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Demanding a Say in the Boom

TYEE SPECIAL REPORT Who controls the flow of B.C.'s energy wealth? An historic law suit pits B.C.'s only Metis community against Canada's largest oil and gas producer.

By Ben Parfitt 31 May 2004 | TheTyee.ca
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A longstanding joke in Peace River country is that B.C. really stands for Bring Cash.

It's understandable. For more than a decade, northeastern B.C. has been the generator of natural resource revenues to the provincial government. An explosion of development has seen vast underground natural gas reserves tapped by some of the biggest names in the energy sector, including Calgary-based Encana Corporation. In return, provincial coffers have been enriched by billions of dollars.

But now a small community of Metis people is fighting to change the direction cash flows in the region. In a bid to gain control of how local energy riches are harvested and managed, the tiny town of Kelly lake has gone to court to challenge ambitious drilling plans of Encana, Canada's largest oil and gas producer.

The suit arises out of some unique circumstances: Kelly Lake is B.C.'s only Metis community, and Canada's Supreme Court recently accorded Metis, who are of mixed First Nations and European blood, rights similar to those of First Nations.

But the suit dramatizes feelings widely held throughout the Peace River country. Wherever oil and gas activity cuts roads, creates pollution and alters the local culture, residents paying that price want more in return. Like the Metis of Kelly Lake, they expect a say in the future the energy boom is bringing to their world.

Tapping four trillion cubic feet of gas

In 2003, Encana brought cash to the Peace: $369 million to be exact. The money bought it a majority interest in what lay underneath 140,000 hectares of land around Cutbank Ridge, roughly 50 kilometres southwest of Dawson Creek.

In a September press release, Encana said it would drill 100 to 200 wells per year at Cutbank Ridge allowing it to tap into some 4 trillion cubic feet of natural gas. The company added this would push its annual investments in B.C. to $1 billion. Such a commitment was made possible, Encana added, by a slew of "progressive steps" taken recently by the B.C. government.

"We applaud the government for improving the investment climate through targeted royalties, upgrading of roads, the adoption of summer drilling incentives, enhanced tax competitiveness and streamlined regulatory processes," the company said.

In its three densely worded pages of press materials, Encana never once mentioned Kelly Lake's few hundred inhabitants. It was as if the community near the eastern slopes of the Rockies didn't exist. When contacted by TheTyee, Encana's manager of media relations, Alan Boras, couldn't find any company spokesperson that wanted to talk about Kelly Lake either.

But Kelly Lake is no stranger to Encana.

In late April the Victoria law firm Arvay Finlay filed a petition in the Supreme Court of BC, naming Encana along with B.C.'s Minister of Energy and Mines and BC's Oil and Gas Commission. The petition seeks to have the province's decision to grant Encana the subsurface rights to oil and gas in the "traditional territory" of Arvay Finlay's clients quashed, and to prohibit the Minister from granting any further subsurface rights.

Iriquois and French roots

Kelly Lake has been home to Metis people since early last century. As detailed in an historical memoir called Metis Outpost, some of Kelly Lake's residents have genealogies tracing back nine generations to the 1750s and unions between "French-speaking white men" and "Indian wives".

Published in 1985, Metis Outpost was written by Kelly Lake's first schoolmaster, Gerry Andrews, who went on to serve as the province's Surveyor General. Andrews' memoir of his time as Kelly Lake's schoolmaster (1923-25) includes a detailed genealogy of the outpost's residents. In it the patriarchs of three of Kelly Lake's prominent families -Calliou, L'Hirondelle and Thomas - are identified as Iriquois.

A little more than one year ago, it is unlikely that the Kelly Lake Metis would have even considered taking Encana and the B.C. government to court. In March of 2003, however, the Supreme Court of Canada ruled that a Metis father and son, Steve and Roddy Charles Powley, who had been charged with illegally shooting a moose, had the constitutional aboriginal right to hunt for food.

The court rejected arguments that would have required the Metis to demonstrate that their rights had origins in the pre-contact practices of their aboriginal ancestors - an impossibility given that Metis rights and practices only emerged as a result of unions between European and aboriginal people.

'Tiny Metis Shangri-La'

The Supreme Court also said that the term "Metis" did not mean all individuals with mixed Indian and European heritage, but rather "distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forebears."

The decision meant that the Metis, like First Nations, had certain legal rights that governments must recognize and deal with through meaningful consultation.

According to Andrews, a distinct people with distinct customs and a recognizable group identity was exactly what he encountered in Kelly Lake in 1923. The children spoke Cree. Hunting, fishing, berry gathering and trapping were routine aspects of life. Even in the 1980s when Andrews returned to Kelly Lake, this corner of the province was still a "tiny Metis Shangri-La".

"Moose and other game continue to supply food, raiment and pelts for trade. Lakes still yield fish and fowl. Berry-picking safaris are one-day jaunts by pickup truck instead of week-long treks with horses," Andrews wrote. "Nearly all the original pioneers have passed on but their children, now elders, survive to cherish the lore and traditions of the past."

