Editorial: Talking out of both sides

With First Nations having won some key court victories in recent months, the federal government looks to be responding (or at least appearing to do so) with new measures announced last week on treaty negotiations and reconciliation.

Among the measures are new guidance for industry on consultation with aboriginals and entering into more consultation protocols in areas such as resource development. They also include an effort to clarify the federal government’s approach to helping resolve shared territory disputes related to resource development.

It all sounds good, but it’s interesting that while all of this is going on, the federal government continues to spend large sums on litigating against First Nations over resource issues such as oil and gas royalties. According to recent figures provided to Parliament and reported by Law Times in June, oil and gas disputes have been the top spending item when it comes to Aboriginal Affairs and Northern Development Canada’s use of outside law firms for at least the past three years (although the figures for 2013-14 were for just part of that fiscal year).

A 25-year legal dispute with Alberta First Nations over oil royalties is a major item on the department’s list of law firm spending. One First Nation in particular, the Samson Indian Nation, has been battling the government first over the interest paid on royalties it had been holding on its behalf and now on the price Canada had based them on during the 1970s. The First Nations lost on the interest issue at the Supreme Court of Canada a few years back but they continue to challenge the government’s use of the lower domestic price of oil during that period, rather than the higher exported price, to calculate the royalties owing to the First Nation. The issue, of course, dates back to the time of regulated oil prices in Canada. The parties have been litigating over the issue since 1989 with much of the proceedings so far involving interlocutory motions.

As with many of these cases, the government has its own interests to protect and there’s no doubt one of the key underlying issues is the ability to tax natural resources. But with the government facing so many challenges over projects like the Northern Gateway pipeline and with important rulings such as the recent Supreme Court decision on aboriginal title, it’s clear it needs to take a different approach. Pouring money into fighting First Nations in court over so many years and on so many fronts isn’t getting us anywhere. The government may talk a lot about reconciliation with announcements like the one last week, but its actions in court suggest otherwise.
At the very least, it needs to be more consistent and probably go further than what it announced last week.

Glenn Kauth

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