and treaty rights affirmed – “treaty rights” may include new rights acquired through land claims settlements
2. Francois Paulette, the man at the centre of the case, became something of a celebrity. David Suzuki profiled Paulette in his anti-oilsands documentary Tipping Point. In the same year, 2011, when the Duke and Duchess of Cambridge’s visited the North they made a point of spending an afternoon canoeing with Paulette. He was also flown to Norway to denounce the oilsands at a Statoil AGM.
The above posting is not a work of original research but a critical condensation of the following two information sources:
Gallagher, Bill. Resource Rulers, Fortune and Folly on Canada’s Road to Resources, 2012, published by Bill Gallagher, Waterloo, Ontario, Canada.