NORTHEAST FIRST NATION PARTICIPATION IN THE BRITISH COLUMBIA OIL AND
GAS POUCY COMMUNITY

by
Tracey Wolsey
B.A., The University of Calgary, 1989

THESIS SUBMITTED IN PARTIAL FULFILMENT OF
THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF ARTS
m

POLITICAL SCIENCE

©Tracey Wolsey, 2001
THE UNNERSITY OF NORTHERN BRITISH COLUMBIA
August 2001
All rights reserved. This work may not be
reproduced in whole or in part, by photocopy or
other means, without the permission of the author.

UNIVE SITY OF NOR'niERN
BRITISH COLUMBIA
LIBRARY

Prince George, BC

Abstract
This thesis investigates the changing role of First Nations in the oil and gas policy community in
northeastern British Columbia. Prior to the NDP government coming to power in the early
1990s and prior to some important court cases, First Nation communities were not members of
the policy community. As a result of these two critical variables--important court cases and NDP
government policy--the thesis argues that the First Nation communities in northeast British
Columbia are now members of the oil and gas policy community. This critical power shift has
resulted in changes to policy, changes to oil and gas development, and changes to the way the
provincial government, oil and gas companies and the First Nation communities interact with
each other.

11

TABLE OF CONTENTS

Abstract

11

Table of Contents

111

List of Tables and Diagrams

IV

Acknowledgement

v

INTRODUCTION

1

Chapter One

Review of Theory and Literature
Policy Communities
Aboriginal Participation in Natural Resource Development
Building Theory-Examination of a New Case

5
7
14
22

Chapter Two

Policy Communities Before Aboriginals Were Involved
The Actors
Why Aboriginal Players Were Not Part of the Policy Community

27
28
35

Chapter Three

Variables of Change
Legal Cases
Sparrow
Delgamuukw
Halfway River First Nation v. British Columbia
Kelly Lake Cree v. British Columbia
NDP Government

44
44
46
50
53
57
61

Chapter Four

Actual Changes in Policy
Oil and Gas Handbook
The Oil and Gas Commission
How These Policies Changed the Policy Community

71
71
72
77

CONCLUSION

84

Bibliography

93

111

LIST OF TABLES AND DIAGRAMS

Diagram 1

The Policy Community Before Aboriginal Groups Were Involved

40

Table 1

Comparison of NDP and Socred Policies Relative to Important
Court Decisions

67

Diagram 2

The Policy Community After Aboriginal Groups Were Involved

76

IV

Acknowledgement

A master's thesis is a lengthy and difficult undertaking at best. There were many people pushing
and pulling along the way. The encouragement was vociferous and welcome. I would like to
thank the professors and staff of the Political Science Programme at the University of Northern
British Columbia. My studies were exciting and worthwhile thanks to your efforts. The
professors include Greg Poelzer, Ed Black, Alex Michalos, Mary Louise McAllister, Tracy
Summerville and John Young. Professors in other departments who also provided advice and
encouragement include Heather Myers and William Morrison.
My supervisor and committee deserve special thanks for their time, effort, and advice. They
include Greg Poelzer, Tracy Summerville, and Aileen Espiritu. I would also like to thank
Professor Antonia Mills for her advice and encouragement and Professor Tom Flanagan from the
University of Calgary for good advice.
I thank my peers, those fellow Political Science folks who made my studies so very entertaining.
Last, but most of all I would like to thank my husband Dave for his unfailing encouragement and
my family and friends for their support and acceptance of my efforts and dreams.
The idea for this study was based on my work with the Northeast Industry Group and the
Aboriginal people of Northeast British Columbia, especially the Prophet River First Nation.
Their hard work and dedication to reach their goals are evident in aspects of the policy changes.
To these people especially I owe my thanks. Your efforts have made a difference.
I also wish to recognize those dedicated individuals from the oil and gas industry and the
companies that supported them, who have worked to bring Aboriginal people into the oil and gas
development process. They have made a difference to the lives of people in the northeast.

v

Introduction

The past few decades have witnessed dramatic changes in the role of Aboriginal
people in policy development. In the past, governments and industry did not perceive a
need to include Aboriginal people in policy decisions even though these decisions had a
profound effect on First Nation's communities, lands and resources. Governments and
industry often developed oil and gas, minerals, and forest products, on lands used by
Aboriginal peoples, without any meaningful consultation. Events such as the Berger
Commission inquiry, the landmark Calder, Sparrow and Delgamuukw court cases, the
inclusion of Aboriginal rights into the 1982 Canadian Constitution Act, and changing
public opinion have altered governments' and industry's perceived need to consult
meaningfully with First Nation people and to include them in the development of public
policy that profoundly affects them.
One example of this change is the Memoranda of Understanding (MOUs) the
British Columbia Ministry of Energy and Mines signed with the northeast British
Columbia Treaty 8 First Nations in 1998 and 1999.

The MOUs accompanied the

emergence of the Oil and Gas Commission (the Commission) opened in 1998 as part of
the British Columbia government's drive to increase oil and gas activity in the province
under Premier Glen Clark. The MOUs and resultant Commission policy requires the
provincial government to consult with First Nations regarding potential effects on their
treaty and/or Aboriginal rights as a result of proposed oil and gas activity.
These MOUs and the resultant policy are noteworthy for several reasons. First,
because of the change that has resulted within the oil and gas regulatory regime. The oil
and gas industry in Canada has traditionally had a strong lobby and enjoyed a close

relationship with the provincial governments where resources

are developed.

Stakeholders, such as Aboriginals, have not been welcomed into the policy development
clique or the regulatory approval regime for fear they may weaken the industry's
influence within these arenas.
Second, the policy has given First Nation communities much greater influence
over oil and gas development and related policy development in the province. For the
first time they now have mechanisms to address issues at a policy level, through the
MODs, and at a regulatory level through the Commission policy.

The MODs and

Commission policy and their development may provide a useful model for other policy
sectors and other jurisdictions in Canada.
This is a radical change for the oil and gas industry which, prior to 1995, only had
to meet the legislated requirements set out by government and not try to address any
issues of a third party that uses the lands.

The result is that First Nations, for the first

time, are brought into the regulatory framework and industry now has to mitigate adverse
affects to Aboriginal and or treaty rights prior to development approval. The provincial
government also has a new role as they must determine how the proposed development
may effect Aboriginal and or treaty rights.
This thesis investigates the development of the British Columbia oil and gas
Aboriginal consultation policy and the resultant effect of that policy on industry, the First
Nation communities, and the provincial government. The thesis seeks to answer the
following questions: Why did this policy emerge, particularly in this sector? How does
policy making and regulatory approval work in practice since the introduction of the
changes? And what have been the consequences for First Nation communities, the oil

2

and gas industry and the provincial government? Using a policy community approach to
answer these questions, the thesis seeks to explain how First Nation people in northeast
British Columbia moved from outside the margins of the oil and gas consultation policy
process into the coveted inner core where policy is actually developed.
Within this framework, the study gives special attention to two variables. One
variable is the important legal decisions handed down by the Supreme Court of Canada
including the Sparrow decision and the Delgamuukw decision. The other variable is the
change in government in British Columbia when, in 1991, the NDP party was elected to
power and it subsequently enacted new policies regarding Aboriginal peoples and natural
resources. The thesis argues that both of these variables played important roles in
reshaping the oil and gas policy community in northeastern British Columbia.
Exploration of this subject is significant because of the importance of natural
resources to British Columbia's and Canada's economies and the ensuing effect this
policy change has on natural resource development and industry within Canada. To
fully understand this or any emerging policy we must first understand how and why
policy changes occur and the subsequent effect of those changes on the players involved
including governments, industry and stakeholders. The first chapter looks at policy
community theory and related literature. It will also discuss the literature on Aboriginal
issues and its significance within the province and within natural resource development.
Chapter Two looks at the policy community prior to the radical changes of the
1990s. It will discuss the players, their respective roles and why Aboriginals were not
included in the policy process. Chapter Three will look at four important legal cases that
have had a significant effect on Aboriginal issues, natural resource development, and the

3

oil and gas industry, especially in northeast British Columbia. The fourth chapter will
discuss the particular role of the NDP government in this process and how they were
instrumental in putting this policy into place. The final chapter examines the effects of
the changes for stakeholders in the policy community, especially for First Nation
communities.

4

Chapter 1

Review of Theory and Literature

This thesis argues that in the 1990s First Nation communities became an integral
part of the oil and gas policy community in northeast British Columbia. This change was
a result of two crucial factors: First, a number of important legal decisions gave First
Nation people additional legal leverage to become actively involved in natural resource
management and decision making. Second, the election of the new NDP government in
British Columbia ushered in a fundamentally different direction in Aboriginal policy.
Prior to the new government, policy did not include Aboriginals in resource management
or decision making in meaningful ways. With the election of the NDP government, new
policy now required both the provincial government and industry to consider Aboriginal
and treaty rights in natural resource decision making. These changes have resulted in
new roles for the Province of British Columbia, for the oil and gas industry players and
for the First Nation communities. Specifically, the Province is now taking an active role
in consulting with Aboriginals regarding possible infringements on treaty and or
Aboriginal rights and subsequent mitigation strategies. The oil and gas industry has
accepted the First Nation communities in the northeast into the policy and regulatory
domain and First Nations themselves enjoy a new level of influence and recognition
within the oil and gas policy and regulatory communities.
This thesis endeavours to explain these changes from a policy community
approach.

The study builds on existing research literature on resource policy

communities and on Aboriginal peoples and resource politics. In addition to the works of
Michael Howlett and Paul Pross, among others, the study draws special insights from the

5

study by George Hoberg and Edward Morawski on parallel policy changes in the forestry
sector in Clayoquot Sound, British Columbia. The chapter initially discusses and defines
key concepts: policy communities, actors, policy networks, the policy regimes and finally
the sources of policy change. The second part of the chapter focuses on current literature
on Aboriginal consultation and participation in natural resource policy and development
in Canada.

The final section of the chapter outlines the framework for analysis to

explain why First Nation people have become part of the oil and gas policy community in
northeastern British Columbia.

Key Concepts, Definitions, and Discussion
A common assumption is that only governments develop policy but in a
democratic polity, governments depend on a wide range of groups and individuals to
participate in the policy process. This can include participation from pressure groups,
industry representatives, academics, interested publics and even the media to bring
forth information used to develop and establish policy. Such a group is essentially a
policy community: a group of individuals representing industry, sectors, institutions,
and the government who together influence and form policy in a given area. In
natural resource sectors, industry is usually very heavily involved as it brings
knowledge and expertise to the table, whereas in social policy, organizations
representing various stakeholder 1 groups may be heavily involved. The following
section presents various definitions of policy communities and discusses related key
concepts of policy communities, including policy networks, actors, and explanations
of policy change.

6

Policy Communities

A policy community, as defined by William Coleman and Grace Skogstad, is
the part of a political system that has acquired a dominant voice in determining
government decisions in a field of public activity. This is as a result of its functional
responsibilities, vested interests and specialized knowledge. Actors within policy
communities include government agencies, pressure groups, media, and individuals
such as academics who have an interest in a particular field and attempt to influence
it. 2
A policy community can also be defined as a broad based association of actors
who exercise influence over policy over a long period of time. The actors are held
together by a specific focus or view in respect to the policy in question. Wilks and
Wright explain a policy community as including "... all actors or potential actors with a
direct or indirect interest in a policy area or function who share a common "policy focus,"
and who, with varying degrees of influence shape policy outcomes over the long run. "3
A third definition stresses the shared knowledge of the actors in a policy community.
Michael Howlett in his book, Studying Public Policy, draws heavily on Wilks and
Wright's definition for a policy community and argues that members of a policy
community are linked together by shared knowledge.

He discusses the relationship

between the state and policy communities based on whether the state and societal
members share ideas and the degree of consensus between the two. 4
Policy communities can also be described as actors and institutions that are
directly involved in the policymaking process in a specialized policy area and who follow
and attempt to influence public policy. Hank C. Jenkins-Smith et al. describe a policy

7

community as "Members of subsystems (that) include representatives of businesses,
interest groups, trade associations, executive agencies, and relevant legislative
committees, as well as the elected officials, scholars, and members of the press that
regularly track and seek to influence the course of public policy in the issue area. "5
Defining a policy community as that part of a political system that has acquired a
dominant voice in determining policy outcomes is logical considering why particular
actors try to influence policy. Generally those actors who have a vested interest and are
directly affected by the policy, want to track and influence policy so the outcomes are
more beneficial to them. This is certainly the case with business. It is directly affected
by natural resource policy and so it would want to have a dominant voice in policy
making. As Howlett notes, industry would have knowledge of a particular sector and that
knowledge would be beneficial to state decision-makers.

Theorists often argue that

business has an elevated position or relationship within the policy making process.
"... business interest associations possess 'privileged' position in the policy process ... Yet
business does not always win. From time to time, the state acts autonomously in favour
of other interests; interests opposed to business may develop organizational structures
that give them additional leverage in policy conflicts." 6 However, Coleman and Skogstad
go on to argue that
even when the state intervenes on behalf of non-business interests and financially
supports their organizations, ... such interests are vulnerable to challenge by other
state agencies or business interest groups. Thus, it is important to note that even
within pressure pluralist policy networks, all interests are not at the same level of
organizational development. Again, business interest associations appear more
likely to have reached a higher level of development than other societal groups.7

8

As has been noted, the actors that comprise policy communities have a strong
effect on that policy community.

Theorists have divided actors within policy

communities in a variety of ways: by policy networks which categorize actors within a
policy community; by the sub-government and the attentive public, those who actually
make policy and those who merely influence policy; and by purposive and nonpurposive, based on the type of interest actors have in a policy community.

Policy Networks
The concept of a policy network is prevalent within the literature and is described
as a smaller group of actors within the policy community, who work together, who
usually share a common goal, and who may have similar motivations. Howlett defines
policy networks again using Wilks and Wright's definition. He compares a policy
community to a policy network arguing that
... 'community' refer(s) to a more inclusive category of all those involved in
policy formulation, and ... restrict(s) 'network' to a subset of community
members who interacted with each other on a regular basis. In their view,
'Policy community identifies those actors and potential actors drawn from the
policy universe who share a common policy focus ... ' This approach integrates
2 different sets of motivations guiding the actions of those involved in policy
formulation: knowledge or expertise, and material interest. Thus a policy
community is based on specific knowledge base while a policy network is
based on pursuit of some material interest. 8
Actors within a policy network share more than the policy field, which is
shared by all the policy community participants. They have a unique relationship
with each other because they share a particular approach to the policy issues and thus
develop a relationship with the state, other actors, or policy communities. Coleman
and Skogstad define a policy network as "... the relationships among the particular set

of actors that forms around an issue of importance to the policy community."9 The
main difference between a network and a policy community is that the policy
community exists because a policy field exists, whereas a network exists because
those in it share an approach to policy. Policy communities divide or break down into

°

policy networks. 1 Coleman and Skogstad argue that within a policy community
different types of networks may exist as actors react to different issues. The networks
may interact differently with the state or with other policy communities to the extent
that the way policy is made or influenced is distinct. 11
A policy community develops a distinctive culture based on its networks,
particular actors, and policy outcomes .
... policy communities are institutions in themselves and become integrated to
greater or lesser degrees by developing a set of shared values, norms and
beliefs which shape the policy networks that emerge and, ultimately, the policy
outcomes in the given sector. Attention must be given to understanding the
rules of the game and the strength of the belief systems that predominate in a
policy community. 12
An example of a policy network would be a group of industry actors such as
companies in the oil and gas industry, that hold shared values and strive for similar
policy outcomes. Industry has a material interest in the policy outcomes and
according to Coleman and Skogstad the industry network itself would have its own
culture and belief systems.

Actors
Another way to distinguish actors within the policy community is based on
their level of influence on policy. That is, do they actually make policy or do they
simply influence policy? Pross is one of the few theorists who differentiates the

10

actors within a policy community based on their level of influence. He distinguishes
between the sub-government and the attentive public; the former are those that
actually make policy and the latter are those that only influence policy. The subgovernment is composed of government agencies, interest associations and societal
organizations such as business firms that actually make policy in a given sector. The
attentive public is more loosely knit and may contain experts, media and others who
are interested in the sector. The attentive public attempts to influence policy but does
not regularly participate in policy making as the sub-government does. 13
The difference between the sub-government and the attentive public gives
credence to Wilks and Wright's definition of a policy community containing actors
with varying degrees of influence. Those with the greatest influence are part of the
sub-government. This also ties in with the actors having varying degrees of
knowledge, a factor Howlett stresses. Logically, those with the greatest degree of
knowledge would likely be part of the sub-government.
A further way to group actors within a policy community is by looking at their
reason for being a member of the policy community. Does the actor receive some direct
benefit from the policy outcome or are they representing a broad-based group that does
not receive a direct benefit but is concerned about the greater good or an indirect interest?
Melody Hessing and Michael Howlett argue that actors within a policy community can
be divided into those that are productive and those that are non-productive. Productive
actors have a direct material interest in the policy process. Within a natural resource
sector they include the holders or capitalizers of the means of production, those who have
equipment and labour used in extracting the resource, as well as the landowner to whom

11

rents are paid for the resource. This landowner or resource owner in Canada and
certainly in British Columbia is the government and is a category that is not necessarily
common to non-resource sectors. The productive actors can be lumped together into a
policy network as they have a distinct material interest in the development of the natural
resource. 14
Non-productive interests include those that represent broad public interests. In
the resource domain Hessing and Howlett include "... health, recreational, community,
gender, First Nations, environmental, and educational concerns." as non-productive
interests. 15
Similar to the productive, non-productive dichotomy Howlett puts forth, JenkinsSmith divides the policy community into material and purposive actors where the former
pursue fairly narrow interests in whatever way is possible, typically profits, while the
latter pursue broader ideological based goals that are limiting in that ".. .to deviate is to
risk loss of membership." 16 The material actors closely resemble the productive actors
and the non-productive actors resemble the purposive actors.
In essence, purposive groups have ideological goals directed at a broad audience
with little latitude for deviation from the ideological goals, while material groups have
generally narrow goals directed at a small audience but have great latitude for deviation
to achieve those goals.
There are other actors or institutions that may have a significant effect on policy
but are not ongoing or direct participants within the policy community. The most critical
in this case is the judicial system. Hessing and Howlett include the judicial system within
the realm of the government or state actor. This realm comprises the elected government

12

party and its leaders, the bureaucracy including appointed officials, and the judicial
system. 17
The judicial system is designed to provide a reasonably impartial means of
adjudicating issues defined by statute or the common law.

