Strategist, lawyer and author Bill Gallagher is an expert on Canada’s Indigenous People and their land rights, and how they relate to resource development in the country.
Based in Waterloo, Ont., Gallagher is the author of two popular books on the topic: the recently published “Resource Reckoning: a Strategist’s Guide from A to Z” and the 2012 milestone “Resource Rulers: Fortune and Folly on Canada’s Road to Resources.”
In this interview, he touches on topics that include: the legal framework underpinning native land rights in Canada; the 279-decision “winning streak” of aboriginal groups in Canadian courts with respect to land rights cases; and tales from his days as an advisor to Inco as it negotiated with Innu and Inuit groups near its Voisey’s Bay nickel project in Labrador.
The following is a partial excerpt of a full, two-part interview that can be heard in episodes 138 and 139 of The Northern Miner Podcast, available at www.northernminer.com/podcast.
The Northern Miner: Your first book “Resource Rulers” in 2012 dealt with what you describe as winning streak in Canadian courts for native groups in relation to resources. What is the message of the new book and your motivation in writing it?
Bill Gallagher: I’m trying to get the word out that we are turning a corner into a very darker place. The concept I’m promoting now is the word “retrenchment” — it’s as if many jurisdictions have given up on trying to work these issues out and are basically going back in time.
I think we’re just at the cusp, where there are solutions for this and we shouldn’t give up.
But a lot of provinces are bailing on this stuff and things are just going to go into a big, decade-long holding pattern.
That’s pretty much what I’m predicting for the next decade here in Ontario and maybe in Alberta as well, certainly in Manitoba.
There are movements afoot that would indicate that the governments are going to try to run it as “my way or the highway” — that just does not work on the road to resources.
TNM: If we could take a step back and look at the fundamental legal framework that has been built in Canada with respect Indigenous communities: there is Confederation in 1867, the Indian Act of 1876, and then we have these treaties. A lot of Canadians may not realize, you can look at a map of Canada and see all the provinces and territories, but there is a lesser known map of Canada showing treaties across most of Canada that have been set up between aboriginal communities and the federal government, and then almost no treaties in British Columbia. Can you just explain the framework that has been built and the validity of that framework?
BG: It comes from the way the country was, in a way, conquered.
Natives weren’t conquered, but certainly there were wars of conquest between the English and the French. And in Eastern Canada, where those wars played out, the victors, the British, did not want to spark an uprising with natives, having just beaten the French.
So they signed treaties that basically said, ”These do not impact your land rights. These are peace and friendship treaties. They’re not land treaties.”
Down in the Maritimes, we just had an announcement in mid-May where Minister Bennett dropped into Elsipogtog, Bouctouche it’s called, and there now is a land claim and treaty negotiations going on for one-third of the province of New Brunswick. They’ve come up with some terms of reference. But that goes right back to 1755.
And so those treaties left the land issue as unfinished business.
TNM: How were these treaties first struck?
BG: As the country started to get settled, there were what I would call typical numbered treaties where as the settlers moved from east to west, those treaties got done just in matter of years before the settlers arrived.
In some cases in Ontario, they would run into railway crews all the time they were negotiating their treaties.
It was designed to make way for colonists, the settlers, and when they ran into the Rocky Mountains, they stopped doing those types of treaties — it’s as simple as that.
It was only as a result of the Klondike gold rush that the northern treaties got done, and that was to spur access to the goldfields.
So the treaty map of Canada is very much a product of the history that we’re taught, and because we’re so unique with the French fact, there are the two versions of Canadian history: there’s the English, the victor’s version; and there’s the French version that is best encapsulated in their license plate, “Je me souviens.”
And I’m coming along and basically saying, “Hey, there’s a third version.”
As Canada has gotten more and more complex in the resources sector, I’m saying you don’t have to necessarily believe the third version, but you should be aware of it. And if you put it in the mix, I’m able to make predictions based on the fact that you can connect more dots on what’s happening on a given project if you apply the native lens, the native version of history and the socio-economic impacts that are playing out.
And I stand by that. That’s the big thing that I’ve proven is that there’s this third way of looking at things and in fact it’s sometimes the most elucidating way of understanding things.
TNM: Since the patriation of the constitution in 1982 in Canada, what milestones would you say are there in the legal sense with aboriginal groups and their land rights?
