Indigenous peoples in Canada have in the last few years acquired or negotiated options for well over $10 billion in equity in energy, renewable energy, and resource projects. And we expect the trend to grow and the billions to expand.<\/p>\n\n\n\n
The latest example is that of pipeline giant Enbridge Inc., which is about to give 36 First Nations in B.C. a 12.5% share in Enbridge’s Westcoast natural-gas pipeline system. The nations will invest some $715 million, with help from the federal Canada Indigenous Loan Guarantee Corporation. David Jimmie, president and chair of the 36 nations, and chief of the Squiala Nation, says: “Enbridge’s Westcoast pipeline system is a legacy asset that has operated within our traditional territories for over 65 years. Now, our nations will receive sustained economic benefits from this asset, funding critical investments in housing, infrastructure, environmental stewardship, and cultural preservation. \u201cPeople often ask what economic reconciliation for Indigenous Peoples looks like. This is it.”<\/p>\n\n\n\n
This equity agreement follows Enbridge\u2019s pioneer 2022 partnership with23 First Nation and M\u00e9tis communities, giving them an 11.57% interest in seven Enbridge-operated pipelines northern Alberta for $1.12 billion. That was with the assistance of the Alberta Indigenous Opportunities Corporation. As Heather Exner-Pirot of the Macdonald-Laurer Institute says: \u201cWhen an Indigenous community has equity in a project, they have \u2018skin in the game\u2019; the project\u2019s success is their success. \u201cThis is what makes equity such a powerful tool from a proponent perspective: it helps align interests and incentives. Share-holding Indigenous communities become real partners in the project and will want to see timelines and costs managed efficiently, so as to maximize returns on their investment.\u201d How does an Indigenous people get to acquire a share in a project, and perhaps a seat in the boardroom? It begins with building relationships and two-way trust. It begins with the company listening and learning, not barging in with a PowerPoint show and announcing that \u201cHere is our plan.\u201d<\/p>\n\n\n\n
One true example of how\u00a0not<\/em>\u00a0to do it: An oil pipeline company set up a first visit to an affected First Nation. The CEO brought PowerPoint slides, boxes of documents and copies of engineering studies, and announced: \u201cI\u2019d like to show you our plan.\u201d The First Nations councillors in the room remained dead silent. After what seemed like an endless pause, the elected chief of the nation said simply: \u201cYou have no plan.\u201d \u201cOh, yes,\u201d the CEO replied. \u201cWe have had the best engineers working on the plan for almost two years. I have brought copies of it for you.\u201d Another silence. And eventually the chief said: \u201cYou don\u2019t understand.\u00a0You<\/em>\u00a0have no plan until\u00a0we<\/em>\u00a0have a plan.\u201d\u00a0 (The parties did eventually agree on one.)<\/p>\n\n\n\n Karen Ogen, CEO of the First Nations Natural Gas Alliance, says: \u201cIt used to be that a company . . . oil, gas, pipeline, mining, forestry . . . could walk onto unceded Indigenous territory and build what they wanted, how they wanted, and then make changes in it, all with no involvement of the affected Nation or Nations. \u201cNo longer. Now you consult. You listen. You learn. You build trust. You respect the environment. This last point is essential. We First Nations people have been stewards of the environment for ten thousand years and more. It is part of our DNA.\u201d<\/p>\n\n\n\n All of which leads to the question of Indigenous rights, constitutional rights, and treaty rights. The Supreme Court of Canada has ruled that Indigenous groups do not<\/em> have a veto right in respect of asserted rights and title. But the court does say that the Crown must consult and, where appropriate, accommodate Indigenous groups in decisions that may affect their interests. What about Ottawa\u2019s adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and its principle of \u201cfree, prior and informed consent\u201d for projects on Indigenous territory? Does this mean that an Indigenous People will have veto power over a resource project in Canada?<\/p>\n\n\n\n The United Nations\u2019 own definition of free, prior and informed consent does not see that, or go that far. That definition sees consent as not a black-or-white, Yes-or-No decision, but as a\u00a0process<\/em>\u00a0in which participation and consultation are the central pillars. Ottawa\u2019s new justice minister, Sean Fraser, sparked something of a row when he declared that the federal duty to consult and engage Indigenous peoples on major nation-building projects does not amount to those communities having a veto.\u00a0 After a call from National Chief Cindy Woodhouse Nepinak of the Assembly of First Nations (and perhaps from Prime Minister Mark Carney as well) Fraser apologized: “I\u2019ve come into a position that I think is essential in the process of respecting the rights of Indigenous Peoples and I wanted to make sure that just not Chief Woodhouse but Indigenous leaders, Indigenous Peoples, across this country know that my desire and the government of Canada\u2019s desire is to move forward on a relationship.”<\/p>\n\n\n\n Indigenous groups invariably need loans to make equity investments. The Indian Act bars Nations from using their land as collateral for loans. They can, instead, look to loan programs offered by the federal government, B.C., Alberta, Saskatchewan and Ontario. The federal program now has $10 billion available, and covers major projects across all sectors (with the exception of gaming). There may be no veto as such, but, as Karen Ogen says, if you\u2019re a developer, you need \u201cbuild the plan\u201d together with the First Nation. And, in the end, you need a green light from the Nation.<\/p>\n\n\n\n \u201cIndeed, these days, there is no way you are going to build a big resource project\u00a0without<\/em>\u00a0Indigenous consent. \u201cSure, you can always spend a year or two, or three or four, trying to get the courts to agree with you and to allow your project to go ahead. But by now, First Nations in Canada have won some 300 court cases on rights and title and consultation. \u201cIt\u2019s much better, then, to consult, accommodate, negotiate, and reach agreement.\u201d<\/p>\n\n\n\n In reaching such an agreement, the industry and the Indigenous group in question also need to consider the interests of other First Nations who may be affected by the project.\u00a0 The Nisga\u2019a Nation\u2019s Ksi Lisims LNG project in B.C. offers equity positions to nations along the project\u2019s pipeline route. And the Coastal GasLink pipeline that feeds LNG Canada and the coming Cedar LNG project of the Haisla Nation offers options to nations along the route for a 10% equity share.\u00a0 Right now, the B.C. Environmental Assessment is seeking resolution of issues and concerns about Ksi Lisims raised by the Lax Kw\u2019alaams and Metlakatla Nations. The Nisga\u2019a have a majority interest in the project (along with along Western LNG and Rockies LNG. Also in B.C., the Haisla Nation is a 50.1% stakeholder in the Cedar LNG project, along with Pembina Pipeline (49.9%). The project is under construction near Kitimat, and Cedar has long spoken of ensuring benefits go to neighbouring nations.<\/p>\n\n\n\n One more example: the Woodfibre LNG project, under construction 70 km north of Vancouver, has a partnership with the Squamish Nation that makes the nation a legal regulator of the project. That has influenced Woodfibre\u2019s plans to reduce emissions. (Woodfibre plans an all-electric liquefaction process, and says this means an emissions profile that is 14 times lower than conventional liquefaction processes.)<\/p>\n\n\n\n