Community involvement in "mega-project" planning : a case study of the relationship between the Lax Kw’alaams Indian Band and Dome Petroleum
Creators: name: Kessel, Clive David
Publisher: name: University of British Columbia
Year: 2010

description: This thesis examines the opportunities and constraints facing the Lax Kw'alaams Indian Band of Port Simpson, British Columbia in its attempt to participate in and influence the off-reserve impact mitigation planning of Dome Petroleum's Western Liquefied Natural Gas Project. Special attention is given to the effects of the federal jurisdictional, legislative and institutional environment on Indian people. The project has the potential of generating major social, economic and environmental problems for the Indian community. For example, it is expected that Port Simpson will experience an increase in population, reduced isolation, and a shift in its economic make up from incomes dependent on the resource harvest to those dependent on the plant and its spinoffs. The environmental studies suggest that increased ship traffic in the bay could harm the salmon and herring fishery. In short, the project brings with it an overall change in the residents' lives. To complicate matters the project is located off-reserve, only the pipeline, power and road right-of-way passes through the reserve. This limits the regulatory and taxation powers of the Band Council over the project. Band Councils can only regulate and tax developments on-reserve. The planning process followed by the Band and Dome is the focus of the thesis. A precedent setting negotiation-oriented process was pursued by Dome and the Band. This is unusual because Dome was not legally obliged to deal directly with the Band. The impact mitigation planning process followed a contractual approach rather than a regulatory one. The negotiations resulted in an agreement, valued at a minimum of $ 15-$20 million to a maximum of $60 million, which included mitigation and compensation measures. This agreement was finalized before federal regulatory hearings took place. In order to analyze the relationship of the Band and Dome Petroleum an analytical planning model is developed which compares the actual events to an idealized planning process. In addition, the energy project approval processes are examined to ascertain whether the Band had any opportunity to influence decisions made at the federal and provincial regulatory levels. Several case-specific constraints and opportunities for the Band are identified. Constraints included the small size of Indian community, the limited powers of Indian Band Councils. Opportunities for the Band included their positive relationship with the developer (Dome Petroleum), their ability to participate in the federal energy project approval process, the availability of federal funds through the Resource Development Impacts Program, and the Band's decision making capabilities. The major conclusions of the thesis are: 1. The Indian Act, strictly interpreted, can hinder the ability of a Band Council to enter into contracts/agreements with developers. A Band Council is an entity created by statute; its powers therefore can be interpreted, and have been by the courts, as those specifically conferred by the Act. The Act does not specifically empower an Indian Band Council to enter into a contract. 2. In this particular case, the Department of Indian Affairs and Northern Development-Band relationship did not hinder Band involvement off-reserve. The department's "hands-off" approach assisted the Band to plan for the impacts of the project because it forced the Band to take matters into its own hands. Lack of direct departmental interference in the negotiation process may be one way to promote Band decision making capabilities and reduce the responsibilities of the department; and 3. Jurisdictional roadblocks can be overcome. The special federal status of Indian reserves, however, does limit Band involvement in the provincial energy project approval process because Band Councils are not recognized as legal entities by either the provincial or federal governments; 4. One means of facilitating Indian involvement in decision making off-reserve is by fostering negotiations and contractual agreements between developers and the Band Council. Several conditions should be met before a negotiation-oriented approach can be applied: (a) the developer and the Band must be willing to negotiate and compromise, (b) the Band must have some type of leverage (for example, the possibility of intervention in the project approval process which could be used to delay project approval or modify the project) , (c) there must be sufficient funding to cover the community's information gathering and analysis costs and expenses incurred in the negotiations, (d) the Band's negotiators must have the necessary information and negotiation skills and (e) there must be a mechanism which makes the agreement legally binding.