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LMCI Meeting Summary - Kwakiutl District Council - 20 May 2008

20 May 2008
Campbell River, British Columbia

Agenda:

• Overview of LMCI
• Discussion
• Next Steps

Introduction to Kwakiutl District Council (KDC)

• 10 member nations supported by the KDC Advisory Services
• Member Nations possess Aboriginal Rights and Title and some also Treaty Rights (Douglas Treaty).
• Geographically the member nations range from Comox and North on Vancouver Island.
• KDC has a 7 member executive voted in by Member Nation delegates, including each chief and council.
• KDC works for the member nations in the Advisory Services areas of governance, financial management, community planning, and technical support services (e.g., support for environmental assessments), on-reserve and planning services in traditional territories.
• Consulting with the KDC is not consulting with each member nation.
• With respect to the NEB's mandate, the KDC is interested in international power line infrastructure and how the lack of infrastructure may affect wind power development on Vancouver Island and the exploration, production and transport of oil (Oil Tankers should be considered moving pipelines-pipeline does not end at port's oil terminal).
• Concern exporting power/energy - often doesn't benefit the communities where facilities are located.

Stream 1 - Company Interactions with Landowners

• Can be difficult to distinguish between meaningful consultation and negotiation. Is negotiation part of consultation when a company and a First Nation are discussing accommodation?
• In order to be consulted with, First Nations need capacity, including money, to avoid taking the time and resources away from other important activities, to engage with the company or the government.
• Participant funding for a hearing process does not cover consultation costs.
• Without capacity or monetary support for consultation it can't be meaningful - if the First Nations cannot come to the table due to lack of capacity, there is no meaningful consultation. If there is no response to phone calls or faxes, this doesn't mean the First Nation is okay with the project; it could mean the First Nation didn't have the capacity to respond in the given time period.
• First Nations should not be called a “stakeholder” and lumped in with the rest of the public.
• Sometimes, First Nations need to hire a lawyer or an expert who is experienced with the industry in order to negotiate on a level playing field. This could include non-legal specialist, such as archaeologists, to participate in traditional land use or archaeological studies.
• First Nations often require that the company or its contractors will hire a First Nation monitor to be on site for certain field work or during the construction phase.
• NEB could set expectations for companies on what is meaningful consultation (i.e., provide the capacity for First Nations to participate in consultation).

Stream 2 - Improving Access of NEB Processes

• Hiring an independent consultant to review an application can be difficult - who pays? Company doesn't want to pay for an independent review. Government often doesn't have the budget, or participant funding is not pre-paid; therefore there is a risk for a participant to expend costs if they are not sure if the government will reimburse the costs (BC EAO for example)
• For projects that do not proceed (either to an application or to construction, post-approval) the time taken by a First Nation to participate in consultation is a burden and can be challenging.
• Most of the effort undertaken by First Nations during consultation is upfront, pre-application, pre-approval, so when a company doesn't proceed with a project, this is frustrating from the First Nation's perspective.
• Up front costs to participate in consultation are a financial burden on the First Nation and these costs need to be covered by the company or by the government in order for the First Nation to meaningfully engage.
• Talk directly with the First Nation members of KDC to understand the lessons learned on past projects/developments.
• Need a First Nations Participant Funding and Capacity Funding program in place. The capacity part would cover the pre-application consultation and the participant part would cover the First Nation's participation in the project review.
• For the capacity, up front costs, how would the NEB know if the company was serious about the project - how would the NEB know for which projects they should provide capacity funding to a First Nation? Many projects don't even make it to the regulatory review stage.
• How much money should be in the fund? KDC suggested reviewing the west coast's Emergency Oil Clean-Up Fund as a funding example - there is a formula included to determine who contributes how much to the fund.
• To develop a relationship with KDC First Nations, the NEB needs to be contacting KDC member nations directly.
• KDC member nations would be interested in any project involving tanker traffic shipping hydrocarbons on the West Coast as some of the KDC member nations traditionally use the marine resources on the West Coast that could be adversely affected by an oil spill.
• Participant funding should also cover costs associated with attending a hearing (i.e., child care, gas, accommodation, food, work time lost).
• First Nations attending a hearing and receiving funding may also need to report back to their band on the status of the hearing and the funding (i.e., financial due diligence).
• Outside of hearings, companies and government need to consider paying, for example, honorariums to chiefs and council members and elders for attending meetings - this is standard.
• Following up on commitments made by a company to a First Nation during a review - the commitments may be included in the terms of an agreement/contract negotiated with the First Nation; if there is no agreement/contract, NEB could include these commitments in the conditions of a Certificate, if they are within the NEB's mandate to enforce.
• Cumulative effects - no one is addressing this issue adequately. How would the cumulative effects of multiple linear disturbances in one area affect traditional land use?
• Crown consultation: government needs to provide capacity funding for First Nations to meaningfully engage in consultation. Often the government doesn't come with funding outside of a review process to fund First Nations' participation in consultation.

Stream 4 - Pipeline Abandonment - Physical Issues

• Restore right of way back to traditional land use capacity, e.g., harvesting indigenous plants.
• What happens to pipelines abandoned under watercourses - abandon in place? What criteria would apply?
• What percentage of land for rights of way is privately owned by companies?
• How many kilometers of pipeline rights of way will be abandoned in the next 5-10 years?
• What happens to the right of way after abandonment? Will it be used for other purposes, other utilities? How will access be managed?

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Date Modified:

2011-10-28