A prominent former minister in Stephen Harper's cabinet has slammed Ottawa for failing to meet its constitutional obligations to consult first nations on West Coast pipelines, saying the government needs to move quickly to rescue projects that are essential to the country's future prosperity.
In a speech delivered Thursday at the University of Calgary, CIBC vice-chairman Jim Prentice – who held several senior posts in the Conservative government, and is an expert on aboriginal law – delivered a scathing critique of complacency and short-sightedness in both the government and oil industry for failing to prepare more aggressively for the "seismic shift" under way in the global energy sector.
"The Crown obligation to engage first nations in a meaningful way has yet to be taken up," he said in that speech.
A failure to consult with aboriginal bands is not merely a political misstep: It could have dire legal repercussions for the proponents of pipelines through British Columbia. The Supreme Court has ruled that the federal government has a duty to consult with aboriginal communities over developments that would impact their traditional land, and to accommodate their concerns. Failure to do so has triggered successful legal actions by aboriginal bands.
In an interview, Mr. Prentice said the country must expand its capacity to export oil and natural gas from the West Coast to take advantage of growing Asian markets. Building that access is "one of the most important – and certainly one of the most challenging – initiatives our country has encountered in decades," he said.
The Calgary native told his hometown audience that Ottawa's neglect of the aboriginal relations could doom proposed oil pipelines, including Enbridge Inc.'s Northern Gateway project and Kinder Morgan Inc.'s TransMountain pipeline expansion.
"The obligation to consult with and accommodate first nations ... these are responsibilities of the federal government," said Mr. Prentice, who held posts as minister of Indian affairs, industry, and environment before leaving government in 2010. "And take it from me as a former minister and former co-chair of the Indian Claims Commission of Canada, there will be no way forward on West Coast access without the central participation of the first nations of British Columbia."
He argued that Ottawa should negotiate an agreement that ensures native communities can support pipeline projects without affecting their unsettled land claims and launch a co-management regime with those aboriginal communities for port terminals and shipping.
But first-nations leaders want more: They want revenue-sharing and a share of the profits.
"The word here is potential – we've got all of these proposals and they represent massive potential investment," said David Porter, chief executive of the First Nations Energy and Mining Council, which represents B.C. chiefs.
"But for that to happen there has to be a serious discussion with the aboriginal representatives in British Columbia and particularly on the West Coast."
Federal ministers have argued the native communities are being consulted through the environmental assessment process that is now being conducted by a federal review panel.
But Mr. Porter said the scope of that review is far too limited to be considered adequate consultation, and there has been no evidence of accommodation, though Enbridge and TransMountain have both offered ownership stakes to aboriginal communities along the pipeline routes. And he said if the federal government proceeds as it has, the pipeline proposals will be held up in court battles for years.
Lawyers working for first nations have said federal consultation has, to this point, been minimal. Instead, Ottawa has set a 90-day consultation window that would begin after the joint review panel examining the project does its work.
That is "completely inadequate," said Allan Donovan, a Vancouver lawyer who has argued consultation matters before the Supreme Court, and is representing the Haisla Nation, which asserts rights to land where Gateway would terminate.
"We really don't want to be talking at a time when the only issue left open is what colour of paint you use on the bottom of the hulls of tankers," he said.
That stands in contrast to the B.C. government, which has worked in recent years to begin consultation work at a much earlier date, Mr. Donovan said. He also noted that attempts by Enbridge – a corporation – to communicate with first nations would not be considered Crown consultation, nor would the hearings held by the joint review panel.
It is clear, he said that Ottawa "dropped the ball. They never even had a hold of the ball as far as I can see." That has provided an opening for first-nations opponents, for whom a constitutional challenge is a clear option.
"It's very likely that that's exactly what would occur if, despite everything, the government approved the project," Mr. Donovan said.
A spokesman for Aboriginal Affairs Minister John Duncan could not provide a response to Mr. Prentice's charges before deadline last night.
Canadian opposition to the Northern Gateway project is on the rise, according to a poll conducted by Forum Research Inc.
Of those surveyed across Canada on Sept. 26, 48 per cent opposed the project, 34 per cent were in favour and 18 per cent said they didn't know. In British Columbia, 55 per cent of those polled said they were opposed, 37 per cent were in favour and the rest didn't know.
B.C. opposition to the Northern Gateway proposal was at 46 per cent in mid-December last year, but rose to 65 per cent in a sampling Aug. 1 by Forum Research.
"It appears the more British Columbians learn about Northern Gateway, the less likely they are to dismiss it out of hand," Forum Research president Lorne Bozinoff said in a statement Thursday.
The latest telephone poll of 1,758 Canadians is considered accurate within 2 percentage points, 19 times out of 20.
The Conservative government has loudly trumpeted its desire to expand commercial relations with Asia for the past two years, and has won kudos from business groups for its heightened focus on the issue. But critics say the country remains ill-prepared for the dramatic shift in economic power that is now occurring.
"We need a national debate on this, and it is only just beginning," said Wendy Dobson, an economist and China-expert at the University of Toronto.
Mr. Prentice said Canada's access to the rich U.S. market has left industry and government complacent for too long.
"We are new to the global energy game and, frankly, we aren't yet playing that game with much skill, foresight or cohesiveness," he said. "Despite our natural advantages, we have failed to occupy the strategic high ground."
Editor's Note: David Porter's name and title have been corrected in the online edition of this story.