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Community involvement in "mega-project" planning : a case study of the relationship between the Lax Kw’alaams.. Kessel, Clive David 1984

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COMMUNITY OF  THE  INVOLVEMENT  RELATIONSHIP  IN  "MEGA-PROJECT" PLANNING:  BETWEEN THE DOME  LAX  KW'ALAAMS  A  CASE  INDIAN  PETROLEUM  by CLIVE B.A.,  A  THESIS THE  DAVID  McGill  SUBMITTED  KESSEL  University,  IN  PARTIAL  REQUIREMENTS  FOR  MASTER  OF  1981  FULFILLMENT  THE DEGREE  OF  OF  ARTS  in THE School  We  F A C U L T Y OF GRADUATE  of  accept to  THE  Community  this  the  OF  April Clive  Regional  thesis  required  UNIVERSITY  ©  and  STUDIES  as  Planning  conforming  standard  BRITISH  COLUMBIA  1984  David Kessel,  1984  STUDY  BAND  AND  In  presenting  requirements of  B r i t i s h  i t  freely  agree for  this for  an  available  that  I  understood  that  f i n a n c i a l  by  his  or  at  the  University  Library  shall  reference  and  study.  I  extensive be  her or  shall  copying  granted  by  the  of  publication  not  Community and  The U n i v e r s i t y o f B r i t i s h 2075 Wesbrook P l a c e Vancouver, Canada V6T 1W5  Date  DE-6  (2/79)  April, 1984  of  be  allowed  of  Regional  Columbia  this  It  this  without  Planning  make  further  head  representatives.  permission.  Department  the  the  may  copying  gain  degree  f u l f i l m e n t of  that  for  purposes  or  p a r t i a l  agree  for  permission  scholarly  in  advanced  Columbia,  department  for  thesis  thesis  of  my  is thesis my  written  i i  ABSTRACT This thesis examines the opportunities and constraints facing the Lax Kw'alaams I n d i a n Band of P o r t Simpson, British Columbia in i t s attempt to participate in and influence the off-reserve impact mitigation planning of Dome Petroleum's W e s t e r n L i q u e f i e d N a t u r a l Gas Project. Special attention is given t o the e f f e c t s of the f e d e r a l j u r i s d i c t i o n a l , l e g i s l a t i v e a n d i n s t i t u t i o n a l e n v i r o n m e n t on I n d i a n p e o p l e . The p r o j e c t has t h e p o t e n t i a l of g e n e r a t i n g major social, economic and environmental problems for the Indian community. F o r e x a m p l e , i t i s e x p e c t e d t h a t P o r t S i m p s o n w i l l e x p e r i e n c e an i n c r e a s e in p o p u l a t i o n , reduced i s o l a t i o n , and a shift in its economic make up f r o m i n c o m e s d e p e n d e n t on t h e r e s o u r c e harvest to those dependent on the plant and its spinoffs. The environmental studies suggest that increased ship t r a f f i c in the bay could harm the salmon and h e r r i n g f i s h e r y . In s h o r t , the project brings with it an overall change in the residents' 1ives. To complicate matters the p r o j e c t is l o c a t e d o f f - r e s e r v e , o n l y the p i p e l i n e , power and road right-of-way passes through the reserve. This l i m i t s the r e g u l a t o r y and t a x a t i o n powers of the Band C o u n c i l over the project. Band Councils can only r e g u l a t e and tax developments on-reserve. The planning process f o l l o w e d b y t h e B a n d a n d Dome i s the focus of the t h e s i s . A precedent setting negotiation-oriented process was pursued by Dome and the Band. This is unusual b e c a u s e Dome was n o t l e g a l l y o b l i g e d t o d e a l d i r e c t l y with the Band. The impact mitigation planning process followed a contractual approach rather than a regulatory one. The negotiations resulted in an a g r e e m e n t , v a l u e d a t a minimum of $ 15-$20 m i l l i o n t o a maximum of $60 million, which included mitigation and compensation measures. This agreement was finalized before federal regulatory hearings took p l a c e . In o r d e r t o a n a l y z e t h e r e l a t i o n s h i p of t h e Band and Dome Petroleum an analytical planning model is developed which compares t h e a c t u a l e v e n t s t o an i d e a l i z e d p l a n n i n g p r o c e s s . In a d d i t i o n , the energy p r o j e c t approval processes are examined to ascertain whether the Band had any o p p o r t u n i t y t o i n f l u e n c e d e c i s i o n s made a t t h e f e d e r a l a n d p r o v i n c i a l r e g u l a t o r y levels. S e v e r a l c a s e - s p e c i f i c c o n s t r a i n t s and o p p o r t u n i t i e s f o r the Band a r e i d e n t i f i e d . Constraints included the small size of Indian community, the l i m i t e d powers of I n d i a n Band Councils. O p p o r t u n i t i e s f o r the Band i n c l u d e d t h e i r p o s i t i v e relationship with the developer (Dome Petroleum), their a b i l i t y to p a r t i c i p a t e in the f e d e r a l energy p r o j e c t approval process, the a v a i l a b i l i t y of f e d e r a l funds through the Resource Development Impacts Program, and the B a n d ' s d e c i s i o n making c a p a b i l i t i e s .  The  major  conclusions  of  the  thesis  are:  1. The I n d i a n A c t , s t r i c t l y i n t e r p r e t e d , can h i n d e r the a b i l i t y of a Band Council to enter into contracts/agreements with developers. A B a n d C o u n c i l i s an e n t i t y c r e a t e d by s t a t u t e ; its powers therefore can be interpreted, and have b e e n by t h e c o u r t s , a s t h o s e s p e c i f i c a l l y c o n f e r r e d by the Act. The Act does not specifically empower a n I n d i a n B a n d C o u n c i l t o e n t e r into a contract. 2. In t h i s p a r t i c u l a r c a s e , the Department of Indian Affairs and Northern D e v e l o p m e n t - B a n d r e l a t i o n s h i p d i d not h i n d e r Band involvement off-reserve. The d e p a r t m e n t ' s "hands-off" approach a s s i s t e d the Band t o p l a n f o r t h e i m p a c t s of the p r o j e c t because it f o r c e d t h e B a n d t o t a k e m a t t e r s i n t o i t s own h a n d s . Lack of d i r e c t departmental interference i n the n e g o t i a t i o n p r o c e s s may be one way to promote Band d e c i s i o n making c a p a b i l i t i e s and reduce the r e s p o n s i b i l i t i e s of the department; and 3. J u r i s d i c t i o n a l roadblocks can be overcome. The special federal status of Indian reserves, h o w e v e r , d o e s l i m i t Band involvement i n the p r o v i n c i a l energy project approval process because Band Councils are not r e c o g n i z e d as l e g a l e n t i t i e s by e i t h e r the p r o v i n c i a l or f e d e r a l governments; 4. One m e a n s o f f a c i l i t a t i n g Indian involvement in decision making off-reserve i s by f o s t e r i n g n e g o t i a t i o n s a n d c o n t r a c t u a l agreements between d e v e l o p e r s and the Band Council. Several conditions s h o u l d be met b e f o r e a n e g o t i a t i o n - o r i e n t e d approach c a n be a p p l i e d : (a) the developer compromi se,  and  the  Band must  be  willing  to  negotiate  and  (b) the B a n d m u s t h a v e some t y p e o f l e v e r a g e ( f o r e x a m p l e , the p o s s i b i l i t y of i n t e r v e n t i o n in the project approval process which could be used to d e l a y p r o j e c t a p p r o v a l or modify the project) , ( c ) t h e r e m u s t be s u f f i c i e n t funding information gathering and a n a l y s i s in the negotiations,  to cover c o s t s and  (d) and  the  the Band's n e g o t i a t o r s must n e g o t i a t i o n s k i l l s and  (e) there binding.  must  be  a  mechanism  have  which  makes  the community's expenses i n c u r r e d  necessary  the  information  agreement  legally  i v  T A B L E ABSTRACT L I S T OF TABLES L I S T OF FIGURES  OF  '  II VII VIII CHAPTER  A. B. C. 1. 2. D.  C O N T E N T S  U_ INTRODUCTION 1 2 3 3 6 9  PURPOSE PROBLEM APPROACH The Case Method The A n a l y s i s o f t h e Case ORGANIZATION CHAPTER 2: BACKGROUND AND  ISSUES  A. B. 1. 2. (a) 3. (a) (b) (c)  INTRODUCTION PROBLEMS Planning Off-Reserve Jur i s d i c t ion C o n s t i t u t i o n a l D i v i s i o n o f Powers I n d i a n s and t h e F e d e r a l Government L e g i s l a t i o n : The I n d i a n A c t I n d i a n R e s e r v e s and The Band C o u n c i l The R o l e and S t r u c t u r e of DIAND ( i ) Mandate .• (d) DIAND I n t e r v e n t i o n i n I n d i a n A f f a i r s C. CONCLUSION ' CHAPTER A. 1. 2. 3. 4. B. 1. 2. C.  .'  3: THE CASE STUDY: PORT SIMPSON AND GRASSY  PORT SIMPSON Location History Economy L o c a l Government DOME PETROLEUM'S GRASSY POINT PROPOSAL The A c t o r s L o c a l L e v e l Impacts THE RESOURCE DEVELOPMENT IMPACTS PROGRAM  10 12 12 14 15 18 18 19 23 23 24 25 POINT 27 27 27 27 29 29 30 31 34  CHAPTER 4: ANALYSIS OF THE CASE STUDY A. B. 1. 2. 3. 4. 5. 6. 7. 8. 9. C.  INTRODUCTION APPLICATION OF THE MODEL Opportunity to P a r t i c i p a t e I n f o r m a t i o n System Time Capacity to Act Choices Bargaining Opportunity Effectiveness Effects I n s t i t u t i o n a l Arrangement THE ASSESSMENT AND APPROVAL  PROCESSES  38 38 39 41 42 43 44 47 48 50 53 56  V  1. 2.  3.  D.  The T e r m p o l Assessment The N a t i o n a l Energy B o a r d (a) The F e d e r a l A p p r o v a l P r o c e s s . . . . (b) A s s e s s m e n t o f t h e NEB P r o c e s s . . . . The P r o v i n c i a l A p p r o v a l P r o c e s s (a) A p p l i c a t i o n P r o c e d u r e s (b) R e v i e w P r o c e d u r e s (c) Indian Involvement in the Process CONCLUSION  CHAPTER  A. 1. 2. 3. 4. 5. 6. 7. 8. B. 1. 2. 3. 4. C. 1. 2. 3. 4. 5. 6. D. E. 1. F.  5:  OPPORTUNITIES  AND C O N S T R A I N T S CONCLUSIONS  59 60 61 63 65 66 69 73 74 RECOMMENDATIONS  O P P O R T U N I T I E S AND C O N S T R A I N T S The S m a l l S i z e of t h e Community The D e c i s i o n M a k i n g C a p a b i l i t i e s of t h e Band The Band/Dome R e l a t i o n s h i p The N e g o t i a t i o n - O r i e n t e d A p p r o a c h The B a n d ' s F e d e r a l S t a t u s DIAND P r o v i n c e ' s R e l a t i o n s h i p w i t h the Band The P r o v i n c i a l and F e d e r a l A p p r o v a l P r o c e s s O P T I O N S FOR I N C R E A S I N G BAND I N V O L V E M E N T Actor-Initiated Negotiations Mediated Negotiations Litigation Regulatory Process '. I M P L E M E N T A T I O N OF O P T I O N S Lobby the R e g u l a t o r y Agencies The C o o p e r a t i v e A s s o c i a t i o n O p t i o n The P r o v i n c i a l M u n i c i p a l I n c o r p o r a t i o n O p t i o n Amendment of t h e I n d i a n A c t The F e d e r a l L e g i s l a t i v e O p t i o n R e c o g n i t i o n of Band C o u n c i l s as L e g a l E n t i t i e s S P E C I F I C RECOMMENDATIONS GENERAL RECOMMENDATION Development Impacts Planning CONCLUSION  BIBILIOGRAPHY  AND  76 76 78 79 .80 ".83 84 86 89 91 92 96 98 99 100 101 101 102 104 105 108 110 110 110 I'll 114  APPENDIX  A:  THE  LNG  PROCESS  APPENDIX  B:  THE  PLANNING  MODEL  124 128  A.  INTRODUCTION  129  B. 1. 2. 3. (a) (b) (c) C. 1. 2.  TOWARDS AN A N A L Y T I C A L P L A N N I N G MODEL Democratic Theory The C o n c e p t of " P a r t i c i p a t o r y " Democracy Purposes for Participation Consensus and S t a b i l i t y C o n f l i c t and Increased Consciousness Containment and B a r g a i n i n g . . . . . . . . . . . . P L A N N I N G M O D E L S AND P A R T I C I P A T I O N The T e c h n o c r a t i c M o d e l The J o i n t P l a n n i n g M o d e l  130 130 131 132 132 132 133 133 134 136  v i  3. 4. D. E. 1. 2. 3. 4. 5. 6. 7. 8 . 9. F.  The G e n e r a l P u r p o s e s R e p r e s e n t a t i v e Model The P l u r a l i s t i c Model T H E F O U N D A T I O N S OF AN A N A L Y T I C A L MODEL THE A N A L Y T I C A L P L A N N I N G MODEL Opportunity to Participate Information System Time Capacity to Act Choices Bargaining Opportunity Effectiveness Effects I n s t i t u t i o n a l Arrangement CONCLUSION  APPENDIX  C:  EXCERPT  FROM DOME/LAX  APPENDIX  D:  TREASURY  BOARD  APPENDIX  E:  GLOSSARY  OF  MINUTE  TERMS  KW'ALAAMS 79530..  137 138 139 141 142 143 143 144 1 44 145 145 ! ! ! ! ! 1 46 146 146  A G R E E M E N T . . . 147 153 169  vii  k  T a b l e 1: Rupert  Summary  of  L $ !  OF  Assessments  T A B L E S  of  Social  Impacts:  Prince 33  v i i i  L I S T  O F  F I G U R E S  Figure  1: Project  Figure  2:  The  Figure  3:  Project  Site  Figure  4:  The  Energy  Figure  5:  Review  of  Figure  6:  Energy  Project  Review:  C e r t i f i c a t i o n  Figure  7:  Energy  Project  Review:  Inter-Agency  Site  .  Analytical Planning  NEB  and  Model  Location  Project  ...7  of  8 Pipeline  Approval  28  Process  Proposals  62 68  Procedures..70  F r a m e w o r k . . . . 71  1  CHAPTER A.  U_ I N T R O D U C T I O N  T H E P U R P O S E OF T H E T H E S I S  The  purpose  opportunities attempt  to  planning.  and  people  facing  in  and  attention  legislative (see  thesis  thesis  constraints  Specific  This  this  participate  jurisdictional, Indian  of  answers  is  three  become  determine  Indian  Band  given  to  definition  the  in  off-reserve  its  project  the  institutional  for  federal  environment  of  for  terms).  questions:  1. How i s p l a n n i n g i n r e s p o n s e b e i n g p r a c t i c e d by I n d i a n B a n d s 2. How d o B a n d s off-reserve?  an  to  influence  and  Appendix E  is  to and  involved  "mega-project" DIAND?  in  planning  and  development  decision  making  3. What are the c u l t u r a l , economic, i n s t i t u t i o n a l , l e g a l and legislative impediments and o p p o r t u n i t i e s f o r Band involvement in impact mitigation planning off-reserve, and how c a n t h e i m p e d i m e n t s be o v e r c o m e ? The Dome  Western  Petroleum  and  community  of  study  Figure  (see  Liquefied  Port  assessments  impacts  of  indicate Dome's  that  Simpson,  proposed the  near  Indian  been  (LNG)  the  British  Several  have  Gas  Project  Lax  Columbia,  socio-economic completed;  project.  The  community w i l l  be  Indian  is  a  used  of  as  case  environmental  outline  findings  by  Kw'alaams  and  they  proposed  potential  these  adversely  studies  affected  by  project.  The has  the  located  1).  impact  Natural  taken  case the  study unusual  significant  step  agreement  with  potential  impacts  of  thesis  examines  The  the  is  Band,  to  the  of  because  agreeing,  compensate  the  through the  Band  developer  (Dome)  negotiation  and  and  the  mitigate  project. the  project  impact  mitigation  process  2  and  the  Band's  responsive  to  negotiated  and  manage Band, and  the this  the is  able  suggests  j u r i s d i c t i o n a l  case  w i l l  provide  some  Indian  to  of  the  that  in  Dome  needs  and  the  factors  array  which can  see  of  a  way  they If  which  Band  the  be  to  the  influence  problems  the  which  in  of  facing  From  made  to  legislative  Examination  development.  Band  appears  i n s t i t u t i o n a l , limit  were  the  satisfactory  overcome.  can  if  preferences.  in  about  conclusions  similar  to  agreement  can  be  large-scale  in  an  project  information  general  Bands  with  enforce  development  involvement case  Band's  impacts  off-reserve  B^  agreement  this Indian  particular  could  assist  situations.  PROBLEM "It  has  involved  in  not  the  environmental 1982).  been  design impact  and  claim  or  by  peoples  their  planning,  approval  or  important  as  scale  communities lands  large become  becomes  an  communities  projects In  are  negotiated protection agreement  located  1976, the  the  common,  the  regimes and  indigenous  a  of  of  social  may  be  Canada  whenever  they  for  effective  an  projects.  projects and  as  of  It  is  be and  (Feit, worth begin  voice  in  to the  particularly  with  impacts  on  Indian  Indian  control  of  reserve  insufficient  impacts  a  to  'mega-project'."  involvement in  people  basis  for  developments  protecting  because  the  off-reserve. Cree  creation  (Craig  energy  increasingly from  of  rights  rejection  more  an  implementation  such  Native  exercise  for  assessment  Nevertheless,  consideration  their  common  as  and  of  Inuit  regional, a  Tester,  part 1982).  of  peoples  of  northern  environmental their This  was  Quebec  and  social  aboriginal  rights  an  important  f i r s t  3  test  of  giving  participation their  indigenous  in  the  regulation  cases,  however,  integrated  into  decision  provincial  lands.  most  representatives  D i s t r i c t  A l l  Indian  jurisdiction. land  Band  adjacent  water  are  disallowed  for  influence  nor  1.  The  Case  of  the  individiuals,  also  be  (reserves)  the  in  easily  surrounding  British  by-law,  but  are  they  in  (It  Columbia,  do  to  not  sit  on  but  federal  regulate  reserve  that  in  practice,  they  affect  opportunities  powers.) making  a  a b i l i t y  to  them.  these  The is  Without  potential  of  or  mentioned  their  the  land  be  decision  mitigate  over  federal  hinder  which  under  powers  should  vires  can  developments neither  are  no  by-laws,  ultra  i t  the  have  off-reserve  because  from  Canada  opportunity  off-reserve.  can  determinants  of  communities  if  method  study  examining  method may  in  negative  projects.  Method  case  intensive  not  concerning in  these  Bands  benefit  APPROACH  have  involvement  Bands  C_;_  on  a c t i v i t i e s  are  instance,  approve  off-reserve  influence  The  to  only  Indian  problem  impacts  has  communities  making  communities  bodies  Minister  the  development  effective  Boards.  Council  the  of  Indian  Indians  by  Indian  For  from  Regional  of  of  more  regions. In  lack  communities  study  used  in  selected  this  instances  relationship of  change  between of  situations, may  be  unstructured  the  thesis  the  of  can a  be  phenomenon  variables,  variables.  groups,  examination  interviewing  or  or of  defined  and The  as  as a  the means  identifying focus  may  communities. existing  participant  records.  be  "The It  observation  4  or  some  other  There social  approach"  are  at  science  principles Second,  be  allows  (Kiralfy,  usefulness (Sellitz  of et  the  case  a l  (1959),  Stokes  (1978) of  to  Bowles to  can  which  shape  the  thesis  the  building  on  be  approach  as  enables human  recognized  which  (Bowles,  an  important  is  to  to  a  basic  experience. and  avoided  and  "If  a  the  tentative  (1978), the  inquiry  and  is  not  have  (p.9).  to  be  Rather,  social  forces  environment.  objective.  by  local  developments  h i s t o r i c a l  developments  accomplishes it  is  understanding this,  application  Doby  that  economic  Rather,  Given  (1965),  general  document  study  research  states  do  patterns more  the  generalizations".  studies  this  shaped  to  and  and  are  p.9).  of  of  the  parochial.  1982,  aspect  must  contributes  purpose  develop  of  for  Connelly  (1967)  local  recognized  Madge  Doby  study  world.  tool  a  "(1975),  cultural,  that  as  case  accomplish  case  idiosyncratic knowledge  of  have  types  that  analyses  people  a l  of  fields  (1964),  (1982).  argues  attempts  of  essential  physical,  social  whole"  case  i t  to  et  formulation  meaningful  larger  Reid  an  include  in  of  the  First,  Crozier  documentation  by  not  1959). of  approach  Bowles  is  experienced a  by  range  study  (1968),  (1982) the  they  wide  and  cases  preliminary  A  tool.  mistakes  a  Willings  This  past  a l ,  advantages  postulated  in  (1967),  limited  two  e_t  1973).  Authors  "study  least  research  to  i t  (Sellitz  of  generalizations  it the  part  of  can  this  a  society be  case  from  of  it  the  body as  argued study  is  a  that  method  particular  case. The  last  point  is  a  contentious  one  in  social  science  5  because  "there  is  a  t e n s i o n . . . between  abstract  generalizations  uniqueness  of  goes  on  should  to  be  Crozier  for  state  of  The a  from  an  thus  which  gives  describes nothing  a  in  is  his  method  operational a l l , image  i t to  of  action.  ones  in  gives level  enables an  the  the  case  be  and  strategies  of  for  to  compare  banks  would would  against 1978,  for  of  a  situation.  his/her the  libraries about  to  constitute him  or  p.79-80).  possiblities  advance  with  permit  more  w i l l  whether  or  understanding  image  such  practitioners  It  and  study  state  determine  (Connelly,  to  case  and  researcher  researcher  laws  circumstances,  such  study  only  systematic  rigourous  to  done,  planner.  case"  c l i n i c a l  a  to  case  the  the  integrated  study  a  a  special  the  strategy  generalizes  that  by  uses  writes  reader  useful good  that  d i f f i c u l t  for  the  and  the  He  than  that  they  discussed  (p.4).  own  "Properly  The  tactics  its  but  s c i e n t i f i c  asserting  on  would  experience  successful case  is  He  course,  significant.  some  vicarious  of  and  the Bowles  general  immediately  with  for  is  argues  better  more  p.11). possible  a  cases  formulate  capture  ( 1964).  to  and  is  being  event  is,  studies  undertake  data  Crozier.  grounds  that  refer  establish of  are  notion  particular  with  onus  with  case  imagine  The  The  information of  to  concurs  general  situation  upon  particular  confidence.  and  appearance  more.  to  to  to  1982,  Phenomenon  understanding,  seeks  the  Connelly  occur  theory  intrinsic  approach  This  approach  bears  desire  generalizations  qualified.  c l i n i c a l  which  the  desire  (Bowles,  Bureaucratic  integrating  approach,  cases"  that  carefully in  concept  individual  and  the  at  human  actors.  from  a  to less The the  Above  fragmentary  6  2.  The  Analysis  One  of  way  the  to  effectiveness  of  influence  in  impact  analytical  planning  Thus,  analyzing  in  planning  model  is  the  differs  in  decisions the  that are  of  The  model  processes  they  the  reader  mitigation  are for  they  Third,  Band  determine  planning  issues,  institutions,  are  the  2)  one  the  process  thesis  analyzes  is  the  policies,  be  the  by or  to  Dorcey  St.  Pierre  energy  the  project  permits  and  Governmental Indian  in  Bands  during to  the  involvement mandate  the give  impact  constraints  legal  a  of  analyzed  role  Band's  in  Secondly,  for  the  sufficient  constrained  legislation,  will  and  framed  interventions  and  on  it  and  final  community  approval.  "lever"  but  where  provide  their  place  if or  of  B.  a  thesis  model  and  provincial  approvals  this  works  (1973)  ideal.  Band/Dome  in  the  the  an  develops  the  c r i t e r i a ,  and  potential  The  f i r s t  approach  Appendix  project  the  planning  from  and  develop  to  developed  O'Brien  submissions  and  to  thesis  between  determine, for,  involvement  analyze  derived  in  and  is  normative  federal  understanding  process. to  of  effects  reality  bilateral  (1979),  which  planning  opportunities  a  described  process.  an  to  negotiations  Eyre  is  allow  hearing  the the  Figure  consists  conditions  because public  via  analyzes  processes  study,  (see  which  (1977).  approval  planning  i t  uses  questions,  and  Band's  compare  case  uses  It  (1972),  terms  and  capability,  rational-comprehensive  Fox  approval  the  reached  also  Kw'alaams  model  (1982),  thesis  Lax  model  i t  developer.  series  the  mitigation  and The  on  analyze the  relationship. based  Case  and in  this  of  the  deal  with  off-reserve  federal  and  provincial  programs.  7  FIGURE 1 WESTERN LNG PROJECT  8  FIGURE  2:  Developer'  THE ANALYTICAL  PLANNING  MODEL  ^Community  •> p r o j e c t Information  Gathering  ^Analysis*--  Alternative  Generation  Decision  Strategy  Making  Formulation  -r*Negot iat ions  Agreement  Monitoring •  Development NECESSARY  Opportunity Information Time Capacity to Choices  to Participate system Act  with  Mitigation  CONDITIONS  6. 7. 8. 9.  Bargaining Effectiveness Effects Institutional  Framework  9  ORGANIZATION This  thesis  is  comprised  of  the  1. A description of the environment of Canadian Indian  following  jurisdictional, p e o p l e and t h e i r  2. A development of the analytical a n a l y z e the Dome/Band r e l a t i o n s h i p . 3. A description and response to impending background on: a)  the  Port  Simpson  b) p o t e n t i a l and c) the  impacts  the planning LNG p r o p o s a l )  site, and  components:  analysis of "mega-project"  situation  and  opportunities  process employed by t h e B a n d .  legislative reserves.  planning  model  and  used  the Lax K w ' a l a a m s Band's development, including  the of  LNG  the  proposal;  proposed  (particularly  in  terminal;  response  4. An a n a l y s i s , u s i n g the a n a l y t i c a l planning model, of negotiation-oriented a p p r o a c h c o m p l e t e d by t h e B a n d C o u n c i l developed by DIAND's planners to promote negotiations a g r e e m e n t b e t w e e n Dome a n d t h e B a n d . 5. for  An a n a l y s i s of the f e d e r a l t h e Dome L N G P r o j e c t a s i t  6. A description of implementing the impact Simpson. 7. Based outlines: a) g e n e r a l respond to  on  the  to  to  the and and  and p r o v i n c i a l p l a n n i n g approvals a f f e c t s the Lax Kw'alaams B a n d .  problems and o p p o r t u n i t i e s i n c u r r e d i n mitigation planning process at Port  findings  of  the  case  study,  the  thesis  c o n c l u s i o n s on t h e a b i l i t y o f a B a n d t o i n f l u e n c e impending "mega-project" development; and  b) p o s s i b l e i m p l i c a t i o n s of the c o n c l u s i o n s for i n c r e a s i n g i n f l u e n c e and involvement in d e c i s i o n making off-reserve.  and  Band  10  CHAPTER A^  BACKGROUND AND  ISSUES  INTRODUCTION This  the  2:  chapter  focuses  on  potential  j u r i s d i c t i o n a l , legislative  and  problems  associated  i n s t i t u t i o n a l  with  environment  of  Indians. There  is  associated Several  a  with  authors  effects  wide  of  situation  the and  these  of  special  groups  lack  lack  of  real  status  have  problems.  include  development,  range  of  and  of  potential  Indian  opinions Problems  decision  people  on  the  relating  participation making  problems  and  in  Canada.  causes to  the  and Indian  influence  powers,  and  in  lack  of  autonomy. Cherukapalle communities She  writes  are that  (1972)  suggests  excluded  from  (municipal)  that  B r i t i s h  provincial  incorporation  Columbian  planning  would  Indian  processes.  provide  the  necessary negotiating body with legal authority to deal with the Province...(and that i t would) provide a more systematic mechanism for the involvement of reserve residents in comprehensive land-use planning on reserve through provisions of the Munic i p a l Act, and o f f the r e s e r v e through possible p a r t i c i p a t i o n in the a c t i v i t i e s of the Regional D i s t r i c t . As affairs,  a  reaction  many  transferred ultimate  Indian to  the  to  the  leaders Band  lack argue  level,  of  power  that with  of  Indians  more  power  self-government  result. The Assembly of F i r s t N a t i o n s (AFN) is not l o o k i n g for the f e d e r a l government to confer a u t h o r i t y on I n d i a n p e o p l e r a t h e r t o c o n f i r m through its own institutions and to acknowledge the r i g h t f u l Indian governmental powers that Indian nations have always 1  over  their  should  be  being  the  11  enjoyed But,  (Canada,  the Assembly  i s opposed  powers  t o Band C o u n c i l s  argue  that  corollary,  planning  making  t o the Indian. Act.  administrative  on r e s e r v e , ) changes  administrative  powers  i s not n e c e s s a r i l y  good  planning  processes  without  and  this  a mechanism  provincial  decision  The p a r t i c u l a r  DIAND o f f i c i a l s  t h e Band  (Anderson,  disadvantages  level 2  already  personal  claim  technical  on-reserve  Bands  Bands c o u l d  into  be a t a  are discussed  later  autonomous d e c i s i o n  making  limits  the a b i l i t y  Training,  occurs  education,  which and  and Hanley,  development  or just  interview,  information  (Tyler  that  exists,  the laws and i n s t i t u t i o n s  resource  off-reserve.  integrate  making,  promote  chapter.  Some  latter  which can  a  decision  Bands does n o t n e c e s s a r i l y occurring  as  without  t o promote autonomous  f o r Indian  in  They  (and  More autonomy  disadvantage.  of  changes  of  communities.  private  not  devolution  f o r Indian  Therefore,  at  of  legislative  involvement  in  to  without  devolution  accompanying  1983).  1983).  needs  be  They argue  are limiting, decision  personal  utilized  that  i t  but the  making  interview,  of t h e Band t o p l a n on- or  to  i s  level  expertise  1983).  effectively  The when  off-reserve.  consciousness  raising,  Band  Council  The A s s e m b l y o f F i r s t N a t i o n s , t h e s u c c e s s o r t o t h e National Indian Brotherhood (NIB), i s recognized by the federal government as a n a t i o n a l Indian o r g a n i z a t i o n r e p r e s e n t i n g Indian interests. 1  Susan Anderson i s i n the Intergovernmental R e l a t i o n s Section o f D I A N D ' s B.C R e g i o n a l O f f i c e . Before coming t o DIAND she w o r k e d f o r t h e p r o v i n c i a l A t t o r n e y G e n e r a l on n a t i v e issues. 2  12  p o l i t i c a l assist  accountability  in  officers to  the  not  the a  claim  Band  do  argue  effective  complex  legal,  1.  Planning One  development  a b i l i t y  Indian  to  to  (Atamanenko  :  McCullum  as  of  a  a  and  in  in  a  from  the  Minister  training  w i l l  participation. and  j u r i s d i c t i o n a l and  social  They  planning issue,  issue  Province  mechanism  of but  (Tyler,  influence  land  nothing  implementing  rational  resource  on-reserve,  influence  developments  but  their  off-reserve  citizen. writing  McCullum  about  (1972),  (1975)  and  for  limited  Indian  Usher Read  j u r i s d i c t i o n a l environment cause  British  Legally,  Cherukapalle  probable  to  of  reserve.  authors  and  the  strategies  and  any  the  (1962),  institutional live  and  and  development  policy  their  planning  that  of  of  to  Bands  impact  Some  solely  Indians  lack  participate  limited  (1973),  the adjacent  development  not  from  DIAND  1983).  facing  is  restricts  is  power  development  the  therefore  Furthermore,  more  influence in  would  Off-Reserve  problem  Columbia  of  l e g i s l a t i v e ,  interview,  PROBLEMS  Band  involvement  off-reserve  EL  transfer  improve  Indian  planning.  organizational  lands  personal  is  to  responsibility  reserve  the  without  much  that  that  and  affairs  and  Beakhust  (1978)) in  influence  blame  which in  the  Indians  off-reserve  developments. On (1962)  the  subject  wrote  that  of  Indian  involvement  greater integration into the large seems desirable... arises whether, besides being and a remnant of the p a s t , the  in  planning  community at The question a sanctuary reserve might  Atamanenko  13  also become a p l a c e of p r e p a r a t i o n f o r the world outside. If this is accepted as desirable, then . . . p l a n n i n g c a n be a means t o h e l p r e s e r v e s become a more integrated p a r t of the surrounding region. His  statement  integrated More is  suggests  into  the  rest  recently,  the  that of  Act  and  influence  involvement  B r i t i s h  McCullum  Indian  Indian  of  and  (1975)  (Canada,  events  are  not  well  Columbia.  McCullum  1951 in  reserves  imply  1970)  that  which  i t  limits  off-reserve.  The I n d i a n A c t r e g u l a t e s a l m o s t t o t a l l y the l i f e s t y l e of... Status Indians, both as individuals and communities. It is a terribly misguided policy based on the a s s u m p t i o n , made y e a r s a g o a n d n e v e r really changed, that the Native is a l a z y bum, i n c a p a b l e o f h a n d l i n g h i s own a f f a i r s , and that the values, c u l t u r e and l i f e s t y l e of Native people are vastly i n f e r i o r to white society. The sole, . though unwritten purpose t h e I n d i a n A c t was t o promote assimilat of the Native into white society. It not succeeded. It has only crea dependency, w e l f a r e , and i s o l a t i o n , t h e r e widening the educational, economic, s o c i a l gap between I n d i a n and non-Indian. Read writes  (1978)  that  ensure  the  result  in  the  a  is  substantive  tangle  in  the  planning  and  to  of  red  marketing by  manage  government"  because  without  e f f e c t i v e l y  Acquisition  of  important  reserves  in  delays,  of  a  and  type  of  powers,  designed  and  Act  Funding  as  as  since is  is  have  planning such  to  c o n f l i c t i n g  resources  would  he  perpetuity..."  Indian  1978). Band  Act)  when  "Development  the  funds  (Read,  any  the  interests.  Band  McCullum  (of  tape,  terms  funds in  and  provisions  Indian  federal  participating  McCullum  of  hindered  power  with  "statutory  maintenance  administrative community  concurs  of ion has ted by, and  a a l l  vested  v i t a l  for  d i f f i c u l t y  process.  land  management,  14  taxation, sections the  and 60,  69  discretion Read  Councils write  and of  management 83  are  the  Act,  Cabinet  and  may  legal in  Indian  corporate  that  powerless  that  can  of  concludes  influence that  money  to  He  acquired  acquisition  this  unlike  subject  dispensation  Indian these  is  He  to  Band  goes  on  involvement problems  to  municipalities do  under  subsequently.  development."  links  therefore  be  withdrawn  hinder  Councils, and  be  influence  development.  entities  but  "without  problems  Band  only  not  have  to and  the  fact  are  not  contractural  powers. Ian  Bunice  Justice),  (Associate  stated  that  Deputy  there  Minister  of  the  Department  of  are  d i f f i c u l t i e s in integrating a local government, a t e r r i t o r i a l l y based native government within the territory of a p r o v i n c e , b e c a u s e t h e r e i s an enormous web of l a w : t h e common l a w , p r o v i n c i a l l a w , and provincial l e g i s l a t i o n . . . If [Bands] are trying to organize land-use planning within the community, to have another government w h i c h i s i n no way i n t e g r a t e d i n t h e process of making decisions...[is a problem]... and t h e r e is an equal problem for the Indian government b e c a u s e i t i s a f f e c t e d by what the municipality (or provincial government) does" (Canada, 1982). These reserve  authors  outline  development  and  adequately  influence  off-reserve  should  2.  severe  planning.  on-reserve  problems  If  Band  Councils  development  problems  as  of  problems  associated  with cannot  participating  in  well.  Jurisdiction One  and  pose  the  possible  l e g i s l a t i v e  governmental Constitution,  cause  these  environment  responsibilities relevant  of  for  legislation  is  Indians.  Indians and  an  DIAND  the  j u r i s d i c t i o n a l To  c l a r i f y  examination follows.  of  the the  15  (a)  Constitutional The  Division  Const i t u t ion  authorities,  and  provincial  important  parts  of  concerned  with  Section powers The  the  CA  are  provincial  91(24)  of  the  main  exercise  of  the  administer  this  Act  the  legislating  powers,  between  of  Canada.  91  and  legislative  CA  gives  the  and  Lands  reserved  authority  creation  the  of  divides  the  The  92  most  which  are  between  the  parliament  the  power  governments.  "Indians  and  of  sections  distribution  regulate  Act  1867  governments  to  Indian to  the  the  of  responsibilities  and  and  Powers  Act  federal  federal  of  of  and  the  has  federal  been  the  Department  design  and  for  of  the  Indians"  passage  of  Indian  administer  the  Affairs  programs  for  Indians. The  CA  empowers  the  "property  and  c i v i l  "generally  a l l  matters  the  province"  legislature province.  to  or  not  limited  as  a  ss.  control  usually  by  assigned  to  to  boards,  a  delegated  in  municipal  them to  in  the  local  Act  92  CA.  act,  8).  The  to  and  power  authorities  much  of  the  within  of its  over  bodies  commissions.  municipal to  a  institutions  municipal  limited  Legislature  enable  municipalities  u t i l i t y to  in  authority  as  13)  ss.  nature  lands  These  other  boards,  are  a l l  regulate  92  provisions  refered  granting  (s.  provinces  include  to  private  almost  ss.  usually  or  two  of  gives  health  legislatures,  local  use  but  province"  These  (s.  are  legislature  the  merely  the the  what  in  16).  corporations,  school  Provincial  has  of  institutions"  municipal  such  92  rights  Furthermore,  "municipal are  (s.  provincial  those  British  bodies, matters Columbia  administrative  16  responsiblities. Several reserves.  factors  The  federal  Columbia  Local  which  creates  fire,  its  o f f i c i a l  conflicts  for  situation  1981).  is  development  that  Indian  intents a  sea  the  of  of  Indian  reserves  and  are  purposes  provincially  design  is  integrate  exists  coordinate  processes.  confusion  as  and  Lack  its with  owned  differences  for  Respecting  the  services reserve and  handled  Province (police,  systems.  coordination are  B r i t i s h  implementation  reserve  of  in  Committee  d i f f i c u l t  planning)  to  reserves  (Tripartite  It to  Indian  community  planning and  by  in  systems"  municipalities and  and  a l l  of  d i f f i c u l t i e s  mechanism  community  factor  surrounded  government  roads,  status  land.  Government,  through  the  are  islands  unique  workable  cloud  important  administered  "The  of  most  lands  jurisdictional and/or  3  No  provincial can  on  an  lead ad  to hoc  basis. The  provinces  responsibility Columbia Tripartite  has  over been  Committee  have Indians  not and  been  anxious  their  lands,  involved  in  on  Government  Local  certain  issues. was  to but For  assume B r i t i s h  example,  established  on  a  May,  A l l land in B r i t i s h C o l u m b i a , w i t h e x c e p t i o n of the Stikine area, is in a Regional D i s t r i c t . W i t h i n the Regional Districts land may be in incorporated areas ( c i t i e s , towns, municipal d i s t r i c t s e_t cetera ) or in unincorporated areas. Local governments in B r i t i s h Columbia are given increased control over local land use decisions as they evolve from unincorporated areas to municipalities and as local governments prepare O f f i c i a l Plans. Unreserved Crown l a n d i s a d m i n i s t e r e d by t h e M i n i s t r y of Lands, Parks and Housing. Reserved Crown land is a d m i n i s t e r e d by o t h e r p r o v i n c i a l m i n i s t r i e s and i s n o t generally a v a i l a b l e for development. P r o v i n c i a l powers and a u t h o r i t i e s do not apply to Indian reserves. 3  17  1980  "to  determine  government-type services  taxation Local  on  reserves  and  and  was  the  to  of  composed and  did  of  the  Municipal  planning  Indian  explore  issues  Committee of  of  The  members  and  such  committee  was  provision  from  DIAND,  of  Finance,  approval  local  which  Government  examine  for  by  service  Affairs, not  Bands  means  provided."  the  committee  in  needs  and  examine  The  involvement  of  the  British  and  issues  and  Attorney of  Indian  developments  f-reserve. In  the  statutes largely to  to  funded  (Ministries  General).  of  be  Government  Columbia  various  services,  may  established  the  to  In  legal  system,  and  Indian  Indians  through  regulate  courts.  Canadian  case  law.  the  reserves  Provincial  individual  Indians  Peace  case,  in  application has  of  provincial  been  determined  authorities  cases  tried  have in  attempted provincial  ' the  Arch  Judge  MacLean  stated:  in my v i e w t h e z o n i n g r e g u l a t i o n p a s s e d by the m u n i c i p a l i t y and the regulation passed under the Health Act, are d i r e c t e d to the use of l a n d . It follows, I think, that if these lands are "reserved for the Indians" that the p r o v i n c i a l or m u n i c i p a l legislation purporting to regulate the use of these "lands reserved for Indians" is an unwarrented invasion of the exclusive legislative jurisdiction of the P a r l i a m e n t of Canada... My conclusion is that exclusive l e g i s l a t i v e j u r i s d i c t i o n over the land in question remains in the Parliament  * In Corporation of Surrey et a l ^ Peace Arch Enterprises L t d . and Surf s i d e R e c r e a t i o n s L t d . 1970, 74 W.W.R. 380 the appellants who were contructing an amusement p a r k w i t h i n t h e l i m i t s of the D i s t r i c t of S.urrey, but on a Indian reserve, a p p e a l e d a judgement d e c l a r i n g t h a t t h e i r a c t s were in b r e a c h of the z o n i n g b y - l a w s of the m u n i c i p a l i t y and of the H e a l t h Act and r e s i s t i n g them from p r o c e e d i n g w i t h the c o n s t r u c t i o n .  18  of Canada, and t h a t p r o v i n i c i a l l e g i s l a t i o n (including municipal by-laws) w h i c h l a y down r u l e s a s t o how t h e s e l a n d s s h a l l be used, is inapplicable (in Sanders, 1978). In  another  Sales  Ltd.  Landlord rights,  Landlord  and  Le  Greeley,  Judge  MacDonald  concerned  with  v.  Tennant not  their  case,  with  lands.  Parliament's lands  (in  Native  and  Legislation: Indian  Indians'.  the  of  legislative represents  the  by This of  does  the  the  through  the  policy.  the  not  the  and  c i v i l and  infringe  Indians  Indian  and  Act  on  their  protects  laws.  in  to  are  of  It  Canada  be  not  does  of  used  the the  which  certain by  the  as  by  the  exclusive CA.  The  Act  provincial  considers  essential  as  a  as  include,  safeguard  to  a  of  means  however,  authorized  and  laws  over  but  are  to  within  administered  only  not  same  framework  precedence  Est imates  funding  the  by  rights,  DIAND  applicable  with it  taking  laws  legal  people  property  by  can  a l l  people,  operated  Act  to  the  accordance  Parliament  the  that  Indians  provincial  the  Indian  advancement.  for  of  subject  of  legislation  and  allows  are  vested  treaty  Parliament  implement  in  Indian  programs  this,  Canada  of  their  embody  much  the  which  their  Act  they  of  does  Homes  Act  not  provides  ruled  regulate  relation  of  Mobile  property  Act  87  Park  Government  Indian  jurisdiction  needs  promoting the  Act  special  legislation  of  The  in  Section  Federal  affairs  Government  protect  the  It  laws  Act:  not  the  encroachment  Generally,  non-Indians.  to  make  the  does  that  1978).  from  (a)  which  to  Sanders,  Indians  It  argued  power  3.  is  Indians. He  rights  The  Act  Tennant  many  each  year  Appropr iat ions  Act.  programs federal  and  because  government  to  19  The  Indian  reflected  a  Act  shift  of  in  self-government. Reserves The a  and  Band  administration apparent, borne made  out by  however,  that  on  Sub-Committee Indian  reserves continuing  by  the  Her  to  the  1980-83,  l i v i n g  is  Joint and  the  off-reserve  opportunity  majority resisted  conditions  in  Act  have  and  not  by  remained  assimilation  and  it  is  a l l  for  the  land  on  despite  dependence  Queen,  administrative of  the  federal plan  This  section  is  v i r t u a l l y  f u l l  consent  as  for  the  the  Band  owned  and  are  a l l  over  on  the  orderly  are  Council  by  Indians  benefit,  held  federal  Crown  reserve  land  Section  unchanged  authorities of  use  Crown.  to  the  not  powers  Minister  but  is  their  the  (1876)  the  reserve  Majesty  discretion  reserves.  without  have  that  rather,  Therefore,  authority  Indian  This  1982.  now  economic  The  economic  in  Indians of  1982).  states  18(1));  trust  at  poor  lack  and  and  become  Councils  status  the  choice  Act  (section  are  Band  has  recommendations  others  1959-61,  the  government.  The  lands.  of  in  and  give  over It  and  of  to  required.  suggestions  Indians  (Powers  powers  are  Indian  discretion  land.  It  towards  of  81-85  has  reserve  Self-Government  of  protection  sections  changes  Affairs  and  (DIAND, by  more  and  legislation.  (Management  government  members  Indian  29%  and  comments,  Indian  the  because  federal  many  complete  circumscribed  organizations,  on  of  preference  in  the  Reserves  Many left  certain  existing  53-60  Lands),  federal  its  Indian  Committee  (b)  the  of  by  from  sections  Surrendered  Band  modernized  emphasis In  Council)  Indian  1951  19  provides  development since  rarely since  the  of  first  exercised it  would  be  20  p o l i t i c a l l y the  foolish  administration Section  B r i t i s h comes  19  Columbian to  whereas  do  not  Legislature, The handle  of  some  of  and  normally  the  Act.  A  Council  the  terms  Governor  and of in  that  use  community  of  the  For the Band or  power  of  difference  federal  reserve  have  to  o f f i c i a l  over  between  reserve be  when  approved  municipal  provincial  developed  outlined may  Indian  a it  by  the  community  approval  or  chores  Band  of  (B.C.  Indian  85  of  to  by-laws  to  regulate  uses  land  or  of  with  the  may may  For  be be  the  regulation  Minister.  by-laws By-laws  any  on  made  Councils  the  80  and Act  Indian  sections  make  following lands.  in  1. For the construction and roads, bridges, ditches, fences, regulate t r a f f i c . 2. the  a  administrative  Council  states  federal  5  non-Indian  the  a  primary  require  government  are  Indian  on  preparation  powers  of  Plans  strong  lands.  municipality  Their  Band  reserve  too  the  1981).  federal  exercise  i l l u s t r a t e s  planning.  Minister, plans  to  reserve made  within by  the  the  Act  regulate  the  made:  maintenance of water and o t h e r l o c a l works,  c o n s t r u c t i o n , r e p a i r , and by a member o f t h e Band.  Indian  a c t i v i t i e s  example, to  reserve.  the  the  to  use  of  buildings,  courses, and to  owned  by  3. To divide the community land or p a r t of i t i n t o zones and regulate the construction or maintenance of any buildings, public w e l l s , c i s t e r n s , r e s e r v o i r s , and o t h e r water s u p p l i e s or use of l a n d i n such a z o n e .  In certain cases provincial . approval is required municipalities in B r i t i s h C o l u m b i a , f o r e x a m p l e , when t h e t o be p l a n n e d i s c l o s e t o a c o n t r o l l e d a c c e s s h i g h w a y and land is under flood plain designation. Once a p l a n has a d o p t e d i t must be f i l e d w i t h t h e I n s p e c t o r of M u n i c i p a l i t i e Victoria. 5  for land when been s in  21  4. To a l l o w Band members  the and  By-laws disallowed  need  only  legislation. federal  When Band  Section  when  ministerial the  by-law  Otherwise,  government  provincial  a  survey and a l l o t m e n t of the community t o l a n d s f o r common B a n d use.  with  Council 28(1)  is  the  is  states  ultra  by-law  regulation  legislation. dealing  approval,  and  however,  vires  is  takes  to  they  existing  accepted  so  lands  and  are  federal becomes  precedent  a  over  6  non-Indian  development  constrained that,  by  without  a  the  on-  Act  or  in  ministerial  off-reserve  several  ways.  permit,  a deed, lease, contract, instrument, document or agreement of any k i n d . . . b y which a Band or a member o f a B a n d p u r p o r t s to p e r m i t a p e r s o n o t h e r t h a n a member o f that Band t o occupy or use a r e s e r v e or t o reside or otherwise exercise any rights on a reserve is void. Because before  any it  corporation  could  Anderson the  powers  it  develop (1981)  is  is  a  any  non-Indian, part  states  e x p l i c i t l y  of  a  that  a  given  in  it  would  need  a  permit  reserve. Band  Council  section  81  of  is the  limited  to  Act.  A contract may not even be possible someone who wanted to defeat such an agreement would argue along the l i n e s of the judgements in Francis et a l (St. Regis Band) v. Canadian Labour Relations Board (supra) or A f t o n Band v. Province of Nova Scotia (1978), that Council and the Band i t s e l f are "not legal e n t i t i e s " for the purpose of making such c o n t r a c t s , s i n c e they are not mentioned in the Indian Act (p.27). Judge  Thorlow  held  For example, own e n v i r o n m e n t a l the Indian Act on-reserve pulp mi b y - l a w now h a s t h e 6  that  a  Band  Council  could  not  enter  into  a  the Mowachaht Band of B r i t i s h C o l u m b i a set its s t a n d a r d s and b y - l a w s under the provision of to deal w i t h p o l l u t i o n / h e a l t h c o n c e r n s of an l l owned by the Thasis Company. The Band f o r c e of a f e d e r a l s t a t u t e .  22  contract are  to  hire  limited The  Act  According Courts  to  employees,  those  does  to  conferred  not  state  Sanders  recognize  Band  purposes.  for  services  housing  bus  projects  Porter  et  al  However,  Sanders  authorative Band  Council  This is  to  implies  occurring  affairs not  are  if  and  narrow  limit  those  Act has  the as  The aboriginal  (Sanders,  in  Council's  for  not of  which  been  an  in  v.  (13)]. an  Indian  interview,  made,  Lax  view,  1984). practice  for  Councils,  Band  a  Band to  that  can  they  1984).  and  Kw'alaams  conferred  position  taken This  Indian  they  is an  contract.  i t  by  are  on  argument  for  With  this  powers Indian  contract. by  involvement,  based  Band,  the  the  "This courts"  position  potential  contract-oriented  view  Indian  Council's  legal  development  Council  provides to  the  legal  legal  legal  power  has  a b i l i t y  Band  Motors  binding.  off-reserve  and  to  reserve  Review  "there  are  for  contract  on  Creek  Law  the  lower  entities,  work  Cache  and  contract. some  the •r e s p o n s i b i 1 i t i e s  Department  limit  broader rights  as  can  employees,  to  see  from  Act."  1984)  personal  contracts  administrative  influence  people  about  interview,  as  Band  decision  not. s p e c i f y a  hire  that  s p e c i f i c a l l y  been  well  may  the  corporate  states  if  by  interview, as  "arise  Council  Columbia  narrow  does  Band  British  counsel the  personal  reserve  Band  to  the  view  (Slade,  and  takes  limited  Act  legally  powers  Council  example,  numbers  the  legal  one  the  even  from  necessarily  that  in  great  a  hire  an  contract"  in  Slade,  and  court  that  shifts  They  (1984)  higher  that  their  the  Councils  [for  (1979)  on  (personal  circumscribed school  because  of  can the  participation  planning. the  concept  recognition  view,  Band  of  of a  Councils  23  can  exercise  powers  Band  governments  have  broader been  than  around  those  much  traditionally  exercised  a  Because  exercised  contractual  they  treaties) should (c)  be  The  in able  Role  McCullum  colonial  and  to  of  do  so  wide  times now  outlined  longer  range  of  than  the  powers  powers  in  at  the  Act.  Act  and  that  (for  time.  example,  the  argument  concludes  that  (Slade,  personal  interview,  they  1984).  DIAND  McCullum  (1975)  say  of  DIAND:  It is enormous, complicated, remote, expensive and contradictory. It has a federal cabinet m i n i s t e r at i t s head, aided a n d a b e t t e d by a p a r l i a m e n t a r y a s s i s t a n t and run by a d e p u t y m i n i s t e r , no l e s s t h a n four assistant deputy m i n i s t e r s , two t e r r i t o r i a l commissioners and almost 15,000 bureaucrats in various c l a s s i f i c a t i o n s . It has its share of bunglers, p o l i t i c a l hacks, hangers-on, and its share of highly competent, visionary, dedicated, and frustrated employees. In between these extremes it is made up o f many faceless, u s u a l l y u n a c c o u n t a b l e , b u r e a u c r a t s who c a r r y out, interpret, and we suggest, make policy... Government Confederation Indians DIAND  was  (DIAND, (i)  is  had  and  role  probably  big  over  a  Indian  w i l l  continue  for  example,  business,  $1.5  in  b i l l i o n ;  $1.1  a f f a i r s  to. the  b i l l i o n  was  prior  to  care  of the  Taking 1981  budget  for  for  Indian  Affairs  1982).  Mandate The  mandate  the  Indian  for  the  federal  concerned  with  responsiblity programs latitude.  of  Specifically,  Indians it  is  Affairs  program  government's and  Inuit  responsible  includes  special  south  of  policy 60  the and  degrees  for:  1. i n i t i a t i n g , encouraging and s u p p o r t i n g measures that w i l l respond t o the needs and a s p i r a t i o n s of Indian and I n u i t people and improve t h e i r s o c i a l , c u l t u r a l and economic w e l l - b e i n g ;  24  2. met;  ensuring  that  lawful  obligations  3. settling land claims related occupancy of lands in those traditonal right has not been s u p e r s e d e d by l a w (DIAND, 1982). The brief  minister  to  of  DIAND,  the Sub-committee  on  to  Indians  and I n u i t  t o t r a d i t i o n a l N a t i v e use areas of Canada where extinguished by treaty  Hon.  J .  Indian  C.  Munro,  Self-Government  are  and this or  stated  in  a  that  "there is potential for (federal government) interference. Band g o v e r n m e n t s h a v e many o f the powers of local governments but the exercise of these powers is subject to various kinds of c o n t r o l s by the minister and/or Cabinet. These powers t o i n t e r v e n e are d i s c r e t i o n a r y . . . and the (federal) government does not i n t e r v e n e i f a Band is acting with the law. But the fact that i t exists complicates the accountability of Band government t o i t s own people. It is part of an anachronistic paternalism we s h o u l d want t o e l i m i n a t e " (Canada, 1982. P. 13). Munro's in  statement  the  government-Indian  relationship in  t h e powers  affairs (d)  is  to  of  change  Band  (Rudnicki,  DIAND In  indicates  Indian  reserve  planning.  dealings  between  giving  Indian  the Indian  as  likely them  affairs  include  more  1983).  severely  Indian  changes  necessary.  relationship  is  envisions  power  If a  this change  over  their  7  A c t i v i t i e s  self-government DIAND  Walter Rudnicki Planning Section of 7  most  interview,  has  self-determination,  in  w i l l  the colonial  people  involvement  i t  personal in  the minister  relationship  Councils  Intervention  the past  that  has  a  to  be  an  involved  Indian in  community. overall  and Indian  corollary  non-Indian led to  DIAND  constrained  and, as  required and  between  many Its  resentment  is the Director General of the Corporate the Department of Indian A f f a i r s i n Ottawa.  25  of  the  department  There For  are  example,  fraud  in  by  many  "the  its  examples  federal  actions  Vancouver  owned  by  Globe  Mail,  June  and  Another Blackfoot claim for  $250  the  of  productivity These has acts C.  examples  been as  a a  the in  from of  rocky trustee  federal  interference  at  Gleichen, Court from  of  Canada, federal  irrigation to  the  that  Indian  of  criminal  valuable  is In  the a  the  in  Press,  case  of  the  statement  of  Band  and  (Canadian  can  land  has  government  relationship  conflicts  c o n f l i c t .  (Canadian  rights  present"  DIAND/Indian and  Alberta.  the  of  Band"  of  1909  for  leasing  Indian  Band  guilty  8  and  one  be  1983).  damages  the  may  the  Musqueam  Federal  water  department/Indian  government over  10,  Band  of  9  for  "for  loss  Press,  of  1983).  indicate  arise  asked  that  when  it  DIAND  Bands.  CONCLUSION This  and  in  million  loss  the  example  Indian  filed  Indians.  chapter  i n s t i t u t i o n a l  has  described  environment  of  the  Indian  j u r i s d i c t i o n , reserves.  legislative  The  evidence  The Band's lawyer asked the Supreme Court of Canada to c o n s i d e r w h e t h e r t h e a c t i o n s o f D I A N D , when i t acted for the Band in the leasing of 260 a c r e s o f p r i m e l a n d i n t h e 1950's e x t e n d e d beyond the b r e a c h of t r u s t to o u t r i g h t f r a u d . The case s t e m s f r o m a 75 y e a r l e a s e s i g n e d by t h e f e d e r a l g o v e r n m e n t and the Shaughnessy H e i g h t s G o l f C l u b i n 1957. "The l e a s e gave the c l u b the prime land f o r a f i x e d rent of $29,000 f o r the f i r s t 15 years, with limited rent increase thereafter" (Canadian Press, The G l o b e and M a i l , J u n e 10, 1983). 8  The Band c l a i m s t h e federal government sold the land now occupied by the Bassano Dam and the r e s e r v e " f o r b e n e f i t of non-Indian s e t t l e r s or corporations," it failed to name an arbitrator to act for the Gleichen Band a s r e q u i r e d by t h e Indian A c t , "and consequently f a i l e d to acquire for the Band f a i r and j u s t compensation" ( C a n a d i a n P r e s s , T h e G l o b e a n d M a i 1, J u n e 10, 1983). 9  26 suggests  this  off-reserve (a) Band regulatory  environment  development  for  could three  limit  Indian  involvement  in  reasons:  Councils do not have any direct legislative power over development o c c u r r i n g off-reserve.  or  (b) Band C o u n c i l s w h i c h n e g o t i a t e a c o n t r a c t w i t h a d e v e l o p e r to mitigate the negative impacts of a project may n o t h a v e a l e g a l l y b i n d i n g c o n t r a c t because a Band C o u n c i l ' s power i s given by s t a t u t e , t h e I n d i a n A c t , a n d t h i s s t a t u t e does not mention the power to c o n t r a c t . (c) The c o u r t s have r e c o g n i z e d t h a t Band C o u n c i l s can c o n t r a c t for c e r t a i n s e r v i c e s but the c o u r t s have not made a decision r e g a r d i n g c o n t r a c t i n g which c o v e r s impact m i t i g a t i o n and b e n e f i t payment relating to a "mega-project" w h i c h i s p l a n n e d t o be b u i l t n e a r an I n d i a n reserve.  27  CHAPTER  3j_ T H E  A^_  PORT  1.  Locat ion Simpson  kilometers  (kms)  Rupert,  on  the  It  is  a  small  but  100  of  whom  Indians  can  provided  by  for  1834,  when  what  village. up  fishing 3.  north  on of  Pacific  are  a  of  status  live  point  of  Vancouver,  Coast  village  of  AND  DOME  land  between  and  30  B r i t i s h  PETROLUEM  Indians  (in  and  1,200  most  be  two  kms  Columbia  approximately  on-reserve  from  (see  780  Prince  Figure  3).  inhabitants,  a l l  cases  e l i g i b l e  bays,  only  for  status  the  services  DIAND).  at  least  the  now  The  Band  the  5,000  Hudson's  is  and  Indians  Port has  Skeena  have  years Bay  been  l i v i n g  (Duff,  Company  on  1965).  west  However,  coast  until  trading  post  i t  permanent  become  several  small  reserves  These  parcels  a  along have  of  not  a  did  for  the  established  Simpson,  River.  trapping  major  fishing  source  t r o l l e r s  and  that  per  of  45 per  logging  cent and  of  industry.  onboard  28  SIMPSON  Indian  the  been  coast  used  for  residents  is  centuries.  Economy The  the  rests  Tsimshian  B.C.  and  PORT  History The  at  STUDY:  SIMPSON  Port  2.  CASE  cent from 12  per  income Most  for  people  g i l l n e t t e r s . the  community's  government cent  from  Port  A  Simpson work  DIAND income  transfer  in  sponsored comes  payments,  government  the  services  cannery study  from 15  per  or  found  fishing, cent  (DIAND,  from  1981).  28  29  The  informal  non-wage, At  Port  one  non-taxed  Simpson,  meal  per  Cooperation materials for  cash  4.  Local  person  sector  of  per  day  and  social  of  forest  B_^_  DOME  work  a  as  economic  welfare.  size,  annually  building  providing  (Read,  1982).  houses,  machinery  any  hauling  reduces  the  need  residents.  employer  Council  sewer,  and  projects, lands  and  has  control  waste  primary federal  any  with  34  full-time  over  disposal), education,  employment  basic  police  and  recreation programs  revenues  generated  reserve  land-use  includes  the  and  from  and them  planning  management.  Port  Simpson Point  GRASSY is  and  POINT  near  could  the  be  situation  provides  an  development  impacts  planning  consortium  Petroleum  Ltd.,  includes  a  Columbia  to  (2.9  in  major  Management  PETROLEUM' S  $550  The  including  defined  considerable  $700,000  assistance,  reserve  1982).  and  plant.  or  promotes  repairing  The  (water,  Band  management  is  employees.  f a c i l i t i e s ,  A  is  community  Council  services,  Grassy  which  be  Government  infrastructure  at  for  can  activity  firewood,  Band  (Fisher,  sector  self-reliance  incomes  part-time  fire  this  and  and  The 49  economic  of has  several  million  tons)  excellent at  plans  of  the  a  and  by  the  case  require  gas  year  a  project. of  headed  b i l l i o n  $1.14  LNG.  terminal This  resource  level.  (from  carry  LNG  study  $1.7  a  also  natural  proposed  local  pipeline  to  a  companies  for  would ships  for  affected  Point),  project  site  petroleum  million  Grassy  PROPOSAL  by  project  northeast b i l l i o n  is  which  B r i t i s h  liquefaction  shipping 170  Dome  b i l l i o n necessary  f a c i l i t i e s cubic  feet  for  the  30  project of  (Dome,  the  start and  in  f u l l  process  1985  the  f i r s t  in  1990.  with  production  work  would  Depending  approval  Direct peak  1983).  construction  force  total  workers  and  would  be  operation  of  20  for  phase  this  annual 60  $58  to  to  10,000  length  in  1987  with  labour  annually;  a  force  32  tugboat  construction  million  could  man-years  employees,  The  $6  the  Japan  operating  million  f a l l  and  construction  LNG  plant  employees.  would  of  approach  The  approximately  economics  project,  shipments  comprising  pipeline  the  the  would  1,300.  112,  on  payroll  during  annually  the (Dome,  1983) . The  gas,  from  Nissho  Iwai  for  million  2.9  would at  also  pay  Grassy  tentative export  (Canadian The  to of  of  Regional Ministry  for  can  Sun,  the  exported  the  cost  of  Energy by LNG  Board  (NEB,  work  the  issuing  is  to  agreement  annually.  E l e c t r i c , start  be  f a c i l i t i e s  (NEB)  has  given  conditional The  largest  to  scuttle  threatening the  Dome  Japanese  LNG  1983).  before  with  The  a  Japan.  end  of  1984  1984).  Actors  actors  LNG,  gas  project  Chubu  Dome  of  would  commercial  National  Dome  The  Participation many  cent  the  LNG,  unless  Press,  per  to  a  natural  The  approval  Alberta,  signed  of  10  Point.  project  1.  tons for  buyer  and  already  licence  Japanese the  has  B.C.  the  Environment,  the  including Lax  Offices of  in  Dome  Kw'almaas of  Fisheries  stage  Petroleum  Band  DIAND,  Transport, and  planning  and and  the  development  Ltd.,  Council, the  of  the  the  buyers  D i s t r i c t  and  Energy  Board,  the  federal and  Japanese  federal  National  Oceans  involves  the  Departments Coast  of  Guard.  the At  31  the  provincial  Energy,  Mines  Columbia 2.  Local  Level LNG  Port  and  and  those  adverse for  the  on  fixed  with  The 1.  A  new  pace  f a l l  and  of  the  British  major  changes  In  likely  of  to  the  receive social  benefit  of  the  construction  of  the  the  outside  social  and  community.  The  old  the  of  the  brunt and  competition  the  young  (Read,  1982).  road  its  community.  mostly  change  terminal f i r s t  of  costs,  in  from  increase  direction  contrast,  impact  on 1  0  the  and  the  Probably community  connecting  Port  Rupert.  identified  pipeline  assistance  would  the  would  harvest. most  and  equally  form  Prince  major  Ministry  and  bringing  the  project  the  significant  Simpson  not  in  the  the  the  incomes  are  be  the  the  of  with  economic,  would  impacts,  most  (EMPR),  potential  Band,  that  control  resource  the  The  skilled  w i l l  has  largely  environmental,  Resources  the  Impacts  found  benefits,  includes  Corporation.  Simpson.  influences  involvement  Petroleum  project  consultants  The  and  Development  The to  level,  impacts  right-of-way  are:  crossing  reserve  land.  2. The p o s s i b i l i t y on-reserve aimed at  of i n c r e a s e d r e t a i l and s e r v i c e development serving the large c o n s t r u c t i o n crew.  3. The p o s s i b i l i t y on-reserve.  of  4.  The  impact  of  1600  housing  the  92  construction  long  term  workers  terminal  passing  workers  through  and  1 o  Several years this road. evaluate the economic but (Department interest (and U r h a h n , TERA  b e f o r e t h e p r o p o s e d LNG p r o j e c t , t h e Band wanted At that time i t h i r e d c o n s u l t a n t s to examine and road's f e a s i b i l i t y a n d t h e y f o u n d t h a t t h e r o a d was was n o t a p r i o r i t y o f the provincial governments of Highways). Because of the l a c k of p r o v i n c i a l associated funding) t h e r o a d was n o t b u i l t (Helmut Consultants, telephone interview, 1983).  32  lingering  on  reserve.  5. A new d e e p w a t e r marine environment approach to the bay.  port which w i l l of Port Simpson  disturb Bay and  and the  alter the immediate  D u r i n g c o n s t r u c t i o n and o p e r a t i o n t h e r e i s the threat of environmental contamination by toxic m a t e r i a l s (Read, 1982). During the construction phase of the project the negative impacts include: (a) disruption to the existing resource use p a Tsimpsean Peninsula, mainly in the communally used Port Simpson Bay resulting f r o m i m p a c t s on w i l d i n c r e a s e h u n t i n g p r e s s u r e p r o d u c e d by c o n s t r u c t i o n (b) t e m p o r a r y d i s r u p t i o n of drainage patterns on the areas.  topography, soil, right-of-way, port  t t e r n s on shoreline l i f e from workers.  the of the  vegetation and s i t e and working  (c) permanent a l t e r a t i o n of topography and natural environment of the port site, and permanent alteration of t h e n a t u r a l v e g e t a t i o n o n t h e new portions of the pipeline right-of-way where maintenance of the l i n e r e q u i r e s t r e e r e m o v a l . (d) temporary spawning/rearing crossings. 6. A new reserve, the  disruption of habitats adjacent  road w i l l pass t e r m i n a l and the  fish migration to streams and  through the reserve e n t i r e peninsula to  routes and at stream  connecting the Prince Rupert.  Canadian Resourcecon Limited, using the conclusions gathered in a p r e v i o u s study of the K i t w a n g a - M e z i a d i n highway done i n 1975, c o n c l u d e d t h a t t h e s o c i a l i m p a c t s due t o the new road would include the f o l l o w i n g . (a) greater convenience (to the community) owing t o : good in a l l seasons; reduced t r a v e l time; reduced t r a v e l costs; l o s s of isolation. (b) i n c r e a s e d a c c e s s i b i l i t y remote n o r t h e r n areas.  to  health  services;  (c) employment from: short term highway p o t e n t i a l f o r some t o u r i s t b u s i n e s s e s ; some highway maintenance crews.  high  schools  roads and  and  construction jobs; permanent jobs on  33  TABLE 1: SUMMARY ASSESSMENTS OF SOCIAL IMPACTS: PORT SIMPSON  Category  N a t u r e of I m p a c t  Magnitude  Health  traffic accidents  small  Education  training programs  small  simple  positive  Social Services  social assistance decrease  small  simple  positive  a l c o h o l use  large  with effort  negative  child care  small  with effort  negative  small  simple  negative  stores/businesses  average  simple  positive  f a c i l i t i e s use  average  simple  positive  fraternization  large  with effort  pos./neg.  police  average  with effort  negative  Amenities  Recreation  Community Protection  community  SOURCE: DOME (1983)  roads  Manageability difficult  Type negative  34  (d) and  economic economic  (e) loss strangers  development, owing d i v e r s i f i c a t i o n .  of and  ( f ) l o s s of significant  to  an  isolation with the increased settlement.  danger  in  increase  property  in  of  highway  hunting  value  tourists  peace, q u i e t , and u n d i s t u r b e d beauty i n c r e a s e in t r a f f i c volume and noise.  (g) loss of i s o l a t e d f i s h i n g and c o m p e t i t i o n f o r f i s h and w i l d l i f e . (h)  increase  and  because  grounds,  and  of  a  greater  accidents.  ( i ) a d v e r s e e f f e c t s on some g r e a t e r v a r i e t y of goods in  local larger  businesses communities.  because  of  the  7. A further impact for P o r t S i m p s o n w o u l d be t h e p r o b a b l e r e t u r n t o t h e r e s e r v e of many o f t h e Band members now living off-reserve. If t h i s happens, the community w i l l experience a l l the problems associated with rapid population growth (White, personal interview, 1983). These  projected  planning  among  maximize  the  could  accomplished  be  together  was  Dome C_j_  and THE  required. of  The DIAND  of  "mega-project"  Band  because the  i t  for  socio-economic  minimize  The  Lax  of to  was and  the  Impact  impacts to  the  deemed  project.  that  brought  is  being  at  PROGRAM  to  environmental  and  stage  have  the  Before  this actors  party  to  of  the  Dome's  funding  question in by  the  from  process.  a  to  in  the  response  to  DIAND's  assist It  the  was  project  potential  consequences"  asked  DIAND?  terminal. of  and  (RDIP)  applied  LNG  impacts  addressed  planning  was  Dome's  planning  the  cooperative  the  were  DIAND  practiced  Program of  Band  which  answers how  for  the  implementation  IMPACTS  thesis:  need  negative  Kw'alaams  planners  development  the  from  process  section  the  the  the  framework  DEVELOPMENT  applied  project  a  contributed  Development  plan  to  planning  following  beginning  Resource  a  i l l u s t r a t e  benefit  assistance  RESOURCE  The  actors  potential  development proposal.  a l l  changes  novel  only of  (Canada,  if  "major Treasury  35  Board,  1982).  According community within  Tyler  Native their  development. of  growing  participate  to  meant  of  development  plans  communities  (Tyler,  objectives  1980  the RDIP  in  and  national  and  their  and  was  s k i l l s  some  by  influence  or  a l l of  planning,  and  was  t h e RDIP  "mega-projects" in  including  and o p e r a t i o n ,  of  developing  by  participation  development  goal  on  a b i l i t y  This  f a l l  was  affected  regional  The  The emphasis  construction  the  the primary  communities  project  approval, In  (1983),  development.  enhancing  phases  to  the  regulatory  monitoring.  