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OFFSHORE OIL GAS: ABORIGINAL ISSUES IN BC Presented June 08, 2004 By: Barbara Fisher

INTRODUCTION What role should the oil

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OFFSHORE OIL GAS: ABORIGINAL ISSUES IN BC Presented June 08, 2004 By: Barbara Fisher

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    1. OFFSHORE OIL & GAS: ABORIGINAL ISSUES IN BC Presented June 08, 2004 By: Barbara Fisher

    2. INTRODUCTION What role should the oil & gas industry take in addressing aboriginal issues? TOPICS OF DISCUSSION 1. What rights do aboriginal people have to offshore energy resources in BC? 2. What are the provincial government’s legal obligations to aboriginal people? 3. What legal obligations do oil and gas companies have to aboriginal people? 4. How can industry reduce or eliminate risk in investing in and developing the offshore energy resources in BC?

    3. TOPIC 1 Aboriginal Rights to Offshore Oil & Gas Resources Aboriginal rights and aboriginal title are legal rights protected under s. 35 of the Constitution Act, 1982 Aboriginal right = an activity that is an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group, at the time of contact with European settlers Aboriginal rights likely affected by offshore oil and gas development: fishing (with or without a commercial element), transportation, cultural and spiritual activities Aboriginal title = a right to exclusive use and occupancy of land, including all of its resources above and below the surface; where an aboriginal group had exclusive occupancy at the time the Crown asserted sovereignty (1846 in BC) Aboriginal rights and title are not absolute and may be justifiably infringed by the Crown (and Third Parties)

    4. Aboriginal Rights to Offshore Oil & Gas Resources (cont’d) In order for Crown to justify an infringement of Aboriginal rights or title, it must: Demonstrate a compelling and substantive legislative objective Consult with the First Nation prior to acting Accommodate the First Nation’s interests by infringing its rights as little as possible In some cases, pay compensation or obtain the First Nation’s consent

    5. Precise scope of these duties still being defined by Courts Duties generally arise where Government seeks to regulate activity by Third Parties on Crown land, in the context of a First Nation’s assertions of aboriginal rights or title. These rights are not proven or defined other than through the claims of the First Nation Three aspects of BC’s fiduciary duties that affect Third Parties: consultation, accommodation and compensation TOPIC 2 BC’s Legal Obligations to Aboriginal People The provincial government has fiduciary duties to First Nations in BC

    6. BC’s Legal Obligations to Aboriginal People (cont’d) Consultation requires the following: Government fully informing First Nation about proposed regulation, permit, approval or activity First Nation fully informing Government of basis for its assertion of title, rights, traditional practices, interests & concerns Government assessing First Nation’s assertion of aboriginal title, rights and scope of those rights Government considering its fiduciary obligations to First Nation and possibility that proposed action might infringe aboriginal rights or title Third Party considering fiduciary or other obligations and consulting with First Nation, usually as part of consultations involving government, or independently Government and Third Party considering First Nation’s interests in affected area

    7. BC’s Legal Obligations to Aboriginal People (cont’d) Accommodation means: Government and Third Parties seriously considering alternative courses of action to address the First Nation’s interests and to avoid possibly infringing its aboriginal rights Compensation means: Government paying compensation to the First Nation to accommodate the economic aspects of the First Nation’s interests

    8. TOPIC 3 Legal Obligations of Oil & Gas Companies A Third Party oil and gas company may also have fiduciary or other legal duties to a First Nation in circumstances where it: Knows (or should have known) that Government has not consulted with the First Nation Is aware that the First Nation has a strong claim for aboriginal rights or title to the off shore area Knows (or should have known) that Government is in breach of its fiduciary duty to consult

    9. Ensuring that consultation has taken place Infringing the aboriginal right as little as possible In some cases, ensuring that “compensation is a binding commitment” or possibly negotiating with and paying compensation directly to the First Nation including the First Nation in the project Legal Obligations of Oil & Gas Companies (cont’d) A Third Party may justify its participation in an infringement of an aboriginal right or title by:

    10. TOPIC 4 How to Reduce/Eliminate Risk (Subject to regulatory system to be put into place): Determine what First Nations have claims and interests in the areas where resource is to be extracted Haida Nation has made a claim to seabed as part of aboriginal title claim to Haida Gwaii (Queen Charlotte Islands) Nuu-chah-nulth First Nation has made a claim to ocean waters (west coast Vancouver Island) Tsimshian Nation claims significant aboriginal rights to marine resources; expressed interest in exploring potential for a sustainable offshore oil and gas industry, providing that marine resources and traditional uses can be maintained & the First Nation participates in the economic benefits related to industry Take active steps to meet First Nation representatives to discuss the project & the nature of their interests, including economic interests

    11. How to Reduce or Eliminate Risk (cont’d) Find common ground regarding the use of the off shore resources in their claim area Find the level of capacity among the First Nation’s community Involve the First Nation in the planning process & determine how it can participate in the project Negotiate Impact and Benefit Agreements that include the First Nation in economic benefits from the project Consult with the First Nation in concert with Government representatives to ensure that Government is meeting its legal obligations

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