Malcolm Macpherson asks two tough questions in a discussion with Stewart Muir on Power Struggle: “Why are Canada’s Indigenous people dying, in some cases decades earlier than the average Canadian? Why is the drinking water issue still an issue in First World Canada?”
The lawyer and Resource Works board member looks at how Indigenous Peoples want a share in Canada’s economic pie and genuine economic reconciliation. He also looks at some key court cases that have supported Indigenous rights.
LAW IN ‘THE INDIGENOUS SPHERE’
Malcolm Macpherson is a law graduate of the University of Toronto and is National Chair of the Indigenous Practice at ˚Whitelaw Twining. He’s been practising for more than 20 years, and has a special focus on Indigenous law.
“It covers everything from title and rights cases . . . to setting up joint venture partnerships. I love it because there’s never a dull day.”
And: “I have a real interest in . . . setting up large legal battles that are morally important but equally practical in bringing about reconciliation between Canada’s First People and the business community.”
DEATH BY A THOUSAND CUTS
Macpherson has been involved in some “cumulative-impact lawsuits,” in which First Nations seek to establish that their rights can be affected by the snowballing of resource development after resource development on their territories.
He speaks of “death by a thousand cuts” from ever-increasing energy activities, forestry activities, highway development, and other industrial activity, to the point where Nations were unable to meaningfully exercise their treaty rights.
He cites, for example, a case involving the Blueberry River First Nations in northeastern BC, in which Blueberry River won a significant victory. ‘It actually pushed forward a reconciliation between the Crown, business, and the communities in the Northeast BC area.”
MEANINGFUL PARTICIPATION
Macpherson says most Indigenous leaders are not looking to altogether stop industrial resource development.
“That’s not the objective. Rather, the objective is to meaningfully participate in the resource extraction activities.”
He cites, for one thing, “billions of dollars of revenues” coming from potash development in Saskatchewan. He and others seek a way for affected First Nations to meaningfully participate in the local economy created by potash.
That means Impact Benefit Agreements and meaningful employment. “The Nations are not looking for… what they describe as sort of broom jobs, broom-and-shovel jobs. What they’re looking for is to integrate in a meaningful way their workforce in the jobs.”
FIRST NATIONS AS CO-LANDLORD
Macpherson also cites two major court decisions: the Delgamuukw case in BC and the Tsilhqotʼin Nation case, also in BC.
“Delgamuukw talked about basically there being two landlords, the Crown and then an encumbrance upon the Crown’s title by the Indigenous title. . . . Tsilhqot’in moved the yardstick forward.”
And so: “The nations are of the view, and I agree with their perspective, that they are a co-landlord of sorts and that if you’re a co-landlord, generally speaking, that means you share in a reasonable way in the rents that are collected.”
Governments at all levels draw revenue from natural resource development. First Nations need revenue, too, and the way is through revenue-sharing from resources.
‘SUPERCHARGED RIGHTS’
Macpherson sees Indigenous Peoples as the way forward for natural-resource extraction in Canada.
“They literally are the resource rulers. They don’t have a veto, but I always say they have a near veto (because of their rights). . . . I describe the rights as supercharged.”
And it’s not just about money. “If they perceive the Crown or the business community to be dealing in a trivial manner with their rights, then… it becomes about principle.”
THE PATH TO RECONCILIATION
“My biggest criticism with reconciliation… is we really need to see more in the way of action, and resources to follow. Because, you know, words to a degree are powerful, but they can also be hollow if they’re not acted upon, and that’s a common thread of frustration. . . .
“So it’s not a full reconciliation, it’s only a partial reconciliation if there’s a focus on words without action and without resources backing.”
Macpherson says the future of economic reconciliation and resource extraction advancement “surely has to lie in the coming together of the business community, the Crown and the Indigenous nations.”
- Audio and transcript: https://ow.ly/53R350UWpLt
- Video on Power Struggle’s YouTube: https://youtu.be/wDYUve3Lx4Y
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