initiated  awareness  potential  in  of  response  to  a  "mega-project"  impacts  on  Native  1983). of  the program  were:  1. To p r o v i d e f u n d i n g a n d a d v i s o r y -services for planning and o r g a n i z a t i o n a l a c t i v i t i e s related to resource development projects directly to Bands, t r i b a l councils and Native organizations; 2. f a c i l i t a t e discussion and negotiations between federal departments, provincial ministries, project proponents and Native groups on specific project developments; (and) 3. h e l p coordinate and develop intergovernmental and interdepartmental s t r a t e g i e s for resource development (Tyler, 1983). These  objectives  intervention-oriented developments The  objectives  concepts is can  that do  which  valued the  is  by  indicate community  could  affect  federal  "mega-project"  cooperate  in  w i l l  order  to  the  development Native  cooperation, the  that  program approach  government. ahead  reap  to  novel  resource  communities.  coordination,  go  was a  and  The b a s i c  and that  through  consultation,  a l l  assumption the  negotiation  as  Band many  36  benefits  as  The  most  correctly,  interesting  that  resource needed  possible.  development  to  projects.  with  intervene  relations  between  in  the  Band Band,  out  the  "anti-project" hurdles  resource  Social in  Development  program  and  for  in to  a  July  enable  constraints  nation. through  The this  Appendix  of  for  million  posed  by  major  This  enabled  the  Band  project  thereby  These plan  Kw'alaams  to  a  total  funding gather  order and  the  arise that  during  the  Band  that  DIAND  to  f a c i l i t a t e  developer.  developer  the  resource  to  program,  D).  $2.0  them  Lax  in  and  assumes,  was  In  by  smoothing  local  acceptance  project. from  1981.  do  assumes  f a c i l i t a t i n g  approval  national  program  and  relations  the  by  the  can  province  assisted  development  received  1982-83  groups  indirectly  the  DIAND  DIAND  of  also  a f f a i r s  way  the  It  governmental  this  of  (#3)  j u r i s d i c t i o n a l c o n f l i c t s  assistance  obliged  objective  Minister  in  development  funds  and  were  organize  resource Band  and  State $3.0  for  the  (Tyler,  was  extremely  important  informed  Band  Native  years  $180,000  the  for  across  of  on  funding  opportunities  developments two  for  million  impacts  earmarked  received  information  f a c i l i t a t i n g  1981-82  of  the  funding  1983)  impacts  (see  because of  Council  the  it LNG  decision  mak i n g . Criteria The  four  most  were  developed  significant  to  features  priorize of  these  projets  for  c r i t e r i a  funding. were  the  following. 1. Recognition of off-reserve Native t r a d i t i o n a l use and occupancy of p r o v i n c i a l  interests including crown lands.  2. in  participation  R e c o g n i t i o n of n o n - s t a t u s interests conjunction with registered Indians.  and  acting  37  3. R e c o g n i t i o n of both w e i g h t i n g the p r i o r i t y of  positive and negative project funding.  impacts  when  4. Emphasis on e n h a n c e m e n t o f l o c a l (reserve) community s k i l l s in order for p a r t i c i p a t i o n in planning or influence in the planning process at the federal, provincial and private (corporate) level (Tyler, 1983).  These of  this  c r i t e r i a  thesis  processes, affairs,  --  the  involve  intervention role  of  negotiations  development  unique  A l l  program  problems  and  program..."  between  of  mandate  successes at  the  which  energy people  the  issues and  jurisdiction gave  the  national,  from  RDIP  and  the  heart  assessment  and of  "...a  to  resource  Indian  d i r e c t l y  trying  regional  at  intergovernmental  Indians  contributed  resulting  are  project in  government,  and  these  issues  in  Native  proponents,  off-reserve.  policy  Bands  wide to  and  both  implement  local  level  the the  (Tyler,  1983) . After actors was  no  it  examining is  apparent  integration  decision This Kw'alaams  making  or  quote Band  the  is  of  that, the  other a  program in  and  B r i t i s h  program programs  good  interviewing  summary  Columbia  with of of  the the  several  at  least,  provincial federal  key there  government  government.  procedure  that  followed.  In o r d e r t o r e c e i v e f u n d i n g a workplan was required. This e s s e n t i a l l y forced groups to make d e c i s i o n s a b o u t what t h e y were g o i n g to do and why t h e y were g o i n g t o do i t . The f u n c t i o n a l r e s u l t was t h a t g r o u p s h a d t o set o b j e c t i v e s , d e c i d e on p r i o r i t i e s , resource levels and work results r e q u i r e d t o meet objectives. They a l s o had t o analyze each of t h e s e end p r o d u c t s t o i d e n t i f y what tasks had to be done in order to achieve them. This process helped the fund(ed) group build s k i l l s in assessment, analysis, decision making, setting r e a l i s t i c goals and o b j e c t i v e s and u l t i m a t e l y p r o j e c t management (Tyler, 1983).  the  Lax  38  CHAPTER  4j_ A N A L Y S I S  OF  THE  CASE  STUDY  INTRODUCTION This in  Dome's  chapter  analyzes  impact  mitigation  provincial coherent  energy  picture  identifies  impact  Three  (November  the  second  project  the  (October  and  last for  involvement  the  processes.  the  federal  It  presents  three Indian  and  years  a and  influence  in  planning. are  assessed.  agreements, for  funding  Band's  17th,  costs  1983)  mitigation  Band/DIAND funding with the  provincial discussed B.  included  process  constraints  two was  of  Band's  the  of of  is  and  The  Band/Dome  first  agreement  Band-controlled negotiations  a  impact  with  comprehensive  compensation  Dome, energy  agreement  (see  C).  provided  In  and  mitigation  1982)  impact  The  dealing  events  produced  17th  and  Appendix  the  Kw'alaam  approval  relationships  relationship  studies  of  Lax  planning  project  opportunities  off-reserve  the  in  the  relationship  to  the  Band  potential  final  section  energy  project  light  APPLICATION  of OF  is  and  impacts of  provided of  the  Band's  THE  MODEL  strategy  proposed  chapter,  the  and  input TO  a  next.  Dome's  assessment  the  discussed  approval  into  these  THE  DIAND aimed  at  project.  federal  and  processes  are  processes.  PORT  SIMPSON/DOME  RELATIONSHIP This Lax in  section  Kw'alaams response  Indian  examines  Band  to  Band  and  off-reserve.  The  and  the  negotiations  answers  "mega-project" how  did  Band/Dome  it  the  between  questions:  development  become  is  was  practiced  involved  relationship  how  Dome  in  and  planning by  decision  analyzed  the  using  the  making the  39  analytical 1 .  planning  Opportunity  model  to  (see  Appendix  Participate  (a) Have affected interests opportunity to p a r t i c i p a t e in process? Lax  Kw'alaams  opportunity process.  LNG of  December  discuss  Bands  in  the  project. the  the  At  project,  in  of  time,  however,  Kitimaat  Band)  Band)  Indian  reserves  (Dome,  Band  Council  badgering  of  information 1983).  At  regarding DIAND's with  time  the  project  Simpson.  He  process  the  near  mitigation)  Band  was  involved  for  several  held  Office),  and  to  of  likely  involving  the  decided  (Grassy  to  the  on  Western  the  sites  Point,  who  not  siting  were  Lax  on  Kw'alaams  RDIP  they  telephone in  Dome's  reasons.  "the  what  its  to  was  in  could  Dome  in  the  was 1983).  contact to  in  the place  1983).  mitigation was  Port  program  taking  interview, impact  apply  participate  process  gather  status  close  would  the  interview,  interview,  participate  First,  that  intermittent  trying  funding  to  stated  personal  know  Hanley,  Band  way  were  telephone  Patrick  the  by  (White,  did  that  White,  project  planning  (Hanley,  most  Albert  (Hanley,  only  planning  was  1983).  Band  realized  was  off-reserve... " The  the  encouraged  " . . . i t  the  studies  planner,  and  approaches  consultants"  impact  D i s t r i c t  of  or  introduced  Dome's  various  the  planning  meeting  Regional  not  had  mitigation  informal  had  had the planning  Simpson  (B.C.  negotiator,  that  Band  (impact  was  for  the  because  chief  an  Dome  both  Cove,  Band's  and  Port  impact  mitigation  (Bish  The  Dome's  DIAND  impact  at  1980  project  this  (public and private) the impact mitigation  members  11,  representatives  to  Indian  Band  participate  On  between Dome  to  B).  anxious  planning to  have  40  the  Band  open  on  and  their  generous  Second, Indian  community  on  that  if  (for  example  those Rupert  did  planning  Island  Rupert.  those  of  the  to  to  the  of  He  earliest  Terminal) Port  that  and  at  the  Band  members  to  presented  to  the  advised  of  Port  the  with  the  creation  Dome.  position  paper  Council, The  on  to  be  be  for also  to  say  Rupert  those  of  Port  better  off  than  of  Prince  participate  in  the  accepted,  of  a  of the  Dome  Band  in  and  a  and  against  council  a  the the  meeting of  The  Dome  Council  position  paper  comprised  Council  dealings  a  environmental  principle,  held  from  committee  and  the  or  meeting.  contained  advised  for  letter a  from the the impact  representatives  the  commissioned  socio-economic,  representatives  would  act  Band  Council,  representatives  to  studies,  Band  for  members  fund  stated  Prince  opportunity,  reasons  Simpson  of  the  2 1 , 1981 the  community The  had  present  August  request  travelled  which  On  Port  Hanley  residents  to  small if  at  were  the  opportunity  asked  on  with  Simpson  a  developments.  stages,  development.  very  federal  went  developments  argued  any  When status,  off.  a  than  (b) Are those interested given the opportunity, earliest stages, to present their concerns about mitigation process? Interested  be  community,  leverage  reserve  better  Coal  He  of  more  its  compare  have  w i l l i n g  j u r i s d i c t i o n .  was  residents  not  of  it  to  Ridley  Prince  status  Band  because  were  was  Band.  provincial  clearly  at  therefore  the  contrary,  one  Simpson,  the  gave  limited  the  and  particular  under  was  that,  to  the  reserve,  Simpson  side  in  request  controlled and  by  safety  Council that  that  that  the  of with Dome  the  Band  matters.  the  Council  request should  41  proceed could  to be  more  define  estimated  specific  subsequently on-going  the studies more  (Dome, accepted  opportunity  more  completely  precisely  so  and discussions  1983).  The  by  and t h e Band  study  to  i t s  for  Dome  t h e Band  revised  express  that  costs  could  become  proposal  was  provided concerns  an to  Dome. 2.  Information  System  (a) Are the actors i n t h e p l a n n i n g p r o c e s s made a w a r e o f i s s u e s a n d t h e i r c o n s e q u e n c e s b e f o r e key d e c i s i o n s a r e made?  The  Band  consequences signed  the  for  made  before  agreement  the negotiations.  role  in  assisting  aware  of  key d e c i s i o n s  "Negotiations  This  1982.  was  Funding  the  were  made.  Agreement"  provided  $250,000  The RDIP  funding  t h e Band  to  issues  for also  prepare  for  and  Dome on  their  and the  November  t h e Band played  to  an  the  Band 17th  prepare  important  negotiations  with  Dome. Band-controlled Band's the  and DIAND's  awareness  baseline  data  profiles  and  Is  there  There analyses  the  be  land  c l a r i f i c a t i o n (b)  short-term  of to  of  objectives  resource  use  The  surveys,  satisfied  because  development  collected.  disclosure  f u l l  (White  gathering  project  completion  resulted  in  ,  of  disclosure  personal  a l l relevant by  Dome  interview,  of  data  impact  the  increased and  of  enabled  community  awareness  statements  prepared  and  a l l relevant  and  analyses? data  and  1983).  (c) Is technical information generated so uncertainties, costs, and benefits are simply expressed and e a s i l y understood? The  i t  both  issues.  f u l l  was  information  for  t h e Band  that and  risks, clearly  described  the  42  risks,  uncertainties,  summary to  report  costs,  prepard  highlight  the  1983) .  (d) Is the debate?  information  between  representative  met  mutually  agreeable  personal  interview,  3.  Dome on  benefits  Band  was  important  flow-two  negotiation-oriented  information  the  most  interview,  The  for  and  way  approach and  the  mitigation  the  written issues  such  a  a  two  to  The way  as  personal  dialogue  Band's  occassions  and  in  real  facilitated The  project.  (White,  involving  Band.  several  of  way  and  flow  and  of  Dome's  bargain  for  compensation  package  to  information  a  (Smith,  1983).  Time  (a) Is decision The Dome.  there sufficient making? Band  This  control  act  at  two  month  it  completing With  the  gave its  this  generate  moratorium  non-cooperation  and  studies.  position  a  of  events  negotiations impact  put  time  Band  that  time  to  socio-economic  information  negotiation  negotiations  indicated  the  own  on  table  the  (Hanley,  for  the  Band  prepare  and  Band  with would  for  the  environmental improved  telephone  its  interview,  1983) . (b) Does t h e long term? The long  process  terms.  funding  for  package,  and  (these 4. (a)  The  include  included fact  surveys a  outputs  Capacity Is  process  to  there  that and  community w i l l  be  planning  planning the  for  for  indicates  discussed  short,  the  agreement  inventories,  plan,  the  short,  medium  medium  included  and that  later, (b)  was  and  and  immediate a  benefit  satisfied  later).  Act enough  funding  for  the  Band  so  that  they  can  43  generate  their  Funding for to  a  own  was  community  carry  out  information validity  adequate  —  of  then  1200,  impact  studies  which  allowed  of  funding  alternatives  Dome's  and  particpate  in  provincial  community  of  a  wealth  funding) (b) Band  at  of  its  Is the members? The  regulate  though only  a  most  no  the  the  The  capability is  To  this  asked  the  agreement Public detail  the  in  land  them  the  to  plan  was  funded  necessary examine  the  deficiencies. assisted  the  The  Band  process.  probably  Department  this  use  Band  its  and  not  the  and  but A  by  to A  have  federal  both  Board  would  Necessity  of  and  off-reserve  therefore,  project  not  the  is  Band be  cannot located  Dome  even  on-reserve;  reserve. to  legally  legal Band's to  contract  interview,  powers  conditions  Chapter).  Band,  personal  the  behalf  powers  Kw'alaams  Council  its  on  concerning  a  Lax  the  act  various  limited  Energy and  to  when  the  cross  (Slade,  problem  terms  able  project  contracting  Convenience later  the  of  National in  Band  would  Councils  with  would  of  aware and  around  The  planning  size  Developer  unclear  intervention get  enough  c r i t i c a l l y  mitigation  the  views?  not  outline  legally  proposed  right-of-way  made  to  provisions.  dealt  the  was  gave  Department  (i.e.  reserve  Dome of  the  is is?  Band  and  Band  has  tax  developer  Band  over  i t  off-reserve.  Dome  similar  Council  allows  or  much  their  fingertips.  responsiblities development  how  the  the  expertise  Band  Act  argue  $430,000  and  from  effectively  such  if  studies  expertise  and  and  include of  (this  1983).  over  council,  with The  off-reserve Harry  Dome's the  Slade. lawyers  Dome/Band  the  Certificate  of  w i l l  be  in  discussed  44  (c) Is there Band C o u n c i l  technical expertise so t h a t i t c a n make  Expertise the  Band's  supplied  was  impact  present  to  do  2  planners.  preliminary  in  research  Dome  made  consultants)  process. 1.  This  2.  Alternative  4.  Decision  5.  Band  and  process years,  months),  impact  by  to  the  May  1981  began.  2  summer  and for  the Band  studies  DIAND students  advice  of  controlled  (which  were  1983).  completed  a  nine  step  planning  included:  gathering  generation  making  Synthesis  6.  Strategy  7.  A  8.  Negotiation  9.  Agreement  plan  These  the  formulation  of  steps  matter,  5.  available  $250,000  (Tyler,  the  or available decisions?  Analysis  3.  of  that  process  Information  four  environmental  stated  two  available  carried  Tyler  over  (for  and  by  made  planning  funding  socio-economic out  and  mitigation  $180,000  present informed  action  with  were  not  completed research  developer necessarily  by  the  Band  chronological  (they  used  or,  consultants  for to  that  do  some  work).  Choices  (a) Does t h e p l a n n i n g p r o c e s s c o n s i d e r a range of c h o i c e s to a given problem and expose these f o r p u b l i c d i s c u s s i o n a l o n g w i t h their analyses? The and  Band's  exposed  discussion.  planning  these The  process  along  with  did  consider  their  alternative generation  a  range  analyses and  analysis  of  for was  choices public done  by  45  Fisher Two  (1982)  university  collected Four  was  submitted  students  and  analyzed  development  (funded  by  the  Band  DIAND)  information  alternatives "local  to  alternative,"  the  integration  alternative,"  were  on  Council and Port  generated:  development and  two  June  Band  Simpson "the  alternative," the  in  "maximum  Conservative  the  The  Local  Alternative  p e n i n s u l a . . . would be the n a t u r a l gas project (Fisher, 1982).  Development  and  area.  "regional  development  Working with the r e l a t i v e i s o l a t i o n of the village and building on non-economic q u a l i t i e s of l i f e , development would build self-reliance and provision of needs from local sources as far as possible. Transportation links with the r e s t of the r e g i o n w o u l d be r e s t r i c t e d to the present air service and an improved water based service, especially for f r e i g h t . . . Fishing and f i s h p r o c e s s i n g . . . w o u l d be e x p a n d e d and diversified to include hew species and processing. P r o d u c t i o n of lumber and other wood products for local need would be p r o d u c e d by t h e v i l l a g e . Development on the d i s c o u r a g e d and thus w o u l d be o p p o s e d . . .  members  conservative  alternat ive." The  1982.  Alternat ive  Port Simpson would be developed as a relatively self-contained community with capacity to s e r v e and t a k e advantage of new a c t i v i t i e s on t h e peninsula e.g. Tourist and recreational development. The latter would be limited to non-consumptive or passive types and to selected areas away from importrant wildlife habitat... The n a t u r a l gas p r o j e c t w o u l d be opposed f o r the same r e a s o n s . An a l l w e a t h e r l i n k t o P r i n c e Rupert would be e s t a b l i s h e d b u t l i m i t e d t o access only...not suitable for daily commuting. Employment opportunities would be created through expansion and diversification of exisitng industry, including retail businesses, support serivces for the coastal f i s h i n g f l e e t , and the tourist industry. Education through  46  grade 12, and adult up-grading v o c a t i o n a l t r a i n i n g w o u l d be e s t a b l i s h e d the v i l l a g e (Fisher, 1982).  The  Regional  Integration  and in  Alternative  To e n a b l e p a r t i c i p a t i o n i n t h e P r i n c e Rupert economy and society without disruption of peninsula lands...a r o a d w o u l d be built to Prince Rupert that could be used for commuting t o work and t o shop. Thus a large and relatively stable source of e m p l o y m e n t . . . w o u l d be made a v a i l a b l e t o P o r t Simpson r e s i d e n t s in a short p e r i o d of t i m e . Similarly, the r e t a i l , professional and social services there would be much more readily accessible. Expansion and d i v e r s i f i c a t i o n of existing f i s h i n g and forestry industries would be pursued but otherwise development of the p e n i n s u l a w o u l d be restricted... (Fisher, 1982).  The  Maximum  Development  Alternative  This alternative pursues maximum e c o n o m i c b e n e f i t f o r Band members by t a p p i n g i n t o t h e Prince Rupert labour market, reducing the cost of l i v i n g , and e n c o u r a g i n g development of the harbour and r e c r e a t i o n a l p o t e n t i a l of the peninsula. Environmental protection would be limited in degree to prevent e x t e n s i v e a n d a v o i d a b l e damage b u t n o t t o be prohibitive to most development. The natural gas project and associated road would be supported as a catalyst for development in the area as well as the direct employment it offers... (Fisher, 1982). (b) Is the community able to generate a l t e r n a t i v e s and opportunities are known, thereby providing w i t h the b a s i s of choice? The impacts community  community and with  information land-use  maps  was  able  opportunities the  basis  analysis (Hanley,  of was  to were  generate known,  choice. the  One  alternatives thereby key  preparation  telephone  whose impacts the community  providing  aspect of  interview,  whose the  of  the  resource  and  1983).  By  47  overlaying the  Band  the  was  able  construction project and  idea  might (c)  and  and  an  project to  identify  where  the  what  able  to  Is  the  its  community community  staff,  (White,  did  Bargaining  (a)  Are  the  be  potential  uses  affected  awareness  preliminary  the  land  of  base-line  project  by the data  impacts  between  of  a  benefits  most  placed  before  the  Simpson  on  approximately  150  with  Dome  formulation  proposals?  key  proposals.  were  completed  from  DIAND  Decision by  or  the  Band  consultants  1983).  July  of  (Dome,  of  The  proposal  differences Kw'alaams  the  of  were  Band 1982.  1100  member  to  series the the  of of  differences? meetings  Band's  meetings  Band  the  and  4,  mandate  of  concerning  mitigation  August  a and  subject  and  of  resolution  1982  operation  Lax  a  the  and  the  Council  for  representatives  Committee.  After  its  key  on  assistance  and  construction  gave  vote  available  Dome's  development  economic  on  Opportunity  June  Development  Port  existing  could  increased  vote  interview,  procedures  During place  without  personal  6.  the  the  which  necessary  and  making/synthesis/strategy  the  This  on  be.  The  and  areas  operation.  provided of  infrastucture  project,  resolved  membership the  Band,  negotiate  centred  sharing  the at  on in of  measures.  proposal  was  meeting  in  attended  by  a  meeting  the a  Resource  participation  compensation  At  took  Band's  membership  detailed  agreement  1983).  (b) Do r e p r e s e n t a t i v e s of the community and Proponent have the o p p o r t u n i t y to d i s c u s s the i s s u e s w i t h the g o a l of compromise in mind? Community  members  with  differing  "interests"  had  the  48  opportunity  to  Negotiations  between  RDIP  discuss  developed  i n i t i a l  phases  decision invovle  to  included  by DIAND of  the  the  plant  the  with  community was  favour)  22,  thereby  the  project  The  Sun,  7 .  Ef f e c t iveness  1983,  the  and the a s s o c i a t e d  June  24,  the Band.  compromise.  to  of  the  Although  planning  process  locate  i t )  the (the  d i d not  especially  negotiations  the  with  Dome,  representatives.  reached  by  of  objective  stages,  and  endorsed  June  by  and where  overwhelmingly on  was an  subsequent  agreement  the goal  project  negotiations  discussions  After  a n d Dome  Dome's  the community,  with  and adopted  the  for  issues  t h e Band  build  preparation  the  the  with  Dome  membership  giving  benefit  (117  conditional  package  i t  was  to  2  approval  (Canadian  in to  Press,  1983).  (a) Are those involved with the process dealing with the issues at hand e f f e c t i v e l y and a r e they a c c o u n t a b l e and r e s p o n s i b l e f o r t h e i r decisions and actions? If Council for  effectiveness to  successfully  and m i t i g a t e s  the  Council  accountable is  is  elected  was  measured  by  the  negotiate  an  agreement  the potential effective.  and responsible  for  impacts  a b i l i t y  of  which  those  decisions.  and t h e o r e t i c a l l y accountable  the  involved A  Band  compensates  t h e LNG p r o j e c t ,  Furthermore, their  of  Band  and responsible  then were  Council to  i t s  const i tuents. (b) Does the impact planning i m p l i e d goals of the community? The "maximum these the  goals  of  the  development  goals  project.  is  community strategy."  indicated  by  their  process  can  attain  be  inferred  The community's voting,  the stated  from  acceptance  overwhelmingly,  or  the of for  49  The  agreement  project an  and  access  provides  road,  commits  Dome  including  to  for  which  the  the  pipeline, ensure  business  compensated impacts  commits  and  occur  community  legally Dome's  binding  is  obligations  Council the  has  gets  a  (Dome,  agreement  is  could  case  agreement It  by  is  remains  potential  to  the  be  benefits, and  any  is  negative  that  asking  for  projects i f ,  Act  the of a  any  it  ahead  the  Band  reserve and  land  for  (b)  the  conditions  Council  is  party  judgement  of  the  finds  agreement either  is  goes  (a)  ),  and  agreement  whether  torrelease  Indian  performance  by  also  from  some legally  could the  be  NEB  or,  courts. that  which  seen  the  offers  whether  or  Band them  has  managed  many  to  negotiate  potential  not  the  Band  inputs  and  efforts  an  benefits.  capitalizes  on  the  to  the  benefits.  the  positive.  of  (b)  Dome  (d) Are the community?  On  the  binding  permit  ensuring  apparent  with  If  Band  remedied,  It  below.  the  Failure  and  Dome,  (c)  recognized.  (c),  with  terms  of  economic  implement  the  method  case  to  into  other  in  power  legally  or  for  agreement  costs  incorporated permit,  Dome's  land  opportunities,  the  f a c i l i t i e s  28  shares  of  reserve  The  Band  agreement  be  through  of  NEB's  in  an  support  1983).  the  c l a r i f i e d  (s.  Band  related  ministerial  right-of-way  the  employment  (c) Does the community have made w i t h t h e developer? The  general  powerline.  that  and  to  right-of-way  'project  may  Band  Band  Council's  surface, The  Band  the  Band's  and  the  relationship proponent  of  value  with  Dome  bargained  seems  towards  an  50 agreement  which  relationship therefore  was  was  necessary  for  The  consequences  the  to  that  Dome. legal  the 8.  t h e Band  t h e Band  by DIAND.  An  and the  levers  in  negotiated  and  planning  are  in  more  information  and Band  on  the  because  i t  negotiators.  which  voted  followed  the  them  a  issues  requiring on  the  NEB  road  favourable  were  action with  the threat  approval  process,  reserve  rights-of-way. the  Band  negotiations  concerning  to  approach  land  The  of and  to  be  results  of  Band.  Effects  (a) Does t h e p r o c e s s a n d t h e p r o j e c t a n d t h e r e l a t e d (real possible) o u t c o m e s have a p o s i t i v e i m p a c t on t h e c o m m u n i t y ? The  process  had  a  positive  evidence  indicates  t h t most  attained  the goals  of  First, intervention An  by  community.  was v a l u a b l e  rested  Dome  and  solutions  their  the negotiations  with  pipeline  on  closely  of  strategy  cooperate  negotiations  The  proponent.  outline  intervention  f o r power,  parties.  mitigation  membership  that  to  Band  community  apparent  action,  both  conjectural  This  the  The B a n d ' s  refusal used  well-informed to  or  and gathered  with  developed  the  information  negotiate  is  to  impact  alternative.  results  were  gather  of  the  formulated  the  proposals  alternative  They  It  in  an  a  to  because  generated  in  mandate  just  project.  resulted took  and  positive  research  chose  fair  involved  Band  i n i t i a t i n g They  was  interview  revealed  that  the by  the  with DIAND  was  the Band's  on  the community.  efforts  matched  The and  RDIP.  objective DIAND,  of  effect  and  of  Band  attained  Pat Hanley, personnel  decision and  is  who h e l p e d were  used  making,  one  sign  implement only  as  with  l i t t l e  of  success.  the  program,  professional  51  resources,  similar  Second, framework  to  the  for  developer  in the  prepare  them  awareness  the  the  a  for  the  the  resource  Band  the  The  final  develop,  on  Band/community  term  next  the  the  the  of  did the  a  between  the  The  was  goal  this  by  has  so  strategy  and  Band  by  and  the  through by  land  the  promoting  use  studies.  to  negative  steady  helped  heightening  potential  minimize a  the  project  profiles  provide  Band  enhance  aspects  income  of  to  the  years.  agreement, for  used  impacts,  opportunities,  20-25  and  the  Dome.  It  agreement  and  Band  with  project  giving  objective.  approach  consequences  of  provides  available  the  development,  over  for  at  negotiation  ultimate  package  information  long  the  aimed  with  negotiations.  employment/training the  as  term  the  undertaking In  making,  services. was  negotiations  short  of  approach  Band  benefit  of  gathering  RDIP  f r u i t f u l  In  consultantcy  decision  and  negotiate  resulted  to  the  necessary  which  Band  to  took support  rights-of-way  more the  for  than  2  project  years and  pipelines,  to  make  roads,  and  power1ines. Dome in  two  w i l l  ways.  introduce  for  and  "agrees  the  its to  phase"  scholarships  complete  courses  opportunities  construction to  the  take  a l l  per  to  steps  provide  1983).  year  related  During  reasonable  to  (Dome,  phase  energy  sub-contractors.  employment...(and)  operation four  During  employment  residents  contractor Dome  provide  In  energy  Dome  project the to  training addition,  (1984-1991)  for  project  for  Band  members  promises  construction  operation recruit  to  w i l l  residents operation.  phase  residents  prior Dome  to  who  the  provide wish  to  52  The  compensation  construction include  the  of  project  following  1.  A  2.  Village  3.  A  4.  Improvements  5.  Marine  6.  A medical  7. to  housing  related  includes  $3.5  community  million  for  f a c i l i t i e s .  the  These  items:  improvements.  centre. to  the  recreational  haul-out  and  repair  centre.  f a c i l i t y .  infirmary. of  the  construction  camp  sewage  treatment  plant  Village.  During  the  $275,000  purpose and  road  Relocation  Band  also  subdivision.  cultural  the  package  of  provide  construction  per  year  the a  and  latter  a  is  monitoring  phase  Dome  total  of  to  agrees  $400,000  address  program  also  for  to  pay  the  studies".  The  potential project  which  will  impacts  identify  these  impacts. -During per  year  the  from  operation  Dome  and  one  owner's  share  of  the  revenues  do  add  up  the  w i l l  Band The  expected the and  not  receive  direct to  project. $60 The  at  The  half  the  of  project's to  a  monetary  total  phase  one  per  of  benefits  least  $15  total  value  w i l l  year  $500,000 of  the  m i l l i o n of  the  receive  percent  revenues.  $500,000  minimum  Band  If  of the  Dome per  the sum  the  plant  of  these  guarantees  that  year.  compensation  over  $250,000  25  agreement  package  year is  is  l i f e  of  between  $20  million. side  abstract. formulation  effects The  of  a  of  most  the  agreement  concrete  community  plan.  are  both  side-effect An  abstract  so side  concrete far effect  is is  and the the  53  development  of  recognized  the  as  a  Band's  serious  a b i l i t i e s actor  in  to  the  negotiate  planning  and  and  be  assessment  processes. If the  the  Band  this  project  over  the  period  Prince past  goes  next  include  Rupert.  In  20  years  probably  remain  ahead  20  could  years.  The  employment  fact  the  because and  i t  allow  road for  a  steady  potential  of  on-site  benefits  connecting commuting  the to  income  benefits  opportunities  duration  the  mean  may  over and  at  continue  community jobs  for  in  would Prince  Rupert. If  the  effects  w i l l  plan  and  project be  a  decision could  shorter.  great  surrounding  deal  area.  making  help  it  does  not  go  The  Band  of  More  then  w i l l  information  future  and  duration  have  about the  confidence  community  the  s t i l l  importantly,  experience  with  ahead,  a  the  the  community  community  Band  of  of  has  this  gained  a b i l i t y  development  and  which  projects  and  negoat i a t ions. 9.  Institutional  (a) Is the recognized The in may  the  impact by a l l  of  the  was  recognized  Province,  the  by  and the  the r e s u l t i n g project?  the  Band  courts,  or  and  the  agreement  Dome,  NEB  however,  the  answer  negative.  The  provincial  Indians.  It  mechanism Indian  states  a  the  "we  actual Province  (Social  Tripartate  government that  whereby  People,  Government" being  mitigation process actors involved in  process  eyes  be  Arrangement  Credit  Committee  has  must  an  o f f i c i a l  encourage  negotiations of  B r i t i s h  Party, on  policy  with  formulate  take  Columbia  1975)  Local  will  and  and  one  Government.  regarding a  place  between  the  Federal  such  mechanism  54  Although Columbia  does  government without (b)  the  studies 83.  to  The  Band  give  do  assisted  and  facilitated  provided  by  allocated or  federal  reserve  or  affected in  both to  Band  some  yes  B r i t i s h  Bands,  not  the  get  Act  the  the  legal  and  control  no.  and  far  important but  power  basis?  On  one  impact  60,  69  and  of  land  the  Act  powers under  to  the  prepare  sections  management,  the  powers  contract  with  without  limited.  Band  act  (see  to  Record  federal  or  its  D).  involved  with  and  or  own  occupancy  Indians"  RD  a  which  behalf and  was  Treasury  either by  crown  (Canada,  its  funding  "land,  registered  funding funding  The  provincial  Indians  non-status  on  The  #383-81  Appendix  project  registered  but  severly  t r a d i t i o n a l use  unoccupied  conjunction  the  is  resource  crown,  (were)  Indian  would  have  Indian  Decision  #779530 a  the  given  anything  Cabinet  when  is  administrative  to  Minute  of  of  Dome.  a b i l i t y  Board  status  process  money  not  as  has  Government  project  Band  in  and  are  such  the  for  taxation  corporation  the  question  of  sections  Councils  that  this  provided  management,  the  special  mitigation  a b i l i t y  was  of  backing.  impact  These  Band  realize  answer  policy  recognize  Band's  the  The  o f f i c i a l  not  did  the  Does  hand  the  was reserve  Indians  land  and  of  a  those  Indians  acting  Treasury  Board,  1982) . RDIP by  the  to  DIAND  may  Band, by  responsible  have but  the for  funded it  is  the  somewhat  Indian,Act. the  negotiation-oriented approach  The  welfare  outside Act of  the  states Indians,  legal the  mandate  used given  department  whereas,  the  is  entire  55  program their  was a i m e d own  decision  making"  fact  Band  obligation  to  It  is  remains  financier  Bands  welfare.  f a c i l i t a t e s The  at  can  an  that  and  DIAND  with  this  promoting  encourages to  met"  as  that  objective  failed  and not  responsibility  argued  admirable  Indians...