First Nations have legal upper hand on resources

The Yukon government could be in trouble with its plan to revoke the veto over oil and gas development currently held by the territory's three unsigned First Nations, says a Canadian lawyer and strategist.

The Yukon government could be in trouble with its plan to revoke the veto over oil and gas development currently held by the territory’s three unsigned First Nations, says a Canadian lawyer and strategist.

“Just making natives mad is not going to improve anyone’s chances for getting anything done,” said Bill Gallagher, who has worked on resource management issues for 30 years.

He was a federal negotiator for the 1993 Canada-Yukon Oil and Gas accord, which transferred authority over oil and gas development from Canada to the territory and laid the foundation for the veto power the unsigned First Nations currently hold.

In his new book, Resource Rulers: Fortune and Folly on Canada’s Road to Resources, Gallagher tracks the rise of First Nation empowerment when it comes to control over resource development.

First Nations across Canada have won 170 legal battles over resources, nearly in a row, he said.

For the most part, however, the Yukon is getting it right.

“I am basically pro-Yukon. I don’t think they need to be taught any major lessons in the world of resource sector stuff. I think it’s refreshingly open for business.”

But the current government has recently ratcheted up tension with First Nations across the territory, and that could spell trouble.

The unsigned White River First Nation recently filed a complaint with the Yukon Supreme Court over a mineral project given the go-ahead against the recommendation of the Yukon Environmental and Socio-economic Assessment Board.

The northern chiefs have repeatedly threatened to take the fight over the Peel watershed to the courts if the government pushes through its pro-development vision.

And the Council of Yukon First Nations has spoken out in support of the unsigned First Nations, arguing that the government’s plan to revoke their veto power disrespects all First Nations and the agreements they have signed with the government.

The problem, according to Gallagher, is that he doesn’t believe the Yukon has a good Plan B.

He used the acronym B.A.T.N.A.: What’s their best alternative to a negotiated agreement?

He understands the government’s frustration over not being able to come to an agreement with the Kaska over oil and gas development in the Kotaneelee gas field.

“I’m sure the government is frustrated beyond belief,” he said. “And if I was in the government I’d share that frustration.”

And, he added, the territory is probably within its rights to strike the Kaska’s veto power from the books.

“It is just a piece of legislation. You can have it one day and repeal it the next.”

But what are they left with if they take that confrontational route?

“They’re staring down a very unhappy First Nation that knows how to play the PR game. We know that they can get air time, and they can trot out some pretty impressive fundamental documents as to why the Yukon now has to start over.”

In the Canada-Yukon Oil and Gas Accord and beyond, the rights of unsigned First Nations to their traditional territories have been well acknowledged.

“The answer is, whether you have a regime in place or no regime, this chief is going to have considerable say as to whether new rights are issued down there in the Kotaneelee gas field. It’s his backyard. That’s been acknowledged by the courts from one end of this country to the other.”

If your goal is resource development, it has to start with collaboration and negotiation with First Nations, said Gallagher. Recent history has shown again and again that projects that don’t have First Nation support simply do not go forward.

Developers, if they are smart, would start by talking to the local chief, then bring the territory into the conversation, and finally the federal government, said Gallagher. These days, most companies have got it the wrong way around.

“As long as the government is going to be sparring with First Nations, on these sorts of terms, taking a legalistic approach, there will not be peace in the valley. They’re not going to get their land claims settlement.”

Contact Jacqueline Ronson at