It also provides for the

evaluation of policy through its decisions on matters brought before the courts .. .it
constructs a context in which ongoing policy efforts are directed and therefore can affect
which policy options are considered and which are not. 18
The judicial environment is important, as the thesis will argue that court decisions
were crucial in shaping consultation and regulatory policy through court cases and
judicial reviews where courts evaluate decisions made by the regulatory agencies. The
Aboriginal actors within the province and within this policy domain strategically used
litigation to influence public policy and legislation.
The influence actors or networks may have on the policy community and the
policy outcome is not static over time. Their level of influence may change because of
institutions such as the judicial system or because of the elected party, the bureaucrats or
external events. Toner and Doern present a case where actors tried to influence public
policy during a crisis situation. Their premise is that during the oil shocks of 1973 and
1979-1980 pressure groups such as the oil and gas industry groups in Canada had less
influence within the policy community because of an external event such as OPEC's
effect on prices, and because of intensive federal-provincial bargaining which left nongovernmental groups out of the decision making loop. 19 As a result, the industry
pressure group tried to exert their influence over as wide an audience as possible to
regain their influence within the policy community. 20

13

In a similar United States case, government bureaucrats reacting to external
events changed the balance of power within a policy community by drastically changing
their stance on a particular policy issue.

Jenkins-Smith et. al. argue that even in

relatively stable policy subsystems, government agencies or bureaucracies influence the
policy community as they move between polar opposites on a given policy issue, in this
case offshore leasing for energy exploration, when reacting to external events like price
shifts or crises. 21

Aboriginal Participation in Natural Resource Development

Within the literature concerning Aboriginals, there is little discussion about
changing models of Aboriginal participation in natural resource development with
Aboriginals as policy community members, or as participants that set or influence policy
outside of land claim models or self-government models. The treaty process within
British Columbia has afforded an opportunity for discussion regarding meaningful
Aboriginal participation in natural resource development as an interim measure while
treaty negotiations are underway.

Unfortunately, little has happened beyond the

discussion stage unless the Aboriginal groups have employed civil disobedience or
depended on the courts to force acceptance of their participation.

This section will

summarize the literature concerning Aboriginal participation in natural resource
development and in particular focus on an article by George Hoberg and Edward
Morawski and a specific situation in British Columbia where First Nations in the
Clayoquot Sound area became co-managers of the forest resource with the provincial
government.

The Hoberg article draws a close parallel to the case this thesis will

14

consider namely, Aboriginal participation in the oil and gas consultation and regulatory
policy community in northeast British Columbia. The literature starts with government
reports and evolves towards surveys of Aboriginal involvement in resource development.
Theoretical models based on specific case studies have added academic rigour to the
literature.

Finally, gaps in the literature will be discussed along with the unique

contribution to the literature that this thesis makes.

Literature Review

Government Reports
Anthropological literature on Aboriginal peoples clearly articulates the unique
and important relationship between the people and the land. Interestingly however, in the
modem context, this crucial relationship is largely ignored when development of natural
resources is discussed. Within the existing legislative umbrella, few models exist that
provide Aboriginal people a meaningful opportunity to participate in policy creation or
decision-making around natural resource development.
A work that has made a significant contribution to the literature and to the recent
history of Canada is Thomas Berger's report on the proposal to build the Mackenzie
Valley Pipeline. Berger actually took the inquiry to the Aboriginal people of the north
and in an
...unprecedented ...holistic approach to analyzing the impact of a project...(the)
inquiry did not treat the building of a pipeline as a mere technical or engineering
problem, nor did they restrict themselves to economic feasibility studies or
standard environmental impact assessments. They went further to study the
consequences of possible ecological changes for the people's land-based
economy... and examined the general social and economic impact of large-scale
development on northern people ... .the inquiries were a clear departure from the

15

blind reliance on "expert" opinion, as they offered a chance for local people to
share their experiences and to express their feelings and expectations. 22
Berger's report was also unique in that he recommended the pipeline not be built
for at least ten years so that land claims may be settled. He stressed the importance of the
traditional subsistence economy and the need for it to be strengthened instead of replaced
or weakened so that the northern people retain a sense of control over their lives and
culture and are not solely dependent on the industrial, wage economy. 23 Berger
understood that without settled land claims and without a strong subsistence economy,
there would be no co-development. Instead, development would be wholly southern
imposed and southern controlled.
Almost a decade later, the Bruntland Commission concurred with Berger's
assessment.
The starting point for a just and humane policy for such groups (indigenous and
tribal groups) is the recognition and protection of their traditional rights to land
and the other resources that sustain their way of life ... And this recognition must
also give local communities a decisive voice in the decisions about resource use
in their area. 24
Thomas Berger argued that this recognition could not happen because the dominant
society rejected most aspects of Aboriginal life. "Native religion had to be replaced;
native customs had to be rejected; native uses of the land could not, once the fur trade had
been superseded by the search for minerals, oil and gas, be regarded as socially important
or economically significant." 25 Other authors have discussed Aboriginal uses of the land
and the significance both economically and socially of that usage however there is still a
dearth of literature regarding models of how Aboriginals and non-Aboriginals can share
the resources and share the responsibility to manage the development of the resources
and uses of the land. 26

16

One of the most recent Canadian government reports should be mentioned largely
because of its encapsulation and dissemination of a cross-section of public opinion.
"Gathering Strength" is the output from the work of the Royal Commission on
Aboriginal Peoples. The Royal Commission asked the following question to people
across Canada. "What are foundations of a fair and honourable relationship between the
Aboriginal and non-Aboriginal people of Canada?"27 The answer the Royal Commission
received is that Aboriginals need control over their lives, over lands, resources and selfgovernment. They also need time, space and respect from Canada to heal and revitalize. 28
It is interesting to note that these three government reports were completed in consecutive
decades starting in the 1970s, one being international in scope, yet they give the same
message: that Aboriginal peoples need control over their lives.

This includes, in

particular, control over development of resources. The task within Canada then is to
identify models or processes to facilitate this sharing of control; within existing treaties,
within modem treaties, and in areas where no treaties exist.

The first and the last

circumstance pose the greatest challenge.

Survey Of Aboriginal Parlicipation in Natural Resource Development

A valuable source in the literature regarding Aboriginal participation in natural
resource development across Canada and across resource sectors is a book by Claudia
Notzke. This work covers all resource sectors and includes cases in all provinces and
territories. Notzke's book Aboriginal Peoples and Natural Resources in Canada looks at
models and situations across Canada where Aboriginal people have had some
participation in the development or management of natural resources and where their lack

17

of participation has had deleterious effects on the people and their environment.
Specific examples of lack of participation can be found in most natural resource sectors.
Of interest are those in the oil and gas industry where development occurred on Alberta
reserves and the resultant unexpected wealth wreaked havoc on the reserve population
resulting in suicides and social upheaval. 29 In British Columbia, Notzke argues that nonrenewable resource development on reserve is " ... characterized by an overall denial of
Indian interest and jurisdiction ... " 30 Examples of situations where Aboriginal people do
have some participation in natural resource development include the James Bay
Agreement and Northern Quebec Agreemene 1 and the Metis Settlement Land Act of
1988 in Alberta.32
Similar to Notzke's work but on a much smaller scale is an article by Jackie
Wolfe-Keddie in Resource and Environmental Management in Canada.

Wolfe-

Keddie's article covers two familiar variables in the discussion about Aboriginal peoples
and resource management: recent court cases and treaty rights. Wolfe-Keddie begins
with a discussion of recent court decisions and the effect those decisions have had on
natural resource development. This is a consistent theme throughout the literature since
recent important cases such as Sparrow and Delgamuukw have changed legal opinion
about Aboriginal people's rights. Wolfe-Keddie then proceeds into a discussion about
recent land claims and the land base and control modem Aboriginal treaty signators hold
over the various types of land. This subject has been widely discussed in the literature by
authors such as William Morrison, David Elliot, and James Frideres. These works focus
on modem land claims mostly in northern Canada where Aboriginal people now control
vast tracts of land. In some cases surrounding land is managed or co-managed by the

18

Aboriginal group and the federaUterritorial government.

Under these new regimes

Aboriginal peoples now have direct control over resource management or at least share
control with the regional governments.
Finally, Wolfe-Keddie ventures into territory seldom discussed in the literature,
the emerging models for Aboriginal participation outside modem comprehensive treaties,
namely co-management and factors critical to the success of such relationships including
recognition of traditional ecological knowledge.
Many co-governance models that exist in Canada today are not based on
partnerships with provincial or federal governments, but instead exist because industry
has chosen to bring Aboriginals into the decision making process, either as regulators, codevelopers, or as environmental remediators. A work that does an industry-based survey
is by Pamela Sloan and Roger Hill, Corporate Aboriginal Relations: Best Practice Case
Studies. It presents some of the existing models that have developed through cooperative

efforts between industry and Aboriginals. Unfortunately, without the state's involvement
it is difficult to sustain such cooperative efforts and to apply them in alternate sectors or
jurisdictions.
An example of one successful joint venture in the fishing industry is between the
Baffin Regional Inuit Association and Farocan, a private southern corporation. The
corporation supplies the management, technical expertise and capital equipment for a
shrimp fishing enterprise and the Inuit provide the fishing licenses and labour to do the
fishing. The initiative has provided employment for the Inuit and an opportunity to
purchase an interest in the capital equipment. 33 This venture was established to boost

19

Inuit employment as well as the commercial fishery. If it can also assist to manage the
resource it will truly be a co-management venture.

Theoretical Models
The government reports provide the context, the background, and even the
solutions broadly stated. The surveys provide the information about what is happening in
industry, in communities, and in resource sectors. Without theoretical concepts or
models the reports and surveys remain simply information or specific case studies. The
following works will present theoretical models that can be used to do rigorous
comparisons and a.11alysis and perhaps eventually lead policy community actors to cases
that can be successfully replicated across sectors and jurisdictions.
A 1997 work by Melody Hessing and Michael Howlett though not Aboriginal in
focus includes Aboriginals as a variable while analyzing the resource and environmental
policy process in Canada. They conclude that Aboriginals are not an integral part of the
policy community and generally are not part of the policy network where the state and
industry actors make most decisions. "First Nations participation in the resource policy
subsystem is sporadic and sector specific." 34 In some sectors such as fisheries and parks
management they play a primary role including a co-management role but the authors do
not expound on what type of models the co-management assumes and whether the state
entered into these models by choice or was forced to act because of litigation. Within
other sectors they argue that the Aboriginal people's participation is discretionary and
largely restricted to policy formation rather than implementation. They predict
participation by Aboriginals will increase and the existing resource and environmental

20

policy paradigm will change as a result of the land claims issue, the increasing profile of
First Nations, and the trend toward self-govemment. 35
George Hoberg and Edward Morawski examine a situation m the Clayoquot
Sound area of British Columbia where a local First Nation actually achieved comanagement status in forestry development through civil disobedience. They examine
the events that led up to this historic partnership and the factors that led to policy change.
Hoberg and Morawski frame the policy change within a policy community
context and they also introduce the idea of two policy communities in two separate
sectors coming together or intersecting and resulting in policy change. The sectors are the
forestry sector and the Aboriginal policy sector. The intersection occurs in the Clayoquot
Sound area and results from the strategic actions of the Nuu-chah-nulth First Nations and
environmentalists to bring about change. They argue the intersection does not encompass
all aspects of the Aboriginal policy community such as fisheries, tourism and mining but
it does encompass the entire forestry policy community in the Clayoquot area.
The co-management model discussed here is significant and came about because
of several occurrences. The courts played a role by granting Nuu-chah-nulth First Nations
an injunction to stop logging on Meares Island, an area within the Sound and within the
First Nation's traditional territory, claimed under the treaty process. Civil disobedience
throughout the Sound by both environmentalists and Nuu-chah-nulth First Nations in the
form of roadblocks made logging difficult for the companies and both occurrences forced
government to become actively involved in the situation.
The authors discuss some of the important legal decisions that resulted in the
injunction being granted and the critical role the courts played in bringing about a change

21

in policy. The authors note that although a co-management model has been established
the provincial government has worked hard to contain this model to this area. They do
not want this to spread to other geographic areas or policy sectors either as interim
measures or within treaties. 36

This is consistent within the literature arguing that

governments are loath to enter into such co-management arrangements unless they are
forced to, usually as a result of court decisions. 37
The discussion of the policy communities prior to the First Nation group
achieving co-management illustrates the control formerly held by the state and industry.
Environmental groups had been successful at making some inroads in the late 1980s and
early 1990s but the First Nation group had not. The former utilized public opinion
successfully while the latter depended almost entirely on the courts.

These causal

variables are different and result in divergent outcomes. The First Nation group achieves
co-management using the courts but the environmentalists, using changing public
opinion, achieve some influence in the process but do not achieve co-management and do
not achieve a place within the sub-government sphere of the policy community.

Building Theory - Examination of a New Case
The existing literature has provided useful information, insights, and examples for
study. However, more cases and examples are needed to successfully build theory. It
would be useful if there were cases that look at diverse economic sectors and cases that
highlight alternate cooperative models. The Clayoquot Sound situation provides an
important look at a forestry sector case where a form of co-management has been
established between the state and a First Nation group outside of a modern treaty

22

arrangement. Hoberg and Morawski's theoretical construct involving policy communities
and introducing policy intersection is a valuable addition to the literature. It provides a
close example to the case that this thesis will discuss, that of Treaty 8 First Nation
participation within the oil and gas consultation and regulatory policy communities in the
northeast area of British Columbia. The oil and gas case will illustrate an alternative
cooperative arrangement where the First Nation communities have joined the state and
industry as powerful aCtors within the policy community. This discussion will add an
additional case to the literature on policy communities and on cooperative models.
There are some similarities and some differences between the Clayoquot case and
the oil and gas case. The economic sectors are different, forestry in the Clayoquot case
and oil and gas in the Treaty 8 case. The outcomes are also different in that the
Clayoquot case resulted in a co-management agreement, while the oil and gas case
resulted in the First Nation's inclusion in the policy community but did not result in comanagement.

Similarities involve the importance of court decisions as an agent of

change and the philosophy of the NDP government in terms of including First Nations in
resource development decision-making. This thesis argues that because of First Nation
people's use of the court system and the resulting decisions, the provincial government
chose to respond with particular policy outputs. These policy outcomes resulted not in
co-management as in the Clayoquot case but in the First Nation group's entrance into the
oil and gas policy community and of their influence on regulatory decision-making and
policy development. This is vastly different from the place Treaty 8 First Nation people
held within the oil and gas policy community before the NDP came to power.

23

Of particular interest in this case is the fact that in the northeast area of British
Columbia the First Nation groups are covered by Treaty 8. This is an important factor
and provides an important case to the literature. Unrest in historic treaty areas is already
festering and will continue until the various provincial governments begin to include First
Nation groups into land and resource management decisions and regimes. The outcomes
in this case developed as a result of joint efforts by the provincial government, industry
and First Nations. It may prove to be a model that is applicable in other jurisdictions and
in other economic sectors.

24

Endnotes

1. A stakeholder can be defined as any individual or group who is affected or can affect
an organization's objectives. Practitioners use the following 3 measures to determine
the importance of a stakeholder, power, legitimacy, and urgency. A stakeholder
possessing all three attributes should be given more credence by the organization than
a stakeholder possessing only one or two attributes. For a discussion See R. E.
Freeman Strategic Management: A stakeholder approach. Boston: Pitman 1984 and
Thomas Donaldson and Lee E. Preston, ''The stakeholder theory of the corporation:
concepts, evidence, implications". Academy of Management Review 20: 65-91. 1995
2. William Coleman and Grace Skogstad, 'Policy Communities And Policy Networks; a
Structural Approach in Policy Communities And Public Policy In Canada, eds.,
Coleman and Skogstad (Mississauga, Ontario: Copp Clark Pitman Ltd, 1990}, 14-33.
3. Ibid., 25.
4. Michael Howlett and M. Ramesh, Studying Public Policy: Policy Cycles and
Policy Subsystems (Toronto: Oxford University Press 1995), 129.
5. Hank Jenkins-Smith, Gilbert K. St. Clair, Brian Woods. 'Explaining Change in
Policy Subsystems: Analysis of Coalition Stability and Defection over Time'.
American Journal of Political Science, Vol. 35, No.4, (November 1991) 852.
6. Coleman and Skogstad: 11-12.
7. Ibid., 12.
8. Howlett and Ramesh: 128, 129.
9. Coleman and Skogstad: 23-24.
10. Paul Pross, Group Politics and Public Policy: Second Edition (Toronto: Oxford
University Press 1992), 119-120.
11. Coleman and Skogstad: 29-30.
12. Ibid., 29.
13.Pross: 120-123.
14. Melody Hessing and Michael Howlett. Canadian Natural Resource and
Environmental Policy: Political Economy and Public Policy (Vancouver: UBC
Press 1997), 83.
15. Ibid., 78.
16. Jenkins-Smith: 853.
17. Hessing and Howlett: 85-87.
18. Ibid., 87.
19. Glen Toner and G. Bruce Doem 'The Two Energy Crises and Canadian Oil and
Gas Interest Groups: A Re-examination of Berry's Propositions,*' Canadian
Journal of Political Science Vol XIX:3 (September 1986}, 480-481.
20. Ibid., 481.
21. Jenkins-Smith: 878.
22. Claudia Notzke. Aboriginal Peoples and Natural Resources in Canada (North
York, Ontario: Captus Press Inc. 1994), 217,218.
23. Thomas R. Berger. Northern Frontier Northern Homeland: The Report OfThe
Mackenzie Valley Pipeline Inquiry revised ed. (Vancouver: Douglas & Mcintyre
1988), 24.
24. Notzke: 4.

25

25. Berger: 128,129.
26. See Hugh Brody, Maps and Dreams: Indians and the British Columbia Frontier
(Vancouver: Douglas & Mcintyre 1988) for his analysis of the subsistence lifestyle
of the Beaver nations in northeastern British Columbia. See Jackie Wolfe-Keddie
'First Nations' Sovereignty and Land Claims: Implications for Resource
Management' in Resource and Environmental Management in Canada ed. Bruce
Mitchell (Toronto: Oxford University Press 1995) for a discussion of comanagement examples in Canada.
27. People to People, Nation to Nation: Highlights from the Report ofthe Royal
Commission on Aboriginal Peoples (Minister of Supply and Services Canada
1996), X.
28. Ibid., 3.
29. Notzke: 206,207.
30. Ibid., 211.
31. Ibid., 27-28.
32. Ibid., 184-186.
33. Ibid., 77.
34. Hessing and Howlett: 246.
35. Ibid., 246-247.
36. Hoberg: 407.
37. Notzke: 52-53.