(were)  concurs  direct  be  development  and a d v i s o r  Hanely  taking  an  "Band  because  i t  self-government.  "ensure  when  for  that  i t  acted  he  states  lawful  only  as  a  advocate.  conclusion  when  that  the department d i d not understand how to deal with the Port Simpson situation. Usually, the department t r i e s to maintain a neutral role when c o n f r o n t e d w i t h resource developments which involve a developer and an Indian Band. This is contrary to the s t a t e d mandate and l e g a l o b l i g a t i o n of the department which states that i t should act as an advocate of Native interests (Pat Hanley, telephone interview, 1983). Hanley primarily the  as  between  and  One federal  policy  is  which  development  the  involve  can  being  and  used  Instead  acted  for  on  i t s  reducing  that  of  i t s  own  " o f f i c i a l  the c o n f l i c t reiterated  the developer  funding,  secondly  is the  1982). be drawn  Indian  DIAND  The department  Cabinet  (Canada,  which  that  thereby  mitigation  DIAND  in  t h e Band  the department  federal  impact  l a s t l y  ask  lay  and e x p e r t i s e .  and the Band.  the  conclusion  situations  The  for  funding  the project  the department  responsible  solution  the negotiator  d i d not  of  the  for  being  concerning  position  province  that  resource  The Band  position"  cause  a  department  behalf.  the  stated  Act  Indians  is  from  this  inadequate  planning  "temporary" to  for  deal  with  resource  impacts.  questionable  problems  for  v a l i d i t y  the  Band.  of  the agreement At  present,  with the  Dome courts  might are  56  reluctant  to  acknowledge  the  Act  does  Indian  powers.  In  contract  are  not  cases in  a  specify  of  poor  contracts  that  contract position  with  Band  they  default,  in  terms  Councils have  the  of  because  contracting  parties  suing  of  the  breach  of  functions  of  for  contract. (d) Does government? The of  the  process  and  provinical agreement with  interfere  with  On  the  contrary,  a l l  made  regulatory  and  certificate Dome  lives On  should  orderly  incorporate  the  the up  this  to  the  not  avenues  i t s e l f  the  support  did  government.  programmes  to  process  not  the  any  of  in  will  Harry  parties by  problems  the  have  terms the  of  Slade,  the  fedearal  or  and  to  The  interference the  NEB  conditions  a b i l i t y  the  within  framework.  If  and  functions  worked the  government.  stipulations  subject,  existing  administrative  functioning  board  the  available  pose  agreement  existing  agrees of  the  guarantee  that  agreement.  counsel  to  the  Indian  Band,  stated: ...relating to socio-economic and environmental impacts which are matters over which the board has exercised jurisdiction... i t is appropriate that contractural provisions in that area entered freely into by an Indian Band and a developer, be incorporated in the certificate. It is certainly not the i n t e n t i o n of t h e p a r t i e s t h a t by e n t e r i n g an agreement that the Board not e x e r c i s e its j u r i s d i c t i o n where o t h e r w i s e i t w o u l d do so (NEB, 1983). C.  THE  ASSESSMENT  The Band  and  occurs  at  AND  analysis Dome the  but  APPROVAL  has of  federal  focused  importance and  PROCESSES  on is  provincial  the the  negotiations decision  level.  between  making  Examining  how  the  which these  57  decisions of  are  energy  "levers"  they  these  in  The  not  provincial therefore and  (c)  in  this  done  at  the  Indian  the  the  the  by  land  was  and  and  by  the  not  does  1983).  because  the  proposed  cross  over  federal  reason  why  public  response  EARP  covered  approval  Province's  by  was  Energy  about  and  be  "the  Dome  and  of  the of  Indian  (an  there  project. and  has  Review  process  and  Process  is  not  EARP power  been is  assessments,  federal  telephone  should  apply  right-of-way One  enough  that  Review  on  (FEARO,  reserve). not  (EARP)  Assessment  that  Another  federal  Allocation  (NEB).  funds"  argued  Gas  with  (Terminal  approval  project  land  provincial  not  picture  Termpol  Environmental  road,  the  was  associated  Natural  Board  federal  used:  and  process  between  incomplete  project  pipeline,  not  the  discussion  Guard's  energy  Assessment  can  and  project  planning out  (a)  federal  the  processes  the  Federal  It  an  because  assess  c r i t i c a l  Coast  involve  to  worked  with  articulated.  (b)  given  and  process.  i n i t i a t e d because not  thesis,  the  National  interview,  was  planning  Environmental  administered Office  left  be  processes  accurately  was  importantly,  involvement  can  mitigation  would  Canada's  the  to  responsiveness  Most  Band  these  been  but  be  Band.  aid  the  some  Assessment,  administered  of  Without  were  and  to  impact  level  the  off-reserve  not  assessment  (NGAP)  The  focus  the  can  applied  the  mitigation  Pollution) Process  reader  project  to  d i f f i c u l t  case,  Band.  three  LNG  be  documenting  which  has  regulatory  the  impact The  not  central  would  in  development  approval it  processes  processes  is  the  assist  processes  project  model  are  will  approval  in  influence  made  possible negative  the the  project latter  \  58  included because  pubic it  hearings.  would  Dome's  have  over  navigation,  91  and  in  of  The  where  stated  issues". by  the  approval the  agreed The  the to  powers order  has  fisheries,  and  and  clear shipping,  relations  stem  from  good  a  and  right  to  government"  was  and  only and  are  to  between  NEB  telephone  federal  this  has  Jamie  two  was  "shaky,"  issues  were  has  included  province of  these 1981).  Alley  1  1  governments.  and  interview,  government  process  sale  the  technical  environmental  the  (Canada,  representative  made  the  and  recognized  jurisdiction  Alley,  the  within  management  Province's  "defer  governments  another  for  the  C e r t i f i c a t e  Jamie A l l e y is a Mines and Petroleum Analysis Branch. 1  government  resources  the  rights  NEB's  (Jamie  process,  federal  but  the  engineering to  be  tackled  1983).  started a l l  a  It  is  public  aspects  of  project.  Removal  1  over  the  social  that  natural  compromise  that  Both and  a  the  international  "peace,  implemented  duplication. both  inland  residual  a l l  ownership  Province  apparent  own  with  that  federal and  of  from  not  ).  jurisdiction  Discussions  Province  CA  provinces  resources  He  interest  was  unnecessary  defense,  Limited  the  the  have  indicate  The  harbours,  EARP  approval  sea-coast  communiciations.  (s.  needs  governments.  jurisdiction  legislate  constituted  project  provincial  Therefore,  give  similar  f a c i l i t i e s . and  a  Energy  permits,  The  one  Province  Project  for  gas  removal  has  an  Energy  C e r t i f i c a t e while  P r o j e c t Manager w i t h the M i n i s t r y of Resources, Energy Project D i v i s i o n ,  the  Energy, Project  59  NEB  has  an  Export  Convenience  and  Licence  has  1 .  Termpol  The The  by  which  Oceans,  of  the  usually  procedure In  in  (Transport  any  the  or  are  the  meetings  Public  NEB's  Export  (and of  one  year  of  subject  the  the  The  assessment  the  project.  complete. spring  of  The 1981.  found  the  requirements  acceptable to  and  1983).  project  Code  and  of  members  Mines,  impact  to  in  Fisheries  Energy,  aspects  Termpol  safety  of  interview,  request  departments  sometimes  environmental  assessment  view,  federal  developed  for  from  certain  an  conditions  1982). of  the  because  DIAND's the  personal  with  hearings,  and  Works  Ministry  Dome's  c a p a b i l i t i e s .  public  involvement.  at  of  limited  monitoring  include  the  Departments  socio-economic  ship  point  Canada,  Public  Termpol  Implementation committee  of  procedure  several  the  approximately  and  environmental  from  technical  compliance  navigational  only  voluntary and  (Sherwood,  initiated  general,  proposal  date,  provincial  highly  takes  a  Guard  staff  the  include  was  is  Environment,  a  not  Certificate  Dome.  Coast  Resources)  does  To  Assessment  and  is  a  Assessment  the  assessment  to  includes  NEB  Petroleum  It  given  Canadian  and  that  been  usually  and  Necessity.  Termpol  the  Licence  or  recommendations it  does  not  that  representatives  final  have  Furthermore, for  Termpol  Report  of any  the  was  Termpol  enforcement  process  matter, were  the  any  present given  does  to  not  public  at  some  the  of  Band  60  (Bob  2.  Sherwood,  The  Nat i o n a l  The Energy  personal  1 2  NEB  was  Board  meaning  Energy  Act  and  and  eleven  regulate  specific  on  the  the  approval  Board the  convenience  and  for power  a  a  necessity and  a  department  Administration  o i l ,  gas  and  and  to  the  body  and  w i l l  have It  charged  the  by  jurisdiction  in  o i l ,  2  "to  the  u t i l i t y  Government 1982).  issuing,  and  with of  the  public  operation  of  gas  and  petroleum  powerlines  and  designated  and  of  gas,  and  by  the  Board  in  issuing  the  export  to  licences of  o i l  and  issued  adequate  standards  it  of  requires  that  the  construction  also  has  the  authority  to  gas  and  o i l  pipeline  companies  under  that  such  t o l l s  reasonable  and  ensure  section  public  is  20(1)  hearings  of with  the  NEB  Act  respect  are the to  regulate  Board  "issues,  Bob Sherwood is a Policy Analyst with O f f i c e of the R e g i o n a l D i r e c t o r , P a c i f i c and headed the Termpol Assessment. 1  roles:  c e r t i f i c a t e s  powerlines;  import  Its  (NEB,  construction  international  electric  advise  the  Act.  electrical  resources"  regulatory  National  within  principal  energy  for  the  two  international  permit  operation.  hold  of  under  has  interest,  use  1959  1982).  Before  Under  as  of  Governor-in-Counci1,  export  (NEB,  June  Financial  of  as  pipelines  the  project  and  in  board  public  inter-provincial  interprovinicial  the  areas  acts  of  products,  of  1983).  (NEB)  designated  member  development  The  is  purposes  in  Board  established  appointed  industries  interview,  is  the  and t o l l s its just.  required  to  revocation  or  Environment Canada, Yukon Region. He  61  suspensions of  gas  the  or  c e r t i f i c a t e s  power,  operation The  as  of  such  of  has  the  relevant  to  the  applied  July a  only  intervenors Committee  or  of  its  gas,  or  the  for  exportation  leave  power  to  (section  be  a  court  examine  orders,  "Applicant a  and  for  inspect  and  and  produce  and  property.  statement of  the  abandon  10(1))  Certificate"  provisions  made  to  l i n e . . . "  witnesses,  concise  the  is  for  international  and  includes  f i l e s  of  the  nature  the  facts  Act of  an  under  the  order  Process  1982,  gas.  received  did  gas  revenue  service,  rate  27th,  for  15  the of  of  to  the  to  and  with  personal later,  b i l l i o n  s t i l l  go  no  Development  months  153  It  export  approval  (Tyler,  seven  project,  return  to  the  Resource  export  and  Omnibus  discussed  years.  NEB  of  observers 1983,  approval  from  structure  were  as  the  licences  stage  Band's  attend  annually  certificate  f i r s t  the  hearings, for  matters  January  conditional  natural  of  the  however,  On  began  applications In  lawyer  1983).  construction  NEB  technical  and  cost  the of  allowed,  interview.  base,  enforce  series  process  the  c a l l  application,  13,  Canadian  on  to  Approval  surplus  of  licences  for.  Hearings,  feet  power  application  Federal On  or  considered  which  the  Dome  is  proponent  application  of  importation  pipeline  documents,  The  (a)  a  Board  inspect  which  the  or  cubic  requires  through  including  a  hearings the  income  taxes  social  aspects  rate (Best,  1983) . The  f a c i l i t i e s  project  and  includes  Anyone  or  group  approval submissions  (respondent  focuses by or  on  intervenors  (see  intervenor)  who  of  Figure intends  the 4). to  62  intervene for ahead  in  the  submission, of  the  application with  hearing  any  date  has  to  f i l e  supporting  (NEB,  1983).  a  written  information,  application two  months  FIGURE 4: THE NEB ENERGY  Dome P r o p o s a l  PROJECT APPROVAL  PROCESS  submitted  A p p l i c a t i o n under P a r t L i c e n c e Phase 2  6  of  the  NEB A c t  Phase 3 Omnibus H e a r i n g s D i v i s i o n o f Gas t o A p p l i c a n t s Report/Licences Given Condi t ions Dome g e t s s u r p l u s g a s  with  Terms  Applications for Certificate of C o n v e n i e n c e and N e c e s s i t y Under P a r t 3 of t h e NEB A c t , Phase 1 .  and  Public  Facilities  Hearings Part  1 : Richmond, B.C.  Facilities  Hearings Part  2 : Prince  Facilities  Hearings Part  3 : Ottawa  Phase 2 Viability  Phase  of  Public  3 : West C o a s t  APPROVAL  I  YES/NO  Hearings:  Rupert  Economic  Pipeline Application  64  If could its  t h e Band wanted t o h i n d e r  attempt  levers  t o do so a t t h e p u b l i c h e a r i n g s .  i n the negotiations  (b) A s s e s s m e n t There  Dome's c h a n c e s  with  only  a limited  This  was one  of  Dome,  o f t h e NEB A p p r o v a l s  was  for licences i t  Process  opportunity  affected  communities  to record  project  or to o f f e r  v i e w s a s t o t h e means and i m p l e m e n t a t i o n o f  the  project.  occurred  in  NEB  hearings  in  their  on  the held  could  issued  in  i n Prince  Prince  the  Rupert.  be i n c l u d e d  t o Dome.  the  energy  federal  approval  process  given  at the three  day o f  their  It i s possible  the o v e r a l l  views  that  i n t h e t e r m s and c o n d i t i o n s  At the hearings,  R u p e r t NEB h e a r i n g  regarding  Some d i d s t a t e  t o the Board.  t h e p r o j e c t was f a v o u r a b l e .  the  views  form o f s u b m i s s i o n s  presentations  suggestions permit  Intervention  their  f o r r e s i d e n t s of the  these of the  public  view  The Band p a r t i c i p a t e d b r i e f l y i n and gave  its  endorsement  of  the  project. The  hearing  to q u a s i - j u d i c i a l they held  may  copies  Approval and  technical  evaluates national is  the  c a n be i n t i m i d a t i n g t o t h o s e n o t u s e d  procedures expensive  require,  i n Vancouver,  written  process  legal  counsel,  Prince  Rupert,  travel and  of  the  consuming  to hearings Ottawa),  p r o j e c t , however,  considerations project's  weighed  impacts  interest."  e c o n o m i c a n d i f so i m p l e m e n t s argued  that  i s left  by  and  the  gives  b e n e f i t s outweigh n a t i o n a l c o s t s  c a n be  time  (they  and  as were  several  of the submissions.  i n the "public  It  and  up t o e c o n o m i c NEB.  approval  and t h a t  Dome d e t e r m i n e s  the  The  NEB  i f the project  i f the p r o j e c t i s  i t s plans. the  NEB  represents  the  "public  65  interest" society is  when there  difficult At  gave  which  "public  into  however,  "public  t h e Band a n d  incorporated  Energy  i t s duties,  and d i v e r s e  t o determine  be  Necessity.  out  a r e s o many  t h e NEB h e a r i n g s  agreement National  carrying  interests"  interest" Dome  i n Canadian that i t  i t represents.  proposed  that  t h e terms and c o n d i t i o n s  Board's C e r t i f i c a t e  Murray  Smith,  legal  the following  reason  f o rt h i s  of  Public  counsel  the  ofthe  Convenience  and negotiator  and  f o r Dome,  requirement.  D u r i n g t h e n e g o t i a t i o n s , t h e c o n c e r n came u p that i f i n t h e event that other companies o r corporations became i n v o l v e d i n t h e p r o j e c t ...notice there i s a provision i n the (agreement) which requires that Dome notify... any others that do become involved be b o u n d by t h e p r o v i s i o n s o f t h e a g r e e m e n t --. b u t i n t h e e v e n t that didn't h a p p e n a n d t h a t some c o m p a n y b e c a m e i n v o l v e d with the project a n d was a b l e to plead ignorance of t h e existence of t h e agreement, that could cause concern t o Dome and the Band (NEB, 1983). Having reduces its  t h e chance  existence  enforceable not  t h e agreement  go b e y o n d  incorporated  of persons  because  i t would  regulation.  or companies pleading be p a r t  Smith  the jurisdiction  i n t h e NEB's  of public  argued  that  certificate ignorance of  record  and  incorporation  o f t h e NEB.  By d o i n g t h a t ( i n c o r p o r a t i o n ) , t h e r e i s no intention t o g i v e t h e NEB j u r i s d i c t i o n that i t d o e s n o t now h a v e , n o r e v e n t o o u t l i n e o r d e f i n e j u r i s d i c t i o n t h a t t h e b o a r d may h a v e . The j u r i s d i c t i o n i n s o c i o - e c o n o m i c matters may b e a g r e y a r e a a s f a r a s t h e NEB A c t a n d Rules a r e c o n c e r n e d , b u t a t t h e same t i m e , t h e r e i s no q u e s t i o n that the board does h a v e some j u r i s d i c t i o n o n t h e s e m a t t e r s . I t was felt that the wording of paragraphs 16(1) and 1 6 ( 2 ) ( o f t h e agreement) covered that there i s no i n t e n t i o n o f r a i s i n g a n y dispute with regard to jurisdiction, but that t h e p a r t i e s would submit t h i s agreement to the jurisdiction o f t h e board (NEB, 1 983) .  an  does  66  The Dome, of  incorporation  or  the  successor  to  innovative  contractable  would  would  the  contract.  the  Dome  On  get  to  the  terms  of  the  of  that  the  subject,  binds  any  of  agreement.  the  the  problem.  limited  Smith  partner  agreement  including  around  problem  this  agreement  sections  therefore  certificate solve  of  Some  may  not  be  agreement  in  the  Most  capacity  stated  of  importantly, of  the  Band  i t to  that:  another problem that we saw was the p o s s i b i l i t y of an o u t s i d e p a r t y r a i s i n g the question as to the v a l i d i t y of the agreement. For example, an outside party may raise the i s s u e t h a t t h e Band d i d not have l e g a l c a p a c i t y to e n t e r i n t o contract, t h e NEB by m a k i n g t h i s a c o n d i t i o n w o u l d g e t a r o u n d t h e p r o b l e m (NEB, 1983).  The  Board  suggestion.  to  and  the the  enforce  Dome 3.  could The In  Band the  not  British  specific or  have  work  the  approval, make  out  be  compensation  of  Approval  are  of  Band's  delegate  performance the  agreement  only  Dome's  responsibility  of  Board  and  the  agreement.  would if  be  the  asked  Band  and  Process government  to  and  be  operation  avoiding  or  (Thompson,  1984). condition  to  undertake to  offset  o f f i c i a l l y  adopted  Compensation/Mitigation "measures of  reducing  a  payments  has  Impact  stated  required  the  differences.  the  as  to  not  that  the  Social  developer, will  Dome's  their  construction objective  can  suggested  and  s o c i a l .impacts"  that  of  Columbia,  These  respond  Board  provisions  Environmental Guidelines.  to  the  checking  Provincial  planning,  yet  Legally,  regarding Dome  has  a  project  adverse  The of  taken  obtaining  social  the  with  the  environmental  guidelines  mitigation  in  specify government  measures  costs.  and  Mitigation  67  is  to  be  employed  exceed  the  cost  compensation or  to  the  costs  is  cost  guidelines  is  are  28  of  29,  supported  the  From  the  was  LNG gas  the  and  The  of  as  as  of  the  information  of  project  gas  held  Dome  on  par  1983).  has  been  in  (Jamie  have  been  in  as  well  as  gas  the  June  Commission  government  natural on  on  were  They  exchange  Albertan  (Whitely,  Columbian  sale  the  Marketing  1983).  social  from  were  States  the  development.  An  netbacks  lost  of  and  needed  hearings  the  object  the  s t i l l  United  interview, to  of  Petroleum  long  Otherwise,  losses  costs  measure  resources  The  Columbia.  these  the  the  incurred.  the  British  respect  effort.  value  is  stages  the  February  select  the  natural  swamped (see  the  Province  Natural  Gas  Allocation  gas  by  Figure  1980,  5).  for  with  U t i l i t i e s  the of  new  energy  by  At gas  This  establishing  Application After  projects.  requests  guidelines  (a)  into  and  to  mitigation  environmental  Alberta  proposal  the  specifics  of  the  project.  established  review  impact  British  required  with  the  Approval and  of  mitigation to  that  i n i t i a l  consultation  being  social  exports  with  In  the  incorporated  telephone  proposed  benefits  equal  ensure  negotiations  gas  paid  Alberta  contact  Alley,  to  of  1982.  natural  close  to  permit  and  with  of  the  Allocation  governments removal  to  fully  Gas  where  time  companies  natural  projects  B r i t i s h  Process  that  process  Commissioh  of  gas  Act,  (Province  (NGAP)  the for  Columbia as  a  Province  way was  surplus  natural  replaced  the  interim  prices  is  an  act  of  B.C.,  and  that  consistent governs  the  1982).  Procedures  proposal  has  been  accepted  the  Energy  Project  68  Certificate Energy,  Application  Mines  contain  an  and  mitigative l i s t s  approvals  and  for  technical  and  of  (see  to  Figure  the  Minister  6).  the  project;  biological,  and  social  impacts; under  description  consultation  capacity  made  of  these  a  be  Resources  required  jurisdictions;  information  must  description  physical,  measures  of  municipal  Petroleum  elaborate  infrastructure;  (EPCA)  the  program;  project  federal, of and  applicant.  the  It  of must  necessary impacts;  j u s t i f i c a t i o n ; provincial  applicant's  evidence  of  and public  financial  FIGURE 5: REVIEW OF PROPOSALS FOR USE OF "SURPLUS" NATURAL GAS  BEV7EW OF prorCGALS TOR USE CT "SURPLUS" NATURAL GAS  Sayly  ApprOX UBttU Schadul*  August 81  Decenter 81  ' 81 January 82 February 82  Spring 82  M Prepared by Applicant(a)  Preparation c f AppUcatacra for Energy P r o j e c t c e r t i f i c a t e  APPLICATION (S)  Submission o f  Applic3tion(s)  Iteview by Governrrent Agencies  D i s p o s i t i o n by M i n i s t e r s * Uxfer U t i l i t i e s Gcxnrdssion Act  SOURCE: MINISTRY OF EMPR (1980)  70  (b)  Review The  Procedures  Energy  Project  approach  for  terms  conditions  and  is  a  of  the  section EPCA.  Section 6  8  of  a l l  and the  Once  an  9  and  Act  (Dome,  possible  decision  by  been  by  the  Included  in  the  seeks  as  part  permits  and  Act  and  permits, EPCA  Schedule of  the  licences  under  D  under  Sections  4  1983).  (as  review  the  is  Management  has  integrated  and  Dome  approvals,  Water  coordinate  Applications"  section  application  to  an  made,  three  specified  the  alternative  under  the  Commission/decision  Commission  (for  review  U t i l i t i e s by  public  Cabinet;  u t i l i t i e s ) ;  exemption. In  on  the  the  f i r s t  Cabinet,  its  who  with  terms  EPC  is  and  applicant  EPC's  terms  Operation specify  1980).  report may  the  and  and  grant  the  Upon  the or  Energy deny  it  construction  and  demonstrate  Certificate  is  terms  its  recommendations  is  conditions.  conducts to  applicant  must,  further  Commission  according  conditions,  granted  construction. the  case,  application,  Afterwards,  may  this  provides  approval.  "Ancillary  Waste  Act);  used  project  the  Commission  Process  is  of  are  and  of  requisite  procedures  review  which  t i t l e d Under  application  and  EPCAs  Review  If  to  issued and  by  submitted  to  If  proceed  shown,  Cabinet.  This  (British  an with  however,  compliance  is  to  (EPC),  7).  operation,  Cabinet  conditions  procedures.  Figures  before  hearing  Certificate  allowed  compliance  public  own are  Project (see  a  with  an  the  Energy  certificate Columbia,  FIGURE  6:  ENERGY  PROJECT  REVIEW:  CERTIFICATION  i PRELIMINARIES T O APPLICATION  WATER L I C E N C E / P O L L U T I O N C O N T R O L PERMIT APPLICATION  Preliminary project description and proposed studies  As appropriate APPLICATION FOR A N E N E R G Y PROJECT C E R T I F I C A T E Reviewed tor compliance with regulations  T  i MINISTERS) Disposition decision  19(11 (>) E N E R G Y PROJECT CERTIFICATE  18 (11 (bl C E R T I F I C A T E O F PUBLIC C O N V E N I E N C E A N O NECESSITY  Regulated energy projects reviewed in public hearing bv B.C.U.C.  Public utility projects regulated by B.C.U.C.  T E R M S OF R E F E R E N C E ISSUED FOR PUBLIC HEARING  T O B.C.U.C. UNOER PART O F T H E ACT  3  M approved, must satisfy other statutory requirements  19 (II Id EXEMPTION O R D E R  CONSTRUCTION A N O OPERATION Subject to conditions and other statutory requirements  UTILITIES COMMISSION HEARING  B.C.U.C. R E C O M M E N D A T I O N S TO CABINET  CABINET DECISION on Energy Project CeMi Curate and requirememj of Wtxet Act and Pollution Control Act I  \ CONSTRUCTION  CABINET DECISION on Energy Operation Certificate  OPERATION  SOURCE:  MINISTRY  OF  EMPR  (1982)  72  FIGURE 7: ENERGY PROJECT REVIEW: INTER-AGENCY FRAMEWORK  ENERGY  PROJECT COORDINATING  COMMITTEE  Ministry of Energy, Mine* and Petroleum Resources (Project Analysis OivisionJ Ministry of Environment (Assessment Branch) British Columbia Utilities Commission (Staff Member) Liaison with proponent/applicant. Coordination of procedures and agency involvement.  WORKING  AREA  COMMITTEE  OF G E N E R A L INTEREST  FUNCTION REGARDING APPLICATION AND PROJECT  ENVIRONMENT/RESOURCE/ L A N D USE  SOCIAL/ECONOMIC  ENERGY/ECONOMICS/FINANCE  Resource Management Land Use Planning  Regional and Community Development Planning Social Service Policies  Energy Policy Industrial Straiegy Taxation/Financial Policy  Environmental Impact Analysis Benefit/Cost Analysis Mitigation/Compensation Permitting  Impact Analysis Social Services Mitigation/Compensation  Energy Policy Demand/Supply Forecasting Economic/Financial Feasibility Benefit/Cost Analysis  Coordinated by Sooo/Economic Coordinating Committee (SECC);  MEMBER  AGENCIES  Environment* Forests Agriculture and Food Transportation and Highways Lands, Parks and Housing Energy, Mines and Petroleum Resources Provincial Secretary and Government Services  SOURCE: MINISTRY OF EMPR (1982)  Review Agencies Include: Municipal Affairs* Health/Education Lands, Parks and Housing Attorney General/Labour Transportation and Highways Provincial Secretary and Government Services Industry and Small Business Development  Energy, Mines and Petroleum Resources* Finance Industry and Small Business Development  73  The  second  Petroleum not  be  not  one,  third  case  Petroleum may  to  from  exempt  this  therefore  rather  specified  is  allow some  or  a l l  discretionary Ministers  requirements  and  permitting  Dome  made  Certificate  on  the  The  of  A p r i l of  was  gas  have  removal  who  pays  economic  on for  the  Dome  process  w i l l  deficiency  Committees  to  Energy,  Mines  provision  applicant  not  March  Secretary,  project  project  Dome's  over  1982  to  Dome.  and  to  Mines 16,  Dome  1983  by  1982). date,  The  project  Rim  Gas  This  was  requires  the  planning latter  its  provincial  approval,  the  by  government's  proposals  To  regional  infrastructure)  site  (Dome,  f a c i l i t i e s and  Project  Heritage  Columbia  favour.  given  obey  1983).  British  15,  be  1980).  Energy  on  July  may  Columbia,  Columbia  the  In  to  British  LNG  environmental  have  Energy,  The  and  Act.  of  (Dome,  of  project  conditons  the  Provincial  been  the  the  may  (British for  of  of  and  Minister  Minister  released  in  the  the  Site  Western  of  operation  terms  the  of  former  issues on  social  (such and  aspects.  Dialogue of  of  the  permit  the  the  procedures  1982.  nod  and  case,  (EPCA)  announced  p o l i t i c a l  concentrates as  30, the  certificates a  of  Branch,  Transpac a  of  Minister  application  Point  Ministry  selection  only  part  u t i l i t i e s .  concurrence  of  and  Resources  Grassy  Conservation  and  its  Application  Petroleum  letter  public  The  construction  the  based  this  with  by  and  to  exemption.  Resources,  Environment, be  applies  discussed.  The and  is  case  between  Dome  statements  looking  into  the  and  the  which  Province are  project  given and  has  been  in  the  form  to  Dome  by  the  EMPR  informal  discussions  74 (Jamie (c)  Alley,  Indian It  long  i s  been  little  apparent  involve  the  hearings  was  from  because  give approval  i s both  Discussions  Province I t  citizens,  i s  Band,  telephone without  treating  and  this  interests"  only and  a  close only  aspects  of the  probably  i n having  w i l l not  two  sets  be g i v e n  of  exemption  relationship  The P r o v i n c e  will  said  (and)look not  The P r o v i n c e  "private interests" however,  Dome:  "you  f o rsupport  of  (Alley,  not  get  provincial  I t c a n be  does n o t r e c o g n i z e  of provincial  realized  the  or group of  interfere"  i n t e r v i e w , 1983).  the Province  to  with  made o n e s t i p u l a t i o n ;  o f t h e B a n d , Dome w o u l d  telephone  Dome,  provincial feels  a s a l a n d owner  (the Province)  that  opportunity  Province  social  will  could  Commission A c t and t h e Cabinet  owner  statement  the  the Province  probably  them  i n t e r v i e w , 1983).  (Alley,  covered  p r i v a t e land  the support  approval  Province  has not had  the  an  phase  terms and c o n d i t i o n s .  not as a community.  satisfy  have  decision  decision to hold  i s no p o i n t  Dome  cabinet  The s e c o n d  t o which  adequately  "there  with  by  EMPR.  but, the  stated that  Therefore,  done  and t h e Band would  s e c t i o n 19 o f t h e U t i l i t i e s  Band.  from  f o r Dome  a n d Dome, a n d t h e B a n d h a s h a d  on t h e e x t e n t  Jamie A l l e y  The  the  depend  NEB h e a r i n g s  hearings".  must  assistance  submission,  will  project.  will  the Province  t h e NGAP, s e l e c t i o n  a  hearings  under  process  w i t h much o f i t i n t e r n a l i z e d .  public hearings  make  hold  the approval  input.  technical  that  1983).  i n the Process that  between  During with  interview,  Involvement  and complicated  have  to  telephone  that  inferred "Indian  citizens.  without  The  t h e Band's  75  approval Dome  the  "has  been  telephone The  project  process.  has  In  submitting  a  for  EMPR.  The  is  the  the  Most  of  paper  the  without  been  on  road, of  1983,  which  is  the  participate  With with  this the  issue  to  in  mind,  Band"  (Alley,  would  this there  was  in  provincial  Minister cost  the  $43-64  road  formal  million,  Band  to  be  in  informal route  assessment  its  private  interview,  were  by  responsible  The  telephone  no  approval  participation  issues.  issue  hearings the  to  like  (Alley,  on  provincial  the  estimated  i t  years  the  i n i t i a t e d  outstanding  that  discussions  the  i t  road  two  public  involved  the  states  f i r s t  falter.  1983).  not  brief  surely  good...'up-front'  August,  centre  for  to  very  interview, Band  position  would  1983). because  for  the  and  Band  approval  "process.  D^  CONCLUSION This  Lax and  chapter  Kw'alaams in  the  approval  i t  Band  analyzed in  federal  procedures  The that  has  overall was  able  to  the  matches  analytical  is  outlined  the  The  did  analysis major  and  social  this and  increased  the  its  own  community  environmental  Band's  participate  the  planning  the  process  review,  and  involved  and  Project. was  in  planning  model. in  involvement  assessment,  This  planning  conditions Band  and  and  mitigaton  LNG  that  process.  necessary Band.  impact  Western  influence  planning  influence  provincial  conclusion  mitigation the  Dome's  and for  the  In model  Dome's  impact  process  closely  fact, were  most met  information awareness  impacts  and  by  of  the  Dome  and  gathering of  the  enabled  and  project's  the  Band  to  76  negotiate Band  effectively.  in  influencing  mitigation  and  negotiation resulting process  local  have  of  for  the  Dome  for  in  the The  for  attached  includes  mitigative  provincial  participation Band  public  since  to  hearing  NEB Band  there  be  involved  is  doubtful.  Band  the  of  the  provincial  communities.  This  has  land  the  claim  recognize  on  Indian  land  the  project  impact  constraint  of  the  legality  of  the  agreement  the  and  approval in  its  entire  any  having  a  reason  recognition problem  is  Point  claims.  or  not  which  a  its  major  backing  given.  respecting  not  in  been  The  the  terms  ensures  that  proposal.  been  One  Grassy  made  has  without  delayed  has  not  process that  be  participate  Indian  not  project  has  the  be to  measures  of  a  realized  could  to  failure lack  approval  process  to  major  binding  suggestions  conditions  to  questionable  a  assisted  nothing.  approval  allowed  The  the  been  The  the  Without  Band.  project  hearings and  the  is  process  relating  benefits.  agreement.  may  negotiation  decisions  process  Involvement lever  The  the of  allowed effective  method  provincially  Band for  sponsored  associated  with  provincial  process  is  nature  of  the  special  compounded site  for  and  because the  the  the  Band  Province  does  77  CHAPTER  5j_ O P P O R T U N I T I E S  AND  CONSTRAINTS,  CONCLUSIONS  AND  RECOMMENDATIONS In study in  this  and  make  raised the  to  Indian  case  thesis  study.  potential  Band  c l a r i f i e d  the  salient  opportunities  in  are  discussed  increasing  the  F i r s t l y ,  documented  in  are  Indian  of  and  developed  the  the  most  questions findings  that  involvement  and  planning  Thirdly,  light  case  involvement  off-reserve  elaborated.  options  of  Indian  problems  are  aspects  concerning  involvement  and  Finally,  of  the  conclusions  Secondly,  ones  in  discuss  development.  outlined.  important  I  general  off-reserve  constraints are  chapter  in  have  of the  off-reserve  development. In  the  beginning  of  the  thesis  1. How i s p l a n n i n g i n r e s p o n s e b e i n g p r a c t i c e d by I n d i a n Bands 2. of  How d o B a n d s f-reserve?  become  I  to and  involved  posed  three  questions:  "mega-project" DIAND?  in  planning  and  development  decision  making  3. What are the c u l t u r a l , economic, i n s t i t u t i o n a l , legal and l e g i s l a t i v e impediments and o p p o r t u n i t i e s f o r Band i n v o l v m e n t in impact mitigation planning off-reserve, and how can the i m p e d i m e n t s be overcome? Since 4. A_;_  analysis and  several  involvement The The  answered  this  OPPORTUNITIES  federal  1.  have  respectively,  The  are  I  chapter  AND  of  Dome's  opportunities  Small small  these Size size  focuses  1 and on  the  2  in  last  chapters  3  and  question.  CONSTRAINTS  provincial  in  questions  impact  mitigation  planning  approval  processes  for,  constraints  and  indicate to,  and  the  that  there  Indian  Band  for  Band  processes.  of of  the the  Community community  made  it  easier  the  78  Council  to  respond  Information can  be  For  travels  to  quickly  determined  example,  the  much  Band  on  the  issues.  