With aboriginal concerns boiling over in the political context at the beginning of last year, it looks like they’ll heat up even more in the legal arena in 2014.
According to a recent report by the Canadian Press, a number of legal disputes between aboriginals and various federal and provincial governments are on the horizon this year. Alberta, which continues to push hard on oilsands projects, is likely to face several new legal challenges while the recent decision in favour of the Northern Gateway pipeline through British Columbia likely means looming litigation on that file.
It’s an issue that affects all Canadians, of course, given the implications for the economy as well as the legal costs involved. As
Law Times reported in the fall, aboriginal litigation is a big expense for the federal government. Public accounts figures for 2012-13 released at the end of October showed Aboriginal Affairs and Northern Development Canada with a legal tab of $106 million. That amount far exceeded the legal tab of $66 million at the Canada Revenue Agency, the department that was next on the spending list.
So with First Nations challenging everything from Ottawa’s recent amendments to the Fisheries and Navigable Waters Protection acts to its new environmental assessment legislation, it looks like those litigation pressures will continue to grow. Ottawa may have good arguments for its approach, but it looks like a losing strategy. Court battles will merely eat up valuable public resources and delay development projects the government says are so valuable. Its position will also continue to alienate First Nations whose anger has been simmering for some time.
There’s no easy solution but there’s definitely room for a different approach. In particular, it’s time to jettison policy changes that curtail First Nations’ involvement in regulatory approval processes for energy developments. But it’s also time for a shift in our economic thinking. Part of the reason the political and legal battles have been simmering is the government’s obsession with energy development and pipelines. They may have potential, but focusing on them to the extent our governments have been has only exacerbated the tensions with opponents while distracting from the need to diversify our economy.
In essence, our reliance on energy and natural resources is pushing governments into a barrage of legal battles with First Nations. Co-operating with them may take more time and cost more, but it’s a fairer approach that, if we were focusing more on other areas of the economy, wouldn’t necessarily be problematic.
It seems unlikely, but lets hope for a different approach in 2014 or, at least, substantive discussion on the issue from the opposition parties.
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Glenn Kauth