26

Chapter2

Policy Community Before Aboriginals Were Involved

Prior to the mid 1990s, First Nation groups in northeast British Columbia were
not part of the oil and gas policy community. That domain was controlled firmly by the
provincial government and by the oil and gas industry. These two actors worked closely
to develop the hydrocarbon resources located largely in the northeastern part of the
province. The First Nation people in the region have tried over the years to become part
of the decision making process since oil and gas development has a significant effect on
the lives and lands used by First Nation people. Until the 1990s, the provincial
government was unwilling to allow them into the sub-government segment of the policy
community. While various industry actors were willing to consult with the First Nation
communities and work with them on socio-economic and traditional heritage protection
issues, industry was largely reticent to accept the First Nation group as decision makers
within the policy community.
This chapter will look at what the oil and gas policy community looked like prior
to the mid 1990s without the active participation of the northeast First Nation
communities. It will explore the actors within the policy community, the provincial
government and the oil and gas industry players, as well as the Aboriginal communities
in the northeast, some of whom would eventually become members of the policy
community. A brief discussion of the northeast area itself will provide a context and
setting for the industry and resident actors. Finally it will review the question of why the
Aboriginal groups were not part of the policy community and give some background
about provincial policies up to the 1990s.

27

The Actors: The Oil and Gas Industry, The BC Government and Aboriginal Peoples
The critical players that made up the sub-government of the oil and gas policy
community included the oil and gas industry, various departments of the British
Columbia government including the Ministry of Energy and Mines, in Victoria and in
Fort St. John. 1 Other government departments involved in approvals included the
Ministry of Forests, Ministry of Environment and Parks and Ministry of Lands in the
northeast region. These parties had a direct influence on policy.

Industry
In Canada, oil and gas companies have traditionally retained a strong and proactive role in attempting to influence government policy affecting their industry. This
has been especially true since the early 1980s when the federal Liberal government
established the industry-despised national energy policy which had a profound impact on
the industry as a whole. 2 The somewhat insular oil and gas industry has never welcomed
interference in policy making by other players such as environmental groups or
Aboriginal groups that have frequently tried to establish influence in the industry policy
setting arena. The insular nature and active lobbying by the industry is perhaps partially
due to the small number of companies that originally made up the industry worldwide
and their incredible dominance over several decades. Although that dominance has been
challenged in jurisdictions globally and largely reduced, the independence of the industry
seems to have remained largely intact. In Canada, the lobbying arm of the industry is
institutionalized within the Canadian Association of Petroleum Producers (CAPP).

28

CAPP, representing approximately 165 producer companies that produce almost
95% of Canada's natural gas and crude oil, has an annual budget of $9 million and has a
staff Canada wide of 45 people. The association also represents 135 associate member
companies that provide a broad range of services to the industry. 3 The association is
active in lobbying and attempting to influence governments of all levels from the federal
level down to local levels if necessary. The staff is well educated and trained in various
aspects of the industry, in effective communication techniques, and in lobbying. 4 Many
of the current staff members have worked in the industry or in government. CAPP and its
predecessor, the Canadian Petroleum Association (CPA), have been very effective in
ensuring industry's message and wishes are efficiently communicated on an ongoing and
timely basis.
At present there are many companies active in northeast British Columbia. The
companies generally bring their concerns and issues to the British Columbia government
themselves and through CAPP. CAPP has a close working relationship with the British
Columbia government. This has been the case for several decades.
A number of companies active in northeast British Columbia in the early 1990s
formed a group to discuss Aboriginal issues. Representatives from industry realized that
they needed to better understand the issues and concerns of the First Nation communities
and to work with the communities to resolve these issues. Community members from
each of the reserves were invited to attend what was to become the Northeast Industry
Group (Industry Group). The Industry Group formed largely because several companies
were working in areas of great significance to the communities and there were
outstanding issues that were not being addressed. One of the companies, Amoco, was

29

proposing to explore in the sacred Twin Sisters area. A subsequent court case concerning
this project will be discussed in Chapter Three.
The majority of the companies that attended the Industry Group meetings realized
that the First Nation people affected by oil and gas activity needed to have a process to
resolve outstanding issues. Government was invited to participate in the Industry Group
but did so mostly as observers. There were companies active in the area that did not
attend the Industry Group meetings and did not attempt to work with the communities to
resolve issues. 5
The Western sedimentary basin is the source of most of Canada's current
conventional oil and gas production. Other areas such as the far north and the eastern
seaboard are still in an exploratory or early production stage. At present most of the
production still stems from Alberta, with small pockets in southwestern Saskatchewan
and northeastern British Columbia rounding out the known production and reserves in the
sedimentary basin. In British Columbia, 100% of production at present comes from the
northeastern area of the province. That is the area on which this thesis will focus.
The northeast area of British Columbia is bordered on the west and south by the
Rocky Mountains and on the east and north by the Alberta and Yukon/Northwest
Territories borders respectively. The sub-surface is an extension of the western
sedimentary basin while the surface is an extension of the prairies. The region consists of
almost one-third of the land base of British Columbia but has only about three percent of
the province's population. Almost all of British Columbia's oil and gas production lies
within this area but the industry comprises only 2.33% of the GDP of the province. 6
Thus, historically, neither the industry nor the region has been given much attention by

30

governments in Victoria. Although the oil and gas industry is critical to the area in terms
of income and jobs it historically has held little sway in the provincial capital, especially
when compared to forestry, which is the dominant provincial industry.
Since the industry began operations in the province in the 1940s, $8.8 billion has
been directly contributed to the provincial economy in the form of revenue. 7 In 1999,
gross revenue was $587.3 million. 8 The individual companies' expenditures in the
province are not included in these figures and they provide another $20 million spent in
the province from 1985 through to 1999. 9
Employment in the oil and gas sector includes unskilled labour and specialized
skilled jobs. The British Columbia industry has developed and exported skills,
technology, and labour to the Middle East, Siberia, South America, and North Sea sites.
The same skills are developed and retained in the province to support the industry here.
In 1989, all subsurface activity including mining provided 1.8 percent of total workforce
in the province of British Columbia. This is direct employment, only, it does not include
the service industry that supports the primary sector. 10
The oil and gas industry is also important to the province because of the supply of
product that the province receives and the excess it exports. In 1990, total supply of
natural gas was 418 petajoules and provincial demand was 245 petajoules. Excess
natural gas is exported to other provinces and the United States, especially California. 11
Crude oil production provided the province with 73 petajoules while provincial
requirements equalled 388 petajoules. 12 The additional crude oil required is imported
from Alberta. "British Columbia's current energy requirements are supplied by the
following fuel types: 37% by oil, 22% by natural gas, 22% by woodwaste and other fuel

31

types, and 19% by electricity." 13 Of the energy required, only a portion of the crude oil
has to be imported, the province provides the remaining, plus substantial exports.

The Provincial Government
Prior to 1991 when the New Democratic Party (NDP) was elected, the province of
British Columbia was governed, for the better part of four decades, by the Social Credit
Party (Socreds) except for a brief period in the early 1970s when Dave Barrett's NDP
formed a government. The Socreds have traditionally enjoyed the support of business in
the province and their political agenda included actively developing the vast resources of
the province and opening up the hinterland areas to accelerate and support that
development. The NDP on the other hand, historically garnered most of its support from
labour and some of the large urban areas of the province. It has had little support in the
hinterland regions, especially the northeast.
Given the Socred's close relationship with business, including the oil and gas
industry, the government and the industry worked closely together to set policy and to
develop the resources of the province. It was not uncommon for the industry
representatives, based on the existing regulatory and policy environment in Alberta, to
suggest policies and procedures to the government in British Columbia. The Socreds
adopted many of the industry's suggestions. Thus the two parties worked closely together
in setting policy and regulations concerning the exploration and production of oil and gas.
From the 1950s, when the industry started to become active, until the 1980s there
were few groups that bothered to challenge the pre-eminence of the government and the
companies as the primary policy setters within the policy community. The environmental

32

groups and the First Nation communities were the main contesters for a voice in the oil
and gas regulatory process and policy in the region. The environment groups had
intermittent success, depending on the economy and relative importance of
environmental concerns on the political agenda. 14 The main environmental group active
in the area was the Chetwynd Environmental Society. The First Nation group had
almost no success in getting their concerns on the policy agenda. They wanted the
provincial government to work with them to protect their treaty and Aboriginal rights
when natural resources were developed. The provincial government did not see
protection of treaty and Aboriginal rights as their role as there were no legislative or legal
reasons, at that time, to cooperate with the Aboriginal people. 15 They were continually
referred to the federal government to seek redress for their treaty and land use issues.
The next section will discuss British Columbia's historic view of Aboriginal issues.

The Aboriginal Players
The Aboriginal players within the northeast area of the province are the members
of the First Nation reserves covered by Treaty 8 and those Aboriginal peoples living in
Kelly Lake, a community populated by treaty, non-treaty, and Metis peoples. The First
Nation reserves are Fort Nelson First Nation, Prophet River First Nation, Halfway River
First Nation, Blueberry River First Nation, Doig River First Nation, West Moberly First
Nation, and Saulteau First Nation. The communities within the region are made up
largely of Slavey, Beaver, Cree, and Saulteau peoples. 16 Many of the Kelly Lake people
are from Iroquois descent. Historically, the Peace River area was largely populated by
the Beaver people but the Cree pushed them north and west and intermarried with them. 17

33

The Iroquois people from Kelly Lake came from Eastern Canada as guides and remained
in the Peace River area also intermarrying with the local Beaver and Cree populations.
The Slavey traditionally lived in the area farther north around Fort Nelson.
Treaty 8 was signed in 1899 and most of the groups in northeast British Columbia
adhered to the treaty between 1899 and 1915. 18 The treaty was extended to this area
because of the Yukon gold-rush and the need for gold-seekers to make their way safely
through the Peace region without being threatened by the local Indian population. 19
Thus this is the only area in British Columbia covered by one of the numbered treaties
which were signed in much of southern Canada.
The First Nation communities are at times represented by Treaty 8 Tribal
Association, a central office directed to administer various programs and deal with issues
common to all the communities. In the 1980s and 1990s, Treaty 8 Tribal Association has
represented the First Nation communities in their efforts to have some influence with
regard to oil and gas policy and procedures. The communities were seldom successful in
these endeavours to influence policy. The underlying reasons for the lack of influence lie
with government policy that had been in place for over 100 years. The provincial
government demonstrated no intention of changing their policy until the courts forced
them to do so. This study will focus on the First Nation communities of Treaty 8 in
northeast British Columbia as they are the group that have become a part of the policy
community in oil and gas development.
The next chapter will discuss the role the courts eventually played to encourage
more First Nation input in both policy and practice across a wide spectrum of areas
including oil and gas development.

34

Why Aboriginal Players Were Not Part of The Policy Community
Prior to some of the landmark court cases and important events that have shaped
Aboriginal and natural resource policy in British Columbia, Aboriginal people and
Aboriginal issues had little relevance in policy making and in fact Aboriginal people
were given little opportunity to submit their views on issues that affected them. This was
not because the Aboriginal people did not express their views but rather that their views
did not fit with the current practices and ideology of governments, industry, policy
makers and the general public. Until critical legal cases were decided and particular
events occurred, policy makers had little impetus to change.
One of the basic assumptions of the European occupation of British Columbia
was that the land was "essentially empty and unused until it was discovered and put to
use by Whites." 20 British Columbia differed from most other provinces in Canada in that
the province, until recently, consistently ignored alternative "historical interpretations and
legal principles commonly applied elsewhere. "21 Other jurisdictions signed treaties with
Aboriginal people acknowledging they held Aboriginal title and had rights to land and
treaty rights. British Columbia, for the most part, did not follow this practice.
The principle of 'discovery' was a traditional theory promulgated by U.S. Justice
Marshall in 1823 and later used in Canadian Aboriginal rights law. "Aboriginal lands
could be considered vacant and subject to discovery because of the method of Aboriginal
land use and the superiority of English institutions. "22 British Columbia governments
have continued to use this concept of 'discovery' as recently as in the trial court decision
of Delgamuukw in the early 1990s to assert British sovereignty.

23

35

Religion also came into play when 'discovery' was applied by European Christians
to non-Christians or pagans, who as a result, had no claim to sovereignty and related land
rights. 24 Another name for 'discovery' is 'terra nullius', used by Columbus and other Old
World Explorers and conquering nations to proclaim that the New World belonged to no
one and "... the colonizers could occupy the lands of Indigenous peoples without their
consent. "25
Consistent with the belief that the land was empty was the belief by the Europeans
that the Aboriginals had no title and limited rights to the land. Legally it was argued that
"Aboriginal title was contingent on Crown recognition" of that title. This dated from the
1888 St. Catherine Milling Case in Ontario. This premise was not effectively challenged
until the Calder case in 1973. 26
In Paul Tennant's comprehensive overview of Aboriginal history in British
Columbia, he argues that notwithstanding the court's view of title prior to 1973, the
history and documents surrounding the Douglas Treaties on Vancouver Island clearly
indicate that James Douglas believed the Indians owned the lands. 27 It was not until later
that this view was refuted by Douglas himself and adhered to by his successors and future
British Columbia govemments. 28 In fact, the elected Assembly and the people of the
colony of British Columbia in the early 1860s also accepted the view that the Indians
held title and that it must be extinguished with treaties. 29
Once the British Columbia government adopted the policy that Aboriginal people
had no title and limited rights they proceeded with developing and opening the province
with no thought to Aboriginal people's traditional and historic use of the land. The
Aboriginal people were not consulted in British Columbia or elsewhere in Canada when

resources were developed, or when land was taken for farming or settlement. Robin
Fisher states that under Douglas there was consultation with Aboriginal groups about
reserve size and placement but under Joseph Trutch and subsequent administrations,
consultation effectively ended even about critical issues such as the size and placement of
reserves.30
Tennant asserts that the British Columbia government held this view into the
1990s. In the 1960s, the·province realized there were bound to be some Aboriginal title
cases in the courts so they prepared their arguments for that eventuality. They argued
that the Royal Proclamation of 1763 did not apply to British Columbia. This
proclamation states that Aboriginal title exists. Second, they argued that if the courts
decided that title existed then that title was implicitly extinguished by actions and
legislation of the British Columbia government or explicitly by Confederation. 31
Along with the terra nullius concept and lack of Aboriginal title was also the view
that Aboriginal people had few Aboriginal rights except those given to Aboriginal people
by the treaties. Michael Asch holds up the 1973 Calder case as the turning point in
Canadian legal tradition when the Supreme Court questioned the prevailing view that
Aboriginal people had no Aboriginal rights as they did not live in societies prior to the
arrival of the Europeans. 32 The inherent rights theory is now an accepted theory in
Canadian law and it is based on the belief that Aboriginal rights stem from a source
independent of Crown recognition. 33
In the late 1960s the Nisga'a brought the Calder case against the government of
British Columbia. The case was actually lost by the Nisga'a over a technicality, however,
it was important because the Supreme Court justices for the first time" .. . recognized

37

Aboriginal title as a legal right derived from the Indian's historic occupation and
possession of their triballands." 34 The Supreme Court justices were divided on whether
that title had been extinguished. 35 After this case the federal government opened treaty
negotiations with the Nisga'a people in British Columbia. Even though the Canadian
government reacted to the Calder case and changed their policy, the provincial
government refused to participate in negotiations or change their Aboriginal policy for
another 17 years. 36
The 1973 Calder Supreme Court decision was one of the first of a series of events
that brought Aboriginal issues onto the political agenda. Several more important court
cases would follow including Guerin in 1984 which established that government had a
fiduciary responsibility to safeguard Aboriginal interests and that First Nation's interest
in land, both on reserve and outside reserves, was a "pre-existing legal right" not created
by the Crown. 37 This effectively quashed the idea that Aboriginal title was contingent on
Crown recognition.
The next critical policy event came with the addition of section 35 (1) into the
Canadian Constitution in 1982, which provided Aboriginal and treaty rights recognition
and Constitutional protection. Subsequent court cases such as Sparrow would test section
35 and build onto the precedent set by the previous cases. These events served to firmly
entrench Aboriginal issues onto the political agenda. Aboriginal people were finally
experiencing some success in the courts and in the political system. Although the federal
government had begun to rethink their policies, the British Columbia government would
not strut to change their policies until the end of the 1980s. It would take several more
critical court cases to allow Aboriginals more of a voice in provincial policy. In the late

38

1980s, industry and the public had also started to push both the provincial and federal
governments to deal with the uncertainty created by the Aboriginal land question. 38
During the early 1990s, some oil and gas companies began to lean toward
including all the Aboriginal communities in northeast British Columbia into the industry
more in terms of consultation, employment and contracting. This was as a result of
several litigation efforts by First Nation communities against companies, delayed
projects, adverse media coverage and a growing understanding that Aboriginals should
have some influence or should be included in some way in the oil and gas decision
making process. Neither the federal nor the provincial governments were willing to go
that far. They would need more strident encouragement from subsequent legal decisions
to change their policies.

39

The Policy Community Before
First Nation Groups Were Involved

Attentive Public

The Sub-Government

40

Conclusion
Prior to the 1990s, before a series of events began to change the face of policy in
British Columbia, First Nation groups had little or no influence on the policy arena and
were not members of the oil and gas policy community. The policy community was
dominated by the British Columbia government and by the oil and gas industry and was
quite resistant to outside groups attempting to influence the process.

First Nation

concerns, mostly related to conflicting uses of the land, and resource rents were largely
ignored by both the provincial and the federal government resulting in a veritable vacuum
where little or no action was taken to resolve First Nation's concerns. It was left to some
industry players to recognize that First Nation people should have some influence and
decision making power in the process but the courts were the final impetus that led to
legislational and policy changes. The next chapter will discuss those legal cases that
were critical to affecting that change in British Columbia.