It  meet  in  one  place  one  do  in  a  The  small,  but  it  Band  data  poses  that  forced  coincide lead  A  to  on  runs or  the  have  advice.  Band's  consultants  For  probabilities occurred, The  on  wind  the  would  analysis  the  a l l  a  them  informed.  and  consensus  large  community.  to  discuss  those  which  is  and  interested  to  very  d i f f i c u l t  to  responsive  away)  reach  was  the  based  hiring to the  "worst  used  the  who  fully  assess  risk  analysis Because  case  a  w i l l  not  case,  it  based  on  not  be  of  important  Prince instead.  may  and  i t  provide used  Rupert  by  Port  which,  the  if  Simpson.  data.  Information  factor,  was  airport  Subsequent  well  underestimated  scenarios"  inappropriate  extremely for  is  p o s s i b i l i t y  decisions  "experts"  destruction on  for  information.  inaccurate.  certain  This  values is  advisory  department  the  this  is  developments.  planning.  department's  makers  example,  the  of  If  time  data  and  Simpson  and  resource  because  to  Port  technical,  community.  the  on-site;  well.  strategic  the  of  was  conducive  as  large  and  risk  mean  be  consultants  inaccurate  an  kilometres  on  or  direction,  gathered  with  community  was  of  may  professional,  rely  of  or  founded  they  for  constraints  deal  decision  biased  Band  qualified  the  some  to  those  Band  culturally  in  meetings  something  community  consultant's with  keep  community than  possible  analysis  constraint the  small  easily  time,  indigenous  necessary is  a  membership  was  the  collection,  severe  can  it  in  and  community. of  lacks  expertise The  large size  planning  at  residents  more  held  vote  to  the  wind  not  (several data  79  collected  on-site  northwesterly airport. being  This  revised  scenario"  at  Port is  in  Port  i t  2.  The D e c i s o n The  that  Development  Impacts  have  and been  able  decisions  to  to  studies,  a  in  which  proponent  to  be p e r f o r m e d "  tactic  Program  the  the of  a  a  Rupert  risk  analysis  "worst  case  to  Dome  as  and one  the of  advice.  The  because,  benefits  outweigh  Band t h e Band  the  was  is  one of  and analysis  appropriate  to  a  as  the of  decisions  without  advice i t  d i d .  "significant funded was  The  controlled  advantageous  program's might  funding well  Second,  and c o n t r o l l e d  towards  the  t h e Band  departure  Resource  step  t o make  collected. fully  DIAND's  c r i t i c a l  t h e Band  fund  which  for  because  well  information  company  whether  project  examination  technical  a  or  community.  apply  allowed  is  question  Dome.  with  Dome  The  advice  the  the  of  made  (RDIP)  and  which or  to  The  decision  convince  1982).  of  Prince  "expert"  wants  capability  with  assistance  decided  Simonetta,  in  the potential  impacts  negotiate  on  of  Simpson  t h e Band  position  based  of  professional  Capabilities  profesional  professional  of  Council,  dealings  their  funds  Port  making  that  their  that  t h e LNG p r o j e c t .  regardless  negative  First,  improving  probability  the probability  "opportunities."  their  twice  the  resulted  back  because  Making  indicate  regarding  to  made  decision  important  events  doubling  t h e Band  the potential  most  so  was  the  was  information  decided  did  of  site  that  Simpson.  suggests  the eyes  the  upwards,  decision  analysis  at  new  Simpson  whether  the  wind  indicated  and  founded  the  Band from  not  Band impact  t h e way  studies  tend  (Justas  and  80  Third, in  the  the  Council  derived  the  massive from  position  of  The  If  employment  the  and  installation  and  funding  Band  mitigation  of  costs,  to  keep  Prince  f i r s t  two the  of  impacts  Tsimpsean  Peninsula.  of 3.  the  project  The  Band/Dome  The  most  negotiate ensure was  through  (a)  a  (b)  neither  This the  consultive the  Tribal faced lasting  deal  from  for  f r u i t f u l  w i l l  receive  opportunities,  gas  for  suffering the could  Band  manage  system,  damages  (Dome,  capabilities  private  allow  them  from  the  for to  down  them  as  the  benefit  potential  "outsiders" slow  and  1983).  Band's  road  would  strategy  the  distribution  the  Point  can  main  1982).  they  impacts  by  the  any  must  allowed  i l l u s t r a t e s  lever  Band  derive  compensation  This  Lake  community  natural  intrusion  on  the  to  the  impacts  they  appear.  Relationship decision  The  Band  interests  of  dialogue.  several  a  without  that  Dome.  the  of  to  business  a  with  Cold  ahead,  Rupert-Grassy  of  the  as  Athabasca  Simonetta,  goes  and  important  with  that  because  so  the  and  operation.  negative  the  leadership  which  connection  of  order  environmental  decision  from  (Justas  operation  years  project  concurs  to  "In  training,  project  the  advice  project  Another is  experience  strong  right-of-way  approach  project.  strength"  negotiations.  on-reserve  their  proposed  Band's  of  the  and  Esso  the  the This  from  communities  benefits a  used  negotiations.  conclusion  with  Band  prerequisites mechanism Band  nor  was  Dome  realized  the  The  made  Indian  Band were  by  that  the the  community  and  Dome  Band only  was way  optimized  reached  agreement  established; rigid  to  were  met:  established  to  positions;  81  (c) t e c h n i c a l a n a l y s i s was a p p l i e d w h i c h i n f o r m a t i o n base thereby providing an s i d e s of the issue; (d) the flexible  solutions and p r o v i d e  (e) b o t h personal  parties indicated interview, 1983).  Dome provided measures  and  the  opposed approval  potential  the  the  mitigation was  to  reasoning  funding  build  municipal  an  off-reserve  The  was  i t  ultimately  been a  the used  is  it  range  and  Futhermore  of  funding, have  would  Without the  not  not  be  got  might  this to  and  Dome's  Band  able  far  in  reap  the  project.  Band.  Smith  plant  (Smith to  pointed  inside  a  able  to  case  of  Port  Simpson  determine  assess bad  that  the  f r u i t f u l . the  the  levy  levy  amount  if  "Dome  taxes the  on  the  site  taxes. of  the  The  is notion  compensation.  Approach  to  or  cannot  that  impact  municipality  be  Council  (1983))  provide  out  would  issues  have  and  financially.  decision  time-consuming they  mitigative  Dome's  clear and  benefits  behind  good is  entity  counsel  Band  (Smith,  self-governing  would  Band  implementable,  compromise  legal  the  to  to  Dome's  premature  successful  wide  costly  the  the  prove  advantageous,  on  the  Negotiation-Oriented  While  has  In  of  Dome  identical  and  taxation  4.  to  corporation  development".  of  with  a  substantial  and  from  as  Band  project,  benefits  revealed  Band  the  and  process,  Discussions  willingness  package  assisted  attitude  a  the  comprehensive  progressive have  developed are potentially for the unexpected; and  recognized a  g a v e a p a r t i a l l y common understanding of both  whether  for  agreement  socially  negotiation-oriented  process  parties  accomplishing have  assessment  internalized  parties,  will  or  By  the  the  reduced  and  most  an the  review of  the  agreement length  of  processes. monitoring  82  functions  usually  to  place  put  deal  in  with  was  was  for  information  well  and  was  One  of  most  lengthy  negotiated these  parties  for  But  resource  Band  had  Dome  until  and  agreements  streamlining are  costs  and  great  over  the  regulated  answer  to  agreeing  monitor  and  and,  the  come we  consultation for  case  of not  to  have is  adequate early  and  DIAND. was  power.  would  and  that  This  this get  terms  placed  power the  become  was  the  used  government  processes.  a  Band. to  in  regulation  To  are  it  necessary  with  decision  Dome  a  degree,  appropriate, making  by  the  government. have  much  by  are  given  their  judgement  to  and  resolve,  outcome  has  factors.  means is  Major  complexity  d i f f i c u l t  these  favour  processes.  bargained  uncertainty  therefore,  in  technical  The  one,  more  regulation  which  risks.  and  and  affected  organized  recognized  substitutes  questions  complexity  the  need  circumstances  characterized  localized  in  review  government  value  right  by  community  The  projects  by  uncertainties,  the  needed  source  i t  had  and  processes  making  for  Dome  The  resolution  when  Technical  this  formally  bargaining  Dome  assessment  decision  by  that  agreement,  projects  advantages  did  because  was  factors  development  negotiated  just  by  was  process  Dome.  dispute  large  avoids  than  of  Band  it  advice  the  with  approvals  of  following the  the  worked  outcome.  crucial  kind  case  the  the  understanding  The the  of  to  footing  government  defined,  provided  on  clear  process  competent  that  equal  institutions  understood  recognized an  They  impacts.  clearly  a  government.  necessary  ratification  funding  to  negotiation  community  and  the  future  The  there  left  the  that  no  major  one  has  factor  83  when  making  because  decisions.  they  exercise  legitimacy  is  ground  the  In  a  that  the  is  straight  they  government  has  the  entirely  c o n f l i c t s forward and  value  pose  systems  address.  possible express  to  the A  are  not  to  because  justified  to  of  discretionary  discretionary  be  power  are  make  the  the  only  such  on  the  decisions.  legitimacy  community  their  is  of  the  party  to  and  can  sometimes  a at  resolved  evaluations.  issues,  problems  be  that  In  values  economists  can  only  to  employ  give  substance  face  to  economic to  relatively  In  non-priced  negotiation-oriented work.  by  the and  p a r t i a l l y  approach  analysis  non-measurable  of  competing  only  face  case  values  of  exchange  i t  but  beyond  to  values  go  is  important  participants. local  exposed  People control.  community  to  will A  great  The LNG  high  to  to  LNG  to  this  risks  if  project  compression  compensation the  infrastructure  exercise  increased  is they  a  perceive  process  station,  the  storage  given  the  risk  of  that  provides  control  that  development  source  and  a c c e p t a b i l i t y of  shows  accepted  "mega-project"  and  negotiation-oriented  voluntarily  For  subject  risks  accept  participants  contributes  be  can  question  avoided  social  With  participants  an  the  cost/benefit  environmental  for  Being  and  decision,  decisions  decision. Value  be  judgement.  questioned,  negotiated  decisions  Regulatory  may  conflict. they  are  in  opportunities  thus  negotiating  decisions. of  tanks  close and  appropriate  proximity  loading  docks  mitigative  to can and  measures. proponent  there  agreement  instead  are of  advantages being  for  dictated  achieving by  an  government  84  regulation. bargaining  Because  the  situation,  he  developer  makes  his  is  own  in  rules  fate.  Bureaucratic  uncertainties  however,  the  proponent  can  get  on  approval  has  been  by  the  appropriate  5.  The  Band's  In the  this  Band's  Federal case  for  associated  have  A  as  has  its  assisted proved  the  of  are  project  own  avoided,  only  regulatory  the  federal from  the  Band  after  agencies.  worked  status  DIAND.  Band  v i t a l  community  resource  of  similar  the  This  in  during  and  resource  developments  environmentally  stated  organizational these  delays  his  both  to  disadvantage.  funding  socially,  policy  decides  the  Band  money  gathering the  size  was  and  the  baseline  negotiations probably  with  would  not  fortunate.  Concerning Indians  and  status  special  provincial  been  special  of  which  with  and  of  Status  because  advice  information Dome.  the  advantage  Firstly, eligible  given  and  charge  that  the  planning  development  off-reserve or  economically,  government  funds  to  projects  which  enable  (Canada,  federal  would  Bands  to  affect  provide respond  Treasury  to  Board,  1982). Secondly, regulations by  the  be  and  federal  vires.  This  subject  to  Thirdly, at  its  services  Band as  such  a  they  are  are laws  equivalent which  government  or  province  means  the  right-of-way  Band the  that  taxation community,  disposal of  by-laws  large  the  and by  unless  be  they  through  federal  overturned are  ultra  reserve  could  regulation. virtue  professional,  federal  cannot  to  department  of  being  a  technical whose  reserve,  has  and  advisory  mandate  includes  85  protecting  and promoting  The status make  major  is  that  a  Band  t h e Band  unable  such  to  legally found  efforts  t h e Band  of  the  be  Dome/Lax Indian This  enforce  to  legally  result  the agreement.  If  would  for  been  not  this  in  federal  empowered  Kw'alaams  performance  have  the Band's  A c t does  may  welfare.  Indian  to Band  stipulate t h e Band  that being  of  the  terms  and  is  the  case,  the  can deal  with  naught.  DIAND DIAND's  most  of  the  Province. in  in  may n o t  the  can contract.  conditions  6.  as  community's  attributed  Council  S p e c i f i c a l l y ,  Council  Indian  disadvantage  contracts  Agreement.  the  intergovernmental  j u r i s d i c t i o n a l problems In  the case  the a f f a i r s  with  the  of  to  be  Sakamoto,  analysis DIAND's  i t  Port  on  1  Simpson,  between  telephone  3  of  apparent  Indian  DIAND  The d e p a r t m e n t  behalf  resolved  between  section  d i d not  d i d not  t h e Band,  and the intervene  get  rather  the developer  interview,  that  Bands  i t  and  left the  the Band  From  the  suffer  from  Province/Band  problems  are  in  favour  the  1983).  involved  Band  d i d not  strategy.  Susan dealt  is  of  the Band.  Province,  differences (Mike  relations  Anderson  with  Anderson,  informally  personal  problems  of  in  federal,  the  argues  that  and usually  interview,  service  most  provision  provincial  1983).  the Band's  But,  and t a x a t i o n , and c o r p o r a t e  she not  is  referring  Band  planning  (Susan to  involvement and  approval  processes.  Mike Relations 1  3  Sakamoto Section.  works  for  the  DIAND,  Intergovernmental  86  The  Act  welfare Band  of  making  the  and  assisted  The  and  Band  The  was  one  need  inadequacies in of  for  way  them  of  of  RDIP  is  a  d i f f i c u l t  position  i t  is  obliged  the  same  Hanley  time  argues  thrust  legally  obliged  that  in  of  Band  RDIP  off-reserve  Band  that  RDIP  the  Band  used  this  in  the  decision  funds  decision  guaranteeing  at  by  goal.  earmarked  lies  the  The  making  developing  and  The A c t does  Given  because  by  Bands,  of  to  deal  planning making.  the  fact  the  that  resulting  not  t o promote  the case  of  Port  many  Indian  on  the  Indian present  Bands  (Canada,  policy,  welfare, behalf  DIAND  development  of  Simpson  the department d i d not understand how to deal with the Port Simpson situation. Usually, the department t r i e s to maintain a neutral role * when confronted with resource development which involves a proponent and an Indian Band. This is contrary to the stated legal obligation of the department which states that i t should a c t as an a d v o c a t e of N a t i v e i n t e r e s t s (Pat 1  and  the  resource Band  intervene  that  address  of  federal  regarding  to  d i f f i c u l t i e s  suggest  and needs  recent  not  the  the program  1982). in  a f f a i r s .  the program  development  the  of  funding  with  review.  Indian  in  was a i m e d  accomplishing for  for  binding.  associated  need  own  own w e l f a r e . in  a mechanism  legally  program  the development  funding  shortsightedness  agreement  level  i t s  federal  involving  i t s  responsible  capabilities  for  is  d i d not provide  is  for  promoting  the  direct  developers,  expertise  Act  at  is  the entire  self-government  Therefore, with  whereas  responsible  Band  the department  responsibility  was a i m e d  directly  that  Indians,  taking  funding  it  states  while the  at  Band.  87  Hanley, The  federal  respect,  did  negotiation The  case  shows  but  not  as  and  between  actions  of  develop  this  hurt  expected impacts decision 7.  to  did  direct  i t s  In  this  deal  the  hold  directly by  level.  a  in  to funds  that  there  was  not  DIAND  this  aided  nothing clear  with  in  to  did nothing  i t  associated  Lack  due  doing  made  was  during  development.  the Province  the  the and  the  Dome  that  no the of the to did i t  project  making  the  Band.  Relationship d i d not  of  the Province  context,  No d o u b t  with  source  is  inaction;  Simpson.  Province  making  of  the problems  participation  decision  and  and the Province  rather  Port  capabilities.  function,  a  The  assisted  making  the case  stages  because  negotiate  not  from  handle  The P r o v i n c e ' s The  and  but  this  off-reserve.  can as  in  trustee.  communities  t h e Band  Band  Port  to  Indian  drawn  least  intervention  decision  involved,  or  relationship.  Dome  Band  at  actually  departmental  department  guardian  DIAND  the  on  the  assessment  dialogue  not  direct  promoted  conclusion  involvement  the department  the parties  between  planning  of  1983).  environment,  Band  of  that  of  Another dialogue  lack  process  satisfaction advice,  hinder  approach  because  interview,  institutional  not  "hands-off" Simpson  telephone  with public with  the  Band  hearings the Band.  on  the  This  Band  Lack  participation  Indian  the  discouraged  the Lax Kw'alaams of  at  project  provincial can  be  * In the past the department has not provided funding f o r Band-controlled impact studies and negotiations. Also the department h a s , a s p o i n t e d o u t i n C h a p t e r 2, a c t e d on b e h a l f o f a Band. In t h i s case f u n d i n g and a d v i c e was provided by the department. 1  88  partially  attributed  any  constitutional  Dome  that  Dome  provincial  get  and  to  approval  federal  interview,  Province's  strategy  obliged  deal  with  other  rather, This  distinction  because  they  decisions. decision  Band a  but  this  not  federal  time,  may  the  road  telephone The  of  the  discussed,  argued, is  outstanding  not  equate  (for a  issues  be  can  Dome  was  example, group to  of  communities  municipalities) private  Indian the  government's  to  the  federal  Band's  citizens.  communities  into  the  provincial status.  the  Band  (because  for  assessment  process  project the  Band  is  with  the  because  remains negotiated  the  Rupert  Province Band  the  benefits to to  there  back At  roadblocks  This  and  Dome  package. seen  the  mutual  the  Dome.  Band  be  that  proposed  shifted to  on)  (Excell,  j u r i s d i c t i o n a l  The  a  f a l l  address  Prince  that  to  Kw'alaams  approved.  would  with  negotiated it  Indian  influence  resolved.  approved,  the  limiting  problems and  because  of  Lax  negotiating  circumverted  Band  integrated  i l l u s t r a t e s  of  effect  i t ,  (Alley,  the  project  not  d i f f i c u l t "  or  case  study  without  to  Band.  to  1983).  but  the  have  suggested  of  the  with  It  not  recognition  project after  be  indirect  as  interview,  responsibility  project  is_ d u e  severely  negotiations  managed,  tactic  able  lack  change  connecting  only  does  "because  would  does  involved  network  energy  Band,  helped  the  Province  Indians.  disadvantageous  being  been  it  with  not  Province's  has  was  were  Not  for  the  communities  is  are  making  The  that  regarded  the  The  Province  provincial are  from  1983).  was  the  Bands  that  approval  d i r e c t l y  Secondly,  fact  responsibility  telephone  to  the  Once  whether  the the  satisfaction  89  of  the  Band  The entire  and  Band's  Tsimpsean  scenario.  The  constrains  does  not  R.  stated  that  which  is  groups. rights  With  of  window  it  lost  to  this  not  Province  Bands  land  happen"  does  and  cloud  to  the  the  over  the  relationship.  the  not  Grassy  Office  of  Native  Programs,  recognize  aboriginal  • land  claims  communities  this  reserve  their land  telephone  land  claims  claims  land)  Councils.  situation  claims.  provincial  of  Point  agreement  as  that  the  The  communities  Tribal  (Excell,  hanging  in  includes  Indian  argue  than  of  which  1 6  factor  comprehensive  recognition  (other  Bands  a  aboriginal  of  similar-sized  claim  another  Director  recognized  for  as  Band's  basis  provincial  valuable  are  is  land  Band/Province  Excell,  the If  Peninsula  the  "the  1 5  comprehensive  the  affect  Mr.  Province.  claims  and  the  the  The  could  Indian  having  the  would  open  are  large  valid.  portions  potentially  Province  interview,  by  t i t l e  prefers  of be that  1983).  The P r o v i n c e ' s A t t o r n e y G e n e r a l ' s O f f i c e of Native Programs negotiates with Bands on land and resource matters. These usually entail cut-off lands (reserve lands taken by the P r o v i n c e ) and r i g h t s - o f - w a y f o r roads, power l i n e s and p i p e l i n e s (Excell, telephone interview, 1983). 1 5  The f o u n d a t i o n of N a t i v e c l a i m s stems from ancestral rights as the o r i g i n a l i n h a b i t a n t of Canada. From t h a t concept flows t h e i r argument for N a t i v e economic access to natural resources and the right to evolve distinct societies w i t h t h e i r own government. 1  6  Comprehensive claims relate to Native peoples' special r e l a t i o n s h i p t o , and t r a d i t i o n a l use and occupancy o f , the l a n d . Through the n e g o t i a t i o n of comprehensive land c l a i m s settlements with Native peoples, the government addresses a l l aspects of a b o r i g i n a l l a n d r i g h t s on a l o c a l and regional basis. These aspects include: hunting, fishing, and trapping, forms of e c o n o m i c d e v e l o p m e n t on N a t i v e l a n d s , a n d N a t i v e c u l t u r e .  90  8.  The  was  Provincial  The  "dual  an  opportunity  intervene hold  for  in  the  The  National to  and  series  the  shall  agreement  in  request  determined and  the  that  parties  NEB. the  found a"  the  chances did  to not  did.  the  opportunity  concerns  conditions  Dome  been  16)  link  It  is  which  of  to  make  attached But,  to  the  default,  to  agrees the  or  unenforceable  unable  C e r t i f i c a t e  of  in  a  for  resolve  the  the  terms  to  that  to  contents  Band  any  is  agreement  the  the  of  be  the  agreed  Board  provision  have  project  Province  mitigation  Board  Necessity.  by  has  the  conditions  enforcement  the  two  government  and  the  seek  court  impact  of  to  had  provided  (Section  j o i n t l y  and  out  energy  permits.  of  Convenience  the  Band  federal  terms  process  part  of  the  (NEB)  air  paragraphs  Public  a  Processes  turned  the  the  operation  that  it  Board  of  until  As  pubicly  of  regulatory  parties  Approval  meant  but  Energy  included  construction A  hearings  Band  be  and  project.  public  could  Federal  j u r i s d i c t i o n a l " character  any  the  the  and  not  agreement court  some  the  of  has  reason,  matter  by  need  to  Board  to  negotiaton. These formulate include considers has  new in  policies. the  other a  specific, Band  many  projects.  c e r t i f i c a t e and  as  Agreement.  confront  the  NEB  The  Act  empowers  certificate  necessary  inserted  for in  provisions  of far  or  NEB  "such  desirable"  terms  (section  different  conditions  But  is  the  there  no  with  and  of  an  reaching  as  those  in  agreement of  the  conditions  46(1)).  the  as  i t  The  Board  c e r t i f i c a t e s  issued  precedent  terms  the  for  the  as  detailed  Dome/Lax  inclusion and  Kw'alaams  91  If that  the  Dome  impacts Band  is  and  both  be  licences for  hearing,  a so  structured various  for  an  overall  other  not  in  have  and  assessment and  efforts  agencies  agencies.  the  government  suffers  provincial  from  energy  the  Dome's  certificate,  monitor similar  the  These  process  Dome,  the  is  Both  could  (as  legislation projects  a  are  public  program  can  and  responsibility  governments the  Band  outlined has and  be  agencies.  constrain  project  permits  community  the  the  or  requirements  and  government  monitoring  monitor  to  enforcing  enforcement  of  and  adequately  available  the  of  compensation.  which  personnel  way  project,  contain  respect  Recent  the  could  this  Agreement).  of  negative  project  the  federal  a  by  potential  c e r t i f i c a t e s , permits  environmental  and  reduce  ensuring  other  monitoring  regulatory  to  thereby  any  comprehensive  provincial  does  the  coordinating  deficient  and  included,  created  conditions  mitigation  Presently, of  and  certificate  issued  on  and  is  obliged  opportunities  terms  monitoring,  based  and  protected  The  operating  Agreement  aware  promote  w i l l  promises. the  Band/Dome  are if  it  in  the  limited  the  the  problems.  The NEB policies on regulating project implementation and monitoring construction stipulations have not yet c r y s t a l i z e d . In f a c t , the g e n e r a l q u e s t i o n of i n s p e c t i o n and enforcement in r e l a t i o n to a l l aspects of the a g e n c y ' s work has been g i v e n r e l a t i v e l y l i t t l e consideration. Informal Board recommendations and self-monitoring by i n d u s t r y have been the c o r e of enforcement a c t i v i t i e s to date. Spot checks are o c c a s i o n a l l y made by NEB s t a f f , b u t usually only after receiving a complaint or i n f o r m a t i o n t h a t some p r o b l e m h a s developed. In the case of the construction of f a c i l i t i e s such as pipelines, a field representative consultant is retained as deemed n e c e s s a r y . . . (Lucas and B e l l , 1977).  federal  92  No f i r s t  submissions  phase  of  opportunity Band  was  the  to  a  negotiations.  a  it  In  or  else"  FOR  Certificate).  early  stages  bargaining when which  allowed  of  the  "chip"  Dome may  to  the  Without  an  project  the  use  received  have  during  forced  in  the  conditional the  Band  into  situation.  INCREASING  Chapter the  4  the  three  federal  were  examined  allowed  for  Indian  indicated  the  processes.  BAND  INVOLVEMENT  In  stressed  adopted Given  available  and the  to  Options  terms  Band  model  has  in to  of  were  of  IN  OFF-RESERVE  decision achieve  the  concerning  the  they  to  the by  The  Band  and  in  case  and  They  possiblities,  at are  range  The  this  in  model  approach  options  can  be  are  occurring  increasing  Indian  outlined.  from  Council  voluntary  Dome.  development  Band  approaches.  making  described  several  in  negotiation-oriented  non-negotiation-oriented  decision  and  results.  off-reserve  from  analysis  and  aimed  objective  Point  resulting  reality  study,  options  Grassy  the  to  requirements the  (Dome,  responded  influence  involvement  this  amendment.  making  favourable  making  Constitutional  decision  how  actors  end,  measures  two  met  Indian  this  of  Band  of  between  non-negotiated  subgroups  a  most  findings  To  of  involvement.  produced  promote  off-reserve. involvement  in  general,  negotiation  levels  government)  limitations  analytical  least  the  momentum  proposal  was  in  were  MAKING  Province,  the  (Export  possible  gained  OPTIONS  DECISION  process  Conversely,  "negotiate  B.  interventions  intervene  denied  approval,  or  negotiated  incorporation  divided  into  former  consists  negotiations  and  to two  approaches The  to  and of  at  mediated  93  negotiations, regulatory  while  the  process.  latter  Each  of  consists  these  of  options  l i t i g a t i o n  will  be  or  a  discussed  in  detai1. 1.  and an  Actor-Initiated The  negotiation-oriented  the  Band  agreement  to  select  reaching  an  a  in  approach  good  benefits  faith  both  negotiation  agreement.  technical A  bargain  which  parties  and  Negot i a t ions  with  the  parties.  team  These  requires  and  they  person(s)  can  the goal  developer of  Members are be  reaching of  both  responsible  assisted  by  for legal  advisors.  negotiation-oriented  process  can  have  the  following  components. (a)  information  (b)  analysis  (c)  alternative  (d)  strategy  (e)  a  (f)  plan  generation  formulation  of  action  negotiation  (g) The  gathering  agreement  approach  with  could  provide  1.  Development  of  community  2.  Development  of  community  3.  Production  of  land  4.  Production  of  an  5.  An  agreement  Before community sides.  and  This  developer  use  s k i l l s  studies  the  relationship  the  developer for  following  developments.  of  inventory. and  inventories.  potential  community  a  provides  the  awareness.  inventory  between  for  can  and  be  information  well  informed  labour the  developers.  developed is  force.  between  gathered  dialogue  on  by  problems  the both and  94  impacts.  Information  weakness  of  Dorcey,  public  McPhee  weakness  is  Where  of,  or  negotiations  alternative  of  poor  bring  the  and  cost-effectively. process  0.2  (a  per  cent  both  quality  of,  together  conservative  (1981)  found  that  who  potential  Band  and  estimate  1 7  have  this  best  information,  the  of  and  the  impacts  Dome  )  major  information.  actors  example,  the  Dorcey  functional  their  the  overcome  (1980)  For  between  can  planning.  relevant  generation  negotiation  also in  Sydneysmith  lack  understanding  derived  participation  and  the  gathering  can  cost was  the  be  of  the  approximately total  project  cost. When is  the  considered  uncertainties is  a  r e l a t i v e l y  small  along  with  the  to  dealt  be  reasonably  representative The  case  planning  for  negotiations  cost  decision study  the  mitigation  expensive  than  the  Dome/Lax  with,  of  the  then  it  c o n f l i c t  task  and  appears  that  approach  that  Band  impacts  can  developer.  The  and  be  for  resolution the  major  negotiating  informed  resolution  Agreement  involvement  and  the  in  accomplished  resulting  compensation  c o n f l i c t  Kw'alaams  in  making.  i l l u s t r a t e s  includes  the  size  effective  resource with  investment  through  agreement  measures process. agreement  is In is  the  which  much  the  more  case  valued  of at  a  1 7  This was calculated by d i v i d i n g t h e sum o f B a n d r e s e a r c h and n e g o t i a t i o n c o s t s by t h e c o s t of t h e p r o j e c t , then multiplying by 100. (This figure does not include the value of the compensation package.) 1 8  T h i s was c a l c u l a t e d u s i n g $60 m i l l i o n as the agreement (a high figure) and $2 b i l l i o n a s p l a n t and p i p e l i n e .  value of the cost of  the the  95  maximum o f  3 per  cent  Involvement processes project but the  is  in  limited,  developer.  the  Band  could  central  but  not  which  to  be  prepared  the  a  Indian  public,  the  terms  certificates  The to  rationale, may  have  important  when  major  involvement  by  The  an  it  skilled  the  for  enough  opportunities  approval  to  lever  energy  the  to  Band,  deal  that  the  developer  approval.  with  accompany  to  build  approval  Bands, and  or  folly,  an  expensive  project  conditions the  the  for  Band  be  the  process  the  would  for  knowing  and  It  inappropriate  example  comes  social,  involve The  It  would  federal  may  that  not matter  can  opportunity  for  be  be  government  potential  which  of  the  effective  DIAND  negative  be  totally  the  general  attached  addressing  a  major  affected  impact  funding  negotiations.  to  R D I P made using  a  environmental  organizational  facilitating  a  community.  provide  was  planning.  community  threat  neighbouring  Band/developer  to  federal  a  as  pipeline.  to  social  issues.  RDIP  promote  act  between  project  to  technical  the  and  and pose  and  project  The development  but  can  unlikely,  morally  such  to  plant  lost.  responsive  and  enough  achieving  and  approve  impacts.  the  but,  necessarily  politically  the  provincial  threat  be  destroy  of  the  negotiations  to  could  cost  Otherwise,  Favourable are  of  8  This  must  situation.  development  1  a  resource and  assessment  negotiation-oriented  as  with  approach  a  DIAND's  development  (which  in  impacts)  impact to  it  is  mitigation  promote  catalyst  making the  attempted  with  effort  decision  negotiations  agree  economic  community  determined  and  I  which  to  expertise  Indian develop thereby  developer.  (between  developer  and  96  community)  has  producing  a  the  potential  mutually  of  acceptable  f a c i l i t a t i n g  impact  mitigation  protecting  the  reserve  community  community  in  dialogue  from  the  impacts is  off-reserve managed.  that  between  i t  assists  the  related to The  of  the  certificates  for  ensuring is  of  a  by  and  goal  the  one  created  way  of  Indian benefits  and  negative  this  approach  working  relationship  community.  reserves  development  can  control  this  is  enhanced  resource  problems  If  the  violates  by  is  assist  arise  Indian  future  true  in  which  impacts Bands  development.  the  case  of  limit  the  of  Indian  Port  success  court. on  the  u n f r u i t f u l . such  the  agreement.  terms  and  may  the  be  the if  no  Band  the way  an  agreement  conditions  approval  there  a b i l i t y If  Similarly,  is  agreement,  to  in  of  the  has  no  the  is  not  necessary simple  development for  Band  Band  is to  way one  force  developer.  agreement  into  l i e s  development  the  depending  entering  the  performance.  the  corporation  prove  problem  unregulated  performance  may  that  negotiated in  and,  that  the  involving  be  affected  thereby  several  potential  enforce  which  the  and  can  by  Promoting  with  developer  development  Indian  suggests  incorporated  of  the  by  parties  option.  One to  on  planning  opportunity  argues  understand  however,  this  the and  planning  analysis  Simpson,  in  (1983)  to  better  major  developer  Tyler  with  a l l  agreement.  and  development  The  satisfying  This  legally then may  the be  financial However,  agreements  is  binding  as  and  the  developer  community  can  take  expensive resources the not  and of  legality widely  time  the of  consuming  community, Band  accepted  the  it  Councils by  the  97  courts  this  If  the  this  limits  performance  remains by  severely  the  of  d i f f i c u l t y  development. option  if  monitoring.  Direct  and  outstanding In DIAND  it  to  case  Conceivably, monitoring not  There success to  which to  the are  cannot  negotiate.  that  to  otherwise,  the  four  be  public  require  This  by  such  to  be  raise  and  done  any  compensation.  and  their  safety not  by  this  Band  are  an  proper  responsibility  some  is  of  resources.  net,  if  the  implemented  government  negotiate, with  in  is  one  or  do  to  for  developer  they  of  It  the  process developers  is  approval. an  this  cannot  energy  planning.  