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Jeffrey Simpson (Brigitte Bouvier For The Globe and Mail)

Jeffrey Simpson

(Brigitte Bouvier For The Globe and Mail)

JEFFREY SIMPSON

Watching B.C., business might decide to bide its time Add to ...

The search for votes sometimes makes politicians do funny things during election campaigns, as we are witnessing in British Columbia.

Before the campaign, with his party well ahead, NDP Leader Adrian Dix took no position on a new Kinder Morgan oil pipeline down the Fraser River to Vancouver. Since no application had been filed, and Kinder Morgan was doing a much better job of consulting local interests along the route than Enbridge in northern B.C., it seemed prudent for a would-be premier to wait on events. After all, Mr. Dix had proposed a “made in B.C.” environmental review of all major projects, so it made sense to defer a decision at least until then.

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But no. Presumably sensing unease and opposition in the Lower Mainland to more tanker traffic, and nervously watching the Green vote, Mr. Dix announced that he opposed any new pipeline that would increase tanker traffic – sight unseen.

That position could have wider ramifications if Mr. Dix’s party is elected, for what other major project might be stopped before it got off the drawing board, before any environmental review got under way, before citizens knew what was actually on offer?

Add this kind of precipitous reaction to an additional $600-million Mr. Dix proposes to levy on corporations and “high-income earners,” and it won’t be easy to attract, let alone sustain, investment in the province.

Quite apart from what Mr. Dix is saying and doing, and the promises of his opponent, Premier Christy Clark, British Columbia has another cloud over its economic future: the uncertain state of aboriginals’ capacity to block or delay for long periods any natural resource extraction project.

Courtesy of rulings from the Supreme Court of Canada and the B.C. Court of Appeal (which acts for Yukon), aboriginal groups believe they have blocking power up to a kind of veto over lands they claim to be their traditional territory. These rulings turned around the nature and timing of the Crown’s “obligation to consult” aboriginal groups, and what legal power, therefore, both sides would have in developing land for, say, natural resource development projects.

Defining what that territory might be is, of course, exceptionally difficult. Just because a claim is made doesn’t make all or any of the claim valid, especially when claims by different groups overlap.

The Supreme Court’s 1997 Delgamuukw decision seemed (the ruling was quite vague) to say that land occupied for a long period – as in, a village and surrounding areas – would qualify as granting occupants something approximating a veto. Lands further afield over which aboriginals might have moved in search of game or seasonal settlements would give them the right to be consulted, but nothing like a veto.

The generalized vagueness of these consultation requirements, and the difference between what aboriginal groups believe they have secured and what other parties might think, affects the province’s business climate. The combination of legitimate uncertainty, the likelihood of prolonged legal battles, the overlapping roles of two levels of government and, critically, the hugely varied attitudes toward economic development among aboriginals makes for a very muddy picture.

Even along proposed pipeline routes, or near mining or forestry projects, there are aboriginal groups eager to negotiate for jobs, royalties, training and other benefits. Other groups do not favour development, preferring traditional ways of life.

Along the Enbridge pipeline route, you could see both attitudes on display. Perhaps the same differences in perspective would have been uncovered along the Kinder Morgan route, although it should be said that this company had been undertaking a much more systematic consultation with aboriginal groups, municipal officials, business groups and others before making an application than Enbridge had done in the early stages.

But so what? If Mr. Dix wins, he has already said no to this project. Kinder Morgan says it will proceed with its consultation and eventually file an application to the National Energy Board. But Mr. Dix has promised a provincial environmental assessment, too, and has already prejudged the outcome of his own yet-to-be-born assessment.

Kinder Morgan might be better off biding its time, as will other companies when they survey the thickets of challenges confronting resource development, or business generally, in B.C.

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