41

Endnotes

1. The Ministry of Energy and Mines was later renamed the Oil and Gas Division of the
Ministry of Employment and Investment.
2. See Glen Toner and G. Bruce Doem's article 'The Two Energy Crises and Canadian
Oil and Gas Interest Groups: A Re-examination of Berry's Propositions,*' Canadian
Journal of Political Science Vol XIX:3 (September 1986), 475-493 for a brief
description of the National Energy Policy and an analysis of the oil and gas industry's
lobbying ability and actions in crises situations. See also Glen Toner and G. Bruce
Doem's book The Politics of Energy: The Development and Implementation of the
NEP (Toronto: Methuen 1985).
3. CAPP, Interview, 2000.
4. Toner and Doern, 1986: 474.
5. Authors experience with the Northeast Industry Group from 1990-1995. See also
Pamela Sloan and Roger Hill, Corporate Aboriginal Relations: Best Practice Case
Studies (Toronto: Sloan Hill Associates Inc. 1995) 201-206.
6. Paul Gosh, B.C. Stats, personal telephone conversation 2001. Figure is as of 1999
and is based on 1992 constant dollars.
7. Ministry of Energy and Mines, Oil and Gas Initiatives Branch 'Petroleum & Natural
Gas Title Holdings, Hectares and Revenue 1989-1999' and '1947-1994.' This figure
covers 1947-1984 and every year after unti11999. The 1947-1984 figures are valued
in those years' dollars. The figures have not been indexed to reflect current dollar
values.
8. Ministry of Energy and Mines, Oil and Gas Initiatives Branch, 'Petroleum & Natural
Gas Title Holdings, Hectares and Revenue 1989-1999'.
9. Energy Mines and Petroleum Resources, 'Drilling & Production Statistics',
November 1995, Ministry of Energy and Mines, Oil and Gas Initiatives Branch,
'Drilling & Production Statistics 1989-1999'.
10. Ministry of Finance and Corporate Relations. Labour Force Survey Data, 1989.
11. G.E. Bridges. Decision-Making Processes and the Energy Sector. Prepared for the
British Columbia Round Table on the Environment and the Economy, June 1990
pp15-16. Note: A petajoule is equivalent to 163,500 barrels of oil or 900 million
cubic feet of natural gas. This is roughly equivalent to the total energy consumed in
Vancouver in one day.
12. Ministry of Energy Mines and Petroleum Resources. Energy Supply & Requirements
1990.

13. British Columbia Round Table on the Environment and the Economy. Sustainable
Development and Energy, 1990: 11.
14. Koopman v. Ostergaard, B.C.J. No. 1822, 1995.
15. An example is during the Land and Resource Management Planning (LRMP) process
in the northeast region, the First Nations refused to sit at the LRMP tables as a
stakeholder. They wanted to be a part of the Inter-Agency Management Committee
within the provincial government. This committee oversaw the tables and worked at a
higher level. The provincial government refused their attendance at this table.
16. Hugh Brody, Maps and Dreams: Indians and the British Columbia Frontier
(Vancouver: Douglas & Mcintyre 1988), 31.

42

17. David W. Leonard & Victoria L. Lemieux, The Lure of the Peace River Country I872
- I9I4 (Calgary: Detselig Enterprises 1992), 65.
18. Brody, 69.
19. Ibid., 65.
20. Paul Tennant, Aboriginal Peoples and Politics: The Indian Land Question in British
Columbia, I849-I989 (Vancouver: University of British Columbia Press 1990), 15.
21. Ibid., 15, 218.
22. Michael Asch. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality
and Respect for Difference (Vancouver: UBC Press 1997), 45.
23. Ibid., 49.
24. R Bruce Morrison and C. Roderick Wilson eds., Native Peoples: The Canadian
Experience Second Edition (Toronto: McLelland and Stewart Inc. 1986), 49, 50
See also Robin Fisher, Contact and Conflict: Indian - European Relations in
British Columbia, I774-I890. 2nd edition (Vancouver: UBC Press 1992),104-105.
Fisher goes back to writings by Sir Thomas More, John Locke and the Swiss jurist
Vattel on the value of land and non-ownership of land if it is not cultivated and
only inhabited by non-Christian hunting societies.
25. Asch: 185. See also Paul Tennant 'Aboriginal Peoples and Aboriginal Title in
British Columbia Politics' in Politics, Policy and Government in British Columbia,
ed. R.K. Carty (Vancouver: UBC Press 1996), 46, 49, 51, 54.
26.1bid., 48-9.
27. Tennant: 20.
28. Tennant: 30. Fisher: 171.
29. Tennant: 21-25.
30. Fisher: 166,184.
31. Tennant: 217.
32. Asch: ix, 48.
33. Ibid., 48.
34. John J. Borrows, and Leonard I. Rotman, Aboriginal Legal Issues: Cases, Materials
& Commentary. (Toronto: Butterworths Canada Ltd. 1998), 58.
35. Paul Tennant, 'Aboriginal Peoples and Aboriginal Title,' 54.
36. Tennant 1990: 172.
37. British Columbia Ministry of Aboriginal Affairs. 'Landmark Court Cases,' (n.d.), 1.
38. Frank Cassidy ~d., Reaching Just Settlements: Land Claims in British Columbia
(Lantzville, B.C: Oolichan Books and Institute for Research and Public Policy 1991),
xii.

43

Chapter 3

Variables of Change

Introduction
Prior to the mid-1990s, First Nation peoples were not members of the oil and gas
policy community in northeast British Columbia. Two critical variables changed that
situation. The first was important legal decisions and the second was the Aboriginal
platform of the newly elected NDP government and the policies they enacted as a result
of.the legal decisions.
This chapter will present four important legal cases and analyze their effect on
natural resource development and Aboriginal people in British Columbia. The second
part of the chapter outlines the pertinent policies the NDP government enacted and their
effect on natural resources and First Nation peoples in the northeast area of British
Columbia.

Legal Cases

Over the past decade, a number of legal decisions have made an indelible impact
on the way that the British Columbia government deals with Aboriginal peoples and land
and resource development. The court cases to be discussed in this chapter include R v.
Sparrow (1990), Delgamuukw et al. v. Her Majesty the Queen in Right of British
Columbia and The Attorney General of Canada (1997), Halfway River First Nation v.
British Columbia (1999) and Kelly Lake Cree v. British Columbia (1998). The British
Columbia government has introduced policy in response to these decisions. The policy
outlines the steps the government must take when dealing with Crown land and land

44

tenure where Aboriginal rights may exist. This policy creates a new role for government
departments and industry, as they now must take responsibility to discern if Aboriginal
rights exist and to what extent. The decisions also result in Aboriginal groups having
more influence on policy; specifically this paper will focus on how the northeast First
Nation communities became part of the sub-government or inner policy community
concerning oil and gas development.

Inquiries into legal questions, definitions and

interpretations will be limited to specific issues that the British Columbia government has
noted as part of its policy.
Some of the important aspects of these decisions are to specify that Aboriginal
rights and title were not extinguished with Confederation, as was previously argued by
the government of British Columbia.

The decisions resolved that under the 1982

Constitution Act, section 35 (1) protects Aboriginal rights, and that any proposed
government regulation that infringes on the exercise of Aboriginal rights must be
constitutionally justified.

Aboriginal people have priority to fish for food after

conservation goals are met and Aboriginals have rights other than that of ownership over
their traditional territories. Vacant Crown land is available for use by Aboriginal people
for sustenance and ceremonial purposes until that land is to be used for other purposes.
The provincial government cannot arbitrarily limit that use.

The government must

consult with Aboriginal people, prior to development to mitigate any possible Aboriginal
rights infringement. Conversely, Aboriginal people also have a responsibility to consult
meaningfully and in good faith with government. The first case to be discussed is the
Sparrow case, which deals with protection of Aboriginal rights under the 1982
Constitution Act.

45

Rv. Sparrow
In the Sparrow case a Musqueam band member from British Columbia, Reginald
Sparrow, " ... was found to have been fishing on 25 May 1984 in Canoe Passage with a
drift net that was longer than had been permitted by the band's food fishing licence." 1
The licence was granted to the band under the British Columbia Fisheries Act. 2

The

license stated that the drift net could not be longer than 25 fathoms. The defendant was
caught with a net 45 fathoms in length. 3 Sparrow was found guilty in provincial court.
His defence was based on section 35 of the Constitution. This section recognizes and
affirms existing Aboriginal and treaty rights. 4

Sparrow conceded that the net violated

regulations but he contended that he was exercising an existing Aboriginal right. The
decision held when it was taken to county court. "The British Columbia Court of Appeal
rendered an ambiguous decision: ... on the one hand they overturned the conviction
because they found Sparrow's Aboriginal right to fish had not been extinguished prior to
1982, on the other they limited the protection of section 35 so that the net restriction was
not inconsistent with it."5 Both the Crown and Sparrow appealed to the Supreme Court
of Canada. The Supreme Court of Canada ordered that a new trial be held. A new trial
was not pursued.
Sparrow appealed on the ground that the Court of Appeal erred in two respects.
First, that section 35 of the Constitution Act 1982 only protects the Aboriginal right when
exercised for the purpose of obtaining food and restricts those rights whenever
"reasonably justified as being necessary for the proper management and conservation of
the resource or in the public interest."6 Secondly, the appeal was based on the fact that

46

the court did not find the net restriction in the band's food fish licence inconsistent with
section 35 of the Constitution Act 1982.7
The Crown cross appealed on the ground that the court of Appeal erred in holding
that the aboriginal right had not been extinguished before April 17, 1982, the date
of commencement of the Constitution Act, 1982, and in particular in holding that,
as a matter of fact and law, the appellant possessed the aboriginal right to fish for
food. In the alternative, the respondent alleged, the Court of Appeal erred in its
conclusions respecting the scope of the aboriginal right to fish for food and the
extent to which it may be regulated, more particularly in holding that the
aboriginal right included the right to take fish for the ceremonial purposes and
societal needs of the Band and that the Band enjoyed a constitutionally protected
priority over the rights of other people engaged in fishing. Section 35(1), the
respondent maintained, did not invalidate legislation passed for the purpose of
conservation and resource management, public health and safety and other
overriding public interests such as the reasonable needs of other user groups. 8
The court ruled that " ...the Constitution Act provides 'a strong measure of protection'
for Aboriginal rights. Any proposed government regulations that infringe on the exercise
of those rights must be constitutionally justified. It further ruled that
•
•
•

Aboriginal and treaty rights are capable of evolving over time and must be
interpreted in a generous and liberal manner
governments may regulate existing Aboriginal rights only for a compelling and
substantial objective such as the conservation and management of resources; and
after conservation goals are met, Aboriginal people must be given priority to
fish for food over other user groups."9

The court devised a test to determine if a regulation infringes on an Aboriginal right. The
following questions must be answered.

•
•
•

Is the limitation (or infringement) of the Aboriginal right reasonable?
Does the limitation (or infringement) impose undue hardship?
Does the limitation (or infringement) den6 the holders of the right their
preferred means of exercising that right? 1

The court found that there was insufficient evidence to deal with the question of whether
the net length restriction outlined in the fishing licence was inconsistent with section 35
of the Constitution Act, 1982. 11

47

The Sparrow ruling ascertains that Aboriginal rights were not extinguished by
Confederation or by implicit actions of the British Columbia government. Prior to the
ruling the British Columbia government had held that Aboriginal rights were
extinguished with Confederation. This ruling has had a critical effect on the British
Columbia government because it can no longer deny the existence of Aboriginal rights.
Further, the Sparrow case was the first case in which the Supreme Court of Canada was
called upon to interpret what section 35 of the Constitution Act really means. 12

The

court ruled that the Constitution protects Aboriginal rights and that Aboriginal rights
evolve over time and must be interpreted generously.
The ruling also specifies that the provincial government cannot arbitrarily regulate
Aboriginal rights.

Regulation must be for compelling and substantive reasons and any

regulations that limit Aboriginal rights must be justified. A test was established to
ascertain justification of infringement. The test specifies that the infringement must be
reasonable, it cannot result in undue hardship, and it cannot deny the Aboriginal people
the preferred means of exercising that right.

This effectively limits the ability of the

provincial government to set regulations that may affect Aboriginal rights.

This aspect

of the ruling has probably had the most prevalent effect on natural resource development
in the province. The province now must ensure regulations are for substantive and
compelling reasons and that infringement of Aboriginal rights is minimized to the
greatest extent possible.
While this test appears to be restrictive on the ability of governments to regulate
Aboriginal rights, it also " ... permits legislative infringement which is specially justified
in individual cases." 13 This parallels section 1 of the Charter of Rights and Freedoms,

48

that while guaranteeing rights and freedoms asserts that those same rights and freedoms
are subject to reasonable limits. When section 35(1) of the Constitution Act was enacted
it was set outside the Charter and so section 1 of the Charter did not apply to section
35(1). The justification test in Sparrow effectively mirrors section 1 of the Charter and
applies specifically to section 35(1) of the Constitution Act. Frank Cassidy argues that
although the provincial government is now constrained in its ability to set regulations that
may limit Aboriginal rights " ... at the same time, it (the ruling) laid the foundation for a
good measure of government control over these rights.

Government... may limit

aboriginal rights when it has 'a valid legislative objective." 14
The decision also affirmed that Aboriginal peoples have priority to fish for food
over other users. If the province reduces the fishing quotas for conservation reasons then
that reduction must come off the non-Aboriginal, commercial fishing industries' catch.
This directly impacts the commercial fishing industry and may affect the livelihood of
non-Aboriginal fishing fleets.

During the trial the " ... Attorneys General of British

Columbia, Ontario, Quebec, Saskatchewan, Alberta, and Newfoundland supported the
respondent (Province of British Columbia) as did the British Columbia Wildlife
Federation ...the Fishery Council of British Columbia and the United Fishermen and
Allied Workers Union." 15

The other provinces and commercial fishery groups

understood that this decision could effect their quota system and potentially their
livelihood.
As a result of the Sparrow decision, the question of whether Aboriginal rights
exist is being decided on a case-by-case basis.

The criterion by which government or

indigenous people decide if Aboriginal rights do exist is vague. If there is any

49

disagreement the matter is decided by negotiation or in the courts. This is very expensive
and time consuming and leaves both government and Aboriginals in uncertain positions.
The questions that are raised are as follows: in which individual cases do Aboriginal
rights exist, if they do exist are they being infringed and if they are, is that infringement
justified?
The next case to be discussed is Delgamuukw, one which affirms many of the
tenets of Sparrow including the existence of Aboriginal rights.

Delgamuukw et al. v. Her Majesty the Queen in Right of British Columbia and The
Attorney General of Canada
The second case is commonly referred to as Delgamuukw. This decision has
surely had more of an impact on Aboriginal rights and title and related government policy
than any case in Canadian history. The Supreme Court of Canada rendered the decision
in 1997. In 1984, 35 Gitksan and 13 Wet'suwet'en Hereditary Chiefs asked the British
Columbia court to recognize their ownership of 57,000 square kilometres of land near
Hazelton in northwest British Columbia, as well as their right to govern their traditional
territories, and to receive compensation for loss of lands and resources.

In 1991 the

lower court ruled that the Crown had extinguished Aboriginal rights at the time of
Confederation, however, the province had a legal obligation to permit Aboriginal
sustenance activities on unoccupied Crown land until the land was dedicated to another
purpose.

The Chiefs appealed.

The appeal court ruled that the Gitksan and

Wet'suwet'en peoples do have "unextinguished non-exclusive aboriginal rights, other
than a right of ownership" to much of their traditional territories. The justices strongly

50

recommended that the scope and content of those rights would best be defined through
negotiation rather than litigation. 16
The Supreme Court of Canada agreed to hear a further appeal from the Chiefs.
Instead, the province and the Chiefs resolved to sit down and work towards treaty
negotiations. An Accord of Recognition and Respect was signed on June 13, 1994. This
accord meant that the two parties would, over the next year, attempt to come to terms
through negotiation instead of litigation. 17

In 1995, the negotiations began to break

down and eventually the parties resumed litigation. Herb George, chief negotiator for the
Wet'suwet'en people stated that the original intent of the court action was to encourage
the province to negotiate with his people. 18
A summary of the 1993 BC Supreme Court Delgamuukw decision is as follows:
•
•
•
•

•

Blanket extinguishment of Aboriginal rights did not occur prior to 1871 and
therefore, these rights continue to exist in British Columbia today.
The Aboriginal people in question have unextinguished non-exclusive
Aboriginal rights, other than a right of ownership, or a property right, in an area of
Northern British Columbia specifically described by the Court of Appeal.
The Aboriginal people' s claim for jurisdiction was dismissed.
Aboriginal rights are those activities that are integral to the distinct culture of an
Aboriginal society. They may vary from context to context in accordance with
distinct patterns of historical occupancy and use of land. The activity must have
been in existence prior to 1846, and for a sufficient length of time to become
integral to the Aboriginal society.
As of 1982, existing Aboriginal rights were protected and continue to be so
protected by Section 35(1) of the Constitution Act. 19
The resultant Supreme Court of Canada (1997) decision is summarized as follows:

•

•

The questions of whether the Aboriginals possessed title to the lands in dispute and
the issue of self-government were both sent back to trial. British Columbia was
deemed to not have the power to extinguish Aboriginal rights and title after its
20
admission into Confederation in 1871.
Aboriginal title is a right in land, it confers the right to exclusive use and occupation
of the land for a variety of activities including but not limited to Aboriginal rights.
Aboriginal title is a collective right held by the community not by an individual.
Decisions with respect to the land are made by the community. 2 1
51

•

•
•

•
•
•

Aboriginal title is different from other Aboriginal rights in that it arises "... where the
connection of a group with a piece of land was of a central significance to their
distinctive culture." Aboriginal rights are activities whereas Aboriginal title is a right
to the land itself?2
Existing Aboriginal rights and title are protected under section 35( 1) of the
constitution. 23
The test for Aboriginal title is as follows i) the land must have been occupied prior to
sovereignty, ii) if present occupation is relied on as proof of occupation presovereignty, there must be a continuity between present and pre-sovereignty
occupation, and iii) at sovereignty, that occupation must have been exclusive. 24
Aboriginal title land must be used in a way consistent with traditional Aboriginal uses
and rights, the only way to use the land in an inconsistent manner would be to
surrender those lands to the Crown and convert them into non-title lands.
There is always a duty to consult, this will vary from situation to situation and may be
a simple discussion of important decisions in minor situations or actually require full
consent in major situations.
Oral evidence of history, practice and occupation was allowed to be heard as evidence
to establish Aboriginal title. 25
The importance of the Delgamuukw decision to Aboriginal rights and title is

pervasive.

Once again the Supreme Court ruled that Aboriginal rights were not

extinguished in British Columbia by Confederation and so they continue to exist today.
The court also declared that the province of British Columbia did not have the power to
extinguish Aboriginal rights after Confederation.

These two statements effectively

dissolved the validity of the province's historic stance with regard to Aboriginal rights,
namely, that the province had extinguished Aboriginal rights either explicitly with
Confederation or implicitly by laws and actions since Confederation.

Legally, British

Columbia has to address unextinguished Aboriginal rights.
Similar to the Sparrow case, the ruling also decreed that existing Aboriginal rights
were protected and continue to be so by the Constitution Act of 1982. This means that
any proposed government regulation that infringes on the exercise of Aboriginal rights
must be constitutionally justified.