government  willing  regulatory  community.  possiblity  be  the  negotiate  incentive  provide  to  heel  to  a  the  be  must  achilles  government  project  one the  the  process  of  developer  Having  affected  form  limitations  unwilling  projects,  influence  directly  the  is  a  the  involvement  negotiating  First,  hearings  of  to  for  have to  is  the  Band's  implemented.  large-scale  unwilling  off-reserve  would  additional  developer  responsibility  is  the  with  is  agreement  Band.  Without  and  of  caused  problem  inadequate  i t  there  impacts  potential  mitigation  the  the  approach.  negotiate  most  a  is  Simpson  as  of  be  responsibility  interests  least  the  includes  coerced  at  with  if  Port  acts  the  enforced  Band.  this  negotiate  approach  the  monitoring  development  for  option. be  can  their  the can  monitoring  bargain  provisions  of  approach,  be  of  this  satisfy  Band  funding  impact  and  protect  the  or  of  agreement  proposed  would  issue  the  of  the  project  Band  the  success  Monitoring  unregulated  the  the  avenue  be  fortunate related It  is  for  or the  public  If  the  developer  includes  the  community  for  compensation  and  98  mitigation  measures.  Secondly, the  Band  must  intervention reserve and  given  at  land.  s k i l l e d  sufficient  that  have  a  the  approval  at  are  developer  bargaining  Thirdly,  the  to  met  chip,  Band's  w i l l i n g  be  it  or  the a  Fourthly,  involvement  the  and  negotiate,  p o s s i b i l i t y  must  the  in  to  of  right-of-way  negotiators  participate  then  is  hearings  bargaining.  funding  conditions  the  be  Band  on  informed  must  have  If  these  can  take  on  their  process.  influence  place. 2.  own,  Mediated  Negotiations  If  parties  are  the  use  a  process.  of  to  develop  and  1982).  Mediation  resolution relations  bring  which and  1  is  9  on is has  a  f a c i l i t a t e  warring  a  to  their  in  the  of  factions  particular  been  successfully  introduction  solution  extensively  negotiate  may  the  together  agree  to  mediator  Mediation  attempts  unable  a  third  and  for  the  last  party  get  in  f i f t y  years  to  (Cormick,  to  centuries  who  them  differences  approach  used  negotiation  c o n f l i c t  international in  labour  disputes. There  are  a  variety  environmental/economic essential (1) they disposition  of  disputes,  intervenors a l l  are impartial or "neutral" of the i s s u e s i n dispute. to  Beginning in the early 1970's, foundatons, especially the Ford and sponsored mediation p r o j e c t s around the 9  whom  active  claim  in  three  characteristics:  (2) t h e i r f o c u s and e x p e r t i s e r e l a t e s c i e n t i f i c or t e c h n i c a l knowledge.  1  of  presently  as  process  to  the  rather  specific  than  to  a number of private Rockefeller Foundations, United States.  99  (3) the intervention process which they practice seeks a c h i e v e m u t u a l l y d e r i v e d and m u t u a l l y a c c e p t a b l e outcomes.  more  The  term  mediation,  nor  less  than  a  device  process;  negotiations  mediation  can  Given  never  a  is  in  or  the  the  more  has  no  of  reach  the  parties  requires  the  to  the  majority  decision.  reached  represents  financially  and  CREST  Siting 3.  the a  a  Dispute"  Dispute"  in  of  They  Queets  them.  the  several  include Sewer  Oregon,  to  "The Lagoon  and  "The  the  explore  caucuses  and  of  one  the  mediator  Fourthly,  the  mediator  the  F i f t h l y , It  is  mediator  solution  of  mediator(s)  jointly in  of  Thirdly,  ensuring  feasible  gives  in  to  but  number  the  assisting  parties.  viable  (1982)  by  mediator,  involvement  and  settlement.  negotiation  a  of  w i l l  sessions  lastly,  p o l i t i c a l l y  "The  acceptance  mediator.  the  a  nothing  negotiation.  F i r s t l y ,  process  a l l  And  agreements.  California, "The  with  without of  is  the  process,  parties  joint  responsibility  Cormick mediated  of  occur  absense  acceptable  support  the  the  in  negotiation  parties  do  the  sense,  f a c i l i t a t i n g  their  impose  settlement  strictest  outlined.  and  both  the  negotiation  Secondly,  authority  a  and  in  be  process  issues,  facilitates  a  should  voluntary.  debate  occur  in for  can  mediated  considerations parties  used  to  a  parties an  that  agreement  consensus,  shares  that  to  any is  not  with  the  agreement  technically,  implement. examples Briones  of  successful  Park  Dispute" Riverside  Dipute"  in  in  Washington, Solid  Waste  California.  Litigation If  settle  the their  community  and  differences  the through  developer dialogue,  are  not  w i l l i n g  negotiation  to and  100  agreement  then  employed.  Adjudication  decision of  a  which  in  adjudication  his  and  has  (1982)  writes  narrowly  on  a  with  Using  information, Mitigative judge  in  time  the  has  to  aired  the  agency and  affected  and  as  arguments  the  would  through  form  for  a  addition,  with  coercive  decision. tends  Sander  to  focus  distinguished  by  would  developer be  parties.  down  In  community  take  of  from  parties.  expensive  handed  achieve  documented  assess,  the at  evidence  approve  issue  between  affect  the  be  process  particular  party  in  can  the  gather  to  court.  determined  This  method  for  a l l  judge  by  a  would  be  involved.  may  not  be  as  negotiation.  Process  and  not  permits  the  the may  a  If  would  series  of  include  make  not rather  public  If  the  a l l  a  was  place evidence  would  and  on  major  undertaken  by  between and  either  the  hearing  approve  was  conditions  conditions  the  arguments  After  development  and  processes  decisions  hearings.  terms  terms  regulatory  take  agency  certain  These  several  strategy  regulatory  development.  licences.  and  this  community,  the  that  review  negotiations  proponent be  one  at  and  and  decision  compensation  developments.  community,  would  and  decision  as  thesis  resource  the  a  1963).  third  nature  matter  consuming  the  place  lose"  lawyers  by  a  social  party  (Fuller, of  adjudication  "a  proofs  adjudicated  strategy  Regulatory The  or  as  affected  relationship  than  comprehensive  a l l  the  rather  defined  the  use  immediate  hire  Futhermore,  are  the  measures  extremely  4.  that  includes  presenting  the  "win  this  to  of  a  the  be  favour"  involves  power  concern  that  which  can  assures  participation,  decision  process  or  approved with may  the have  101  mitigative  and  compensation  measures  is  the  aimed  at  the  affected  commun i t y . This is  option  expensive,  involvement in  the  public  C  the  community  of  energy  of  do  not  communities  IMPLEMENTATION  the  agencies  are  and  enforcement  when  the  account.  Earlier,  or  Act  Indian  Act  lobby  for  Bands  as  (6)  new  air  options  of  as  six  4  are  the  views.  the  the  Council  options in  of  by  Band  regulatory  choses  cooperative, for  Councils  legislation with  constitutional  a l l  an to  amendment  that  lobby  for  incorporate to  contracts, at  is the  as the (5)  recognizing  associated which  1  licences,  ammendent make  the  options  binding  permits (3)  a  Councils.  follow  (1)  aimed the  between  Band  agreement  into  made  to  regulatory  taken  made  fact  to  complex  not  the  possible:  lobby  units  contracts is  forward  implementation  have  contract  the  are the  of  issue  to  makes  Indian  courts  At  power  non-profit  allows  and  is  Band  v a l i d i t y  Band  straight  Councils  that  a  and  Indian  (4)  for  3  more  municipality,  federal  their  becomes  parties.  which  a  forum  occurred  agreements  that  the  self-governing  lobby  to  incorporated  incorporate  provincial  and  other  least  be  a  problem  the  to  have  The  if  agreement  not  direct  Columbia,  British this  it  addition,  in If  that  In  approval  enforceable.  Therefore,  At  in for  decisions.  courts  give  necessary.  key  place.  made  on  mechanism  the  the  not  a  allow  not  in  does  2,  (2)  and  does  take  stated  decision  Councils  Indian  of  nature I  option,  to  negotiated  special'  definitive Band  of  l i t i g a t i o n  OPTIONS  decisions legally  in  project  would  OF  and  have  implementation  because  a  consuming  hearings  The  to  time  case  affected  similar  powers,  recongizes  1 02  Indian 1 .  self-government.  Lobby  the  This  Regulatory  option  incorporated  the  required  option  it  the  is  a  the  willing  The  A  the  asking  the  way  to  The  ensure  enforceable.  agency  (in  precedent  agreement  conditions  approval.  simple is  for  and  project  agreement  take  comprehensive 2.  for  regulatory  to  ies  terms  r e l a t i v e l y  negotiated  that  entails  into  licences  Agenc  this  setting  of  step  be  permits  advantage that  The case  to  of  the  and this  terms  disadvantage  the of  NEB)  may  of is  not  be  incorporating  a  agreement.  Cooperat ive  cooperative  Assoc iat ion  Opt i o n  is  ...a voluntary, democratically controlled association of persons who operate an enterprise for the purpose of supplying themselves w i t h commodities or s e r v i c e s , on the basis that they share any surpluses created in carrying on the enterprise substantially i n p r o p o r t i o n t o the use they make of t h e a s s o c i a t i o n . (Francis, 1959). With  this  option  incorporates  into  Cooperat ive  Association  the  agreement  to  be  This  drawn  up  overcomes  between power  is  to The  the  so the  or  that  of  being the  Act  the  and  the  the  the  followed  the  of  Band  the  a  would present  association  can  ask  members be  a  with  the  the  a l l  signed. a can  the  If  new  one  sign  i t .  contract has  the  of  the  22(1)). directors  Band  Band  Band  provincial  cooperative  (section  of  is for  of  the  the  executive  because  formed  would  under  legality  contract" be  but  agreement  cooperative's  developer  discharge  are  association  before  signed  problem  cooperative  association members  cooperative  already  Band  "vary  a  negotiations  Council.  members  and  The each  1 03  member  would  cooperative. Band  Council  decision  receive  an  equal  In  way  the  and  this the  making  decision  membership  structure  and  amount  of  the  the  of  shares  making  Band  in  structure  coincide  membership  the of  the  with  the  of  the  cooperative  would  not  be  assoc i a t i on. The because  income under  derived  the  from  the  agreement  Tax  Act  (section  Income  taxable  149(1))  no t a x i s p a y a b l e . . . upon the t a x a b l e income of a person (under the Act a c o o p e r a t i v e is deemed a person) for a p e r i o d when that person was... a club, society or association that, in the opinion of the Minister was not a charity within the meaning assigned by subsection 149(1) and t h a t was o r g a n i z e d a n d o p e r a t e d exclusively for social welfare, civic improvement, pleasure or recreation or for any other p u r p o s e e x c e p t p r o f i t , no p a r t of t h e income of which was p a y a b l e t o , o r was otherwise a v a i l a b l e for the personal b e n e f i t of, any proprietor, member or shareholder thereof ...(Canada, 1952) If  a  cooperative  organization, within  s.  This and  it  149(1) option  income  for  traditional  is  may and  depending be  the  has  experience  cannery  is  operated  the  North  incorporated  under  1970.  as  on  its  communal  of  as  a  objects,  ownership  membership  this  in  Bands.  cooperatives,  one.  Coast the  operated  Indian  with  acceptance  Pacific  for  of  and  non-profit f a l l  clearly  exempt.  Band's  arrangement  the  tax  provides  Simpson  indicates  organized  A  form  Native  Cooperative  of  resources  keeping In  since  further  of  with  addition, the  which  ownership,  Cooperative Associations  Port  community's  precedent,  communal  which Act  the  on  May  is was 15,  1 04  3.  The  Provinc i a l  Several Act  In  sections  contain  permit  Band  the  provisions  of  Councils  incorporation  Incorporat ion  of  particular,  Indian  Munic i p a l  s.  of  reserve  to  to  the  operate  10  the  present  of  implement  Governor  in  Council  and  Governor  in  Council  by  a  Columbia would  an  area  agreement  Band  Council  letters  patent.  be  Municipal required  governments  Munic i p a l  of  an  that  local  the  residents  British  type  as  Opt ion  Act of  with  the  e n t i t i e s .  provides  land  between  to  for  within  the  an  Lieutenant  approval  of  the  The letters patent or the agreement may exempt the municipality or owners or residents from a provision of this or another Act and may include a provision deemed desirable whether or not i t is c o n s i s t e n t w i t h any A c t ( P r o v i n c e of B.C., 1981) The  section  legislation  which  governmental  provides will  entity,  a  give to  Band  it be  the  Council, appropriate  incorporated  into  given  federal  powers the  of  a  provincial  system. Cherukapalle choose  this  provincial  (1972)  option.  system  would  outlines She  the  argues  provide  p o s s i b i l i t i e s  that  if  integration  Bands  into  the  the  necessary negotiating body with legal authority to deal with the province, (diffuse the) unilateral influence (presently exercised by the department,) p r o v i d e a mechanism f o r the involvement of reserve resident in comprehensive land-use planning on the reserve...and off the reserve, (and provide) the necessary legal status for a reserve to negotiate as an equal with other municipalities. The and a  on  imposition  people  mixed  who  blessing  of  have  formal been  since  provincial  solely the  under  jurisdiction federal  provincial  on  an  area  jurisdiction  government,  given  is its  1 05  existing  policies,  federal  government.  keep  tax  a l l  members'  do  outlines  generated  0  on  the  Province  and  in  British not  look  other  Indian as  British as  a  Bands  right  and  would  does  not  would  Columbia,  there  municipality. results  favourably with  generous  at  the  to  tax,  on-reserve probably  want  rather  be  this  new  have  the  benefactor.  Columbia  problems  the  tax  communities  their  as  reserve,  Furthermore,  government  in  occur  income  incorporating  Bands they  to  did  be  pay  Presently Band  2  i t  not  not  responsibility federal  would  If  revenue  right  forfeited.  probably  on  this  is  no  Discussion in  the  this  the  example with  a  several  conclusion  option.  of  that  Cherukapalle  option.  The p o l i t i c a l power, administrative responsibility ' and decision making capabilities in Indian Bands are often c o n c e n t r a t e d on the reserve in the Band Council. Incorporation into municipal status w i l l create a second d e c i s i o n making body composed l a r g e l y of I n d i a n s but e l e c t e d by a constituency that is different from that which elects the Band Council i.e., municipal voters. It is possible jurisdiction and between the two 1972). Given viable increase  that  alternative c o n f l i c t ,  The m a j o r and that of taxes d i r e c t l in the right r a t e and the 2  0  municipal  that conflicts over authority w i l l arise councils (Cherukapalle,  incorporation  by  Bands  this  option  and is  that  is it  not has  accepted the  as  a  potential  to  dismissed.  d i f f e r e n c e between a Band C o u n c i l s powers to tax a Municipal C o u n c i l is that the former can levy y and keep a l l the proceeds, w h i l e the l a t t e r taxes of t h e p r o v i n c e . The p r o v i n c e d e t e r m i n e s the mil amount the m u n i c i p a l i t y gets.  106  4.  Amendent Along  the  Band  draft that  the  Indian  with  the  national  would  an  The  advantage  The a  in  Indian  minister the  could  make  this  responsible  Indian  and  problem  to  is  for  which  organizations, Indian  a f f a i r  e x p l i c i t l y  is  the  this  a l l the  that  open  with  of  addition  Act  and  to  stated  contracts.  agreement major  groups  strategy  consensus  organizations long  Act  to  of  negotiated  requires  or  would doors  strategy at  Minister.  legitimate  is  least This  for  future that  most  it  Native  could  take  a  time. The  Federal  With  this  legislation. those are  the  Councils  agreements.  5.  ask  amendment  Band  the  of  of  a  It  option would  Government  in  Committee  at  the  government/Band  Opt ion  the  federal  give  municipality.  summarized  changes  Legi slat ive  the  Band  The  Councils  drafts  powers  components  of  this  recommendations  of  the  (1981).  federal  government  level  They to  outlined f a c i l i t a t e  new  new  similar  to  legislation  T r i p a r t i t e the  Local  necessary  developer/senior  cooperation.  • The c r e a t i o n of a legal entity whereby Band C o u n c i l s a r e empowered t o c a r r y on t h e necessary business of Band l o c a l government, including the authority to enter into agreements with governments, their agencies and o t h e r i n d i v i d u a l s and l e g a l e n t i t i e s . • Band Council power to make bylaws in respect to a l l matters necessary to continue the effective governing of the Band's affairs and to regulate and control a c t i v i t i e s on lands reserved for the Band i n c l u d i n g j u r i s d i c t i o n o v e r Band members and persons occupying the Band's lands. • In p a r t i c l u l a r , the power types of l o c a l s e r v i c e s to o c c u p a n t s of lands r e s e r v e d  Indian  to provide a l l Band members and for the Band,  1 07  either d i r e c t l y o r by a g r e e m e n t s w i t h o t h e r governments, agencies or p r i v a t e persons and bodies. • To a b o l i s h t h e d i s t i n c t i o n between reserve lands and lands released f o r a term but not permanently and irrevocably a l i e n a t e d and disposed of. • To empower t h e Band to levy taxes impost on interests in lands reserved the Band i n c l u d i n g n o n - I n d i a n interests such lands.  and for in  • To e s t a b l i s h and s e t o u t i n l e g i s l a t i o n in clear and unambiguous form and in necessary d e t a i l the powers required for effective local government, in place of the b r i e f , u n c e r t a i n w o r d i n g o f s e c t i o n s 81 a n d 83 of the Indian A c t . • To s e t p r o v i s i o n s necessary t o p e r m i t , by regulation or order, the cooperation of federal and provincial governments and Indian governments to overcome the d i f f i c u l t i e s . of j u r i s d i c t i o n a l c o n f l i c t s .  DIAND Strengthening that  has  looked  Indian  Band  certain  Indian  responsible  for  accountable  to  their  Indian  Act"  current statement  argues  the  Government  Band  handling  for  into  legislative  in  Canada  administrations of  their  own e l e c t o r a t e s (DIAND,  own  1982).  devolution  of  (1982),  "seek  they  The  be  and  can  be  more more  under  proposed  administrative  argues  to  a f f a i r s  than  option.  the  policy  powers  to  Band  Counc i l s . The  Alternat ive  Legislation the  proposes  "primary  policy  area  government. documents  locus of Mr.  on  of  Opt i o n a l  legislation  of the  decision  Minister 9,  on  1982,  the  (DIAND,  concerns of  Band  making  making"  Department  Munro,  November  based  Indian  Indian  outlining  Government Indian  Band  1982).  This  strengthening  Indian  Affairs, an  optional  released form  of  108  Indian  Band  calls  "The  Government. Alternative  Legislation,"  which  complementary Band  to  government  provide,  for  a  of  level  under  The  the  existing  Optional  Indian  the  Bands  local  of  proposes  the  at  department  community  p o l i t i c a l  of  the  government  and  for  Such  Indian  legislation  would  of  responsibility  which  is  legislation  of  Indian  establishing not  could  responsibilities  Minister  Government  optional  means  This  i t ,  i t  legislation  the  special  the  allows  what  Band  develop  level.  choose  legislation.  affirmation  that  devised  Indian  to  Act  that  has  represent  of  Affairs  possible  the for  an  federal  the  Indian  people. The  proposed  proceed  only  issues.  The  that  the  primary  the  membership  pace  of  its  development There it a  after basic  be  internal  of  "devolution," The  governments of opt  Indians in  Indian  and in  would  of  Canada. be  Affairs,  a in  the  the  this  it  take major  his  account  a  to  legislation  is  of  by  further Indian  the  Bands  that deemed  is and  cultural  which  make  Minister, been  found  extension people as  origins  that  It  direction  the  have  is  discretion,  Band.  and  government's  objection  granted  and  approach  which  r e j e c t e d by Indian  questions  Indian  described  is  to  p o l i t i c a l  arrangements  been  favour  as  have  nature,  l e g i s l a t i v e  to A  is  and  key  the  of  envisages  f a i l s  of  1982).  approach,  has  of  DIAND,  l i m i t i n g ;  proposal  body  economic,  existing  which  concept  making  complex  number  social,  The  and  or  a  determine  failures  the  of  be  should  (Minister  unsuccessful  1983).  principle  which  are  would  resolution  decision  unacceptable. revision  legislation  to of  (Canada, municipal  and  rights  permission the  is  Minister  to of  s u f f i c i e n t l y  1 09  "advanced." would  be  Thus,  maintained.  the  same  6.  Recognition An  as  the  long  problems  way  involvement The  In  Band  addition,  whose  goal  of  in  the  Self-Government  achieving  this  If  two  stages  accomplished  in  In  term:  the  short  as  people  Councils  would  go  a  with  Indian  development.  provide was  term,  from  (4).  Band  associated  Parliament's  (short  suffer  option  Indian  Indian  problems  option  department  Entities  recognize of  the  would  preceeding  off-reserve  this  of  option  Legal  body  (1983)  goal.  role  this the  to  the  influence  conclusions  is  making  ameliorate  and  with  Councils  decision  to  paternalistic  associated  of  approach primary  Indian  the  Special  Committee  several  insights  implemented long  it  on for  could  be  term).  (a) t h e e n a c t m e n t of an I n d i a n First Nat ions Recogn i t ion Act committing the federal government to recognize Indian governments accountable to t h e i r people (Canada, 1983); (b) l e g i s l a t i o n a u t h o r i z i n g t h e f e d e r a l g o v e r n m e n t to enter agreements with recognized Indian governments as j u r i s d i c t i o n that each government wishes to occupy; and  into the  (c) legislation under the a u t h o r i t y of s e c t i o n 91(24) of the Const i t u t ion Act, 1867 designed to occupy a l l areas of competence necessary to permit Indian governments to govern t h e m s e l v e s e f f e c t i v e l y and t o ensure t h a t p r o v i n c i a l laws would n o t a p p l y on I n d i a n l a n d s e x c e p t by agreement. With  this  agreements, areas  which  legislation  Indian they  governments  Band  wish  able  to  to  in  place  and  Councils  could  legislate  enter  into  supported  and  be  and  by  appropriate  self-governing  would  negotiate  be  in  recognized  legally  binding  agreements. It  is  the  legal  They  would  v i t a l  to  status be  ensure of  the  governments  that  there  newly  be  no  recognized  competent  to  uncertainty Indian  operate  as  to  governments. within  their  1 10  spheres  of  j u r i s d i c t i o n ,  contracts,  take  explicit shall  in  have The  legal  the  these  to  provide  action,  proposed  and  with  own  other  land.  legislation  governments,  It  that  would  Indian  make  be  made  governments  powers.  Special  Constitutional  interact  Committee  recommends  amendment  recognition  should  of  Bands  that  be  as  in  sought  the  by  long  the  term,  Indian  self-governing  units  a  people (Canada,  1983) . The  Constitutional  the  agenda  for  The  Prime  Minister  Accord  discussion  at  of  1983  future  alluded  to  for  self-government  groups  the  very  self-government  strong  forms  a  self-government  constitutional  possible  arrangements take  puts  by  aboriginal  position  part  of  of  these  new  that  aboriginal  on  conferences.  constitutional peoples; the  rights  Indian  right and  to  must  be  recognized. The  long-term  constitutional entire  and  could  government  designated  arrangement set  entrenchment  process  federal  out  in  The  that  amendment  out  representatives,  conclusions  the  developers  Indian  worked  would,  for  conferences  of  be  self-government. in  negotiations  provincial  Indian  greater  could  people,  certainty  The between  representatives leading and  to  clarity,  an be  l e g i s l a t i o n .  fundamental  peoples  be  of  representatives  Self-Government and  goal  is  state  Indian  means  the  that  change  federal by  of  in  Special  the  surest  the  government, of  a  governments  Committee way  achieve  relationship the  provincial  constitutional would  to  form  Indian permanent  between  Indian  governments  amendment. a  on  distinct  With order  and this of  111  government The those  in  Canada,  with  implementation  of  Option  necessary  In  4.  before  their  problems  addition,  the  jurisdiction of  this  option  provincial  amendment  could  clearly  defined.  are  similar  to  would  be  agreement be  included  in  the  constitution. SPECIFIC The Band  following  an  of  the  options In  in  projects.  analysis  of  appropriate  influence  in  option.  In  the  can  Band  planning  The case  outlined  light  the  PORT  pertain  for  and  study  and  to  promoting  mitigating  recommendations  discussion, one  off-reserve to  SIMPSON  are the  best  and  findings  which  this  promotes  decision  overcome  implement  the  the  option  Band  making,  is  The are the 1.  as  the  of  the  constraints in  two  of  the  thesis,  of  and  negotiation  the  approach  ways: the Band binding the terms and Convenience and  a the  cooperative cooperative  RECOMMENDATIONS  following  seen  from  aspects  the  (b) t h e Band could implement incorporate as association a n d a s Dome t o s i g n a c o n t r a c t w i t h c o v e r i n g the c o n t e n t s of the agreement. GENERAL  from  involvement  (a) to make the a g r e e m e n t b e t w e e n Dome a n d l o b b y t h e NEB t o i n c o r p o r a t e t h e agreement in conditions of the Certificate of Public N e c e s s i t y ; or i f t h i s fails,  EL  impacts  derived  include  Indian  above.  option,  order  FOR  recommendations  involvement  resource  four  RECOMMENDATIONS  longer  recommendations term  solutions  pertaining to  the  to  Indian  problems  Bands  identified  in  thesis. Assistance  for  Development  Impacts  (a) f e d e r a l f u n d i n g s h o u l d be p r o v i d e d planning for development impacts; (b) t h e method  Planning to  assist  negotiation-option to impacts planning used to promote community awareness, the  Indian  Bands  in  could be one f o r m u l a t i o n of  112  B a n d - c o n t r o l l e d b a s e l i n e and impact s t u d i e s and community-based decision making. This option provides for direct negotiations between the d e v e l o p e r and the Band; (c) federal funding should m o n i t o r i n g of d e v e l o p m e n t s  be made a v a i l a b l e f o r Band-controlled close to reserve communities; and  (d) DIAND s h o u l d not i n t e r v e n e w i t h the Band's should only provide professional, technical, financial resources i f r e q u e s t e d by t h e Band. F\_  this  thesis  the  relationships  "mega-project"  developer,  governments  been  From reducing an  have  the  equal  thesis  with  a  ultimately process for  that  prove been  Bands  affect  their this  so  good  It it  should  alternative  plan  action.  negotiations  begin.  an  it  negotiation  as  an  Indian  developer. can  While  Kw'alaams  clear  and  alternatives  information  this  the  negotiations process for  procedure  one the  decisions aimed  at  provides  the  Band  planning  is  process,  information  formulation, is  is in  that  gathering,  strategy  w i l l  negotiating  involved  negotiation-oriented  after  premature  approach  ultimately  planning  is  the  This  directly  it  Agreement  that  f a c i l i t a t e  selection,  of  by  and  a  means  is  Indian  is  possible  Band  projects  include:  Only  and  one  an  be  and  senior  of  to  a  and  a  benefits  f r u i t f u l .  To  Band,  maximizing  and  agreement  be  and  Dome/Law  bad  lives.  could  that  corporation.  successful  analysis, of  or  information  necessary. if  the  Indian  agencies  for  Band  that  powerfull  resource  appropriate  and  shown  (communities)  of  producing  between  whether  has  planning  has  large  assess  impacts  "mega-project"  agreement  an  analyzed.  conclusion  negative  off-reserve  The  the  among  regulatory  described  analysis  potential  contractual  way  and and  CONCLUSION In  to  decisions advisory,  and  accomplished  a can  11 3  Federal planning  policy  funds  development  on  In  the  this  development arrange.  to  developers.  between One that  they  can  on  the  of  these  develop  the  and  w i l l  usually want  concerns usually  to  problems  capabilities  and  development,  professional  bargaining Most  once  an  and  Indian  constraining agreement  enforceable.  This  involvement  from  and  this  cooperative  includes  Bands  effectively  money  advice,  strategy  planning  detriment.  funding  deal  lack  for  so with  training  community  goal  development  and  actors.  importantly,  government problem  between  consensus,  to  The with  issues  in  facing  directly  Band's  rests  Funding  through  the  in  project  problem  deal  to  limited  development.  direct  retards  hard  energy  only  not  approval  off-reserve.  development  the  any  relied  resource  is  severely  future  does  Board,  has  for  Bands  "mega-project"  development s k i l l  funding  be  not  and  Bands.  Indian  is  resource  Treasury  government  to  with  to  and  socio-economic  (Canada,  funding  development  Province,  to  federal  for  not  Indian  to  people  funding  does  of  solution  major  Bands  Columbia  It  and  have  terminated  shadow  B r i t i s h  Band  respond  effectively  of  the  recognition  Bands  the  funding  communities  Indian  planning  deal  Bands.  Indian of  of  in  organizational  however,  been  Lack  Bands  Indian  has  has  Indian  provide  Without  Province  for  impacts  a b i l i t y  Indian  to  provided  which  case,  RDIP  past  enable  impacts  developer  The  their  to  the  projects  environmental 1982).  in  is  the  people the  relationship needs  be  it  problem  may is  a  the  reassessed.  negotiation-oriented  reached small  to  between  not  symptom  The  approach  be  federal major is  that  recognized of  a  much  or  larger  11 4  national  problem  federal  legislative  powers  of  problem and/or  Indian rests  and  Band in  Band  responsible Council  associated  with  amendment,  for  the  legally  communities:  i n s t i t u t i o n a l The  recognition,  becomes a  Indian  Councils.  the  constitutional  entity the  confronting  a  of  legal  term  through the  entity  constituted  framework  long  government  the  of  solution  has  to  a l l  government.  the this  legislation  Council  Indians.  and  limits  federal  Band  existing  In  as  the  doing  the  so,  powers  11 5  B I _ B L I _ O G R A P H Y Alley, J . interview.  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Theor ies  of  Training  in  in  Negot i a t ions.  APPENDIX A: THE LNG PROCESS  126  LNG: KNOWLEDGE MEANS SAFETY Natural gas is used as a fuel for heating and cooking. One of its hydrocarbons — propane — often is used for these purposes on fishing boats and in recreation vehicles. Natural gas is not toxic. Liquefied Natural G a s ( L N G ) L N G is natural gas in liquid form. When chilled to an extremely low temperature (-160° Celcius), natural gas shrinks in volume and turns to liquid, which makes ship transportation of natural gas economic and practical. The chilling shrinks the volume by 600 times. For instance, one 2 - o u n c e tin of L N G in its gaseous or vapour form, would fill a 55-gallon barrel. L N G is stored under atmospheric pressure in tanks fitted with facilities to remove quantities which vapourize so there is no pressure build-up inside the tanks. 1  Natural g a s Natural gas is a mixture of hydrocarbons, generally about 98 percent methane. Methane is the lightest of the hydrocarbons, which also include such elements as propane, ethane and nitrogen.  Natural G a sVapour Properties Natural gas in vapour form and in a mixture with air where the methane concentration by volume is 5 % to 1 5 % will burn — which makes it a valuable fuel. In its liquified form, it dees not bum but, as the liquid returns to vapour form and mixes with the correct proportion of air, the mixture will burn if it reaches a source of ignition. L N G is very, very cold. If released tc the atmosphere, it begins to vapourize and the initial vapour also is extremely cold and denser than air  The process of loading LNG aboard ships Is described in the accompanying story and Illustrated here. See "Cargo Operations".  so will hug the ground or water surface in a visible vapour. As it warms, its density changes and it rises and disappears into a non-flammable mixture. L N G storage and shipping facilities are designed and operated to stringent safety standards and accidental release of L N G is rare in the industry's history. There have been no instances of a marine shipping release of L N G that would cause a hazardous vapour cloud. Precautions are taken to assure that control of any spill which may occur can take place in complete safety. Many control systems are built into the facilities, both on the ships and on land. LNG Ship Design L N G ships have a double hull and their storage tanks are constructed of aluminum or nickel steel, are surrounded by an eight-inch-thick layer of insulation and are c a p a b l e of withstanding very low temperatures. The cargo equipment, like the tanks, also can withstand the very low temperature of L N G . So can pipelines, loading arms, pumps, vaives and compressors. Ship Tanks The ship tanks to be used in transporting L N G from Grassy Point to Japan will be of a spherical design — five aluminum spheres surrounded by insulation and mounted within the inner hull on each ship. Each sphere with a capacity of 25,000 cubic metres, is supported by a heavy skirt around the middle of the tank, which in turn rests on a carbon steel cylinder. The s p a c e between the cargo sphere and the inner hull is known as the "hold s p a c e " and sensors located there can detect any leak in the inner hull or low temperature which might indicate the presence of gas. The "hold s p a c e " is filled with an inert gas, such as carbon dioxide, which does not burn. Cargo Operations The cargo handling system does not allow air to mix with L N G so there is no flammable mixture. This is achieved by using what is known as a "closed eye' system". Here's how it works: Storage tanks on the L N G ship are closed but full of air when the ship goes into service. The first step to  127  prepare for loading L N G is to pump inert gas into the tanks until all the air is removed. (An inert gas. such as nitroen, will not react with another gas.) At this point the storage tanks are warm - too warm to be filled with a cargo as cold as L N G . The tanks are cooled gradually by interna! spraying of L N G . O n c e cooled, the tanks remain cool until the ship goes out of service. The loading arms and the pipeline system which delivers the LNG from the shore tanks are very sophisticated. For example, the system includes facilities to return vapour being displaced from the ship tanks back to shore tanks. No air gets in. The content of ship and shore tanks is either 100 percent gas or 100 percent liquid. Throughout the loading operations, ship and shore control rooms are in constant contact. Should an emergency occur, shore loading pumps can be stopped and loading lines purged with nitrogen very quickly. Lines then can be disconnected within a few minutes. Emergency shutdown systems can be operated automatically or manually. If excessive ship movement .ccurs while loading, the flow of L N G would be stopped and the lines would be purged immediately. The loading arms could be disconnected  if required. Many other safety features are employed to rapidly stop the flow of L N G within the plant or between plant and ship.  