The Squamish Nation has kept the same law firm on retainer for more than 50 years, helping assert its rights and title in its traditional territories, which span from parts of Vancouver to north of Howe Sound.
When a proposal for a liquefied natural gas plant and shipping terminal landed on Chief Ian Campbell’s desk in May, 2013, the option to fight the development in court could have been an easy choice.
The First Nations community had significant concerns about the potential impact on marine life in a region that is just starting to recover from a century of industrial development.
The project could have faced legal roadblocks, but the Squamish Nation chose a different path.
In a province divided between those who say “yes” to resource development and those who say “no,” the Squamish said “maybe.” They created their own environmental assessment process to decide for themselves if this project should earn their consent.
B.C. Premier Christy Clark touched down in a helicopter at a long-abandoned industrial site near the community of Squamish on a crisp November morning in 2016 to announce a milestone in her liquefied natural gas strategy. Standing next to overgrown railway tracks, the Premier wore a broad smile below her signature hardhat as officials from Woodfibre LNG declared their intent to invest.
“We are just delighted today to be able to say that LNG in British Columbia is finally becoming a reality,” she said.
Chief Campbell was absent from the podium that day. He resisted the Clark government’s appeals to attend – not because he is opposed, but because his council is not ready to endorse the $1.6-billion proposal.
The Squamish Nation is close to giving consent to the project, which is to be built on its traditional lands. Residents of Squamish – indigenous and non-indigenous alike – are deeply divided over the plan, and Woodfibre LNG and its partners are working hard to win an agreement with the First Nation that will deliver both economic certainty and an unwritten but important social license.
Notwithstanding the Premier’s remarks, the project is not a reality yet. If Woodfibre LNG is built, it will be because the Squamish Nation decided to seek a path to “yes” that satisfied its concerns. The model that has emerged – the Squamish Nation Assessment Process – is helping shape a new approach to environmental assessments in British Columbia.
Woodfibre LNG proposes an LNG production, storage and marine transfer facility at the mouth of the Squamish River on a former village site called Swiyat. It is in the heart of Squamish Nation territory.
The facility would produce 2.1 million tonnes of LNG a year. Because it will run on electricity, its carbon footprint would be relatively modest compared with other proposed LNG projects. Clean Energy Canada, a climate and clean-energy think tank, estimates the 142,000 tonnes of carbon pollution annually would be equivalent to adding 36,000 cars to B.C. roads each year.
The site was once home to the Woodfibre pulp mill, which shut down in 2006. The closing eliminated 300 jobs, evaporated about one tenth of the district’s tax base, and ended Squamish’s status as a forestry resource town while propelling the area to a more diversified and less industrial economy.
“It changed the dynamic in the community in a profound way,” Squamish Mayor Patricia Heintzman said. “We’re not the company town any more, we are getting to be a very diverse, stable economy.”
Ms. Heintzman opposes the LNG project, and Squamish council voted against it by a narrow margin. “There are other places in the province that are struggling and we are bursting at the seams,” the mayor said. “We seem to have opportunity abounding right now. We’re a small city of 20,000 people, it’s a lot for one small town to adjust to.”
The district has no authority to stop the project, which already has federal and provincial environmental certificates. “We have all the impact, but none of the decision-making power,” she said.
The Squamish Nation does have clout. The community was inclined to fight the project, based on a long struggle to assert its rights and title in the face of a century of industrial development in its traditional territories.
Chief Campbell, who is the political spokesman for the Squamish Nation, said his community was especially frustrated by the Kinder Morgan oil pipeline project, which the federal and B.C. governments approved despite strong opposition from coastal First Nations.
The Squamish Nation vowed the Woodfibre LNG project would not be built without its consent. As with many residents of the region, members of the Squamish Nation were troubled by the potential environment impact. They also had concerns about the project’s cumulative effects on their culture and their aboriginal rights and title.
The concept of indigenous consent is not clearly defined in Canadian law, although the federal government has pledged to meet an international standard that requires “free, prior and informed consent” from indigenous communities on major projects in their territories.
“First Nations wield significant leverage in these projects. We have options, whether it is through treaty, negotiations, litigation or civil disobedience – or we could do nothing,” Chief Campbell said in an interview. “We chose negotiation as a preferred path to try to reconcile the province’s desire to issue rights to third-party interests on top of our rights and title.”
The Squamish solution
Aaron Bruce is the author of the Squamish Nation’s environmental assessment process.
A partner in the law firm Ratcliff & Co., which has represented the Squamish Nation since 1965, Mr. Bruce is the firm’s first lawyer who is a member of the Squamish Nation.
In his years of practice, he concluded that the Crown’s environmental assessment process worked against First Nations. The LNG proposal prompted him to act on that conclusion. “I thought, we can develop our own.”
But he had to persuade his community it could be done – and would be more productive than simply fighting the project.
The next step was to ask the proponents to be part of a legally binding agreement. “We said: ‘You can participate in it or we are going to fight you.’”
The Squamish Nation and Woodfibre signed an agreement in 2014 that allowed the indigenous community to conduct its own review. It is a confidential process that uses material from the Crown reviews to avoid duplication, but adds considerations such as traditional uses of the land.
A year later, the review was complete and the company was presented with 25 conditions. Two days later, it agreed to be legally bound by the conditions and is working on design changes to satisfy them.
In one instance, the Squamish questioned the plan to use seawater for cooling in the facility. Woodfibre conducted additional studies about the potential impact on marine life agreed to switch to air-cooling technology.
Mr. Bruce has been inundated with requests to explain the process to industry, government and other First Nations. “For me, this is about First Nations consent, and that it is not a scary thing.”
Byng Giraud, head of corporate affairs for Woodfibre LNG, said his company took a leap of faith to enter into the environmental assessment with the Squamish Nation – and he has no regrets. “It was new, it was a risk for both of us,” he said. “Other businesses are scared of this. But this is the way things are going – you have to be more progressive.”
B.C. Environment Minister Mary Polak said the Squamish experience is helping bring reform to her government’s environmental assessment process.
Her goal is not to have a separate process, as the Squamish have established, but one that brings First Nations into the Crown’s process in a way that satisfies indigenous communities. The government was not ready to embrace the concept until it saw how it could work.
“For industry and even agencies of government, there is nervousness about bringing First Nations into the process. But our experience proves it is a huge positive,” Ms. Polak said.
“I do think the key is to stop treating First Nations as stakeholders, and bring them into that process of decision-making,” she said. Industry gains certainty because Crown and First Nations would be involved, while the indigenous communities gain confidence in the system because they would be a part of it. “You end up with a better project.”
Unless the Squamish Nation issues its own environmental certificate – and finalizes an impact-benefits agreement that could exceed more than $100-million worth of jobs, land and cash – the project is not a done deal.
In a province where First Nations have used their clout to delay projects – sometimes past the point of economic viability – the Squamish have forged a path forward. “It is a new and innovative way of thinking,” Chief Campbell said, “and an approach to getting to ‘yes.’”
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