BG: The biggest change is in fact not a legal concept. The biggest change is that the traditional knowledge and the lore, the folklore, has become as relevant as hard factual evidence when it comes to negotiating with First Nations.
The quip I would use is: that guy on the back of the Ski-Doo, I’ve seen it, they can out-negotiate Bay Street nine times out of ten. That’s the lesson for the legal community.
It’s just beyond the ability of the legal community to process the fact that some guy can get off a Ski-Doo and carry the argument.
But you have to be open to that if you want to be able to even present your side of the story. They have an important way to present their evidence. Their traditional knowledge is constantly being firmed up by modern science.
When a group of scientists from Quebec spent the summer traipsing around following the caribou with the northern Innu, they were met with reporters getting off the plane and they said they were humbled by the experience of what they learned from the elders. And these were all serious veterinarians and researchers.
This is the big lesson for our lawyers, is to show humility on all that stuff that you don’t know because none of it is taught in law school.
TNM: You don’t quite say people are working in bubbles, but you throw together a bunch of people: PR firms, what you call the “bought media” or the business media, corporate law firms, advisory firms, academic lawyers, think tanks, the GTA Toronto crowd.
BG: Yeah, they don’t stack up.
TNM: You have a withering criticism of that group.
BG: The question is: How do they stack up? They don’t.
It’s just a sad fact that when a project gets in trouble, this is the group that is typically turned to, and that’s because the responsible governments want to keep control, and so they go to a former judge or a former politician. You know, nothing too radical is going to happen and nobody’s going to be embarrassed.
Basically, this is just more process, with very little substance.
And typically those projects just peter out, and nobody comes out ahead. I call it the roadkill on the road to resources.
Yes, I’m tough on that, I’m tough on think tanks. The premise of all of this stuff is that people are in silos and silos kill projects.
TNM: An easy first step out of the silo would be reading your two books. And what other things can people do to get out of their silos?
BG: This is why my second book is much edgier.
The situation now has gone beyond where all the middle ground was manageable. There’s a fair amount of hardening of attitudes on both sides now as a result of the winning streak, the rise of native empowerment, the merging of the eco-activist agenda with the protectors of mother earth.
Now it’s much tougher to find middle ground where a project has run afoul of eco-activists or native activists.
I’m at the point now where I’m basically saying this is our last chance to pull things back and to salvage these projects because now people are so empowered that they’re holding out for some substantial fundamental change in the way this country is run.
And as we’re finding out, that’s not going to happen.
Like when Jody Wilson-Raybould exited her portfolio in the Justice Department, the window closed on what I would call a significant rapprochement on acknowledging native rights in a fundamental way that could have been a breakthrough.
It’s the biggest missed opportunity since I’ve been following these issues for the last 25 years.
It turns out in my world, Jody Wilson-Raybould’s biggest fight was not about SNC-Lavalin. She had all the laggards in the Department of Justice boxing her in on her indigenous rights framework, and that spilled over into the Prime Minister’s Office and the Privy Council Office.
In fact, when she met with the Clerk of the Privy Council over lunch to discuss things, the SNC-Lavalin issue only came up at the end. The bulk of the discussion had to do with what’s not happening on her indigenous rights framework.
TNM: You described the Stephen Harper era as “systemic stagnation” — can you expand on that?
BG: Yes. I certainly don’t mean to demean Stephen Harper. He’s deserving of a lot of respect for a lot of his policies.
But on the native file, he simply had a deaf ear or was tone deaf to what was going on in the country. The bulk of the native legal winning streak happened on his watch and it was right out of the script by his government.
So that 10-year period, I call it systemic stagnation, where there was this level of frustration.
Justin Trudeau comes along, he’s aware of all of this, but he tended to over-promise, and now he’s finding out that the promises have all gone up in smoke.
I still think he was well-intentioned. He might’ve even been a bit naive, but now he’s running out of gas too. None of his policies have crossed the finish line coming up to a federal election.
The only policy that’s still even in play is Romeo Saganash’s bill on the United Nations Declaration of Indigenous Rights, and that was a private member NDP bill, which the Liberals co-opted and backed.
But apart from that, everything else is dead.
TNM: You are a strategist as well. It’s a funny thing, in the previous election with NDP Leader Thomas Mulcair, his speaking points were often right out of your book “Resource Rulers.”