52

The ruling also established a duty to consult with regard to Aboriginal rights and title.
This means that before government can proceed with development on Crown land they
have a duty to consult with Aboriginal peoples regarding Aboriginal rights and in nontreaty areas, Aboriginal title. The court indicated that the amount of consultation may
vary resulting in full consent by Aboriginal people in some instances or perhaps require
input on decision making in other situations. This requirement has changed the way the
provincial government proceeds with development. Consultation adds a process into
resource development decision-making that had not existed before.
As often happens in case law, the initial cases may not clearly delineate the practical
process of importa.11t principles discussed in the decisions. The element of consultation,
given its crucial relationship to development, has since been tested and further enunciated
by the courts.

The following two cases look at consultation in northeast British

Columbia.

Halfway River First Nation v. British Columbia
The third case to be considered here is commonly referred to as Metecheah.
Chief Bernie Metecheah is the leader of the Halfway River First Nation located in
northeast British Columbia, approximately 100 kilometres northwest of Fort St. John. In
1997 the judgment of the British Columbia Supreme Court effectively quashed a
Canadian Forest Product's (Canfor) cutting permit in an area just south of the reserve,
formerly approved by the British Columbia Ministry of Forests. The 1999 appeal
supported that decision concurring that the Halfway peoples' treaty rights were infringed,

53

that the infringement was not shown to be justified by the Crown and that proper
consultation procedures were not followed. 26
The importance of this case is that it applies the Sparrow justification test for
treaty and Aboriginal rights infringement and secondly that is sets out to discover, in this
situation, how consultation regarding natural resource development should or should not
proceed.
The band argued that the area where Canfor was proposing to log was a
traditional area within Treaty 8 where community members had traditionally practised
their treaty and Aboriginal rights such as hunting, fishing, trapping, and gathering. The
area is referred to as Tusdzuh and is just south of the reserve, close enough to the band so
members could easily and often carry on traditional pursuits. The Ministry of Forests
(MOF) and Canfor argued that the permit would still allow use of other areas of the
Tusdzuh for traditional pursuits. The judge disputed this, stating this argument ignored
the holistic perspective of the Halfway people as well as their preferred means of
exercising their Aboriginal rights in an unspoiled area close to their reserve lands. The
court cited that "...there is no persuasive evidence to suggest that other areas do not exist
which Canfor could log in place of CP 212 (the permit area) to avoid interfering with
Aboriginal rights." 27

So not only was there found to be a prima facie or direct

infringement of Aboriginal and treaty rights, there was also an infringement on the
preferred means to practice those rights.
The judge further found that the Crown failed to justify infringement of the treaty
right because it failed in its duty to conduct "... adequate, reasonable consultation ... "28
with the band. Although consultation was pursued by MOF and Canfor in that numerous

54

letters were written, telephone calls made, meetings held, and feedback received there
were situations where "... reasonable opportunities to consult were denied to Halfway. "29
These opportunities included denying Halfway the opportunity to meet with both MOF
and Canfor, to review documents at an early timely stage, to review the actual permit
application at a timely stage and more critically, for the British Columbia government to
inform itself fully regarding Halfway and their practices and thus potential infringement
on treaty and Aboriginal rights. All reasonable efforts were not made to consult and thus
MOF did not meet its fiduciary obligations. 30
In the appeal two of the higher court judges concurred with the trial judge saying

that any interference with the right to hunt was a prima facie infringement on treaty
rights; however they diverged from the lower court's decision that the preferred means
related to a place (close to the reserve) but rather meant a method or mode of hunting and
that the Tusdzuh was not 'unspoiled' as it had been subject to previous oil and gas and
mining activity. 31 The appeal judges went on to state that the legislative objectives of
pursuing forestry development are sufficiently important to warrant infringement on
treaty and Aboriginal rights as "those objectives include conservation, and the economic
and cultural needs of all peoples and communities in the Province. "32 The appeal judges
stated that the Crown must and actually did prove minimal infringement when in fact
infringement was to occur. They also determined that the benefits from forestry to the
province generally and in this case specifically, outweighed the detriment to the
Aboriginals caused by the infringement to their right to hunt.
On the question of consultation the judges stated:
The Crown's duty to consult imposes on it a positive obligation to reasonably
ensure that aboriginal peoples are provided with all necessary information in a

55

timely way so that they have an opportunity to express their interests and
concerns, and to ensure that their representations are seriously considered and,
wherever possible, demonstrably integrated into the proposed plan of action.
There is a reciprocal duty on aboriginal peoples to express their interests and
concerns once they have an opportunity to consider the information provided...
and to consult in good faith by whatever means available to them. 33
The Aboriginal people cannot refuse to consult or impose unreasonable conditions so as
to frustrate the consultation process. The appeal judges found that the Crown did not
provide information in a timely way to the Halfway that they would need in order to
inform themselves of all the issues and secondly to ensure that Halfway had an
opportunity to express their interests and concerns.
The importance of this case is that it illustrates the provincial government's role
to consult. The provincial government is ultimately responsible to consult with
Aboriginal people regarding resource development. This is as a result of their fiduciary
duty to Aboriginal peoples. 34 This duty requires that Aboriginal interests be respected
and given priority, that consultation is necessary as a minimum with full consent
possible, and that fair compensation may also be required. 35

The consultation in this

case was deemed to be insufficient because not enough information was gathered by
MOF to properly establish the rights of the community and the uses they made of the
area. Also, the Halfway band was not given important information in a timely manner
regarding the development plans.

Thus the provincial government is responsible to

ensure consultation is comprehensive, provides sufficient information to the community
and gains sufficient information from the community to ascertain whether infringement
will occur.
The other aspect of the case that is critical is the fact that the justices deemed
forestry and by ·extension other natural resource development including oil and gas,

56

'compelling and substantive' to the province and its people such that this type of activity
warrants infringement on treaty or Aboriginal rights. This assumes the Sparrow test is
applied, infringement is reasonable, does not cause undue hardship, nor denies the
Aboriginal people the preferred means of practising that right.
An interesting point one of the higher court justices illuminated in this case, was
the question of who in government is qualified and responsible for ascertaining "... the
nature and scope of the treaty right at issue (and) whether the proposed use (of the land)
is compatible with the treaty right". 36 In this case the District Forest Manager was given
this responsibility. The justice notes that a person in this position is no more qualified to
make this type of decision than they (the justices) would be qualified to make technical
forestry decisions. 37

This is an interesting statement and in future may certainly affect

the validity of processes and outcomes associated with resource development and
Aboriginal and treaty right decisions.

Kelly Lake Cree v. British Columbia
The last case to be discussed is commonly called Amoco. In 1998, the British
Columbia Supreme Court heard evidence from the Saulteau First Nation and the Kelly
Lake Cree Nation asking it to review decisions made by the Ministry of Energy and
Mines to approve a license for Amoco Canada to drill a well near Mount Montieth in
northeastern British Columbia and for the Ministry of Forests to grant a cutting permit to
Amoco for the same purpose. The two communities asked that the permits be set aside
and that the respective ministries resume consultation regarding the proposed
development with the communities as meaningful consultation had not occurred. Mount

57

Montieth is one of the locally named 'Twin Sisters', two mountains that the Saulteau and
Beaver people consider to be sacred.
The court denied the application to set aside the permits on all assertions. They
found that adequate and meaningful consultation had occurred over a period from 1992
until the permit was issued in July of 1998. Both the provincial government and Amoco
consulted with the First Nation communities. Two other First Nation communities that
were participants were ··satisfied with the consultation and indicated such in written
correspondence. The judge asserted that in the case of the Kelly Lake Cree Nation,
... there was no duty to consult with the KLCN given the remoteness of the KLCN
to the area in question and the claims of the (Saulteau First Nation, West Moberly
First Nation) and the Halfway First Nation. However given the lack of response
to the ... correspondence... even if the Crown had a duty to consult...that obligation
was fulfilled when KLCN .. .failed to express any interest in the proposed Montieth
Mountain Project. 38
Similarly, regarding the Saulteau First Nation claim for lack of meaningful consultation,
the judge dismissed the claim saying that II • •• consultation is a two way process ...11 and the
Saulteau seemed implacable in their opposition to any development in the area. 39 It is the
process of consultation and consideration of such issues and not a power of veto that is
required. 40 Thus, the courts have said that 'meaningful consultation' is a two way
process which does not give the Aboriginal party the power to veto development however
they must be able to express their interests and ensure their concerns are seriously
considered and where possible integrated into the proposed development.
As was the case with the Metecheah decision, the significance of this case is the
scope and content of consultation: what constitutes 'enough meaningful' consultation;
who is to be consulted; as well as the role all parties, government, industry, and
Aboriginal groups must play during such a process.

The provincial government took a

58

lead role in consultations in this case. The justice decreed that sufficient consultation
took place and that Aboriginal parties must also engage in meaningful consultation and
cannot stall the process by not participating. Not all Aboriginal groups have the right to
participate in decision making on all projects, only those who can prove they have an
interest in the area.
As with the Metecheah case, this case also raised the question of who in
government is qualified and responsible to decide about the nature and scope of the
Aboriginal rights and the efficacy of the process. The justice decided that the director
who made the decision was capable even though he had not actively been involved in the
consultation process. The director based his decision on the reams of information that
had been generated from meetings, studies, discussions, etc. and so had access to
sufficient information.
Both the Metecheah and Amoco cases were brought against the provincial
government as the primary defendant and the resource development companies as the
secondary defendant. Prior to Metecheah, the practice in British Columbia was to have
industry consult with Aboriginal communities. Other important cases such as Guerin v.
R have established government as having a fiduciary responsibility towards Aboriginal
people. As such the courts now recognize government as the entity that must consult on
rights and infringement issues.

Industry has continued to consult on technical,

employment and mitigation issues.

59

Conclusion -Legal Cases
The Sparrow and Delgamuukw decisions in particular have clearly resulted in a
change in how Aboriginal rights are perceived.

These decisions now specify that

Aboriginal rights and title were not extinguished by Confederation as the British
Columbia government had previously asserted.

They also specify that the British

Columbia government did not have the power to extinguish Aboriginal rights and title
after its admission into Confederation. This effectively eliminated a policy that the
British Columbia government had adhered to for well over 100 years. The onus is now
on government to ascertain if Aboriginal rights exist and to ensure that those rights are
not adversely affected by development. If the rights are infringed then government must
minimize the infringement and justify why that infringement is necessary. This reaffirms
the provincial government's rights to legislate and control activity within the province
subject to Aboriginal people's rights.
The outcome is that the natural resource regulatory process within the province
had to change, as the government must now ascertain if infringement of Aboriginal rights
is occurring and act accordingly. Commercial fishing operations are affected by the
Aboriginal right to have priority to fish for food. Consultation by government must be
thorough to establish what rights and potential infringement exist.
Once the courts handed down these decisions, the British Columbia government
chose to change some of its current Aboriginal policies. Several of these new policies
will be discussed in the next section along with the NDP platform concerning Aboriginal
peoples.

60

NDP Government
The British Columbia NDP government has reacted relatively swiftly to the
Sparrow, Delgamuukw, and Metecheah legal decisions. They have enacted legislation
regarding natural resource development on Crown land. They have made critical changes
to the strategy around the Delgamuukw court case itself and they have implemented new
legislation and policies in the oil and gas sector that bring the First Nation groups in
northeast British Columbia into the policy community. As important as these court
decisions are, they do not exhaust the causal factors explaining the changes in
government policy. To court cases, we must add the ideological changes in government
ushered in with the election of the NDP in 1991. This chapter now presents an overview
of the NDP policy both prior to and after their 1991 election win, as it pertains to First
Nation issues.

Pre-election Policies of the Party
At the 1990 New Democratic Convention held in Vancouver in March the
following Aboriginal Land Claims Policy was accepted:
The New Democratic Party believes that resolution of the Indian Land Question
in British Columbia is a critical political, economic and moral issue that can no
longer be ignored. A just and honourable settlement of the Land Question is vital
if we are to achieve sustainable economic development for the province as a
whole. Toward this end, the New Democratic Party is committed to:
1. recognition of Aboriginal title and Aboriginal peoples' inherent right to self-

government;
2. provincial participation in modem-day treaty negotiations to achieve a just and
honourable settlement of the land question;
3. third-party interest in negotiated treaties on the land question;
4. sustainable economic development initiatives in both Aboriginal and nonAboriginal communities resulting from settlement of the land question;

61

5. Renewal of constitutional processes aimed at entrenching Aboriginal peoples'
inherent right to self-government in the Constitution of Canada. 41
This was new for the NDP as their 1972-5 government, of which Frank Calder
was a minister, held views similar to those of the Socred Government held up until1990.
Both governments refused to participate in treaty negotiations. They tried to assert that
British Sovereignty had implicitly extinguished Aboriginal title. 42 Frank Calder was a
member of the Nisga'a nation and involved in the important Calder case that was the first
time the Supreme Court justices "recognized Aboriginal title as a legal right derived from
the Indians' historic occupation and possession of their tribal lands. "43 The Supreme
Court justices were divided however on whether that title had been extinguished.44
The Socred government, under Premier Vander Zalm, also changed their policy
dramatically from their historic stance that Aboriginal title had been extinguished prior to
British Columbia joining confederation. They formally joined the ongoing Nisga'a
negotiations; created a Premier's Council on Native Affairs that presented a report on
Aboriginal issues; created a provincial Land Claims Registry office; and created a
provincial Land Claims Negotiation Office to further assist the federal government. 45
However, in their 1991 election platform the Socreds, under Premier Rita Johnston, drew
the line at mirroring the NDP's platform. The Socreds stated that they would not
recognize Aboriginal title as a precondition for treaty negotiations or the inherent right to
self-government. They also disagreed with the NDP promise to negotiate treaties that
provide " .. .innovative resource and habitat management regimes that benefit all British
Columbians." The Socreds pointed to the Ontario NDP who had a similar platform and
whose policies resulted in unfair access to lands and resources by Aboriginal people.46
The major difference between the two parties' views on Aboriginal policy was in regard

62

to natural resource management and control. Both parties agreed to try and resolve
outstanding treaty claims but while the Socreds would not include Aboriginal control
over natural resource development the NDP advocated innovative resource management
regimes which included Aboriginal participation.
Both of these provincial parties recognized that changes to policy and current
legislation had to occur. This was largely as a result of civil unrest by Aboriginal groups
across the country including the stand-off at Oka and numerous road blocks and actions
by British Columbia Aboriginal groups.47 Industrial development was at risk because of
the uncertainty created by various interpretations of the legal decisions, Aboriginal
demands, and resultant civil unrest. Both parties reacted with very different platforms to
try and deal with the Aboriginals' unresolved and largely ignored issues. With the 1991
election win, the NDP had the opportunity to put their platform into action. Given the
unresolved Aboriginal issues and tension surrounding some of the recent events there was
an expectancy with the incoming NDP government and their Aboriginal platform.
Claudia Notzke sums up the anticipation:
. .. British Columbia's First Nations find themselves on the threshold of a new
relationship with mainstream society. The provincial government's 1990
decision to acknowledge the validity of comprehensive aboriginal claims and
the rise to power of the New Democrats the following year set the stage for a
redefinition of the relationship not only between the province's Indian people
48
and government, but also between native people and industry.

Post-Election Policies ofthe Party
In the speeches from the throne from 1992 to 1996, the governing NDP party
platform promised to address Aboriginal concerns. The following are some excerpts
from those speeches.

63

1992 We recognize Aboriginal title and the inherent right of Aboriginal people
to self-government. An agreement to establish a new Treaty Commission has
been negotiated, and we are pleased it has received the approval of this
government and the First Nations Summit Chiefs.
This government is committed to negotiation to settle issues with Aboriginal
people. We are working to support initiatives to encourage self-sufficiency in
Aboriginal communities while developing joint stewardship arrangements with
First Nations to provide for cooperation on the management of resources prior to
treaty negotiations. The third party consultation process is being strengthened to
ensure all interests are heard and considered. 49
1993 British Columbia will take another historic step this Session. This
government will introduce the Treaty Commission Act to enable the negotiation
of modem treaties with Aboriginal peoples to proceed. Fair and just settlements
with First Nations will not only provide greater economic certainty but also, more
importantly, mean new economic opportunities for Aboriginal and nonAboriginal peoples.
This government has moved to formalize our responsibility to represent third
party interests at the negotiating table and to establish a cost-sharing arrangement
with the federal government which is fair to B.C. taxpayers. 50
1994 Land-use disputes must be settled in a fair and timely manner to protect
jobs, our environment and treaty negotiations with First Nations ...In addition, this
government will build on the significant policy initiatives and positive changes
introduced in the legislative sessions of the past two years (to) ...forge a new
relationship with Aboriginal peoples. 51
1996 ... the past year has also seen important advances- and none more
fundamental to the destiny of this province than the initial steps toward British
Columbia's first modem-day Aboriginal treaty. And in the coming year, my
government will work toward concluding a formal agreement with the Nisga'a
peop1e ... 52
Promises to work on other aspects of Aboriginal life were also included such as
employment equity, social and family services, cultural and heritage protection, and
protection of the salmon. Some of these promises resulted in enacted legislation and
policy. The following section will explore the policies and legislation specifically
affecting the oil and gas industry.
One of the early actions taken by the NDP government is surprising and perhaps
gives a clue as to their future policy direction. The Delgamuukw case had started in 1984
with judgment by the lower court judge handed down in 1991. The judge had basically

64

denied the Gitksan and Wet'suwet'en their claims of ownership, self-government and
compensation. Thi.s was seen as a victory for British Columbia. The Socred government
promised to continue negotiating despite the trial's outcome. When the NDP came to
power they switched counsel for the upcoming appeal case. That is, they fired the team
that had won the case in the lower courts and hired a new team of lawyers who had
worked with Aboriginal people in land use disputes. These lawyers were seen as
sympathetic to Aboriginal claims. Melvin Smith asserts that the NDP government was
looking for judicial support for their Aboriginal platform. In response, the court took an
unusual step and had the previous team of lawyers, who had successfully defended the
lower court case, appointed as "friends of the court". 53 Such an action by a provincial
government is very unusual, especially in a province where treaties have yet to be settled
and where settlement will likely carry a heavy cost. This action is suggestive of a
governing regime that wants to speed up implementation of their Aboriginal policy and
perhaps is looking for support for a radically different policy. The NDP's policy
response was indeed a radical change.

