Premier Blaine Higgs and his complex relationship with N.B.'s First Nations

For Premier Blaine Higgs, New Brunswick's hosting of the annual national meeting of the Assembly of First Nations represents an opportunity to strike a positive tone in his government's dealings with Indigenous people.

But the first day of the gathering also highlighted just how complex that relationship is.

In his four-minute speech, Higgs used key phrases, referring to all New Brunswickers as "treaty people" who are bound by historical obligations. He said he was committed to reconciliation.

"I want to reconfirm this government's commitment to build and strengthen relationships with the Mi'kmaq, Passamaquoddy and Wolastoqey people, so we can work toward the betterment of our province as a whole," he said.

But the premier also repeated his view that the duty to consult Indigenous people on resource projects--a legal obligation upheld by several Supreme Court of Canada decisions — remains vague and undefined. 

"We also need a clear understanding of what consultation means to ensure we've done it effectively," Higgs told the hundreds of Indigenous chiefs and delegates gathered at the Fredericton Convention Centre.

It was the same point he made in June, when he revealed that his government had passed a regulation to carve out an exemption in the Sussex area to the province-wide moratorium on shale gas development.

Indigenous leaders condemned the Progressive Conservatives for doing it without consulting them. The government argued that the duty to consult is only triggered when a specific project is proposed.

Several of the First Nations leaders attending the AFN meetings said Tuesday that there's nothing ambiguous about the duty to consult.

"It's a real problem when we're brought into the process when work has already been done," said Chief George Ginnish of Natoaganeg First Nation. "You've got to talk from the very beginning."

A 'step backward'

Chief Patricia Bernard of the Madawaska Maliseet First Nation called the shale gas decision "a step backward" that should not have happened without consultations first.

In a scrum with reporters, Higgs, a mechanical engineer, expressed frustration that the duty to consult is not clearly laid out with a straightforward process and measurable markers. He said he'd like "a list" of who the province needs to consult so he knows when he's finished.

"I may be a little bit more focused on this than some," he said, "because I like to see who owns this, who are we talking to, at the end of the day who do we need agreement and approval from, what are the timelines, and who's holding up who in this process?"

He said he had received a briefing document from government officials, but it was not  "nailed to the accuracy that I'd like to see, that gives you the certainty or either having a decision or not."

Without a clear process, investors won't want to propose projects in the province and the government won't have the revenue to fund some of the initiatives the AFN is calling for, Higgs said.

"I want to do the right thing. I want to be sure that we are consulting. I don't want to find out after the fact, 'oh, you didn't talk to this group here. We didn't give our approval.'"

Expertise offered

But Roger Augustine, the regional chief of the AFN, said "the blueprint is there" for the duty to consult, and the assembly is willing to offer its own expertise to Higgs. 

"It's not something that has to be reinvented by anyone," Augustine said. "It's all there. It's a matter of saying 'teach me. Show me what this means.' … We'll teach them. We'll show them."

Augustine, a veteran of decades of Indigenous activism and negotiations with governments and resource companies, also warned there's no single template like the one Higgs is asking for. "Each community is different. … There's no magic formula."

Higgs pointed to a 2017 accommodation agreement, signed by the previous Liberal government with six Wolastoqey bands on the proposed Sisson mine project, as an example of why he believes consultation is a moving target.

While the bands did not endorse the project in 2017, they acknowledged they were unable to veto it. In return for signing the deal, they'll receive 9.8 per cent of revenue if the project goes ahead. They also received $3 million up front.

Higgs said recent complaints highlight the extent to which the consultation process is undefined. His case in point was a new federal approval for Sisson that would see two additional brooks lost to the tailings pond.

It's an example of "what the difficulty is in the consultation process, when you have approval and when you don't," he said.

He also suggested the chiefs should refund the up-front payment they received in 2017. "Maybe there's a plan to return that, I guess," he told reporters. "Is that the plan? Is that going to be refunded in a way to go forward and have a whole new discussion?"

No consent 

Bernard said the accommodation agreement did not mean that her community was consenting to the mine. "We did not consent," she said. "That hasn't changed."

The agreement was a recognition that a legal challenge was unlikely to succeed. "It's either that or take them to court," she said.

But the deal doesn't prevent her from saying she doesn't like the mine, and it doesn't stop people in her community from opposing it, she added. "I can't tell them what to do and not to do," she said.

Bernard and Augustine both applauded Aboriginal Affairs Minister Jake Stewart for his speech to the assembly. Stewart talked about the need to close the gap between non-Indigenous and Indigenous communities, move toward self-governance and improve education.

"You can see the enthusiasm and the motivation to move forward," Bernard said.

"He's moving fast and he's saying things that are very important," Augustine said. "I sincerely believe Jake is going to make a difference as long as he's given some power, some resources to do what he says he wants to do." 

Broaden dealings

The AFN's National Chief Perry Bellegarde called in his opening address for provincial governments to broaden their dealings with Indigenous communities, despite the federal government's traditional jurisdiction with First Nations.

Higgs said he favoured two of Bellegarde's proposals.

The national chief called on all provinces to move toward giving First Nations jurisdiction over child and family services. "We would want to find a way, ultimately, to do that," Higgs said. 

Last year, seven Mi'kmaq First Nations came together to create a new child protection agency that aims to protect children without them having to become part of the off-reserve foster care program.

And Ginnish said he has child-development and senior-care projects he'd like to pursue, except on-reserve initiatives in those areas aren't eligible for provincial funding.

Bellegarde also urged provinces to require resource companies to factor in Indigenous communities in contracting, hiring, and revenue-sharing as a condition of obtaining provincial permits. 

Higgs, who sees resource projects as a cornerstone of his economic growth plans, said he's open to that idea. "I'm very interested in having that happen," he said. "I don't think that's out of the realm of possibility."

But the premier also complained, unprompted, about "issues that don't get talked about here [at the AFN meeting], in relation to illegal activities on First Nations," a reference to unauthorized cannabis dispensaries on reserves.

Federal Crown-Indigenous Relations Minister Carolyn Bennett, a Liberal, refrained from criticizing the PC Higgs government Tuesday. She said reconciliation "is a journey, not a destination. We're all going to make mistakes." 

And Augustine said as long as the province remains open to talking, Indigenous leaders will respond in good faith. 

"For them to fully recognize that this land, especially in New Brunswick, belongs to First Nations, it's hard for them," he said. "It's really hard for them.

"Some premiers are not really that active and not that well-versed on aboriginal and treaty rights. In this case, we're very patient with them and we're giving them all kinds of chances."