OFFSHORE OIL

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OFFSHORE OIL GAS ABORIGINAL ISSUES IN
BCPresented June 08, 2004By Barbara Fisher
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INTRODUCTIONWhat role should the oil gas
industry take in addressing aboriginal issues?
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• TOPICS OF DISCUSSION
• 1. What rights do aboriginal people have to
  offshore energy resources in BC?
• 2. What are the provincial governments legal
  obligations to aboriginal people?
• 3. What legal obligations do oil and gas
  companies have to aboriginal people?
• 4. How can industry reduce or eliminate risk in
  investing in and developing the offshore energy
  resources in BC?

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

Barbara Fisher
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• Aboriginal Rights to Offshore Oil Gas Resources
  (contd)
• In order for Crown to justify an infringement of
  Aboriginal rights or title, it must
• Demonstrate a compelling and substantive
  legislative objective
• Consult with the First Nation prior to acting
• Accommodate the First Nations interests by
  infringing its rights as little as possible
• In some cases, pay compensation or obtain the
  First Nations consent

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

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

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Barbara Fisher
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• BCs Legal Obligations to Aboriginal People
  (contd)
• Accommodation means
• Government and Third Parties seriously
  considering alternative courses of action to
  address the First Nations interests and to avoid
  possibly infringing its aboriginal rights
• Compensation means
• Government paying compensation to the First
  Nation to accommodate the economic aspects of the
  First Nations interests

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

The duties will generally include a duty to
consult with the First Nation and to participate
with Government in accommodating the First
Nations rights and interests
Barbara Fisher
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Legal Obligations of Oil Gas Companies
(contd)A Third Party may justify its
participation in an infringement of an aboriginal
right or title by
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• Ensuring that consultation has taken place
• Infringing the aboriginal right as little as
  possible
• In some cases, ensuring that compensation is a
  binding commitment or possibly negotiating with
  and paying compensation directly to the First
  Nation
• including the First Nation in the project

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

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

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Barbara Fisher