Lead image by iStock / Eakarat Buanoi
By Giuseppe Amatulli
This article is republished from The Conversation under a Creative Commons license. All photos provided by The Conversation from various sources.
Giuseppe Amatulli is a Postdoctoral Fellow in the School of Public Policy and Administration at Carleton University.
The Blueberry River First Nations (BRFN) has, for a few years now, been locked in a dispute with the B.C. government over oil and gas development on its land. These tensions came to a head in 2021 when the BRFN won a landmark court case against the province as the B.C. Supreme Court ruled that Blueberry River First Nations were not properly consulted.
The 2021 verdict led to the signing of an Implementation Agreement in 2023 which generated hope things could be done differently in an area rich in natural resources.
The agreement laid out how the province and the BRFN aimed to build a “new collaborative, long-term and evolving relationship in relation to land, resources and economic development in respect of the claim area.” This agreement was praised by many as a way to placate industry interests while also aiming to protect constitutional and treaty rights. This goodwill was, however, not to last.
Earlier this month the BRFN took the steps to formally initiate a dispute — by means of a Notice of Civil Claim — with the B.C. government.
This move was taken in response to a May 2024 announcement that the province would be moving to open up the Gundy area to oil and gas exploration as part of the Gundy High Value 1 Plan (or the so-called Unauthorized Gundy Plan). The 2024 Notice of Civil Claim, and the events that led up to it, reveal much about the inadequacies of the governance structures imposed upon Indigenous communities by successive colonial governments.
Governance issues
According to the Blueberry River Custom Election By-law, the BRFN is governed by a council, formed by five elected family councillors, and one chief, nominated by written petition and elected by the five family councillors. The chief serves as a spokesperson on behalf of council, but does not have decision-making power.
In August of 2023 the council found that BRFN Chief Judy Desjarlais had violated the appropriate process in agreeing to green-light a number of new oil and gas applications. This culminated in an Aug. 21 resolution by the band council which appointed two councillors as interim spokespersons for the Implementation Agreement while depriving the chief of the authority to speak for the council on related matters.
A Senior Officials Table, composed of all the councillors, key representatives of the province and its advisors was formed. However, this venue proved ineffective at resolving the governance issues between the chief and council. Thus, on May 30, 2024, the B.C. government went ahead with announcing the Gundy plan after private meetings with Chief Desjarlais. Meetings that were held without the participation of the council or the band’s legal counsel.
Following this announcement the BRFN legislative council took action to challenge the implementation of the plan which the council defined as “contrary to the parties’ understanding, commitments, and obligations.” The council is also seeking declaratory and injunctive relief against the province, to prevent the implementation of the Gundy plan.
Burdensome structures
The issues around governance that the BRFN case highlights are the direct result of a top-down government structure that was imposed on First Nations through the Indian Act of 1876 — an act which Anishinaabe/Ojibwe law scholar John Borrows argues was created to control and assimilate. Carleton University public policy scholar Frances Abele argues that the Indian Act is a legislative fossil and an “ill-fitting boot that pinches in all the wrong places.”
The Indian Act relies upon top-down authorities instead of collegial decision-making while being silent on important issues such as the internal accountability of the chief and council, leadership dynamics and wider issues of governance and management. Moreover, the authority it confers to the chief is arguably not compatible with the Indigenous systems of governance that existed prior to colonization.
The Implementation Agreement B.C. signed with the BRFN has also been challenged by other Treaty 8 First Nations. It is alleged that by trying to accommodate the BRFN, the Agreement overlooks the Treaty Rights of other Treaty 8 First Nations (namely the Doig River and Halfway River First Nations).
Instead of addressing the cumulative effects of industrial development and creating a better future for Treaty 8 First Nations, the Implementation Agreement risks generating more uncertainty and instability around resource exploitation in northeastern B.C.
It is difficult to tell how things will unfold, but there are lessons to be learned and any future approach must focus on Indigenous agency and mutual collaboration.
Before implementing agreements to solve outstanding issues, provincial governments should engage with communities to build trust and relationships with all, and not just some Indigenous communities. Real change can only be achieved if provincial governments, and Ottawa, address Indigenous leadership as governments to be collaborated with and not just problems to be managed.
Tuesday, July 30, 2024 in The Conversation
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