Crown Lands Policy
In response to the legal cases and in line with their platform, the NDP government
implemented a new Crown lands policy in 1995 titled 'Crown Land Activities and
Aboriginal Rights and Policy Framework'. This policy dealt with all types of resource
development activity on Crown lands, including oil and gas development, and provided a
guide for the bureaucracy and industry as to how to deal with possible Aboriginal
interests. The policy statement or basic precept of this document is as follows: "The

65

provincial government will endeavour to make its best efforts to avoid any infringement
of known Aboriginal rights during the conduct of its business." 54 The province proposed
to do this by following these steps: to establish if Aboriginal rights exist through
consultation or other available information, to determine if the action would infringe on
that right, to resolve matters of conflicting interest by negotiation, to attempt to justify the
infringement if it cannot be avoided. 55 This policy was based specifically on the
Sparrow and Delgamuukw appeal cases. This was a sharp policy adjustment for the
province of British Columbia.
This Crown land policy was the first step toward bringing Aboriginals into the
policy community. Through consultation the Aboriginal groups were given information
directly about activity that was planned on their traditional lands. Prior to this policy
Aboriginal people seldom knew if development was planned in their areas. They usually
found out about development by actually witnessing it or by being hired onto a labour
crew. This new process allowed them to begin negotiating provisions around access to
the land, employment, community development, heritage protection, and in some cases
compensation. Industry realized that they must now deal directly with Aboriginal
communities and respond to their queries and demands.
Although this was a Crown lands policy aimed at bureaucrats and permit
providers, industry in the oil and gas sector had to take on the role of consultation. This
was an unfamiliar role to them in two ways. First, most companies had seldom dealt with
Aboriginal communities, although there were some companies that had started consulting
on their own initiative and involving the communities in projects and employment.
Second, companies were used to notification as opposed to consultation. The courts in

66

Comparison of NDP and Socred Policies Relative to Important Court Decisions
Important Court
Decisions
Dates

British Columbia Party Policy
NDP

1989

1990
Sparrow Decision

1. Joined Nisga'a
negotiations
2. Created Premier's council
on Native Affairs
3. Created Land Claims
Registry
4. Created Land Claims
negotiation office
1.

2.
3.
4.

5.

1991
Delgamuukw British
Columbia Court Decision

Soc reds

Recognition of Aboriginal title &
Aboriginal people's inherent right to selfgovernment
Provincial participation in modem day
treaty negotiations
Third-party interest in negotiated treaties
Sustainable economic development in
both Aboriginal and non-Aboriginal
communities resulting from settlement of
the land question.
Renewal of constitutional processes to
entrench Aboriginal peoples' inherent
right to self-govemement in the Canadian
Constitution.

1.

Refused to recognize
Aboriginal title as a
precondition to treaty
negotiations

1994
Delgamuukw BC Supreme
Court Decision
1995

Crown Lands Policy enacted
Oil and Gas Handbook Policy enacted

1997
Halfway lower court
decision
1997
Delgamuukw Supreme
Court decision
1998
Amoco decision

Oil and Gas Commission created

1999
Halfway BC Supreme
Court Decision

67

the Sparrow and Delgamuukw Appeal cases did not define consultation. So it has been
and still continues to be a vague and difficult concept to understand and execute.

Conclusion
The policy of the NDP prior to their winning the 1991 election clearly indicated
that they intended to try to address Aboriginal issues in a meaningful way. The policy
and legislation enacted by the NDP subsequent to 1991 clearly shows a trend toward
implementation of their policies. The legislation around natural resource development in
particular also clearly responds to important legal decisions, including Sparrow and
Delgamuukw.
These policies and legislation were a radical change from those of the previous
government of British Columbia. They changed the way natural resource development
and decision-making occurred in the province. Other provincial governments did not
respond to the legal decisions in the same manner. The legislation and policies resulted
because of the NDP policy and because of the legal decisions.
The next chapter will look at two final legislative changes that brought First
Nation communities in northeast British Columbia into the policy community, the Oil
and Gas Handbook, a compilation of oil and gas regulations, legislation and policy and
the Oil and Gas Commission, a regulatory agency overseeing the development of oil and
gas in the province.

68

Endnotes
1. Peter Kulchyski, Unjust Relations: Aboriginal Rights in Canadian Courts (Toronto:
Oxford University Press 1994), 212.
2. British Columbia Ministry of Aboriginal Affairs. 'Landmark Court Cases,' (n.d.), 2.
3. Kulchyski, 214.
4. BC, Aboriginal Affairs, 'Landmark Cases,' 2.
5. Kulchyski, 212.
6. Ibid., 216.
7. Ibid.
8. Ibid.
9. BC, Aboriginal Affairs, 'Landmark Cases,' 2.
10. British Columbia Ministry of Environment Lands and Parks. "Guidelines for PreTreaty Consultations with First Nations," May 1994,43.
11 . Kulchyski, 237.
12. BC, Aboriginal Affairs, 'Landmark Cases,' 2.
13.David W. Elliot. Law and Aboriginal Peoples in Canada. (North York, Ont: Captus
Press Inc. 2000), 69.
14. Frank Cassidy, ed. Aboriginal Title in British Columbia: Delgamuukw v. The Queen.
(Lantzville, B.C: Oolichan Books and Institute for Research and Public Policy 1992),
14.
15. Kulchyski, 217.
16. BC, Aboriginal Affairs, 'Landmark Cases,' 2.
17. Ibid.
18. Herb George, telephone interview 1995.
19. Province of British Columbia, "Crown Land Activities and Aboriginal Rights Policy
Framework" (January 25, 1995), 1-2.
20. John J. Borrows and Leonard I. Rotman. Aboriginal Legal Issues: Cases, Materials
& Commentary. (Toronto: Butterworths Canada Ltd. 1998), 83.
21. Ibid., 74-75.
22. Ibid., 79.
23.Ibid.
24. Ibid., 80.
25. P.E. James Prentice, 'Consult, Consult, Consult: Doing Business with First Nations
After Delgamuukw,' presentation to CAPL Conference, Calgary, Alberta, 1998.
26.Halfway River First Nations v. B.C. BC Appeal1999, 5.
27. Ibid., 13.
28.Ibid.
29. Ibid., 14.
30.Ibid.
31. Ibid., 27.
32. Ibid., 28.
33. Ibid., 29-30.
34. See Guerin v. R 1984.
35. Lawson Lundell Lawson & Mcintosh 'Aboriginal Law in British Columbia: Current
Issues and Implications for Business' presentation February 9, 1998.
69

36. Halfway, 44.
37.1bid., 44-45.
38.Kelly Lake Cree Nation vs Canada, BC Appeal1998, 81.
39.1bid., 101.
40.1bid., 120.
41 . Frank Cassidy ed. Reaching Just Settlements: Land Claims in British Columbia
(Lantzville, B.C: Oolichan Books and Institute for Research and Public Policy 1991),
105.
42. Paul Tennant, ' Aboriginal Peoples and Aboriginal Title in British Columbia Politics'
in Politics, Policy and Government in British Columbia, ed. R.K. Carty (Vancouver:
UBC Press 1996), 52.
43. Borrows, 58.
44. Tennant 'Aboriginal Peoples and Aboriginal Title,' 54.
45. Cassidy, 1991, 89-103.
46.NDP vs Social Credit: Policies and Priorities, unpublished 1991, 14-15.
47. Tennant 'Aboriginal Peoples and Aboriginal Title,' 53, 56.
48. Claudia Notzke. Aboriginal Peoples and Natural Resources in Canada (North York,
Ontario: Captus Press Inc. 1994), 288.
49. Province of British Columbia Legislative Assembly. 'Opening Speech of The
Honourable David C. Lam Lieutenant Governor On Opening the First Session of the
Thirty-fifth Parliament of the Province of British Columbia'
[er:/lbbs.qp.gov .bc.ca:70//0QP_INFO/SYS%3AILEGIS/ 1992/MISC/92THRONE.TX
T] March 17, 1992: 5, 6.
50. Province of British Columbia Legislative Assembly. 'Speech from the Throne by The
Honourable David C. Lam Lieutenant Governor at the Opening of the Second
Session, Thirty-fifth Parliament of the Province of British Columbia'
[er://bbs.qp.gov.bc.ca:70/0QP_INFO/SYS%3AILEGIS/1993/MISC/93THRONE.TX
T] 1993:3.
51. Province of British Columbia Legislative Assembly. 'Speech from the Throne by The
Honourable David C. Lam Lieutenant Governor at the Opening of the Third Session,
Thirty-fifth Parliament of the Province of British Columbia'
[er:/lbbs.qp.gov .bc.ca:70/0QP_INFO/SYS%3AILEGIS/1994/MISC/94THRONE.TX
T] March 14, 1994: 1,2.
52. Province of British Columbia Legislative Assembly. 'Speech from the Throne by The
Honourable Garde B. Gardom Lieutenant Governor at the Opening of the Fifth
Session, Thirty-fifth Parliament of the Province of British Columbia'
[http://www.legis.gov.bc.ca/96throne.htm] April 25, 1996: 1.
53. Melvin H Smith, Our Home Or Native Land? (Toronto: Stoddard Publishing1995),
133.
54. Province of British Columbia, "Crown Land Activities and Aboriginal Rights Policy
Framework" January 25, 1995: 5.
55. Ibid., 5-7.

70

Chapter4

Actual Changes in Policy

The NDP government in British Columbia has enacted a Crown lands policy
affecting natural resource development that now requires provincial government
ministries, agencies and industry to make best efforts to avoid infringement of Aboriginal
rights. This policy resulted from two critical variables: important court cases and NDP
government policy discussed in the last chapter. The Crown lands policy plus policies
specifically relevant to the oil and gas sector have resulted in dramatic changes to the
policy community in the oil and gas industry. This chapter looks at two policies
specifically dealing with this sector and the effect these policy changes have had on the
policy community and the actors that are now a part of that policy community.

Oil and Gas Handbook
An important policy that the NDP government enacted in November of 1995 was
specifically aimed at the oil and gas industry. This policy was released shortly after the
Crown lands policy was introduced. It centralized pertinent information about the
petroleum industry within one document titled the British Columbia Oil and Gas
Handbook (Handbook). The Handbook was designed as a tool for industry to use when
planning and conducting activity in British Columbia. 1 Section 3.5 outlined First Nation
considerations including avoiding infringement of Aboriginal rights and guidelines on
how to conduct consultation with First Nations. 2
Within the introductory section entitled Regulatory Framework, the Handbook
clearly states that the Delgamuukw appeal decision "changed the nature of the legal
relationship between the province and First Nations" 3 It went further to state that the
71

government of British Columbia was responsible to determine if Aboriginal rights exist
and if those rights might be unjustifiably infringed. The section defines what Aboriginal
rights are and states that they may exist in traditional territories adjacent to reserves as
well as on reserves. The Handbook required industry to consult with First Nations to
gather information the Ministry may need to make a decision with regard to infringement
of treaty and Aboriginal rights. 4 At this time industry including CAPP, the provincial
government and a number of First Nation communities in northeast British Columbia
were in negotiations to draft consultation guidelines that were mutually acceptable to all
parties. 5 Those consultation guidelines were never completed.
The Oil and Gas Handbook was used by the provincial government and by
industry for several years but the consultation process with First Nation communities was
not clear and was not an easy process for industry to implement. Each community
established a different process for consultation that resulted in considerable extra time
and expense for industry to complete the application process. The Commission was
created to try and address some of these problems and to streamline the consultation and
application process.

Oil and Gas Commission

The creation of the Oil and Gas Commission is the final legislative change to be
discussed. It is important because its creation was an acknowledgement by the provincial
government in Victoria of the importance of the industry in the northeast to the provincial
economy. More importantly for the purposes set out herein, during the creation of the
Commission, the province recognized the potential affect that oil and gas development

72

can have on Aboriginal and treaty rights. The provincial government attempted to deal
with that potential through Memorandums of Understanding (MOUs) signed with the
individual First Nation communities, thus formally bringing the First Nations into the
policy community.
The Commission was formally established and opened for business in October of
1998 after a very brief incubation and development stage of about 10 months. 6 The
policy objectives behind the creation of the Commission were to increase production and
related industrial activity by reducing oil and gas levies and simplifying the approval
process for the oil and gas industry. These simplification and consolidation initiatives
were not to be accomplished at the expense of environmental standards or of the
provincial government's responsibility toward Aboriginal people. 7 First Nation
representatives were consulted during negotiations leading up to the establishment of the
Commission. It was during the creation and implementation of this legislation that
northeast First Nation communities finally achieved their current status within the policy
community in oil and gas development.
The First Nation communities and industry were both consulted regarding the
establishment of the Commission as the provincial government held bilateral negotiations
with both parties. Industry ultimately agreed to fund the operation of the Commission
through user fees. Those fees are considerably higher than the previous fees industry was
required to remit under the old provincial application process. A portion of the user fees
was to go toward assisting the First Nation communities during the formal consultation
process that was established. This included providing capacity funding for the First
Nations to hire staff and to assist with the newly developed consultation process. Under

73

this process, the provincial government agreed to undertake consultation regarding
possible infringement of treaty and Aboriginal rights. This was a change; up to this
point, industry had been required to consult with the First Nation communities. The
former consultation process was a haphazard process fraught with inconsistencies and
uncertainties. The MOUs were designed to make the process consistent in all the First
Nation communities and to set out time periods and parameters under which all parties
would operate. These were welcome changes from industries' standpoint. It was willing
to pay more to see this happen and accord First Nations more influence in policy. First
Nations in northeast British Columbia now have a direct voice in oil and gas
development, more so than any other stakeholder group in the area or the province.
The new Commission consultation process has industry apply to the Commission
and the Commission distribute the entire application to the Treaty 8 First Nation
communities. The communities then have set time periods in which to reply back to the
Commission with any concerns, information, or mitigation strategies. Industry is still
expected to discuss specific project details with the communities relating to timing of the
development, potential employment, contracting opportunities, and so on. As a result
there are two levels of consultation. One level is consultation between the province and
the First Nation regarding possible infringement of treaty and Aboriginal rights, the other
is between industry and the First Nation regarding the economic and social effects of the
project on the area and on the communities.

74

The Policy Community Before
First Nation Groups Were Involved

Attentive Public

The Sub-Government

75

The Policy Community After
First Nation Groups Were Involved

Attentive Public

The Sub-Government

76

How These Policies Have Changed the Policy Community
These new policies have changed the policy community by introducing a new
actor into the sub-government. The provincial government and industry were the main
actors within the sub-government and now the First Nation communities in the northeast
are also members of the sub-government. Prior to 1990 the British Columbia
government would not acknowledge Aboriginal rights or Aboriginal title and was reticent
to deal with long-standing issues that had been articulated by Aboriginal people in the
province since before Confederation. The British Columbia government had argued that
Aboriginal rights and title had been extinguished. Various events served to change the
government's stance on these issues. They include a combination of early court cases
which the provincial government did not react to such as the Calder case, the Constitution
Act of 1992 and then ultimately the Sparrow and Delgamuukw cases combined with the
election of an NDP government that promised to put Aboriginal issues on the agenda and
work to resolve those issues. The result has been that the First Nation communities in
northeast British Columbia have become members of the oil and gas policy community
and the subsequent policies passed by the NDP government have had an effect on all the
players within the policy community, especially industry and First Nations.
The First Nation communities in the northeast have been affected by the changes
as they have become signators to an MOU that has given them a documented consultation
policy, funding to build capacity within the community and to properly consult on
applications and a mechanism to give input to the government on the operation of the
Commission and oil and gas policy generally. These are some of the goals First Nations
in the region have been working toward. During the early 1990s when community

77

members worked with the Northeast Industry group discussed in Chapter Two, they
looked for some of these results. At that time the provincial government was unwilling to
consider such policies. The MOU is a bi-lateral agreement between the individual First
Nations and the provincial government dealing with oil and gas issues. Signing an
agreement of this type is a goal the communities have worked toward for a very long
time.
The consultation policy in itself is probably the biggest coup for the First Nation
communities. They now receive applications for all proposed activity within a prescribed
activity area and are given time and resources to review the applications. In the fiscal
year 1999/2000 each First Nation community received $612,827 for capacity funding. 8
This is a critical aspect of the consultation and MOU process as prior to 1998 any funding
they received was from the companies that were willing to pay fees to get the community
to review the applications. 9 Prior to 1995 there was no specific funding available and
little capacity within the communities to look at issues as broad as land use or to
comment on sector-type activity like oil and gas proposals. Now under the MOUs they
receive funding and are included in the consultation process on all oil and gas
applications. A further example is that most communities now have staff to review the oil
and gas applications. Some have hired personnel from outside the community while
others have hired community members. 10
The First Nation communities are also consulted by the government on
Commission policy and asked to review overall policy initiatives for oil and gas
development. They have become an important core stakeholder for oil and gas policy.
This is a coveted position toward which they have long worked.

78

Within the Commission there exists an entire department dedicated to Aboriginal
issues. The Aboriginal Relations and Land Use branch of the Commission is staffed with
some local Aboriginal people and others who work with the communities to ensure they
receive the application information in a timely manner and have an opportunity within
the MOU timeframe to give feedback to the Commission on community uses and
concerns about development of the land. The Aboriginal department also works with the
communities to resolve 'other issues or concerns not specifically related to applications.
For.instance, the department assists in organizing an annual gathering where industry,
government and Aboriginal people can come together and understand each other better
and celebrate Aboriginal culture. The branch has three Senior Aboriginal Program
Specialists and four Aboriginal Liaison Communication Officers dedicated to working
with the communities to resolve land use issues. The branch also has administrative staff
and the Director who deal with Aboriginal issues. 11
The provincial government's role has also changed as they have now accepted
responsibility to consult with First Nation communities on infringement of treaty and
Aboriginal rights. They no longer ask industry to consult; they consult directly with the
communities. They have signed an MOU with the First Nation bands and have
negotiated with industry to provide funding for the bands for capacity and economic
development. The have set up the Commission to address Aboriginal and other issues
and have staffed an entire department to deal with Aboriginal issues. The government
has firmly accepted some of the Sparrow and Delgamuukw findings and incorporated
them into broad policies such as the Crown lands policy as well as sector specific policies
such as Commission policies. Both the legal findings and policies have changed the way

79

the provincial government does business and changed the way they interact with the First
Nation people in the northeast area of the province. The initial MOUs were signed in
1998. In early 2001 the provincial government renegotiated the MOUs with four of the
communities. 12 Some fundamental changes to the original MOU has been made as
suggested by both parties. For example, the financial contribution will be calculated
using a different formula.
Industry has been affected by the changes in a number of ways. They are no
longer required to consult with the First Nation communities regarding infringement of
treaty and Aboriginal rights. The government now consults directly with the First
Nation. Industry is still expected to work with communities on mitigation strategies, on
timing of development and on economic development opportunities. Industry is now
required to pay substantially more for application fees as a certain amount of the fees
goes to the communities to assist them with consulting on the applications. For example
industry now pays $8,400 to file an application to drill a well. They paid approximately
$400 in 1997 for a well application. As of April!, 2001 under the renegotiated MOUs,
$4,931 per well goes directly to the communities for capacity funding. 13
Industry wanted the First Nation communities included in the Commission
regulatory process so that it provided a structured consultation process including setting a
time limit for application review, setting consistent fees and requiring consistent
information. They were willing to pay more to ensure this occurred. First Nation issues
are now acknowledged and dealt with by both the provincial government and the industry
companies, unlike the early part of the 1990s when some companies were willing to try to
work with the communities on issues and the province was not.