Hazard Prevention and Fire Protection With any gas carrier, preventative measures to avoid accidents are the key. Hazard prevention in the shipment of L N G includes drip trays at pipeline flanges and where the loading arms are connected to the ship so that, in the rare event of a leak, the product is contained. Fire fighting equipment is readily at hand for use in port or at sea. Most importantly, ship crews will be trained — using a simulator, as is done in training aircraft crews — specifically for the work they do and for the ship in which they saii. The training emphasizes the hignest safety standards.  FURTHER INFORMATION Information Officer, . Western L N G Project, Dome Petroleum Limited, 790-999 West Hastings Street, Vancouver, B.C. V6C 2W2 Fhone: 669-1055 and ask for Western L N G Information Officer  127a FUEL TO USER •  •  FUEL SYSTEM  FEED GAS  REMOVAL OF TRACES OF CARBON DIOXIDE  REMOVAL OF TRACES OF WATER  PROPANE CHILLING  LIQUEFACTION (FROM GAS VAPOUR TO LIQUID)  LNG  LNG STORAGE  LNG SHIP MIXED REFRIGERANT SYSTEM  PROPANE REFRIGERANT SYSTEM  REFRIGERANT STORAGE  The liquefaction system chills the gas to -162 degrees Celsius (-260°F) to turn it to liquid and reduce its volume by approximately 600 times.  T h i s overview illustrates whore each part of the facility would go.  APPENDIX B: THE PLANNING MODEL  129  INTRODUCTION Those assume  persons  that  the  if  they  processes  involvement  in  preferences  who  argue  public are  the  run  can  decision the  risk  information,  nor It  proposals  public  means  and  the  not does  public  of  may  in  planning  and  planning  without  local  direct  needs  and  articulated  and  mean  freedom  only  preference  involvement  problems  that  process  not  indication  proposals  assume  being  i d e n t i f i c a t i o n of  planner-identified being  They  making  of  Participation  participation  influence  involved.  overlooked.  proposals.  for  in  the  problems result  of  alternative  preparation  to  in  on  possibly  be  the  resolved, wrong  of for  problems  resolved. Two  decades  ago,  tendencies  -in  the  States  United  participate Velba,  Germany,  of  least  A  few  people  recommendations. that  if  for  a  community,  w i l l  not  the  are  participation but  prepared  to  conclusions  of  participation then  the  most  in  and  Mexico,  disadvantaged exercises  and  groups  (Almond  and  unrepresentative,  frequently  Almond  decision  public  Italy,  often  meet  attitudes  and  making  particpation  and  to  Velba is  not  make (1963)  the  planning  norm  process  work.  Perhaps, social  that  in  comparing  U n i t e d "Kingdom,  interested,  The  suggest  studies  the  indicated  the  1963).  groups  several  this  conclusion  development  which  is  has  not  valid  taken  now  place  because over  the  of  the  last  two  decades. A  participatory  conflict resolution.  and A  a  process  is  potentially  framework  for  at  once  an  excellent  participation  excellent medium is  medium  for  required  for  c o n f l i c t in  order  1 30  to  provide  a  medium  (participation) it  to  will  operate"  to  only  overcome  operate  (McConnell,  1981,  McConnell's  statement:  it  participate  want  operate.  it  Politicians because  they  arguments in  argue  may  w i l l  developers  that  it  (b)  is  it  planning  so  as  "The  token  view  of  participation  will  always  officers  will  (Fagence, B.  therefore  to  those A  as  support  power  want  as  (a)  it  to  those  who  participation  representative. is  too  Other expensive  making  and  (c)  o f f i c i a l s  and  politicians  their  proposals.  that  existing  participation, emphasize  " i t  corollary  well  legitimate is  in  and  the  and  that  power  that  if  groups planning  d i f f i c u l t i e s  in  i t "  1977).  TOWARDS  PLANNING  token,  to  be  decision  doing  resistant  not  include:  be  be  a  operate  not  delays by  as  121).  may  may  advocated  well  p.  only  participation  time  participation they  or  against  staff  to  as  differences  AN  ANALYTICAL  PLANNING  MODEL  FOR  ANALYZING  A  PROCESS  Before necessary  to  describing  the  outline  theoretical  the  model  used  in  basis  the  analysis  which  led  i t  to  is its  development. 1•  Democrat i c The  are  Theory  normative  developed  Introduct ion  control  of  which  democratic  Democrat i c principles  policy  effectiveness principles,  from to  distinguishing  c r i t e r i a  of  Theory of  a  (b)  popular  control,  in  both  the  basis  principles.  makers,  considered  provide  (i960),  democratic  p o l i t i c a l and  H.B.  operational  the  Mayo,  system: to  majority and  (a)  normative  An  three popular  ensure rule..  model in  identifies  freedom (c)  of  the These terms,  131  constitute j u s t i f i e s 2.  The  a a  democratic  Concept  Public many  democratic  of  "Participatory"  participation  participation  can  the  right  only  is  be  which  explains  and  as  practical  and to  Democracy  viewed  considered  participation  rights:  can  and  be  theory  system.  philosophical  between  p o l i t i c i a l  two  be  a  right  and  means  to  goals.  satisfying  Furthermore,  because  commonly  heard  a  there  recognized  the  right  to  is  a  link  democratic  due  process  of  law. Not it  provides  participation  useful when  mean  alternative  are  right,  additional  (especially that  a  values  are  i t  is  important  information  involved)  and  p o s s i b i l i t i e s  for  to  in  that  decison  differing dealing  makers  views  with  a  can  problem  considered. Encouraging  participation  otherwise  be  problem  of  "tyranny  it  may  not  the  disadvantaged  be  cetera  )  to  degree  some  decision  who  reflected  may  of  modify has  as  a  parties  decision  majority"  may  prevent  i t  entirely.  poor,  ethnic  groups,  Native  the  greatest  costs  a  to  protected  a  if  which  this  system for  powerful,  in are  affect  democratic  representative  grown,  they  the  although  The  rights people  decision involved  of et  will  be  in  the  has  t r a d i t i o n a l l y  been  democracy.  several  might  them.  state  to  who  mitigate  the  projects  claim  in  affected  or  incur  better  making  (a) since m i n o r i t y of the w i l l of  the  (the  through  should  decision  of  sufficient  making  Canada's  Canada  unrepresented'  of  include  The  belief  that  "participatory"  reasons.  a majority of representatives the e l e c t o r a t e , p o l i c y decisions the m a j o r i t y (Mayo, 1960);  may may  be e l e c t e d not accord  by a with  132  (b) a v o t e r must a c c e p t t h e w h o l e p a c k a g e w h e t h e r or n o t he agrees with a l l of representat ive; (c) representatives must w i s h e s on s p e c i f i c i s s u e s a s policy directions; majoriti s h i f t according to the issue ascertain whether there i a d o p t e d by representatives;  of p o l i t i c a l policies, those endorsed by a  often guess at what the e l e c t o r a t e they are usually given only broad e s s u p p o r t i n g d i f f e r e n t p o l i c i e s may s i n v o l v e d , making i t d i f f i c u l t to s a popular m a j o r i t y for each p o l i c y  (d) u n i v e r s a l suffrage, while a democratic ideal, may tend discourage the average voter who s e e s t h e i n d i v i d u a l v o t e o n l y one of t h o u s a n d s or m i l l i o n s ; (e) the p o l i t i c i a l a d m i n i s t r a t i v e or j u d i role in decision representatives, and electorate's influenc in the bureaucracy, therefore seen as influence; and  to as  division of labour has meant that c i a l o f f i c i a l s , w h i l e p l a y i n g an important making, are insulated from elected from the public and thus from the e; c o n c e n t r a t i o n of d e c i s i o n making power and its characteristic secrecy, are further eroding the ordinary c i t i z e n ' s  (f) in c e r t a i n areas of Canada t h e r e i s another problem. Native p e o p l e have not become f u l l y i n t e g r a t e d i n t o p o l i t i c a l processes a n d may f e e l t h a t t h e i r i n t e r e s t s a r e n o t properly represented by e l e c t e d o f f i c i a l s ( F o x , 1976). 3•  Purposes  I  for  view  makers  to  community The  participation obtain  in  Consensus  of  primarily system (b)  assist  purpose  and  authors  of  for  about  them  equilibrium  with  information  and  way  to  the a  make  at  community's community  valid  from  the  decisions.  least  participation  decision  three in  distinct  planning.  S t a b i l i t y  concerned  Conflict  a  provides  participation;  through  Some  the  and  Stability purpose  to  literature on  as  information  order  perspectives (a)  Part ic ipat ion  Increased see  are  stressed  public  by  some  participation  maintaining exchange  the  (Utton,  authors is  as  a  therefore  adaptability  of  the  1976).  Consciousness  c o n f l i c t  as  fundamental  to  the  operation  1 33  of  society  in  disadvantage. are  needed  the  Given in  way  of  (c)  Containment  society  is  "managed"  interests C^  not  gain  perspective, and  can  basic  participation  only  at  anothers  structural  changes  is  be  seen  as  a  possible  Bargaining argues  that  fundamental a  series  the and  of  Participation process  within  PLANNING The  and  through  bargaining  one's  them,  (1976)  concessions.  that  this  society  achieving  Haefele  sense  a  MODELS  discussion  definitions  of  translated  into  the  given  of  set  _f_|_ A N D has  is  of  therefore  adjustments, is  involving  existence  seen  local  as  conflict  capable  of  being  alterations being  community  akin  and  in  and to  a  development  rules.  PARTICIPATION  shown  different  participation. decision  These making  people  have  differing models  differing  views  which  can  be  include  P l a n n i n g c a n be b r o a d l y d e f i n e d a s " a d e l i b e r a t e process by which someone makes c o n s i d e r e d c h o i c e s about the use of scarce resources, to achieve s p e c i f i e d o b j e c t i v e s over some delimited p e r i o d i n the f u t u r e " (Rees, 1983, p. 3). 2  1  The widely recognized rational comprehensive planning p r o c e s s m o d e l c a n be c h a r a c t e r i z e d as c o n t i n u o u s and comprised of f i v e stages: 1. Identif ication of problems ( i m p l y i n g e x i s t e n c e of goals), aspi rat ions (expressed goals) and needs (expressed as object ives); 2. Generat ion of conjectures for alternat ive proposals (or t e n t a t i v e t h e o r i e s T f o r remedying problems and s a t i s f y i n g needs by s p e c i f i c d a t e s ( i . e . o b j e c t i v e s ) ; 3. E v a l u a t i o n of a l t e r n a t i v e proposals; 4. S e l e c t i o n o f p r e f e r r e d p r o p o s a l s by e l e c t e d r e p r e s e n t a t i v e s (as i n f l u e n c e d by c o m m u n i t y r e s p o n s e s ) ; and 5. Implementation w i t h i n the p u b l i c and private sectors and d e v e l o p m e n t c o n t r o l by planners. The planning process, continues with m o n i t o r i n g of progress, i d e n t i f i c a t i o n o f new p r o b l e m s , n e e d s a n d c h a n g i n g aspirations; new proposals a n d s e l e c t i o n o f new a l t e r n a t i v e s a n d continuous implementation.  1  participation The of  to  four  and  decision  planning  c r i t e r i a  can  e x p l i c i t l y  Model in  include by  process.  This,  the  include  The  affected  the  any  The  the  impacts  mind.  in  analysis  for  which not  model  the of  of  result  are  of  the  a  The  models  the  Band/Dome  from  does by  as  not those  the  planning  participation  mutually  and  exclusive.  below but  ways  these  model  that  range  public.  participation  mean  approach  may  involve  use  the  the  public  in  Model  model  on  the  because The  technical  the  and  is  analysis  and  process  There  is  are  Model be of  via  describes  their  the input  from  need  for  direct  made  with  the  "public  based  found  for  information  on  the  w i l l  are their  input  from  interest"  premise  every  are  public  no  is  process  objectives  of the  a  that  problem. indicate  a The  which  "correct".  model  Politicians  can  planning  Preferences  decisions  Technocratic  of public  planning  solution  generation  This  strengths  does  representative.  public  decision  the  determined.  incorporated  in  uses  a  participation,  background  include,  described  technocratic  technically  the  bargaining,  not  avenue  however,  Technocratic  elected  summarize  ways.  The where  of  section  or  decisions  rational-comprehensive  1.  this  rational-comprehensive  models  different  extent.  provide  the  rational-comprehensive The  in  They  assist  relationship.  lesser  interpretations  Planning to  or  presented  making.  process  Analytical  greater  models  perceptions  and  a  34  and  relies  on  experts  expert share  knowledge in  the  to  provide  formulation  of  solutions. issues  and  1 35  the  solution  of  problems.  information  and  should  to  point  In  its  assuming a  correct  extreme bargaining.  impacts  social  determined Debate  interests  is  Three First,  through  the  of  (such  is  be  opinion  a l l  it  1976). incorporate  information solution  on  can  be  analyses.  represent  of  major  and  assistants  the  model  threatens  policies  of  the  different  form  a  expertise  by  the  disadvantaged  do  They  of  not  have  rely  and In  and  in  of  power  the  system. are  powerful  leaving  groups  made.  bureaucracy.  politicians  certain  corporations),  be  foundation  programs.  who  and  can  Politicians  representativeness  influenced  the  interest  both  under  often  the  less  represented  1976). information  determined  always  who  the  adequate,  mathamatical  planning  model  bureaucracy  as  and  and  accountability.  advice  the  Third, not  this  the  on  disproportionately  (Swainson,  of  threatens  Second,  motivated  people  concentration  bureaucracies  groups  economic  is  not  optimal  decide  practice  does  the  the  the  model  analyze  (Graham,  p r i o r i t i e s ,  government:  accept  decision  necessary  democratic  may  the  information  the  criticisms  to  or  and  needed.  practice  time  choice  different  not  the  gather  Given  usually  between  experts  that  form  p o l i t i c a l and  The  some  about  technically  degree  of  public  without  u n r e l i a b i l i t y  values error. in  the  and  p r i o r i t i e s  For  example,  results  of  can there  public  polls.  The  common  model  is  that  this  type  of  the  thread  which  public  interest  decision  making  runs  through  is  model.  not The  the  c r i t i c i s m  accurately next  three  of  fed models  the into are  1 36  alternative in  the  2.  solutions  preceeding  Joint In  directly  participation (1712-78) cannot  and  argued,  minority model  power  make  to  If  the  every select  a f f e c t e d community  the  or  interests and  whole  posed  remains  of  a l l  of  views  with  Rousseau  the  groups,  people  especially  area. by  process  and  public  As  affected  planning  consulted  of  1972).  most  the  is  use  heterogeneous  selection  reject  by  (Self,  people  solution  problem fed  by  into  is  the  that  the  involve  member  decisions  could  affected  become  problem-solving resources  administer  to  of  by  In  this  community  from  problem  implementation.  S t i l l ,  of  the  the  hire  public,  government  to  an  in  the  of  the  so  public  or  particular Pierre,  their  own  They  process, public  decision  involved, the  interest"  making  (St.  themselves.  recommendations  "public  members  a  group  the  decision  the  representatives  directly  the  criticisms  representatives  large  the  in to  the  a  of  accept  d i r e c t l y  affected  the  and  to  and  its  ives.  accurately to  of  example,  elected  in  decisions,  represent  for  equally  share  or  referenda  the  interests  identification  public  by  groups,  planning  the  the  issues,  represent  light  Model  model  about  in  discussion.  Planning  this  developed  i t  elected p o l i t i c a l  who  solution are  would  reasonable  be  and The  as  who  would  place  them  group  would  necessary,  responsible  body.  Conflict resolution should be the responsibility of t h e members w i t h i n these g r o u p s , n o t o f some f i n a l a r b i t e r a b o v e the process... The u l t i m a t e a i m . . . i s t o f o r g e a  is  d i r e c t l y  Obviously  issue  be  being  making.  1977).  would  not  one  community  experts  is  and for  not to be in  a  have to  making  1 37  consensus involved.  among  a l l  particular  participants  The r e s u l t s of the planning process would be s u b m i t t e d as r e c o m m e n d a t i o n s t o an e l e c t e d body (or b o d i e s ) for final approval. Assuming a consensus i s reached and assuming the active participation by concerned government o f f i c i a l s throughout the planning stage, this final step may well be a formality (Graham, 1976, p.109). The  important  involves  members  the  formation  of  the  been 3.  To model  meet  the  for  consensus  are  having  an  the  Haefele with  As  directly  to  the of and  Representative  responsibilities additional  of  elected  i t  and  states,  the  decision  which  the  in  role has  previous  problem-solving By  proposes  the  bargaining,  process  consensus.  system,  that  Model  small  model  representative  a  is  group.  planning a  in  validate  Representative of  model  (1976)  problem-solving  creation  (1976)  this  Graham  ideally  problems  public-bureaucracy  of  public  bargaining  Purpose  original  is  Purpose  suggests  General  the  consensus.  within  General  responsible  the  of  of  p o l i t i c i a n  formed The  characteristic  in  a  contrast, strengthening  which  elected to  group  bargaining p o l i t i c i a n  . look  after  the of and by the  interface. desribes  c i t i z e n participation  in  some  of  the  problems  associated  planning.  This new e m p h a s i s on c i t i z e n p a r t i c i p a t i o n , on w i d e n i n g the number of interests and groups, is doomed to failure. The b u r e a u c r a t ' s room s i m p l y i s not big enough to accomodate a l l , a n d he h a s no c r i t e r i o n (nor can he have any) to select from competing claims to his attention (p.127-128). Attempts in  bargaining  to  involve  are  seen  the as  public a  and  the  fundamental  bureaucrats error.  directly Haefele's  1 38  solution  to  this  representative that  "the  as  problem the  c i t i z e n  representative, (Haefele,  p.  are  two  it  focuses  on  one  should  main  who  is  preference  second  between of  the  actions  This  decision  this  model,  values is  to  the  number  4.  The The  range of  of  the of  act  is  this  purpose  He  states  general  purpose  government  bodies"  and  model.  One  participation  is  v i s i b l e , i t .  that  the  but  Also  has  give  some  the  incentive  resolve  representative  that  planning  representative  must  would  is  in  identifiable.  on  The  elected  can  to  not  conflicts  would  be  policies  aware higher  relevant negotiations  the  public and  a  direct  role  from for  bargaining  the  information  The  major  participation  public on  public  drawback  one  has  in  is  to  that  increase  representatives.  includes  public  interacting  (Arnstein, a l l  is  p o l i t i c i a n s .  increase  public  Model  model  interests  the  s t i l l  provide  elected to  removes  There  to  that  fourth  and  general  a  a l l  public  person  and  action  e x p l i c i t l y  P l u r a l i s t i c  issues  agencies,  on  to  isolation,  making.  the  of  man,  in  and  policies.  namely  assumes  a  others.  model  and  it  in  constraints than  that  advantage  unrelated  priority  for  real  discover  recommend  him  use  "go-between".  one  advantages  because  public  to  128).  representative,  The  have  responsibility  person  to  public/bureaucrat  represent  1976,  There  is  1971). local  on  a  particiption  continuing  Ideally, elected  interests  trade-offs  a l l  among  basis  on  relevant  required  be  involved to  reach  a  wide number  governmental  representatives,  should  a  plus  in a  the  a l l series  decision.  1 39  Reaching  a  as  are  there  "best"  This its  people  model  treatment  bargaining the  took  general  place  in  limited many  groups  as  the  of  bargaining.  In  the  place  within  place  across  possible  be  harder  to  closer  to  actual  decision  THE The  ways  of  purpose where  of  the  the  planning In  a  a  section  is  and  a new  I  to  it  the  the  two,  PLANNING shown  Model  sits  outline  what  only  took model  It  is  not  that  as  p l u r a l i s t i c  it  or  is  actually where  issues.  there  planning  Planning  In  MODEL  that  reader  model  situations  issue  by  group.  essential  in  same  the  models  actors.  is  other  practice  in give  of  the  planning model  planning  O'Brien  an in  are  several  process.  The  understanding relation  to  of  other  from  the  of  process.  emerges,  St. in  benefits  comprised  some By  one  authors  argue  synthesizing  which  can  be  a l l  is this  used  to  process.  (1973),  FOX(1976)  participatory  aspects  public  section  in  information  model  the  the  ' has  two  p l u r a l i s t i c  Although  ANALYTICAL  section  made.  bargaining  the  rather  actors  models.  important  (1983)  AN  Analytical  this  analyzed  OF  on  be  many  joint-planning  range  involved.  making  to  as  previous  model In  than  be  problem-solving  wide  group,  interact  preceeding involving  a  visualize  must  FOUNDATIONS  small  legislatures.  is  EL  a  representative  particular  actors  decision  from  model  numerous  the  there  distinguished  takes a  by  that  is  elected  to  requires  affected  purpose  the  bargaining  decision  Pierre  their provide  broad four  (1977),  discussion a  basis  c r i t e r i a . described  of  for A  Eyre  democratic the  model  models  (1979),  norms  development which  can  be  Dorcey  of  and a  incorporates called  an  1 40  "analytical  planing  involvement example, In making Fox  in  model".  decision  making  between  the  Band  essence,  a l l  these  our  democratic  (1976,  problem  p.16)  This  and  model  processes  writes  at  be  used  the  to  local  evaluate  level  (for  Dome).  authors  system  can  are  more of  striving  responsive  efforts  to  to  come  for  the to  ways  public  grips  of  w i l l .  with  the  that . . . t h e c o m p l e x i t i e s of modern t e c h n o l o g y and big government are so great that governmental processes have become quite undemocratic because the understanding of issues and the i n f l u e n c i n g of governmental actions requires a degree of expertise unavailable to the u n o r g a n i z e d members of the general public.  Without 'interests those  resources,  that  parties  decisions  which  invest  Dorcey  not  well  considerable  process  informed  terms  perceive  (1983)  bargaining for  are  in  writes the  identifies  three  effective  bargaining:  and  a  interest  in  promoting  their  v i t a l  effort  in  to  planning  of  which  be  knowledge,  tend  success  c r i t e r i a  money  organized  that  participation  of  "is  depends  by  the  to  evaluate  while  particular views.  predominantly on  affected  information,  ignored  opportunities  interests."  decision  a  making  representation,  He and and  cost-effectiveness. Dorcey  (1983)  influencing  factors  involved is and  to  a  in lar.ge  is  in  the  bargaining extent  jurisdiction  Dorcey  identifies  the  participants.  over  and  jurisdiction  negotiation their  determined  by  resources."  institutional  process.  influence the  and  in  arrangements  factor or  "Who  of  as  becomes  determing  distribution  Another  ownership  outcome ownership  outlined  environment  of  by the  141  The model  adoption  must  which  between  a  EL  and  THE  "bargaining" the  local  are  community  made.  and  a  PLANNING  analytical  planning  followed  by  not  Instead  of  The can  a l l  unilateral  in  In the  in  and The  "analytical  planning  models.  extensive  literature  to and  act,  sets  choices,  institutional  the  those  a  processes  never  process  be  a  variation  however,  legally  making  planners  model  to  posed  l i s t  model."  the  wholly  of  the  process  obliged  certain and  an  to  is  plan.  decisions  the  The and  of  has  modified  the  thesis.  of  questions  participate, bargaining  by  planned  are both  the  and  actual  to  There  are  information  make  the  nine make  system,  (see the  from  the  of  the  from  the  particular  components up  of  up  ideals  developed suit  which  process  logically the  been  process  c l a r i f i c a t i o n  flow  opportunity,  arrangement.  planning  components  system  model  actual and  These  democratic  of  to  the  following  the  corresponding  way  of  planning  needs  model,  just  constraints  of  opportunity  the  bargaining can  is  identification  principles  research  to  planning  process.  the  opportunities 1).  developer  decision  this  application  help  Figure  actors,  for.  say  The  model  planning  a  access  a  MODEL  rational-comprehensive  have  of  to  one.  ANALYTICAL  bargained  perspective  inequality  decisions  open  The  a  recognize  through  equal  of  the  with model:  time,  capacity  effectiveness,  effects  42  FIGURE  1:  Developer-  THE  ANALYTICAL  —^project  PLANNING  *  Information  MODEL  -•-Community Gathering  I I  Analysis*-  Alternative  I I  Generation  Decision  Strategy  Making  Formulation  I... • • - N e g o t i a t 1 ons  Agreement  Monitoring  Development NECESSARY  Opportunity Information Time Capacity to Choices  to P a r t i c i p a t e system Act  with  Mitigation-*  CONDITIONS  6. 7. 8. 9.  Bargaining Effectiveness Effects Institutional  Framework  143  1.  Opportunity  This  the  Participate  component  opportunity process  to  to  and  Band's  be  if  involved  the  needs.  2 .  those stages,  The  through  its  provide was  a  interests opportunity process?  .  is  is  a  Is  there  Does  3.  Time  the  in to  control,  to  to  the  for  quality  planning to  the community (public and participate in the impact  from the mitigation  f u l l  component  disclosure  information  and  timing.  if  the  any  of  The  planning  the  process  questions  necessary  below  information  p l a n n i n g p r o c e s s made a w a r e o f b e f o r e key d e c i s i o n s a r e made? of  a l l  involve  be  opportunity  and  timing  required  p a r t i c i p a t i o n at Second,  of  Band.  can  objectives.  the  representative  manipulation  determine  Timing  for  mitigation and  relevant  (c) Is technical information generated uncertainties, costs, and benefits are expressed and e a s i l y understood? (d)  had  are:  c r i t i c a l  (a) Are the actors in the i s s u e s and t h e i r consequences (b)  Band  given the opportunity, concerns about the impact  potential  framework  available  impact  responsive  questions  the  System  Information There  whether  Dome's  was  interested to present  Informat ion  process.  in  process  (a) Have affected private) had the mitigation planning (b) Are earliest process?  addresses  said  if  to of  real  have  two  i n i t i a l  information  is  and  so simply  dialogue  information. the  data  stage not  risks, clearly  debate?  aspects: Early  analyses?  that and  and  the  timing  opportunity of  of is  identifying  disclosed  at  the  1 44  proper  time,  its  information actors  early  in  may  in  be  the  identifying  positions. plan  use  planning their  Furthermore,  generally  take  considerations  of  a  negligible. process  concerns  including  long  Failure  time  objectives  .  can and  to  acquire  severely  handicap  .preparing  significant The  which  process include  their  changes  in  should  embody  a  range  the  of  time  horizons. (a) for  Is t h e r e decision  (b) long 4.  Does the terms? Capac i t y  Actors capacity  to  include  have  the  evaluate consistent  tied  includes  (a) Is generate  time  to  the  there their  available  planning  to  generate  for  the  information  short,  medium  the  financial,  proposals with  their  adequacy  required  of  the  generate  to  to  legal  their  own  and' p e r c e p t i o n s .  information properly  for the and argue able  and  Band their  act  on  This  system  prepare so t h a t views?  a  but case.  they  can  of  the  Council  (c) Band  technical e x p e r t i s e present or a v a i l a b l e t h a t i t c a n make i n f o r m e d decisions?  Is there C o u n c i l so  legally  and  values  resources  enough funding own a l t e r n a t i v e s  technical  (b) Is t h e Band Band members?  5.  and  Act  to  closely  also  process  must  alternatives is  sufficient making?  behalf  to  the  Choices  The planning. limited  articulation A  community  choice  of  of  a  f u l l  range  presented accepting,  of  with  choices one  is  the  proposal  rejecting  or  ideal has  in  only  recommending  modi f i c a t i o n s . (a) Does t h e p l a n n i n g p r o c e s s c o n s i d e r a range of c h o i c e s to a given problem and expose these f o r p u b l i c d i s c u s s i o n along with their analyses?  1 45  (b) Is t h e c o m m u n i t y a b l e t o and o p p o r t u n i t i e s a r e known, w i t h the b a s i s of choice?  generate thereby  (c)  Is  vote  6.  Bargaining  the  The  community  within  process the  accomplishing  negotiations  and  (Schelling,  1963)  1955).  competitors.  involved,  and  and  and  seeking  (a)  Are  key  issues?  is  well  somewhere  the  as  accomodation  procedures  a  depends  power  their  and  on  s k i l l s  (Dorcey,  available  for  be  between  resolved (Banfield,  public  from  the  and  a l l i e s  to  i n s t i t u t i o n a l  influence  in  means  bargaining,  to  spectrum  produce  One  compromise  on  and  and  actors.  have  involves  within  conflict  debate,  Conflicts  outcome  on  between  through  place  lying  reduce  and  resolution  takes  The  as  community  agreement.  interests  framework,  on  should  this  Bargaining  private  to  Opportunity  planning  compromise of  able  a l t e r n a t i v e s whose impacts providing the community  of  the  bargaining,  actors  cooperating,  1983). the  resolution  of  differences?  (b) Do the r e p r e s e n t a t i v e s of the Band and Proponent have the o p p o r t u n i t y to d i s c u s s the i s s u e s w i t h the g o a l of compromise in mind? 7.  Ef f e c t  iveness  Effectiveness process is  being  achieves  its  goals  out  from  concerned  with  planning  process  attainment.  following  be  carried  distinguished  goal  may  defined and  while  degree  real  or  to  Process  potential  effectiveness can  degree  be  to  which  is  effect outcomes  directly  determined  which  the  Effectiveness  effect.  Effectiveness  questions:  the  the  successfully.  process  specific  as  a  process must  is  be  mainly of  the  concerned  with  by  asking  the  146  (a) Are those involved with the impact mitigation process dealing with the issues at hand effectively and are they a c c o u n t a b l e and r e s p o n s i b l e f o r t h e i r actions? (b) Does the impact mitigation i m p l i e d goals of the community? (c) Does the community have made w i t h t h e developer? (d)  Are  the  EL  Effects This  the  Band's  inputs  question  process  and  Institutional  If and  the  planning (a) Is actors  then  any  power  to  implement  efforts  of  value  the  a r t i c u l a t i o n  to  the  of  the  stated  or  agreement  community?  effects  of  the p r o j e c t and the r e l a t e d (real a p o s i t i v e i m p a c t on t h e community?  and  is  to  be  mechanisms  truly must  just,  be  responsive,  available  to  effective  implement  the  process.  the impact m i t i g a t i o n planning involved in the process?  (b) Does the legal basis?  results  (c) Does the government? FL  the  Arrangement  process  e f f i c i e n t  in  attain  project.  (a) Does t h e p r o c e s s and p o t e n t i a l ) outcomes have 9.  and  assists  the  the  process  of  the  process  impact  support  process  recognized  mitigation  the  by  a l l  have  some  functions  of  process  existing  CONCLUSION  I  have  planning  developed  process  is  efficient.  The  participatory  democracy  which  w i l l ,  in  a  Developer/Band highlighting  the  a  model  which  representative,  model and  systematic impact  is  guided  can  be  way,  by as  assist  in  the  an  principles analytical  analysis  planning  constraints  c l a r i f y  effective  the  as  and  to  just,  used  mitigation  opportunities  helps  of  if  a  and of tool  of  the  process  by  that  process.  APPENDIX C: EXCERPT FROM THE DOME/LAX KW'ALAAMS AGREEMENT  148  A G R E E M E N T  DOME PETROLEUM LIMITED AND LAX  KW'ALAAMS  W. M u r r a y S m i t h , Legal Counsel, Dome P e t r o l e u m L i m i t e d , 3 33 - 7 t h Avenue S.W,, P.O. Box 200, CALGARY, A l b e r t a , T2P 2H8  INDIAN  BAND COUNCIL  Harry Slade, R a t c l i f f & Company, Legal Counsel to Lax Kw'a_Iaams I n d i a n Band #103 - 133 West 1 5 t h S t . , N o r t h V a n c o u v e r , B. C , V7M 1R8  149  I N D E X  Page SECTION 1 - INTERPRETATION 1  2  Definitions  2  SECTION 2 - PRELIMINARY CONDITIONS AND CONTINGENCIES 2(1) 2(2) 2(3)  ..  Project Subject t o Approvals Commencement o f Agreement Early Termination  8 9 9  SECTION 3 - COMPENSATION 3(1) 3(2) 3(3)  4(1) 4(2) 4(3) 4(4) 4(5) 4(6) 4(7) 4(8) 4(9)  . 9  C o m p e n s a t i o n f o r Community I m p a c t s Capital Projects Index f o r I n f l a t i o n  SECTION 4 - EMPLOYMENT AND TRAINING  9 16 18  '  19  Intent Employment Recruitment Training Scholarships Dome Employee B e n e f i t s Employment Q u a l i f i c a t i o n s Training Qualifications Tax R e l i e f C o n s i d e r a t i o n s  19 19 21 21 23 26 27 27 27  SECTION 5 - BUSINESS OPPORTUNITIES 5(1) 5(2) 5(3) 5(4) 5(5)  Dome's C o v e n a n t s Band's O b l i g a t i o n s Band B u s i n e s s I n v o l v e m e n t by Dome Cooperation Special Projects  SECTION 6 - CONSTRUCTION CAMP POLICY 6(1)  General  8  27  •••  27 31 33 33 34 56 56  150  - ii -  Page SECTION 7 - DISPUTES 7(1) 7(2)  58  General Resort to Courts  58 63  SECTION 8 - PROJECT TERMINATION 8(1)  63  General  63  SECTION 9 - U T I L I T I E S AND ROAD CORRIDOR 9(1) 9(2) 9(3) 9(4) 9(5) 9(6) 9(7) 9(8) 9(9) 9(10) 9(11)  C o v e n a n t s R e s p e c t i n g Easements within Corridor C o v e n a n t s R e s p e c t i n g Easements n o t within Corridor Band C o u n c i l R e s o l u t i o n s Entry f o r Survey C o n s t r u c t i o n Access Compensation f o r Timber Term of Easements Dome's O b l i g a t i o n s C o n d i t i o n s and C o n t i n g e n c i e s Easements S u b j e c t t o R e g u l a t o r y A p p r o v a l Use of Road  63 63  ..  