Making space for reconciliation in the planning system

Abstract

Indigenous rights complicate state-led planning with potentially important transformative effects. While rights may grant a particular kind of access to planning venues to create opportunities for challenging prevailing policy views about reconciliation, these opportunities may also be vulnerable to planning system changes. Drawing upon the case of Haida Gwaii, this paper tells a story about a dispute over territorial rights that have been squeezed out of institutional venues for over a century. In seeking to have this dispute heard, the Haida Nation have sought out blockades and the courts, achieving a collaborative planning arrangement with the Province of British Columbia in 2009. These events are set in contrast to a more recent environmental assessment that was initiated by the Government of Canada to consider the controversial Northern Gateway (tar sands) pipeline and tanker project. It is argued that a series of environmental planning reforms tied to this project review are likely to impinge upon the very strategies used by the Haida Nation to achieve collaboration.

Keywords::

• British Columbia
• Enbridge
• environmental impact assessment
• Indigenous rights
• planning reform

Notes

^1. The Crown is usually expressed as the Crown in the right of Canada or the Crown in the right of British Columbia and generally refers to federal and provincial governments.

^2. This time is predominantly understood to be 1871 when BC joined the Confederation of Canada.

^3. Case law defines Indigenous title as communal in nature and includes the “right to exclusive use and occupation of the land … for a variety of purposes … including non-traditional purposes” (Tsilhqot’in v. BC, 2014, s. 67).

^4. Arbitrarily adopting the vantage point of the Crown (Borrows, 2002), the Supreme Court of Canada ruled in 2014 that “Aboriginal rights are a limit on both federal and provincial jurisdiction” (Tsilhqot’in v. BC, 2014, s. 141).

^5. Unlike EIA, SEA in Canada is not legally required. It is defined in a federal Cabinet Directive as an impact assessment “for policy, plan, and program” and generally extends beyond an individual project to “broader regional, conceptual, and policy-level” issues (Noble, 2009, p. 66).

^6. Howa’a Hawaa Thank you to all of you who participated in this research and the related conversation on research (Galbraith, 2011). The findings presented here are not meant to reflect the opinions of any person or organization consulted for this research. The errors and omissions are the responsibility of the author alone.

^7. Potatches are an “essential part of the social, legal, economic and political systems of all coastal First Nations.” The ban “changed the entire fabric of society, pushing the interconnected celebrations for pole raisings, the naming of new chiefs, house building, and more underground. The ban wasn’t lifted until 1951, affecting several generations” (Ramsay, 2011, p. 4).

^8. For more than 80% of the provincial land base no treaties exist. Instead, these areas have been subject to competing claims of sovereignty.

^9. Evidence was also provided by Haida leaders in two hearings in Haida Gwaii (see CHN, 2001, p. 6; Harris, 2002, p. 213).

^10. In 1991, the BC Treaty Commission was formed and is the central process today. Since its inception there have only been three modern treaties struck (including one negotiated through the federal process) and only 60% of BC First Nations have entered negotiations (Egan, 2012).

^11. Tree Farm Licence 39.

^12. Haida Nation v. BC, 2004.

^13. As previously outlined in Delgamuukw v. BC, 1997.

^14. Takeda and Røpke (2010) provide a more detailed description of the events leading to this agreement.

^15. Appendix E – The Streamlined Process for the Review of Applications, in the Kunst’aa Guu – Kunst’aayah [The Beginning] – Reconciliation Protocol Decision Making Framework Implementation Plan; personal communication with Provincial staff and member of Haida leadership on 3 January 2013 and 6 February 2013, respectively.

^16. At the time of writing Canada recently re-engaged with this political table and new committees are being formed (Crist, 2013).

^17. Canada engaged with the Haida through the Oceans Act and a subsequent agreement as part of the Pacific North Coast Integrated Marine Area (PNCIMA) initiative (Jones et al., 2010).

^18. In November 2011, the Province of BC took over the funding arrangement to lead the integrated process, but BC does not hold jurisdiction for fish or marine transport. The federal government continued to work with regional level First Nations, such as Coastal First Nations that represents the Haida Nation, on a significantly scaled back plan.

^19. The original article remains vague on what party raised these concerns.

^20. A Crown Consultation Coordinator monitors the JRP process to ensure the federal government meets its legal duty to consult and, where appropriate, accommodate.

^21. The tanker portion of the 1972 moratorium on offshore oil exploration, development, and tanker traffic was lifted in 2006, leaving only an industry-led “voluntary exclusion zone” (Sutherland, 2007; also see Canadian Coast Guard, 2012). In 2010, a non-binding motion passed through the House of Commons calling for the formalization of the moratorium on oil tanker traffic in the Pacific north coast (McCarthy, 2010).

^22. A highly controversial Joint Review Panel for the Mackenzie Gas pipeline project, completed in 2009, saw only 558 presenters across 26 communities or regional cities. The Enbridge JRP has travelled to 20 communities and regional cities sitting in hearings for 168 days (JRP, 2013c). According to Dogwood, however, only 1600 people signed up through their campaign.

^23. The news release for the first bill promised to include a new Aboriginal reconciliation policy guidance document to reflect the new emphasis on the “whole government” approach to consultation (Government of Canada, 2012). At the time of writing this, no policy guidance has been released.

^24. These comments come from the Union of BC Indian Chiefs, a non-governmental political organization that focuses on building relationships amongst Indigenous peoples and to present BC First Nations’ voices in various governance activities.

^25. February 28th and 29th in Old Massett and March 21st and 22nd in Skidegate.

^26. This government-to-government process is a term that reflects the collaborative arrangements mentioned above.

^27. These principles are discussed briefly in Jones et al. (2010). However, to understand this idea requires lived or experiential knowledge that cannot be explained in writing here. See Nadasdy (2003) for a thorough critique on “incorporating” Indigenous ways of knowing into environmental planning.

^28. In line with JRP guidance, “lifestyle” refers to the “practices, traditions, and customs” of using renewable resources, within the first part of the definition of Aboriginal rights guiding the Panel process (CEAA, 2010, p. 12).

^29. This idea refers to section 5(1)(c) of the Canadian Environmental Assessment Act.

^30. The Beaver Cree First Nation territory is approximately the size of Switzerland and produces 30% of the daily bitumen production (560,000 barrels per day; Pratt, 2013).

^31. The “strategic” decisions refer to tree farm licences necessary to acquire before a cut block permit can be issued. These two levels of decisions are akin to a change to a strategic land or marine use plan and project-level permission.

Additional information

Funding

This work was supported by SSHRC Doctoral Fellowship, [award number 752-2011-0639].

Notes on contributors

Lindsay Galbraith

Lindsay Galbraith recently completed her PhD at the University of Cambridge where she examined reconciliation and resource planning. She is currently employed as Senior Researcher with the Firelight Group, a small community-based, mission-driven research cooperative based in British Columbia. She works out of the Haida Gwaii office focusing on Indigenous rights and title and resource planning in Canada.