80

The policy community now provides all three actors an arena in which to
negotiate and try to resolve issues. Prior to First Nation's entry into the policy
community the only way they could have significant input was by using the judicial
system. Although that system eventually granted them access to the policy community it
provides win-lose results. It is time consuming, costly and the results are not always
consistent or what any of the actors really want. For instance the Delgamuukw case
began in 1984 and the Supreme Court decision was handed down in December of 1997 at
a cost of millions of dollars by all parties involved. The Gitksan and Wet'suwet'en
people were ultimately looking for recognition of ownership of their traditional lands,
that question was sent back for retrial by the Supreme Court justices and has never been
resolved. As Herb George, negotiator for the Gitksan indicated, the use of the courts
was simply a means to get the provincial government to negotiate with the First Nation
groups, it was not seen as providing the answer the First Nation people were seeking.
Indeed it has not provided the answer, for the parties are still negotiating treaties which
includes multiple aspects such as resource management and sharing the material benefits
of natural resource development. The justices in the 1993 Delgamuukw judgment
strongly encouraged the parties to negotiate rather than litigate, recognizing that the
courts are not the optimum place to define the scope and content of long-term
agreements.

Conclusion
The new policies of the British Columbia NDP have resulted in Treaty 8 First
Nation people within the northeast area of the province achieving considerable influence

81

within the oil and gas policy community. The NDP government responded to significant
legal decisions by developing policies that incorporate some of the important outcomes of
those decisions. They then totally revamped the regime for approving oil and gas
applications and placed the First Nation communities firmly within that regulatory
structure. Prior to the NDP coming to power the First Nation communities had little
influence on oil and gas policy. Within the MOUs they are consulted at a policy and a
regulatory level and have considerable influence over the approvals and policy in that
sector.

82

Endnotes
1. British Columbia Ministry of Energy Mines and Petroleum Resources. British
Columbia Oil and Gas Handbook, (November 1995): 1: section 1.1 .
2. Ibid., 1: section 3.5.
3. Ibid., 3: section 2.1.5.
4. Ibid., 1: Attachment 3-4 Consultation Steps.
5. Ibid., 1: section 3.5.2.1.
6. Murray Rankin, Sandy Carpenter, Patricia Burchmore and Christopher Jones,
'Regulatory Reform in the British Columbia Petroleum Industry: the Oil and Gas
Commission' Alberta Law Review Vol38, No 1 (June 2000): 144.
7. Ibid., 145-146.
8. Oil and Gas Commission 'Financial Information Act Report for the Year Ended
March 31, 2000', 20.
Note: Under the 1998 MOU between the Province of British Columbia and Member
First Nations of Treaty 8: Blueberry River, Doig River, Prophet River, and Saulteau
First Nations www.ogc.gov.bc.caldocuments/firstnations/mou/t8ta-a3htm $235,675
was specifically earmarked for capacity to hire staff and set up an office. The
remaining came from contributions from development activities. For instance for
every well drilled the First Nations received $3,000 and 1,000 per year thereafter until
a certificate of restoration is received.
9. Some companies had agreements with First Nation communities that specified
payment of fees per application for review or general funding to review applications.
For instance the Blueberry First Nation had agreements with several companies
including Suncor Energy.
10. As of January 2001, all the First Nation communities except one have at least one
staff person to review applications.
11. Oil and Gas Commission, 'Aboriginal and Land Use Branch Directory',
www .ogc. bc.calphonelist.aso#abrel.
12. Presentation to CAPP by MEM officials April2001. Note: Doig River, Saulteau and
Fort Nelson First Nations have opted out of the MOUs last year, they have not
entered MOU negotiations with the government since then.
13.1bid.

83

CONCLUSION

Prior to 1990, no British Columbia government had recognized Aboriginal title or
Aboriginal rights. The 1991 NDP government was the first government to change that
aspect of Aboriginal history within the province and in essence, to begin the process to
re-enfranchise a people that had been disenfranchised for a very long period of time.
That recognition did not automatically result in significant changes to the day-to-day life
of Aboriginal people. Instead it was the beginning of a series of profound policy changes
that began by granting Aboriginal people more influence in policy and regulatory
decision-making in natural resource development. These policies are based on important
court decisions that have defined Aboriginal rights and defined how those rights must be
considered by governments.
What has changed for First Nation people in northeast British Columbia is their
role in policy and regulation of the oil and gas industry. Prior to 1995, when the Crown
lands policy was introduced, the First Nation communities in the area did not have any
input into the development of oil and gas resources on lands they traditionally used for
hunting, fishing, trapping and gathering. They did not have any influence in how such
activity would affect their treaty and Aboriginal rights. The provincial government
changed that with the introduction of the Crown lands policy by instituting a consultation
requirement that would apply the Sparrow test for rights and title infringement. Now for
the first time Aboriginal people across the province have to be consulted when lands they
used for traditional pursuits might be affected by development.

84

The implementation of the Oil and Gas Commission in 1998 further changed the
relationship between First Nations in the northeast, the provincial government and the oil
and gas industry. The First Nations communities signed MOUs with the provincial
government that provided funding for consultation, a process for their input into
development decisions and input into policy around oil and gas development. These are
dramatic changes for First Nation communities that have repeatedly tried to gain
influence over development decisions but up until 1995 had been unsuccessful.
Chapter One dealt with the Clayoquot Sound case and the need for further
examples of cases where Aboriginal peoples have meaningful input into resource
management and development in treaty areas as well as in non-treaty areas. The case of
First Nation communities in the oil and gas sector in northeast British Columbia is
instructive when compared to the Clayoquot Sound case. First, the First Nations in the
northeast did not achieve co-management as did the Clayoquot Sound Aboriginals,
however they achieved a place in the policy community and are considerably more
influential than they were prior to implementation of the Crown lands policy in 1995 and
subsequent Commission policy. The First Nation communities in the northeast now have
bi-lateral agreements with the provincial government, are consistently consulted on oil
and gas development applications and have recourse in the oil and gas policy and
regulatory arenas in the event of disagreements or disputes.
Second, in the Clayoquot Sound case the authors discussed the idea of policy
intersection occurring between the forestry policy community and the Aboriginal policy
community. In the oil and gas sector case the .policy community intersection occurred

85

when the Crown lands policy was implemented. Thus the policy intersection actually
occurred across all natural resource policy sectors including oil and gas and forestry.
Third, the Clayoquot Sound case involved a non-treaty First Nation entering the
policy community. As was discussed in Chapter One this is not uncommon, for the nontreaty First Nations have unextinguished Aboriginal title and so in a sense they have
additional leverage with which to negotiate co-management type agreements that provide
them more control over resource development. Often they are in negotiations with a
provinciaVterritorial government and the federal government and so have a forum to
address land use and management issues. In the oil and gas case, the First Nation
communities are members of Treaty 8 and as the literature review illustrated there are
few cases where treaty First Nations are provided the opportunity to engage in resource
management agreements. Governments, whether they be federal or provincial are
reluctant to engage in negotiations of this type with First Nation groups that have already
surrendered Aboriginal title under the terms of a treaty.
Finally, the Clayoquot Sound case resulted in co-management where the First
Nation group gained additional control over development of the resource including a joint
venture with the forestry company. This moved them from a non-productive actor that
does not receive material benefits to a productive actor that does benefit financially from
development. The First Nation communities in the northeast remain non-productive
actors that do not benefit directly from oil and gas development off reserve in the
northeast, except from whatever employment they can gain. 1
The oil and gas case provides a unique situation where both industry and
government have agreed to accept another actor into the sub-government sphere of the

86

policy community. Industry has also agreed to provide funding to that actor to allow
them to develop capacity and organizational structure that gives them additional leverage
in policy discussions.

Lessons Learned

The current regime governing policy and regulation of oil and gas development in
British Columbia is far from being the ideal regime for the affected actors for several
reasons. First, the Commission has within its mandate to increase development of oil and
gas resources in the area in the future. This goal will certainly affect First Nations' treaty
rights and their ability to practice traditional pursuits on their traditional lands. Several
justices in the Metecheah case agreed that any infringement of Aboriginal and treaty
rights was a prima facie infringement. If the number of these infringements continues to
multiply and severely adversely affect the ability of the First Nations to continue their
traditional pursuits will such development continue to be approved under the Sparrow
test? Or will limitations to development have to be applied to ensure that First Nation
people can practice their traditional pursuits in the future? That is will development have
to be capped so that the First Nations can be assured they will be able to hunt, fish and
trap in their treaty area?
Second, the Commission is mostly funded by industry, a productive actor that
receives direct material benefit from the development and by government, also a
productive actor that receives revenues from royalties, taxes, licenses and fees. The First
Nation actors are non-productive actors who do not receive a direct economic benefit
from development that occurs on non-reserve traditional lands, though they would like to

87

achieve some type of revenue sharing arrangement. At this point the indirect benefits
they receive are negligible. Only in the last decade have the communities begun to
receive any benefit from employment and contracting and that is largely limited to labour
intensive activities such as slashing. If the communities received more of a benefit from
the activity as do the Nu-cha-nulth in the Clayoquot case, they would have more of a
stake in encouraging development.
Since industry funds a large portion of the Commission they demand quicker
approval time on projects and more certainty of access to the land. The provincial
government has applied legal concepts such as the Sparrow test and consultation which
adds time to the process. First Nation groups want more influence within the decisionmaking process and material benefits from development. These three actors have
seemingly irreconcilable goals. Can all three achieve their goals? If so, how? Possible
solutions will be posed later.
The third issue with the process is the question that the justices discussed in both
the Metecheah and Amoco cases: Who in government is able to ascertain whether First
Nation treaty and Aboriginal rights are being infringed?

And what constitutes a

meaningful process to ensure that infringement is minimized? Some of the First Nation
communities that are signatories to the MOUs argue that the present consultation process
is a glorified delivery service where the communities are notified in detail of the
development but their concerns are not being incorporated into the approval process. The
Metecheah decision spells out what consultation should include. It is worth repeating.
The Crown's duty to consult imposes on it a positive obligation to reasonably
ensure that Aboriginal peoples are provided with all necessary information in a
timely way so that they have an opportunity to express their interests and

88

concerns, and to ensure that their representations are seriously considered and,
wherever possible, demonstrably integrated into the proposed plan of action. 2
The First Nation communities argue that although they are provided the necessary
information, they do not have enough time to adequately consider the effects the
proposed development may have on their rights, and their interests and concerns are not
seriously considered and demonstrably integrated into the plan.
Some solutions to address these issues might lie with the following models: comanagement, pre-development planning or pre-tenure consultation. A co-management
model may be a workable solution to address some of these issues so that treaty and
Aboriginal rights can be protected at an earlier stage in the development plan with First
Nation input and cooperation. Co-management usually includes the sharing of resources
or revenues. Neither government nor industry wants to give away a portion of their share
of the profits. Government is worried about setting a precedent that might be claimed by
other First Nation groups. They are especially reticent to set such a precedent in a treaty
area where Aboriginal title has already been extinguished.
Pre-development planning with First Nation input would give First Nation
communities a more timely opportunity to ensure their rights are protected.

The

provincial government would ensure that they have met their responsibility for
meaningful consultation and industry could be assured access to lands and timely
applications as the planning should identify areas of concern and mitigation earlier in the
process. The problem with this approach is the nature of the oil and gas industry is not
conducive to pre-development planning, unlike the forestry industry that develops five
year plans over the life of its tenure.

Pre-development planning in the oil and gas

89

industry is constrained by finding the resource, getting it into production as quickly as
possible and most importantly, the extremely competitive nature of the industry. Given
the consultation requirements facing industry and the issues around access to lands, predevelopment planning whereby the industry proposes plans for the entire development
cycle are likely inevitable. This will be a dramatic shift in the way the industry presently
conducts its business.
Pre-tenure consultation might be another alternative and could be incorporated
into both co-management and pre-development planning. Pre-tenure consultation is a
concept whereby consultation is done prior to the tenure being awarded to a resource
developer. The tenure is sold to the developer with caveats so that industry has some idea
of what limitations might be imposed on development. It could be implemented along
with pre-development planning so that development and traditional pursuits could occur
in a sustainable manner for future generations. Pre-tenure consultation is constrained by
the sheer size of the oil and gas tenures that are sold and by the dearth of information that
most First Nation groups have gathered about their traditional practices.

Extensive

traditional land use plans are generally required so that First Nation groups understand
their past and present use of the land and areas of importance. These plans are difficult
and expensive to do in a comprehensive and meaningful way and equally difficult to
apply to tenure applications so that confidential information is not passed onto industry
and meaningful mitigation can occur in specific situations.
Whatever model is applied will have to bring First Nations into the planning
stages earlier so that their concerns can be meaningfully addressed. Until First Nation

90

communities receive some direct benefit from the development, they will be less inclined
to support development activity.
As Thomas Berger argued, the goal of any cooperative arrangement between
Aboriginal communities and government is not to replace the subsistence economy with a
wage economy, which has been the traditional model the industrialized society has tried
to impose.

Instead a cooperative model should look to ensure that Aboriginal

communities are self-sustaining both from a traditional focus and from a resource
development focus. This means that Aboriginal peoples must have more control over the
lands that provide them sustenance during their traditional pursuits so that natural
resource development will not destroy their ability to practice the traditional ways. The
First Nation communities in the northeast area of British Columbia have not achieved this
level of control yet, but have come a long way toward that goal as active members of the
policy community.

91

Endnotes
1. The Doig River and Blueberry River First Nations are the exception as they receive
royalty monies from oil and gas activities on their former reserve, the Fort St. John
reserve that is located just north of Fort St. John. The band members were moved to
new reserve locations to give returning veterans farmland after World War II. The
federal government was to lease the mineral rights for the benefit of the bands but did
not do so. In Blueberry River Indian Band v. Canada (Department of Indian Affairs
and Northern development) (1995) the court awarded damages to compensate for lost
past royalties and a share of future royalties. The Fort Nelson First Nation has oil
and gas production on reserve but does not receive benefits from development on
traditional lands off reserve.
2. Halfway River First Nations v. B.C. BC Appeal1999, 29.

92

Bibliography

Allan, John. Information LetterE89-14 'Public Consultation Guidelines: Oil and Gas
Development,' Energy Resources Division, Dec. 12, 1989.
Anderson, David Report of the Commission of Inquiry into Fraser Valley Petroleum
Exploration. Province of British Columbia, 1991.
Asch, Michael ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and
Respect for Difference. Vancouver: UBC Press, 1997.
Asch, Michael. Home and Native Land: Aboriginal Rights and the Canadian
Constitution. Toronto, Methuen, 1884.
Atkinson, Michael M. Governing Canada: Institutions and Public Policy. Toronto:
Harcourt Brace & Company Canada, 1993.
Banshing, Keith ed State and Society: Canada in Comparative Perspective. Toronto:
University of Toronto Press, 1986.
Barlee, Bill 'Peace Region cash cow for province: Barlee' Alaska Highway News
September 22, 1995.
Berger, Thomas. Northern Frontier Northern Homeland: The Report OfThe Mackenzie
Valley Pipeline Inquiry. Volume One Ottawa: Minister of Supply and Services
Canada, 1977.
Berger, Thomas. Northern Frontier Northern Homeland: The Report OfThe Mackenzie
Valley Pipeline Inquiry. revised ed. Vancouver: Douglas & Mcintyre, 1988.
Berry, Glyn R. 'The Oil Lobby and the Energy Crises' Canadian Public Administration
17 (1974), 600-35.
Bickerton, James P. and Alain-G. Gagnon eds. Canadian Politics. Peterborough, Ontario:
Broadview Press, 1994.
Borrows, John J., Leonard I. Rotman. Aboriginal Legal Issues: Cases, Materials &
Commentary. Toronto: Butterworths Canada Ltd., 1998.
Bray, Matt and Ashley Thomson eds. At the End of the Shift: Mines and Single-Industry
Towns in Northern Ontario. Toronto: Dundum Press Ltd, 1992.
Bridges, G.E. 'Decision-Making Processes and the Energy Sector.' Prepared for the
British Columbia Round Table On the Environment and the Economy, June 1990.

93

British Columbia Energy Council. 'Planning Today for Tomorrow's Energy: An Energy
Strategy for British Columbia,' 1994.
British Columbia Ministry of Aboriginal Affairs, 'First Nations Property Taxation' (n.d.).
British Columbia Ministry of Aboriginal Affairs, 'First Nations Taxation' (n.d.).
British Columbia Ministry of Aboriginal Affairs, 'Important Events Leading to Treaty
Negotiations in B.C. ' (n.d.).
British Columbia Ministry of Aboriginal Affairs, 'Interim Measures' (n.d.).
British Columbia Ministry of Aboriginal Affairs. 'Landmark Court Cases' (n.d.).
British Columbia Ministry of Aboriginal Affairs, 'Provincial Treaty Mandates' (n.d.).
British Columbia Ministry of Aboriginal Affairs, 'Treaty Negotiations in B.C.' (n.d.).
British Columbia Ministry of Aboriginal Affairs. 'The Aboriginal Peoples of British
Columbia: A Profile' 1992.
British Columbia Ministry of Energy Mines and Petroleum Resources. 'British Columbia
Oil and Gas Handbook,' November 1995.
British Columbia Ministry of Energy Mines and Petroleum Resources 'Drilling and
Production Statistics,' 1995.
British Columbia Ministry of Energy Mines and Petroleum Resources. 'Energy Supply &
Requirements' 1990.
British Columbia Ministry of Energy Mines and Petroleum Resources. 'MuskwaKetchika Area: Planning for Energy and Mineral Resources.' August 1995.
British Columbia Ministry of Energy Mines and Petroleum Resources. 'Petroleum and
Natural Gas Title Holdings, Hectares and Revenue,' 1995, 1998, 2000.
British Columbia Ministry of Energy Mines and Petroleum Resources. 'A Program
Review: First Nations' Involvement in the Ministry of Energy, Mines and
Petroleum Resources' Referral and Project Review Processes.' May 1994.
British Columbia Ministry of Energy Mines and Petroleum Resources. 'Towards Energy
Sustainability: Implementing the B.C. Energy Council's Energy Strategy for
British Columbia,' May 31, 1995.
British Columbia Ministry of Energy Mines and Petroleum Resources. 'Vision.'
Gopher://www .empr.gov. bc.ca: 02/27/96.