'Not here to stop progress'

Today, however, gas-drilling activities occur as close as 150 metres from the lake the community's residents draw water from. Roads, seismic lines and pipelines crisscross the forest. Wells and flare stacks dot the horizon.

"They've drilled quite a bit around our area," says Lyle Letendre, president of the Kelly Lake Metis Settlement Society. "We're never consulted. Nothing. I don't know how much harder I can stress that there's a problem."

In a telephone interview, Letendre said that the petition is not about stopping all developments on lands the Kelly Lake Metis claim. Rather, it is about effectively co-managing those lands, spreading around some of the cash and benefits more equitably, and ensuring that at the end of the day there is something there that allows the Metis to continue their way of life.

"We're not here to stop progress," Letendre says. "We're just here to say we want to be able to manage it. I want to be able to eat a moose in 10 years. And I want my grandson to be able to eat one in 40 years."

But that way of life in B.C. is in danger of fast disappearing. Letendre and many other members of the Kelly Lake Metis are forced to live in nearby Alberta because Kelly Lake's school has been closed, its community hall condemned, and many of its houses are deteriorating.

First Nations given ten days to check plans

Unlike the region's First Nations, many of whom are members of the Treaty 8 Tribal Association, the Kelly Lake Metis are not part of a Memorandum of Understanding between the Oil and Gas Commission and local aboriginal groups. Last year that MOU saw a little more than $10.6 million paid out to local First Nations to assist them in responding to energy applications in their traditional territories.

Tom Oulette, director of the OGC's aboriginal relations and land use branch, said each year individual First Nations in the region receive between 400 and 1500 applications. In the areas of most intense development, that equates to more than six new proposals per working day on average. Under the terms of the MOU, Oulette said, First Nations view applications for such things as pipeline corridors, roads, seismic lines, well sites or flaring stacks and have 10 days to respond.

"Within 10 days the idea is they would respond back to us, either that they've reviewed it, or the company's been in and dealt with the issues and they have no concerns, you know, or that they're okay with these additional suggested caveats," Oulette told TheTyee. Oulette added that the 10-day rule is not carved in stone, but is a guideline. Extensions can occur for special reasons, such as an elder's death or heavy workloads.

Oulette went on to say that as a result of First Nation reviews of applications, changes have been made to some proposed developments. He cited one example where a pipeline proposed by Plateau Pipelines Ltd. was moved a half kilometre from a hunting camp at the request of the Blueberry River band.

Overtaxed land use officers

Karen Campbell, a staff lawyer at West Coast Environmental Law Association, says, however, that the MOU is more of a "glorified referral process" than "meaningful consultation". Campbell, who has reviewed the terms of the MOU for the Treaty 8 Tribal Association, said local First Nations believe that saying an outright no to a development proposal is not an option. Furthermore, the time constraints placed on reviewing between 400 and 1500 proposals per year means it is virtually impossible to adequately assess the impacts of individual development proposals let alone their cumulative impact.

"They can apply for extensions. But, you know, the onus then shifts to the poor land-use technicians in the community to try to keep up with the pace of development," Campbell says. "In the Treaty 8 situation, you're looking at these land-use offices that probably have two to three people maximum."

Campbell believes that while the provincial government may view the MOU as adequate consultation, the courts may think otherwise. Two recent decisions by B.C.'s Court of Appeal underline why, she says. The decisions are Taku River Tlingit First Nation v. Tulsequah Chief Mine Project and the Haida Nation v. British Columbia (Minister of Forests).

In the first case, the court ruled that members of the Taku River Tlingit First Nation in northwestern B.C. were not adequately consulted about a proposed mine near the Taku River. The province was ordered to reconvene a lengthy environmental assessment process to "meaningfully address" TRTFN concerns that the associated road and mine would irreparably harm their interests. The second case found that the province and B.C.'s largest forest company, Weyerhaeuser, were in breach of an "enforceable, legal and equitable duty to consult with the Haida people" when a Tree Farm Licence granting the company logging rights over a vast area of Haida Gwaii (the Queen Charlotte Islands) was renewed.

The arguments being made by Arvay Finlay on behalf of the Kelly Lake Metis are certain to reference those two important cases. And if they succeed, a measure of justice may finally be restored to a community and people, the likes of which exist nowhere else in B.C.

On Tuesday, Part 3: Boom then bust? The tricky business of forecasting B.C.'s energy finds

On Friday ran Part 1: Who's Saving for after the Boom? B.C. has yet to follow the example of Alberta, Alaska and Norway in saving some of its energy windfall for the future.

Freelance writer and researcher Ben Parfitt lives in Victoria. He is a frequent writer and commentator on natural resource, business, environmental and social justice issues for a variety of publications and author of Forest Follies: Adventures and Misadventures in the Great Canadian Forest. His previous article for The Tyee reported on legal aid cuts and women in abusive relationships.  [Tyee]

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