BG: As it turns out, out of the blue, Thomas Mulcair invited me to come to Montreal in late May to give a keynote lecture at the University of Montreal. He was greatly moved by “Resource Rulers.” He had me out to give a presentation to his entire caucus in Edmonton on my research prior to the last election.
He had the best platform. The Liberals stole it, holus-bolus, and in the energy debates leading up to the election where the three leaders were debating, he actually referred to the concept of “Resource Rulers” in one of his answers.
I’m an independent researcher, so it just shows that one person can make a difference in how the country works and how the media works.
He was a breakthrough for me and “Resource Rulers.” He found it useful and basically the NDP still are probably the most practical in terms of having solutions on how to solve this problem, and I’m going to tell you what his solution would have been. Had he become Prime Minister, he would have put a native secretariat directly in the Prime Minister’s Office to feed in on all issues dealing with resources.
Instead, we didn’t have that under Trudeau. We had a clerk and a couple of back room operatives that called the shots and we now know how that worked out for everybody.
TNM: You’re not just on the sidelines commenting. You were an advisor to Inco with the Voisey’s Bay nickel-cobalt mine development in Labrador. Could you just speak about that? This was something that worked out very well and the mine has been running ever since basically problem-free.
BG: They’re even going underground now.
TNM: Could you talk about your whole experience advising with the First Nations there?
BG: I can say this: the reason I rail against the GTA and former politicians and deputy ministers, is that was the first team that went in, brought in by Inco and based on that file in St. John’s.
And I literally had to wait them out. Every one of them had to end up in a career-ending train wreck before things got so bad that this guy back in Ontario who had been pestering them came clearly into focus.
And I had my chance to join the team.
Walking up the steps of their office building, I said to the CEO, “I know you’ve just had the office shut down and everybody sent home. Where should I pick an office?”
He said, “Well, you’ve got two floors to pick from. I don’t want you beside me, but you can find somewhere not too far away.”
That’s how bad things were on Inco’s Voisey’s Bay file.
The provincial government went on to run two provincial elections back to back. One of the mantras was, “Leave it in the ground, boy” and they ran these radio programs, VOCM every morning slagging Inco.
It turns out that had the Muskrat Falls strategists followed the lessons learned from Voisey’s Bay, they wouldn’t have stepped into it on their own hydro-electricity project.
So Voisey’s Bay is paying the bills down there in Newfoundland. Muskrat Falls is a boondoggle, according to the CEO, and the offshore oil play has yet to return the revenue levels that Newfoundlanders were expecting or hoping for.
At Voisey’s Bay, it took two years to win the trust of the two native groups. One was Inuit, the other was Innu. But once we got their public affirmation that they would do business with Inco and that we could have access to the site, it was like a dam had broke.
When I give presentations on this, I bring the newspapers with me and basically say, “Here’s the two years of wandering in the desert, working, meeting at carousels at airports and trying to get an IBA firmed up.
But once we did that, when that became something that First Nations members were prepared to initial, then the land claim deals, the deals with the province, the deals on revenue sharing, they just came bang, bang, bang after the breakthrough with First Nations.
That’s where I proved the formula that First Nations are indeed gatekeepers — resource gatekeepers. They are far more important. If you’ve got a limited budget, if you’re a prospector and you can afford a trip to St. John’s or plane ticket to Labrador, I can tell you flat out, go to Labrador, that that’s a far more important business visit than the one to St. John’s.
TNM: And these deals have stood the test of time.
BG: They have, and First Nations leaders now speak glowingly of the history of Voisey’s Bay. It’s a lot of selective memory at work.
But that just goes to show: that’s your insurance policy if you’re a resource promoter or developer. If you’re looking for regulatory certainty and insurance, indigenous peoples are the only persons that can provide it.
I have this grid that I use in my presentations where I have all the other players who have an agenda at work. There are eco-activists, church groups, Amnesty International, and right through to provincial and federal governments, the environmental assessment review, other stakeholders.
And I postulate the theory that whoever aligns with natives, whoever merges their agenda, will secure that particular outcome of the project, for or against.
So if the eco-activists get there first and merge their agenda, your project’s at much more risk.
It looks like a spider web, and that spider web theory has proven the test of time.
Basically as a strategist, I strongly counsel the proponent getting to merge its agenda with the First Nation as a starting point. That’s the critical point of departure.