94

British Columbia Ministry of Environment Lands and Parks. 'Guidelines for Pre-Treaty
Consultations with First Nations,' May 1994.
British Columbia Ministry of Finance and Corporate Relations. 'Labour Force Survey
Data,' 1989.
British Columbia Ministry of Finance and Corporate Relations. 'Infoline: Focus on the
Economy.' July 26, 1996.
British Columbia Native Affairs Branch, Ministry of Environment Lands and Parks.
'Interim Guidelines on Aboriginal Use of Fish and Wildlife: Discussion Paper,'
March 1993.
British Columbia Oil and Gas Commission and Ministry of Energy and Mines. 'Oil and
Gas in British Columbia: Statistics 1988-1998' (n.d.).
British Columbia Round Table on the Environment and the Economy. 'Sustainable
Development and Energy,' 1990.
British Columbia Trade Development Corporation. 'British Columbia in the World .
Economy; Background Paper Prepared for the Premier's Summit on Trade and
Economic Opportunity,' June 17-19, 1992.
Brody, Hugh. Maps and Dreams. Vancouver: Douglas and Mcintyre, 1988.
Brooks, Stephen. Public Policy in Canada: An Introduction. Toronto: Oxford University
Press, 1998.
Burkey Stan People First: A Guide to Self-Reliant, Participatory Rural Development.
London, Zed Books Ltd. 1993.
Canada, Royal Commission on Aboriginal Peoples. People to People, Nation to Nation:
Highlights from the Report of the Royal Commission on Aboriginal Peoples.
Minister of Supply and Services Canada, 1996.
Canadian Association of Petroleum Producers, Public Relations Department, interview,
September 1996, 2001.
Carty, Ken. ed. British Columbia Government and Politics. Vancouver: UBC Press,
1996.
Carpenter, A.W. Sandy. 'Issues Under Treaty 8 and the MOU' s with the Province' a
paper delivered at the conference Streamlining the Approval of Oil and Gas
Operations in B.C. Calgary: Insight Information Co. December 9, 10, 1999.

95

Cassidy, Frank, ed. Aboriginal Title in British Columbia: Delgamuukw v. The Queen.
Lantzville, B.C: Oolichan Books and Institute for Research and Public Policy,
1992.
Cassidy, Franked. Reaching Just Settlements: Land Claims in British Columbia
Lantzville, B.C: Oolichan Books and Institute for Research and Public Policy,
1991.
Chandler, Marsha A. and William M. Chandler. Public Policy and Provincial Politics.
Toronto: McGraw-Hill Ryerson Limited, 1979.
Citizens' Voice on Native Claims. 'What the Delgamuukw ruling means to B.C.' January
20, 1998.
Coates, Ken ed. Aboriginal Land Claims in Canada. Toronto: Copp Clark Pitman Ltd,
1992.
Coleman, William D. and Grace Skogstad. Policy Communities and Public Policy in
Canada: A Structural Approach. Mississauga, Ontario: Copp Clark Pitman Ltd,
1990.
David Collier "The Comparative Method" in Political Science: The State of the DisCipline
II ed. by Ada W. Finifter. American Political Science Association 1993.
Davidson, James West; Gienapp, William E.; Heyrman, Christine Leigh; Lytle, Mark H.;
Stoff, Michael B. Nation of Nations: A Narrative History of the American
Republic, New York: McGraw Hill, 1990.
Dickason, Olive Patricia. Canada's First Nations: A History of Founding Peoples from
Earliest Times. Toronto: Oxford University Press, 1997.
Donaldson, T. & Preston, L. ''The stakeholder theory of the corporation: Concepts,
evidence, implications." Academy of Management Review, 20: 65-91, 1995.
Dunleavy, Patrick and Brendan O'Leary. Theories of the State: The politics of liberal
democracy. London: MacMillan Education Ltd, 1987.

Delgamuukw et al. v. Her Majesty the Queen in Right of British Columbia and The
Attorney General of Canada, BC Appeal1993.
Delgamuukw et al. v. Her Majesty the Queen in Right of British Columbia and The
Attorney General of Canada, 3 S. C.R. 1010 1997.
Department of Indian and Northern Affairs, Regional Office, interview September 1996.

96

Eckstein, Harry. 'Case Study and Theory in Political Science.' in Handbook of
Political Science, vol. 7, eds. Fred Greenstein and Nelson W. Polsby. Reading,
MA: Addison- Wesley. 1975.
Elliot, David W. Law and Aboriginal Peoples in Canada. North York, Ontario: Captus
Press Inc. 2000.
Evans, Peter B., Dietrich Rueschemeyer, Theda Skocpol eds., Bringing the State Back In.
Cambridge, Mass.: Cambridge University Press, 1985.
Faulkner, Hugh. 'Pressuring the Executive' in Canadian Public Administration Vol25(2)
Summer 1982 pp 240-253.
Fisher, Robin. Contact and Conflict: Indian -European Relations in British Columbia,
1774-1890. 2nd edition Vancouver: UBC Press, 1992.
Forester, John. Planning In the Face of Power. Berkeley: University of California Press,
1989.
Fossum, John Erik. Oil the State, and Federalism: The Rise and Demise of Petro-Canada
as a Statist Impulse. Toronto: University of Toronto Press, 1997.
Frideres, James S. Native Peoples in Canada: Contemporary Conflicts. Scarborough,
Ont: Prentice-Hall, 1993
Freeman, R. E. Strategic Management: A stakeholder approach!. Boston: Pitman 1984.
Gray, Jarvis. Ministry of Environment, Native Program Officer- Northeast Region,
telephone interview November 23, 1995.
George, Herb. Negotiator for the Gitksan, interview, 7 April1995.

Globe and Mail. "B.C. NDP Recognizes Aboriginal Land Title," December 11, 1991 Al.
Gouge, Ted. 'The Impact of Delgamuukw on Resource Development in British
Columbia' Lawson, Lundell, Lawson & Mcintosh, January 1998.
Government of Alberta, "Strengthening Relationships: The Government of Alberta's
Proposed Aboriginal Policy Framework," 1999.

Guerin v. R 1984
Halfway River First Nations v. B.C. BC Appea11999.

97

Hoberg, George. 'Putting Ideas in Their Place: A Response to 'Learning and Change in
the British Columbia Forest Policy Sector' Canadian Journal of Political Science
XXIX: 1 March 1996, pp 135-144.
Hoberg, George and Edward Morawski. 'Policy change through sector intersection: forest
and aboriginal policy in Clayoquot Sound' in Canadian Public Administration vol
40(3) Fall2000, pp 387-414.
Home, Garry and Lee Robson. 'British Columbia Community Economic Dependencies. '
Prepared for the British Columbia Round Table on the Environment and the
Economy, March 1993, pg. 10.
House, J.D. The Last of the Free Enterprisers: The Oilmen of Calgary. Toronto:
MacMillan, 1970.
Howlett, Michael and M. Ramesh. Studying Public Policy: Policy Cycles and Policy
Subsystems. Toronto: Oxford University Press, 1995.
Jenkins-Smith, Hank C., St. Clair, Gilbert K., Woods, Brian. 1991. "Explaining Change
in Policy Subsystems: Analysis of Coalition Stability and Defection over Time"
American Journal of Political Science 35:851-880.
Judge, David, Gerry Stoker, & Harold Wolman. ed. Theories of Urban Politics London:
Sage Publications 1995.
Kelly Lake Cree Nation vs Canada, BC Appeal1998.
'Kelly Lake Cree Nation v. British Columbia (Ministry of Energy and Mines): the Mount
Monteith Decision,' in Alberta Law Review Vol 38( 1) pp 307-311.
Kjelgren, Bert and Terry Barth, Pipelines Division, Ministry of Municipal Affairs, Fort
St. John, interview October and November 1995.
Koopman vs. Ostergaard, BCJ, No 1822, 1995.
Kulchyski, Peter. Unjust Relations: Aboriginal Rights in Canadian Courts. Toronto,
Ontario: Oxford University Press., 1994.
Lawson, Lundell, Lawson & Mcintosh 'Aboriginal Law in British Columbia: Current
Issues and Implications for Business' presentation to Canadian Association of
Petroleum Producers, February 9, 1998.
Laxer, James Oil and Gas: Ottawa, the Provinces and the Petroleum Industry. Toronto:
James Lorimer and Co, 1983.

98

Lertzman, Ken, Jeremy Rayner and Jeremy Wilson. "Learning and Change in the British
Columbia Forest Policy Sector: A Consideration of Sabatier's Advocacy Coalition
Framework" Canadian Journal of Political Science XXIX:! March 1996, pp 111133.
Lertzman, Ken, Jeremy Rayner and Jeremy Wilson. "On the Place of Ideas: A Reply to
George Hoberg" Canadian Journal of Political Science XXIX: 1 March 1996, pp
145-148.
Maerz, David H. & Leonard A. Coad. Markets for British Columbia Natural Gas.
Calgary Alta.: Canadian Energy Research Institute, 1990.
McGee, R. Harley Getting It Right: Regional Development in Canada. Montreal: The
Institute of Public Administration of Canada, MeGill-Queen's University Press,
1992.
Masselink, Derek. Ministry of Environment Native Program Officer- Prince George
Region, telephone interview, November 23, 1995.
McAllister, Mary Louise and Cynthia Jacqueline Alexander. A Stake in the Future:
Redefining the Canadian Mineral Industry Vancouver: UBC Press, 1997 draft
manuscript.
McAllister, Mary Louise. "Navigating New Waters: A Multi-Stakeholder Approach to
Sustainable Mining." Presented at Stimulating Rural Economies for the 2000s
Rural Institutional Restructuring, Canadian Rural Restructuring Foundation
February 1995.
McAllister, Mary Louise. "A Stake in the North: Prospects for Employment in Mining
Towns." Presented at the International Symposium "Gaining Ground:
Perspectives on Rural Employment," October 11-14, 1995.
Michalos, Alex C. "Decision-Making in Committees." American Philosophical Quarterly
Volume 7 Number 2 April1970.
Mitchell, Bruce. ed. Resource and Environmental Management in Canada: Addressing
Conflict and Uncertainty. Toronto: Oxford University Press, 1995.
Morris, Teresa, EMPR Victoria, interview May and June 1997, 1998.
Morrison, R. Bruce and C. Roderick Wilson ed. Native Peoples: The Canadian
Experience Second Edition, Toronto: McClelland and Stewart Inc. 1986.
"Northern Hydrocarbon Development in the Nineties: A Global Perspective" proceedings
of a conference held Sept. 30 to Oct. 4, 1988 in Calgary and Yellowknife
publishedby Geotechnical Science Laboratories, Carelton University: Ottawa,
1989.
99

Notzke, Claudia. Aboriginal Peoples and Natural Resources in Canada. North York,
Ontario: Captus Press Inc., 1994.
Pal, Leslie A. Public Policy Analysis: An Introduction Second Edition. Scarborough,
Ontario: Nelson Canada, 1992.
Pal, Leslie A. Beyond Policy Analysis: Public Issue Management in Turbulent Times.
Scarborough, Ontario: International Thomas Publishing, 1997.
Pateman, Carole. Participation and Democratic Theory. London: Cambridge University
Press, 1970.
Patton, Carl V. and DavidS. Sawicki. Basic Methods of Policy Analysis and Planning.
New Jersey: Prentice Hall, 1993.
Phillips Ed, Guts & Guile: True Tales From the Backrooms of the Pipeline Industry.
Vancouver: Douglas & Mcintyre, 1990.
Pocklington, T.C. ed. Representative Democracy: An Introduction to Politics and
Government. Toronto: Harcourt Brace, 1994.
Poelzer, Greg. 'Aboriginal Peoples and Environmental Policy in Canada: No Longer at
the Margins in Canadian Environmental Policy: Context and Cases for a New
Century. 2nd ed. Debora L. VanNijnatten and Robert Boardman, eds., Toronto:
Oxford University Press, 2001.
Prentice, P.E. James. 'Consult, Consult, Consult: Doing Business with First Nations After
Delgamuukw,' presentation to Canadian Association of Petroleum Landman
Conference, Calgary, Alberta, 1998.
Pross, Paul A. 'Pressure Groups: Talking Chameleons' in Whittington, MichaelS. and
Glen Williams eds., Canadian Politics in the 1990s, Fourth Edition. Scarborough:
Nelson Canada, 1995.
Pross, Paul A. Group Politics and Public Policy: Second Edition. Toronto: Oxford
University Press, 1992.
Province of British Columbia, 'Consultation Guidelines' September 1998.
Province of British Columbia, 'Crown Land Activities and Aboriginal Rights Policy
Framework' January 25, 1995.
Province of British Columbia Legislative Assembly. 'Opening Speech of The
Honourable David C. Lam Lieutenant Governor On Opening the First Session of
the Thirty..:fifth Parliament of the Province of British Columbia'

100

[er://bbs.qp.gov .bc.ca:70/0QP_INFO/SYS %3AILEGIS/ 1992/MISC/92THRONE.
TXT] March 17, 1992.
Province of British Columbia Legislative Assembly. 'Speech from the Throne by The
Honourable David C. Lam Lieutenant Governor at the Opening of the Second
Session, Thirty-fifth Parliament of the Province of British Columbia'
[er:/lbbs.qp.gov .bc.ca:70/0QP_INFO/SYS%3AILEGIS/1993/MISC/93THRONE.
TXT] 1993.
Province of British Columbia Legislative Assembly. 'Speech from the Throne by The
Honourable David C. Lam Lieutenant Governor at the Opening of the Third
Session, Thirty-fifth Parliament of the Province of British Columbia'
[er:/lbbs.qp.gov.bc.ca:70/0QP_INFO/SYS%3AILEGIS/1994/MISC/94THRONE.
TXT] March 14, 1994.
Province of British Columbia Legislative Assembly. 'Speech from the Throne by The
Honourable David C. Lam Lieutenant Governor at the Opening of the Fourth
Session, Thirty-fifth Parliament of the Province of British Columbia'
[http://bbs.qp.gov.bc.callegis/95throne.htm] March 22, 1995.
Province of British Columbia. '1995 Budget Speech'
[http://www .qp.gov. bc.calbudget95/95bgt_sp.htm #natural resources].
Province of British Columbia Legislative Assembly. 'Speech from the Throne by The
Honourable Garde B. Gardom Lieutenant Governor at the Opening of the Fifth
Session, Thirty-fifth Parliament of the Province of British Columbia'
[http://www.legis.gov.bc.ca/96throne.htm] April25, 1996.
Purvis, Andrew. 'Whose Home and Native Land,' Time Canadian Edition February 15,
1999 pp 16- 26.
Quirin, David G. Economics of Oil and Gas Development in Northern Canada. Ottawa:
Ministry of Northern Affairs and National Resources, 1962.
R. v. Spa"ow, S.C.R. 1990.

Raboy, Marc. 'The Role of Public Consultation in Shaping the Canadian Broadcasting
System.' Canadian Journal of Political Science XXVIII:3 September 1995 pp
455-477.
Rankin, Murray, Sandy Carpenter, Patricia Burchmore and Christopher Jones,
'Regulatory Reform in the British Columbia Petroleum Industry: the Oil and Gas
Commission' Alberta Law Review Vol38{1), June 2000 pp 143-169.

101

Ross, Monique M. and Cheryl Y. Sharvit. 'Forest Management in Alberta and Rights to
Hunt, Trap and Fish Under Treaty 8,' Alberta Law Review Vol36(3) 1998 pp
645-691.
Sharvit, Cheryl, Michael Robinson, and Monique M. Ross. 'Resource Developments on
Traditional Lands: The Duty to Consult' University of Calgary: Canadian Institute
of Resources Law, Occasional Paper #6, February 1999.
Sloan, Pamela and Roger Hill. Corporate Aboriginal Relations: Best Practice Case
Studies. Toronto: Hill Sloan Associates Inc. 1995.
Smith, Melvin H. Our Home Or Native Land? Toronto: Stoddard Publishing, 1995.
Stevenson, Mark. Chief Treaty Negotiator with the Province of British Columbia,
interview, September 1996.
Sub-committee of the Intergovernmental Working Group on the Mineral Industry.
'Report on Native Participation in Mining: Phase I & 11' December 1990,
November 1991.
Tennant, Paul. Aboriginal Peoples and Politics: The Indian Land Question in British
Columbia, 1849-1989. Vancouver: UniversityofBritish Columbia Press, 1990.
Thorlakson, Steve. Mayor of Fort St. John, Third Vice-President of Union of B.C.
Municipalities, Chair of Communities and Resource Committee, interview June
1997.
Toner, Glen and G. Bruce Doern. 'The Two Energy Crisis and Canadian Oil and Gas
Interest Groups: A Re examination of Berry's Propositions.' Canadian Journal of
Political Science XIX:3 September 1986 pp 467-493.
Toner, Glen and G. Bruce Doern. The Politics of Energy: The Development and
Implementation ofthe NEPToronto: Methuen, 1985.
Toner, Glen and G. Bruce Doern. 'Energy Budgets and Oil and Gas Interests,' in Allan
M. Maslove (ed.), How Ottawa Spends. Toronto: Methuen, 1985.
Union of British Columbia Municipalities. 'Local Government and Native Land Claims.'
Item #3(b), B.C. Communities Agenda, September 1991.
Weaver, Sally M. 'The Joint Cabinet/Indian Brotherhood Committee: a unique
experiment in pressure group relations in 'Governing Under Pressure: the special
interest groups-Fourteenth National Seminar, 1981. A. Paul Prossed. Toronto:
The Institute of Public Administration of Canada, 1982, pp 211-239.

102

Wilks, Stephen and Maurice Wright, eds. (1987). 'Conclusion: Comparing GovernmentIndustry Relations: States, Sectors, and Networks.' In Wilks and Wright.
Comparative Government-Industry Relations. Oxford: Oxford University Press:
274-313.
Williams Melissa S. 'Burkean 'Descriptions' and Political Representation: A
Reappraisal.' Canadian Journal of Political Science XXIX:1 March 1996, pp 2345.

103