SECTION 10 - MITIGATION OF AND COMPENSATION FOR IMPACTS 10(1) 10(2)  Mitigation Compensation  SECTION 11 - FISHERIES 11(1) 11(2) 11(3) 11(4) 11(5) 11(6) 11(7) 11(8) 11(9)  AND WILDLIFE  Dome's C o v e n a n t s R e s p e c t i n g F i s h e r i e s B a s e l i n e Data and M o n i t o r i n g Compensation Onus and Method o f P r o o f C o m p e n s a t i o n f o r F i s h i n g Equipment L o s s ... Further Studies . Improve F i s h H a b i t a t C o n s u l t a t i o n w i t h Government A g e n c i e s Dome's C o v e n a n t s R e s p e c t i n g W i l d l i f e  65 67 70 71 72 72 73 73 74 75 76 76 76 76 76 77 78 79 80 80 80 81 81  151 - iii  -  Page SECTION 12 - NATURAL GAS FOR PORT SIMPSON 12(1) 12(2) 12(3)  81  P i p e l i n e Capacity N a t u r a l Gas A c q u i s i t i o n and D i s t r i b u t i o n .. A s s i s t a n c e by Dome  SECTION 13 - COOPERATION 13(1) 13(2) 13(3) 13(4) 13(5)  83  Project Office L i a i s o n Person E f f e c t of D e l e g a t i o n L i a i s o n / M o n i t o r i n g Committee Band O f f i c e  83 83 84 84 89  SECTION 14 - ABORIGINAL LAND CLAIMS 14(1) 14(2) 14(3)  89  P r o j e c t Support T i t l e to Project Site Non-Waiver  89 89 90  SECTION 15 - PROJECT SUPPORT BY BAND 15(1)  90  General  SECTION 16 - NATIONAL  90 ENERGY BOARD  90  SECTION 17 - TAXATION 17(1) T a x a t i o n o f Easements 17(2) Taxation of P r o j e c t 17(3) Unexercised Rights SECTION 18 - PLANT OWNERS 18(1) 18(2)  92 92 93 93 '  O b l i g a t i o n s o f Co-owners Band O b l i g a t i o n s R e s p e c t i n g Owners ........  SECTION 19 - TERM 19(1) 19(2)  81 82 82  General S u r v i v a l o f Terms  .  94 94 94 95 95 95  152  - iv -  Page SECTION 20 - FORCE MAJEURE 20(1) 20(2)  95  Excuse f o r Non-Performance Meaning o f F o r c e M a j e u r e  95 96  SECTION 21 - MISCELLANEOUS 21(1) 21(2) 21(3) 21(4) 21(5) 21(6) 21(7) 21(8) 21(9) 21(10) 21(11) 21(12) 21(13)  97  P r e v i o u s Agreement S u p e r s e d e d References Headings A p p l i c a b l e Laws'...Laws and R e g u l a t i o n s Waivers Further Assurances No I m p l i e d C o v e n a n t s Severability Notices L e g a l C a p a c i t y o f Band Enuring Clause Time o f E s s e n c e  97 97 97 97 97 98 98 98 98 99 99 100 100  SCHEDULE "A" -  D e f i n i t i o n of C a p i t a l  SCHEDULE "B" -  I n s t r u c t i o n s t o EPC C o n t r a c t o r  SCHEDULE "C" -  Employment  SCHEDULE "D" -  T r a i n i n g and Employment  SCHEDULE "E" -  Easement Agreement w i t h Dome  SCHEDULE "F" -  Easement Agreement w i t h B r i t i s h C o l u m b i a Hydro & Power A u t h o r i t y o r Dome  SCHEDULE "G" -  Easement Agreement w i t h W e s t c o a s t T r a n s m i s s i o n Company L i m i t e d o r Dome  SCHEDULE "H" -  Easement Agreement w i t h P a c i f i c N o r t h e r n Gas Ltd.  EXHIEIT " I "  T s i m p s e a n I.R. #1 U t i l i t y  -  Projects  Targets Positions  Corridor  1 53  APPENDIX  D:  TREASURY  BOARD  MINUTE  79530  154 GMT  INS  HQ  HULL  QUEBEC  MfiCHINE-2[  TSR>S AND CCKDITICNS Proarans  Class of Recioients: Delegated Authorities:  Contributions to Indian Bands, Settlements, Corporations, or t h e i r l e g a l e n t i t i e s , to enable them to respond to the Lnpacts o f major resource developments, for the regaining period of f i s c a l year 1981-82 and f i s c a l year 1982-53.  Indian Bands, Settlements, Corporations o r t h e i r l e g a l entities.  a)  A u t h o r i t y to sign c o n t r i b u t i o n arrangenents w i l l be granted to the following o r g a n i z a t i o n a l p o s i t i o n s : Deputy M i n i s t e r ; Senior A s s i s t a n t Deputy M i n i s t e r / Finance and P r o f e s s i o n a l S e r v i c e s ; A s s i s t a n t Deputy M i n i s t e r , I&I Frograra? R ^ g g n a l D i r e c t o r s General; l ^ i o n a l D i r e c t o r s , (Yukon and NOTjT ^  b)  A u t h o r i t y t o s i g n c o n t r i b u t i o n arrangements, trie value of which exceeds_SJ5J)^XL^^ w i l l be granted to o r g a n i z a t i o n a l p o s i t i o n s at or above the A s s i s t a n t Deputy M i n i s t e r , I&I Program.  c)  A u t h o r i t y to approve payments by c e r t i f y i n g that they are in accordance with the c o n t r i b u t i o n arrangement w i l l be granted to Departmental O f f i c e r s not lower than that of p r o j e c t o f f i c e r or above as d e t a i l e d i n the delegation of signing a u t h o r i t i e s document; the maximon d o l l a r l i m i t would be the t o t a l value o f the c o n t r i b u t i o n arrangement.  d)  Departmental o f f i c e r s w i l l c o n t i n u a l l y review progress, demonstrated c a p a b i l i t y and r e s u l t s achieved i n l i g h t of Departmental o b j e c t i v e s ; f u t u r e funding d e c i s i o n s w i l l take into account the success o f previous undertakings. •  e)  In every instance, the c o n t r i b u t i o n arrangement roust be countersigned at the appropriate l e v e l by cne of the following f i n a n c i a l o f f i c e r s : Director, Departmental Accounting Operations; Chief, General Accounting and I n t e r n a l Control; regional D i r e c t o r s o f Finance; Regional Managers, .Accounting Operations.  155  1 lH/tf^D"' i y :  bni  INCd  HQ  HULL  QUEBEC  M H C H I N E - 2 L H  3 f)  Review procedure;  2  -  T i e Department w i l l have the a u t h o r i t y to s i g n c o n t r i b u t i o n arrarjgernents with an Indian Band/ Settlement, C o r p c c a t i c n c r - t h e i r l e g a l e n t i t i e s , up to an aggregate amount of 3300,000 without r e q u i r i n g Treasury Board approval. Treasury Board approval i s required where the aggregate srount o f the rvntrihuticrt air-rang omen t c to any CTJZ Zr-,3 Lan Cerid, Settlement, C c r p a r a t i c n or t h e i r l e g a l e n t i t i e s exceeds $300,000 i n any one f i s c a l year.**  P r i o r to approving a a t t r i b u t i o n arrangetrent, Regions and D i s t r i c t s w i l l ensure that'tine funds requested r e l a t e s p e c i f i c a l l y to planning and o r g a n i z a t i o n i n Order . t o _ r e s p o r d . j ^ oeveicprxant p r o j e c t iirrpacts. — the i n c l u s i o n o f items such as consultant fees i n a ^contribution arranggnent TtOst be" backed~Lp witn a~~ "statement of e x a c t l y '«nat "is to be p r o v i d e d , ~ " — other c c n t r i b u t i o n arrangements that have been funded must be taken i n t o account;  "  ^ /  "  •  — c o n t r i b u t i o n arrangerrents/jsroposal s must be s c r u t i n i z e d to ensure that the _pbj_ecjtiygs to be achieved are cu,early___indicabed-a Care w i l l be taken to velgh..items such as txyx^ari^^Tjjeettnej expenses, c a p i t a l expenditures,, e t c . , aoainst the o b j e c t i v e s j . e . that there is a balanced, r e l a t i o n s h i p between .such items and~others. Q a r e should be taken to e l i m i n a t e items- not r e l a t e a to resource development impacts p j ^ ^ g i T b q a g ^ a r q a i n i z a t i o n such items vould be alcohol rehabilitation, tourist/recreational df^velOrnvsnts and o t h w items vtiich uould f a l l urv3cr other programs such as s o c i a l , and economic development; :  >  — funding from other sources such as other f e d e r a l departments, p r i v a t e industry,- p c o v i n c e / t e r r i t c r y / e t c . , must be taken i n t o c o n s i d e r a t i o n ;  i  — t h a t consideration i s given to the needs of the Band(s) with respect to the Band{3) own resources to e f f e c t i v e l y deal with t±ie impacts of resource development.  **S300,000 l i m i t to apply to Resource Development funding only.  156  M/89D 19:57 GMT INS HQ HULL QUEBEC MFICHINE-2E"  - 3 The following arrangement: -  recipient(s)  will  '  '  be i n c l u d e d ' i n a c o n t r i b u t i o n  rrxst be c l e a r l y  identified;  - a c l e a r s t a t e m e n t o f t h e p u r p o s e _ and o b j e c t i v e s f o r which the funding i s sought; •—* - an o p s r a t i o n a l p l a n t h a t d e t a i l s t h e p l a n n e d p h y s i c a l acccmplishments f o r t h e provision o f the service or activity; ~~ -  a f j j x a r e i a l ^ p e r r i i t u r e plan that d e t a i l s the a n t i c i p a t e d annual expenditure requirements. This w i l l i n c l u d e a breakdown o f p r o j e c t e d e x p e n d i t u r e s b y the  -  .Tenth;  .  w h e r e a f e e f o r c c n s u l £ a n £ _ i s , i n c l u d e d / t h i s must be b a c k e d up w i t h a s t a t e m e n t o f what i s t o be p r o v i d e d ; •  -  a n a c c o u n t a b l e a d v a n c e f o r a n i n i t i a l t h r e e month p e r i o d may b e i s s u e d f o r approved and s i g n e d ^he' c o n t r i b u t i o n arrangements; t - t h e r e a f t e r monthly payments w i l l be issued s u b j e c t t o approved f i n a n c i a l statements-and progress reports e x c e p t where t h e department i s s a t i s f i e d t h a t a l o n g e r s u b s e q u e n t p e r i o d i s r e q u i r e d > t o a maximum o f t h r e e months; -  f i n a l payment may be w i t h h e l d i f t h e statements are l a c k i n g ; • :  -  required "  reports/  where n o n - a l l o w a b l e e x r j e j T d j t u r e s J ^ a v e b e e n reinburs_ed jj^shajj^be un3erstxxx3j&at-OCQ3 g i v e n t o r e c o v e r i n g t h a t amount f r o m f u t u r e  contribution arronagcrr>2nt3 being entered intoj -  B a n d _ C o u n c i l R e s o l u t i o n s (ECRlsj must_be p r o v i d e d a l l c o n t r i b u t i o n a r r a n g e m e n t s 'where__an I n d i a n organ!2atlon i s t o a c t c n b e h a l f o f L n c I a n ~ ^ n d s  with  r  J  ^7  A^A-iM  . Adul-g;  A d e s c r i p t i o n o f r e q u i r e d a u d i t ' arcanqements i n accordance w i t h TB r e q u i r e m e n t s w i l l b e f o r w a r d e d s h o r t l y .  Evaluation:  To a s s e s s t h e e f f e c t i v e n e s s i n m e e t i n g t h e o b j e c t i v e s o f I n d i a n involvement i n major resource development the f o l l o w i n g g e n e r a l o u t l i n e w i l l 6s u s e d .  157  11M/09D 19:58 GMT IN<8 HQ HULL QUEBEC MflCH INE-2E  -  4 -  Program Conrx?nents whether, access to o p p o r t u n i t i e s such as employment, business ventures, revenue sharing, e q u i t y p a r t i c i p a t i o n , e t c . , which would include short and long term j o b t r a i n i n g c p p c r t u n i t i e s , Eand p r o f i l e s , s k i l l s i n v e n t o r i e s , community awareness, meetings/negotiations with developers/provinces, e t c . i s enchancad. Organization and resources; whether f i n a n c i a l a s s i s t a n c e , advice and guidance i n conjunction with the appropriate r e g i o n a l o f f i c e , to' Indian people t o enable thorn t o respond to the p o s i t i v e and rv^-jativ-e ccsj-truts o f resource development p r o j e c t s . P r i n c i p a l outputs: whether long and short terra employment i s a v a i l a b l e f e e Indian people a f f i r m a t i v e a c t i o n agreements negotiated; whether business o p p o r t u n i t i e s are made a v a i l a b l e ; whether compensation f o r adverse e f f e c t s i s negotiated; whether s p e c i f i c socio-economic problems, a r i s i n g , as a resnl r o f resourca development p r o j e c t s are i d e n t i f i e d . Objectives; A e t h e r  i n the long barm there are; *  — enhanced employment/training o c p e r t u n i t i e s ; — enhanced business o p p o r t u n i t i e s ; Whether negative aspects are minimized i , e . t e r r a i n damage, water/air p o l l u t i o n , l o s s o f hunting/trapping areas. v?hether i n the s h o r t term there-are: — land use s t u d i e s , e t c ; , completed; — Indian avareness o f the resource development p r o j e c t ; — gathering o f b a s e l i n e data in-order to be able to measure subsequent impacts. «  Whether bard/ccrmiunity p r o f i l e s are uridertaken; Whether plans o f a c t i o n are s e t ' c u t , e t c . Duration;  These Terms and Conditions are i n t e r i m and expire cn March 31, 1982 o r sn e a r l i e r date cn vfoich a submission r e l a t i n g to Terms and Conditions' for ccrnpr eh ens i v e c o n t r i b u t i o n arranganents i s approved.  158 Annex A (Part II) RESOURCE lEVELCFMEMfT PROTECT PRCPCSA1S - CRITERIA Principles and C r i t e r i a 1.1  Policy Principles  Organization and planning funds provided ,to Indian people under this policy are to enable thea to respond to "resource develocr>gnt2i3xnec^ have orrcavhave' na-iqr socio-economic and environmental conseqiip^v^q f n r Tpj^an "pjepple> using the overall Federal Government Guideline that the proponent pays, DIAND takes the position that: 1.1.1  The party respcre ihle'for the actual or threatened effects bears dirgct-respcnsifalTitv. and mist be asked to provide: *  1.1.2  1.1.3  1.1.4  (a)  support for research, development and negotiation leading bo a resolution;  (b)  ccnpensaticn in dollars or -in kind*for an injury which has occurred, (nutigaticn/cctrpensation measures). • . •  The province, vhich has allowed the actual o r threatened injury to take place or to be planned, bears a secondary responsibility and mist be asked to provide: (a)  support for research, development or negotiation;  (b)  necessary action to stop or a l t e r actions which are or may be injurious, (nu\tigaticn/ccnpensaticn measures).  The Federal Government, through DIAND, bears a lesser responsibility and should provide support only: (a)  i f no support i s provided by the two sources mentioned above;  (b)  i f support from the two sources mentioned above i s insufficient to cover legitimate requirements.  The Federal Government vd.ll take, steps to recover any ironies expended under 1.1.3 above should the responsibility for the effects be shown to be that of an agency other than the Federal Government.  The o b j e c t i v e s to be achieved nust be d e t a i l e d and nay include: d^yelcgrent of ccgcxanity awareness cevejgar>ent~c?"'3and s k i l l s inventory inventory o f ' p o t e n t i a l labour force' strategy development f o r negotiation with developers.  159 - 21.3  ]  Criteria  The Federal Gcverrraent paai^arxi_a_j?cajsci^_i t!ejl/ i n i t s judgement, major socio-eccncmic and environmental ccnsequences ' would r e s u l t ^ as well as under the r o i l c w m g circumstancssT" J  1.3.1 r ^ ^ e n a - Project has to do vithjj^) land, e i t h e r reserve  (a)  c r federal  Crown;  t r a d i t i o n a l use and ccczipancy b y I n d i a n s o f a reserve o r unoccupied f e d e r a l o r p r o v i n c i a l Crown_Jaod  •(b)  K  1.3.2  Status:  (a) registered Indiana; (b) 1.3.3  registered Indians acting i n conjunction with non-status I n d i a n s . ~ " ' :  These affected are: (a) (b)  registered Indians; registered Indiana acting i n conjunction with ^ncn-aSHIs~l72tai i3T" = ,  1.3.4  When a resource development project has been identified, the following c r i t e r i a w i l l be applied by the appropriate regional committee (see para. 1, under Process) t o assess the e l i g i b i l i t y of the proposal for funding.  1.3.5  The recipient organization nust be an Indian bandfa.) or an organization directly mandated through band council resolutions} to act specifically on behalf of the band(s) with respect to a particular resource development project(a).  1.3.6  The regional cenmittee identified! in paragraph 1, under Process w i l l apply the following c r i t e r i a i n assessing' proposals for funding e l i g i b i l i t y .  1.3.7  I t must be demonstrated in the proposal that the result of such funding w i l l be an enhanced capacity on the part cf the Indian "ce>riiunlty(ies)~tp influence the_pJLjnnj-ng of the resource development project (a) so as to n^Lm2e .^hgra_pcaslble^_j^icr^cc^?lc benefits andaripixiae_£dverse environmental lraoacta. r  1.3.8  Project Timing The inplemntaticn tirae schedule. of the resource dc'.^locrxs-it project v i i i determine the effectivenes3 with ^iich an I.-*dian h.-_->d w i l l be able to r^ootiate involvtsxmt <sr<3 r i t i g a t e adverse effects. The follcwLng Is in cx-=rple cf -"lighting L -it, for pcrpor--i3 cf prcpcr^l s^Ii-cnicn, could be /C5piic<3 to tiding schedules. -  v  Peference fcr~iuthcrity, see T.B. Minute 751261'Jure 4, 1977, Third Party Intervention Interim Policy --Principles and C r i t e r i a paragraphs 2 & 3, page €.  160  " Weight - Construction underway  •  ) )  - Start up imminent  •  )  2  )  - Ccristructicn to begin within six months ) - Construction to begin within IS months  A  - Permit/apprcval/hearing stage/blaming  5  - Other i.e., no schedule announced 1 This weighting ia predicated cn 'the assumption that . the most effective _time for Indian camunities _bo become involved i s during the planning phase of major j T O J p r t f u ^ p a r t i c a l a r l y prior to public bearings and licensing stages while there i s s t i l l an coportunity to influenece outcomes effectively. Factors that dictate the need for early Indian involvement includes (a) lead time to plan, organize,, and implement effective training programs to enable Indians to compete effectively for employment opportunities on a r e a l i s t i c basis;  1.3.9  (b)  lead time to strengthen existing Indian businesses and to allow for. the formation of new Indian businesses to capitalize cn business and contracting opportunities; .  (c)  lead time to enable cuui unities to develop their infrastructure and strengthen their comrajnity services bo enable them to improve their capacity to cope more effectively with the opcortiinities and pressures-resulting from major project developments.  Mticipated/Probable Impacts C r i t e r i a w i l l be weighted to assist in selecting s p e c i f i c proposals for funding. -Where appropriate, proposals ^j-11 be assessed for each of the three . p6aie3 of naic^rescurce""c^e.locraerrtaT~T.g. the_ i^Jplanning phase, tt&S^cbnstruction phase, and the /<7~operaticnal chase. '  CD  "  1  Factors to be considered in the Weighting cf c r i t e r i a w i l l include the positive and negative aspects (quality of a i r and water, land use and cccupancy, and socio-eccrcmic conditions) of the resource development project(s). These factors are: ^Positive  —  LT^cts/cppcrrtunitiS  whether erplcyrent opportunities w i l l be created for Indian ccrrrunities, e.g". project cons tract ion (how many jobs,' short and long term); • • ' "  —  whether additional Indian amlcyasnt • o ^ i L u n i t i e s w i l l be created i n the surrounding regional economy (how many long and short term jobs);  -  whether training opportunities w i l l be available "to provide Indians with the' s k i l l s to qualify for the jobs and other opportunities resulting from projects {how many training opportunities and guaranteed jobs as a result);  -  what business ccoortunities^ w i l l be available (how many, what type, etc.);  —  assistance avail?hle i.e., funding for ccnrainity infrastructure, access needs, etc., through, develcpes/prcvince/other; whether affirmative action policies w i l l be implemented by the project!' proponent" and/or government; •  <  —  v&ether any special measures for Indian ccnnunities e.g. among the Indian ccmrunities, project proponents, and government(s) to provide for unforseen effects resulting from major developments, e.g. arbitration provisions;  -  other.  The above should be weighted as shown belcw. Envircrraen-tal Impacts -  vhe^ex^jrjesgrv.e_j£n4_jg_adversely affected, e.g., through such devalccrrenfcs ss Tr/oxo flcod ing that destroy traditional hunting, fishing and trapping areas;  -  whether landsadjacgnj^tCL^ are adversely af£ectad7~e.g. tJhe~cV°pletion of native food ' resources through increased outside access to formerly remote areas;  -  whether water quality i s adversely affected, e.g. "by industrial waste disposal resulting i n chemical contamination of fish and potable water supplies;  -  whether_air_guality is adversely affected e.g. tluoride emissions causing potential human and animal health problems;  -  whether the social conditions of an Indian ccnnunityw i H be-adversely affected, e.g. by increased ~~ transpcrtaticn access resulting_in nusercua additional developments, a l l cf 'which w i l l have a cumulative effect;  -  vhgth.er_.the sccio-ecorx-i-lc situation w i l l be adversely_ affected, e.g".~ by "the impacts of a sudden been e c c r c r y ; ~  -  162  other.  The above should be weighted as shown below. Weighting of C r i t e r i a There w i l l be asubstantial element of judgement i n assessing each project proposal. ' However/ the Project ccnmittees w i l l u t i l i z e the following weighting of the c r i t e r i a as a guide: Positive Benefits No potential L i t t l e potential federate potential Substantial potential  Adverse Impacts  •« 0 = 1-3 - 4-6  N i l Inpact anticipated =0 L i t t l e iipact anticipated •=» 1-3 Moderate inpact a n t i c i * 4-6 pated - 7-10 Substantial inpact af¥ti-e4^t£d anticipated * = 7-10  A l l proposals w i l l be assessed against the above c r i t e r i a specified using the process outlined cn page 5. However, the detailed weighting of the c r i t e r i a to seme degree w i l l be judgemental and w i l l vary both between regions and within regions. For exanple Fort Chipewyan i s 225 km north of the Syncrude Tar Sands raining operation but that ccramunity i s new the beneficiary of a special program where trained native heavy equipment and plant operators are flown to work cn a four day rotational basis. The cennunity was able bo undertake the necessary negotiations for this benefit i n part because of organizing and planning funding provided to the Athabasca T r i b a l Council. I f arbitrary c r i t e r i a of 50 km or 100 km had been applied the cennunity would have been precluded from benefiting i n the project. PROCESS  1.  Each Region w i l l establish, where not already in place, a senior level coiraittee, with the assistance and guidance of headquarters, to review, assess and recommend proposals from Indian Bands, i n addition to maintaining_an overview of. rescurcs development projects within that Region.  2.  Reconrnendations for funding w i l l be forwarded by the Regional Director General or Regional Director ~?Y7'J» and~H7>s7T7) t o "~ Headquarters for f i n a l approval by_the_A.D..M_., Indian and" Inuit A f f a i r s Program.  3.  When i t i s determined that a resource develcccent i s planned, the following information i s to be gathered.  3.1 Type of Project a) aine, txarspcrta.ticn, energy b) name c) development stage - planning, engineering, etc. d) overview - ether available information.  163  3.2 Scale c f r^velccment -  d o l l a r investment l i f e of project ainirauni and maximum labour force requirements f a c i l i t i e s - pipeline, dam, refinery, transmission lines, etc.  3.3 Proponent P r o f i l e -  bead office location ownership project manager other projects - past  - current  - proposed. 3.4  P r o f i l e of Indian Bands i n V i c i n i t y of Project Number of bands within 50 >aa copulation  -  potential labour force s k i l l s inventory infrastructure, including dock, a i r s t r i p , warehouses, etc.  Number of bands within 100 km and more than 100 km. -  same as above.  3.5 Other  3.6  ^/  -  non-Indian ccnnunity data prcvincial/^xinicipal irifooxation  -  ether federal involvement i.e.  3and3  s  y  /  ESJEE, C E I C ,  etc.  /  -  preparedness - stable Band government - emerging Band governraant - other 3.7 Reouirgaents Because of the wide variation in Band preparedness, type of resource development, etc., in addition to certain basic requ iremsnts, the cauiiittee w i l l ensure that those factors unique to a particular area, reserve, ccaaunity or resource development, w i l l be covered i n the proposals. recipients must be clearly identified -  —  a c l e a r statment of the purpose f o r which funding i s sought — ' S  a~detailed^expenditure and operational p l a n which mist include  164  -  a c t i v i t i e s to be funded s t a f f requirements, meetings, etcl expected output or results coating for each item  where a fee is shown_for a consultant this must be backed up with a statement of exactly what .the consultant i s to  prcvi5e~~~ r—  -  "  *  cash flew must be shown for the duration of the arrangement  - ' an accountable advance for an i n i t i a l three month period nay be issued for approved and signed Contribution Arrangements r  thereafter monthly payments w i l l be issued subject bo approved financial statements and progress reports except where the department i s satisfied that a longer subsequent period i s required, to a maximum of three months.  -  f i n a l payment may be withheld i f the required reports/statements are lacking  -  where non-allowable expenditures have been reimbursed, i t s h a l l be understood that consideration w i l l be given to recovering that amount from future contributlicn arrangements being entered into.  t  i  recent Band Council Resolutions (BCRs) roust be provided where an Indian organization i s acting on behalf cf Indian Sands. 378  Regicn/District Respcraibilties^> P r i o r to any approvals Regions and D i s t r i c t s have a responsibility to ensure the funds requested relate to Resource Development Iirpacts Phase I Planning and Organization. -  the inclusion cf items such as consultant Jfegs in a contribution arrangement is "Sacked upwTtJjT a statement of exactly what is to be provided ,  -  e a r l i e r contribution arrangements that have_been funded are taken into account,  -  t h a t j x r i t r i b u t i c n arrangements are scrutinized i n ter^s of peroiQitage_ct_fa^^ honoraria, etc., vs. funding for studies, programs etc. that items that_are clearly social support i.e. alcohol rehabilitation, .eccncnuc (development-i.e. tourist and recreational development, etc. are not included.  -  that certs i d e r a t i c n i s given to the need cf_the Band(s) wjJ±-respact t r l l t h e ^ i n d l s l c * » t i resources to_sffectiyely deal with'the impacts of resource development.  165  -  Other funding to be provided i.e., from other federal departments, private industry, provir.ee/territcry, etc., must be identified.  Approved funding arrangements w i l l be monitored closely within the region. After an i n i t i a l payment has been cade, subsequent payments w i l l be made only after progress has been wsnitcred and a statement of satisfactory progress has been approved by the Regional ccnmittee. Annual audits w i l l be required.** Prryreals, submitted w i l l be for the organization and planning fcg_J^e_jpurpose_Qt respondirlg~^trrT±ie~pos"itive and negative aspects of resource envelopment projects^ '. ' . Thfi department i i rwuuired to laport to Treasury Beard before Kay 31/ 1982 on the c r i t e r i a used to determine a bard's capability to adminsiter programs, the systems, to provide , band council acccuntability, the performance c r i t e r i a f o r services delivered by bands, and the audit standards to be _ used. The cfepartment is to provide a Leoui L to the Cabinet Cctunittee on Social Development cn funds expended to date by band and purpose by March 21, 1982, this, report i s to include a complete description c f the methods used to allocate the . funds spent by March 31, 1992 including a description of the reasons rejected proposals were not funded. These Term3_and C^diticos__are interim and expire on March 3l^_J 9_83 or an e a r l i e r date on which a submission relating to Terms and Conditions for comprehensive ccntribution arrangements i s approved. . t  'A description of required audit arrangements in accordance with T.3. requirements w i l l be forwarded shortly.'  This i s a Ccxitributicn Agreement cade this  day of •  166 158  Between. Her Majesty the Queen i n right of Canada as represented by the Minister cf Indian A f f a i r s and Northern Development, hereinafter referred to as the "MINISTER" or his authorized delegate  CF THE FIRST PART  - AND -  The (Indian Hand), Settlement, Corporation or their legal entity), hereinafter referred to as the "RECIPIENT" 0? THE SECOND.PART  PURPOSE; 1.  Inportance i s attached to ensuring that Indian Bands are afforded assistance i n natters relating to resource development impacts;  The (Indian Band, Settlement, Corporation or t h e i r legal entity) has provided bo the Minister a budget, attached hereto as the Appendix setting cut certain financial plans with respect to , hereinafter referred to as •the PROJECT";The (Indian Band, Settlement, Corporation or their legal entity) has requested financial assistance from the MINISTER to meet those plans; 1.  RKrCKIS; 2.  Subject to the terms and conditions hereinafter described and subject to funds being apprcpriated by Parliament for the purposes herein,' the MINISTER s h a l l contribute to THE RECIPIENT an amount not to exceed dollars  The RECIPIENT hereby undertakes to carry out the PROJECT s p e c i f i c a l l y defined in the Appendix attached hereto and to submit written' progress reports thereon to (appropriate Pistrict/Regicn and address). Such reports must be acceptable to .the MINISTER.  FTSAX- 3. The RECIPIENT undertakes to provide the Minister with financial CIAL reports accounting for the funds advanced in resp«rt cf the PH2JECT. ARRANGE— An i n i t i a l advance may be made by the Department to cover MEiJTS projected cash flew requirements for the f i r s t , three months. Subsequent advances w i l l be based upon cash flew statements and w i l l take into ccnsidertlcn a l l cash surpluses, arising Ln the previous period.  167  Pinal psyracnt nsy be withheld i f such reports/s tat events are lacking. >£>ere ron—al lovable expenditures have been reimbursed i t s h a l l be urx3erstood that consideration w i l l be given to recovering that sacunt frbra future contribution arrangements being entared into. • Allowable expenditures under the teens of this Ac/reement s h a l l include the costs of only these items identified i n the budget attached hereto as the Appendix unless otherwise rutually agreed to by both parties hereto. •4. The RECTPIEOT s h a l l maintain books and accounting records in.a manner consistent with generally accepted aexxxinting principles and practices. An ir>dependent auditor may be appointed by the r^parbaent or the RECIPIENT to review the financial records maintained by the recipient to ensure that the Project i s being managed within the agreed arrangement and that only allowable expenditures have he-en charged against the arrangement.  The RECIPIENT s h a l l rake available to i t s auditor a l l i t s bocks, documents, f i l e s , records and accounts related" to the expenditures made pursuant to this Agreement, and s h a l l supply a l l such further explanation, information and report as the auditor nay require i n connecticn with the said project. The RSCrPHOT agrees to return to the MINISTER' any funds not disbursed at the completion of this project, as identified an the audit, within 90 days a£ notification. 5.  member of the House of Ccrrrons of Canada shall be admitted to any share or part of this Agreement or to any benefit to arise therefrom.  This agreement supersedes a l l ccrTrrunicaticos, negotiatiens and agreements, either written err oral, between the parties hereto in respect of matters pertaining to the Agreement, prior to i t s execution and delivery. This Agreeroent w i l l becone effective and w i l l tejeainate 31 March, 1982.  168  I f the RECIPIENT f a i l s to provide the fulfillment cf sny of the purposes of the Agreement, the Agreement may be _ terminated. The RECIPIENT w i l l return to the MINISTER a l l unexpeVaded monies paid to the RECIPIENT for such purposes. Except for the fore-going the Agreement may be terminated at any time by mutual agreement. Thi5 Agreement s h a l l not be, cssigned. Signed on behalf of the Party of the Second Part:  Signed on behalf of the Party of the F i r s t Part: Apxwy^/Reccrirended by:  Authorized Signature Kama, Position Band/Cajncil, etc.  Assistant Deputy Minister Date Indian and Inuit Affairs Authorized Signature Naras, Position Band/Council, etc.  Approvecy'Recomrended by:  Authorized Signature Kama, Position, B a r x ^ o u n c i l , etc.  Regional Director General •Date Region  Authorized Signature Neroe, P c s i t i c n , BarxyCcuncil, etc.  Approved by:  Name Title  Date  This is to certify that this Agreement conforms with the financial requirements for Ccntributicn Agreements  Department Financial Officer Approved by:  Czte  153a  TREASURY BOARD MINUTE 7 9 5 3 0  Leaves 15^-69 not filmed; q u a l i t y o f p r i n t too poor and permission not obtained.  APPENDIX  E:  GLOSSARY  OF  TERMS  170  GLOSSARY  OF  TERMS  The f o l l o w i n g g l o s s a r y uses d e f i n i t i o n s r e l a t i n g to Indians p r o v i d e d by The Department of Indian Affairs and Northern Development (DIAND, 1982). The r e m a i n i n g t e c h n i c a l terms are defined using accepted d e f i n i t i o n s . Indian Indian  -- Person according  r e g i s t e r e d or to the Indian  e n t i t l e d to Act, i.e. a  be r e g i s t e r e d as status Indian.  Native -Canadians of a b o r i g i n a l d e s c e n t . and n o n - s t a t u s I n d i a n s , I n u i t and Metis. Band - - Body of Indians recognized benefit and use l a n d and money h a v e the government.  Can  include  by government been set a s i d e  an  status  for whose and h e l d by  Band C o u n c i l - - a d e c i s i o n m a k i n g body of t h e Band r e c o g n i z e d by DIAND and c r e a t e d under t h e I n d i a n A c t a t t h e d i s c r e t i o n of the Minister responsible for Indians. It consists of one c h i e f and one c o u n c i l l o r p e r one h u n d r e d Band members and i s selected by Band membership e l e c t i o n s . Reserve - - T r a c t of l a n d , Her M a j e s t y , set aside for Off-Reserve  --  land  other  the the than  legal t i t l e to which use and b e n e f i t of a reserve  in  a  group  of  by  virtue  of  land.  T r e a t y - - An h i s t o r i c a g r e e m e n t entered into I n d i a n s and the B r i t i s h or Canadian government. Aboriginal Rights -Rights claimed b e i n g o r i g i n a l i n h a b i t a n t s of land.  is vested Band.  by  by  Indians  I n d i a n A c t - - An a c t o f t h e P a r l i a m e n t o f C a n a d a e x e r c i s i n g legislative j u r i s d i c t i o n for "Indians and lands reserved I n d i a n s " under t h e C o n s t i t u t i o n A c t of 1867, section 91(24).  its for  Department of I n d i a n and N o r t h e r n Affairs (DIAND) -Federal department e x e r c i s i n g d e l e g a t e d d u t i e s , powers and f u n c t i o n s of the M i n i s t e r of the I n d i a n A c t and r e l a t e d a p p r o p r i a t i o n a c t s . RDIP - - Resource Development Impacts Program, federal allocated to Indian Bands, v i a DIAND, t o a s s i s t them with "mega-project" development. "Mega-Project" -- a non-renewable a d i r e c t c a p i t a l c o s t of at l e a s t LNG A) .  --  is  an  ancronym  for  funding to deal  resource development which one b i l l i o n d o l l a r s .  liquefied natural  gas  (see  has  Appendix  The CA - - The C o n s t i t u t i o n A c t o f 1867 d i v i d e s t h e legislating powers between the f e d e r a l and p r o v i n c i a l governments.  


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