The Osoyoos Indian Band in B.C., led by Chief Clarence Louie, has more than a dozen businesses on-reserve and a couple off-reserve that bring in about $9-million in net profit each year.Photos by Artur Gajda/The Globe and Mail
Indigenous-led companies are weighing the economic potential of controversial new federal legislation that could streamline major projects against fears it could sidestep treaty land rights.
Ottawa’s Bill C-5 provides the federal cabinet with power to disregard various laws to speed up approval of projects and construction if they’re deemed to be in the national interest. Indigenous leaders and groups across Canada have strongly criticized the bill as a way for governments to ignore the constitutional requirement to consult First Nations about development on their traditional territories and have called for the legislation to be rescinded.
Opposition to the bill by Indigenous communities and people often relies on the duty to consult – a concept recognized in court rulings over the past several decades and affirmed in the Supreme Court of Canada in 1997 – and Section 35 of the Constitution, which acknowledges treaty rights.
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The duty to consult has long been a hotbed for disagreements between First Nations and project developers. For example, in British Columbia, Wet’suwet’en Nation hereditary chiefs led blockades and protests against the construction of the $14.5-billion Coastal GasLink pipeline, while elected band councils signed agreements with the pipeline’s builder. It was ultimately completed in late 2023.
Indigenous-owned companies, sometimes intertwined with First Nations, Métis or Inuit governments as their development corporations, are in a unique position under the bill. Some companies hope the legislation will lead to stakes in large projects, including those built safely in traditional territory and in consultation with Indigenous governments. Others fear the legislation could ignore community objections to developments in the name of progress.
The Osoyoos Indian Band in B.C. has a reputation as a First Nations community with business prowess. It has more than a dozen businesses on-reserve and a couple off-reserve that bring in about $9-million in net profit each year.
Economic prosperity and reinvestment back into the community are Chief Clarence Louie’s primary concerns. The chief of about 40 years and chief executive officer of Osoyoos Indian Band Development Corp. said it’s impossible to focus on all issues equally.
Mr. Louie says his First Nation is actively involved in forestry operations and is vying for a stake in a potential gold and copper mine project located in the band’s traditional territory.
“I want business to happen and quicker and faster but, of course, not shoving aside all the environmental concerns,” said Mr. Louie. He also hopes the community can benefit from job creation from projects.
When the band considers projects, they’re brought to a membership vote. Not everyone agrees; and Mr. Louie knows that First Nations communities across Canada will not agree on potential projects, either.
Mr. Louie said his First Nation is actively involved in forestry operations and is vying for a stake in a potential gold and copper mine project located in the band’s traditional territory.
Prime Minister Mark Carney met with First Nations and Inuit leaders this month. Provincial premiers also met with First Nations leaders, stressing collaboration with the communities. While Mr. Louie has his mind on business, he’s skeptical about trusting government assurances about consultation, given that “we’ve been through 500 years of broken promises and broken treaties.”
Jesse St. Pierre is adamantly opposed to Bill C-5 as president of the small Ontario-based contracting and energy services company OG7GES Indigenous Group Inc. and as an Indigenous man from Missanabie Cree First Nation.
Mr. St. Pierre said the company goes beyond government mandates for consultation and engagement with Indigenous partners.
“Those are not going to change with Bill C-5, in my opinion, from any project or any business that I lead. That doesn’t change even if the government does dial back their standards to make projects go forward,” Mr. St. Pierre said.
In Alberta, the Athabasca Chipewyan First Nation is located in the heart of the oil sands, and the community’s executive director of strategic advisory services, Jason Schulz, anticipates the First Nation could be tapped for a project of national significance. It has stakes in various energy projects.
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Mr. Schulz said he’s optimistic the legislation will lead to good consultations with the community that result in a win-win scenario, but it’s too early to tell if that is going to happen.
“From a higher-level overview, it sounds promising. But, with everything, the devil is always in the details,” Mr. Schulz said of the bill.
Mr. Schulz said that in his role he works with lawyers, bankers and consultants on financing deals and on overseeing construction and project management, among other tasks. He is also president of some companies tied to the First Nation.
Projects proposed in the region will have to be considered on their impacts compared with the economic gain, such as more jobs and cash flow that, Mr. Schulz said, can go back into the First Nation.
Mr. Schulz still has questions about how the government defines its “duty to consult.”
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“I’m sure if we asked a number of different individuals, their perspective on what those requirements might entail could vary greatly,” he said.
The federal government’s move toward finding ways to remove regulatory barriers and expedite projects across the country is in the interest of Indigenous businesses, said Tabatha Bull, the president and CEO of the Canadian Council for Indigenous Business.
“However, there are definitely provisions within the bill that are concerning with respect to the powers that it would allow government if a community was not in support of a project,” Ms. Bull said.
To find some middle ground, she said project proposals planned for Indigenous land need to be discussed with communities early, with a chance for Indigenous businesses to be a part of project development and to be equity partners.
With reports from Jeff Gray and Emily Haws