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Power Struggle
Reconcili-ACTION! // Malcolm Macpherson
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Malcolm Macpherson shares his two-decade journey championing Indigenous economic sovereignty through energy law and explains how First Nations are redefining their role as "Resource Rulers" with constitutional rights that fundamentally shape Canada's resource development landscape.
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Indigenous Rights and Resource Development
Malcolm MacphersonWhy 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 ? I mean , that's absolutely ridiculous , right .
Stewart MuirHello , I'm Stuart Muir . Welcome to Power Struggle . On this episode of Power Struggle , we're sitting down with Malcolm McPherson , one of Canada's leading voices in Indigenous law and energy . As the National Chair of the Indigenous Practice at Whitelaw Twining , malcolm has spent over 20 years at the cutting edge of major energy projects , from oil and gas to hydrogen and renewables , all while advocating for Indigenous rights . He's known not just for his legal expertise , but for his ability to think creatively and push for true economic sovereignty for Indigenous Communities . Recently , malcolm joined the board of an organization that I'm involved with as a volunteer director of the Resource Works Society , based in Vancouver , canada . Malcolm's work is redefining how power , literally and figuratively , is shared in Canada . This conversation will take you inside the world of energy law and the fight for Indigenous leadership in the future of power . Welcome to the podcast , malcolm . Thank you very much , stuart . Pleasure to be here . What sparked your career ?
Malcolm MacphersonA really good question . I always sort of knew I wanted to be involved in the practice of law in some measure . I was probably a kind professor . That really led me down the right path . I was seriously considering being a professor of English literature actually , and I had a professor that I went to for some guidance and I told him that I had this opportunity to go to law school and was also interested , but was also quite interested in literature . And he must have seen something in me and said well , Malcolm , if it's your life's passion to be a professor , do that . But he says I've got a brother and sister that are both lawyers and they've had enjoyable careers and lives and and I'd encourage you to think about that . So I'm not sure if there was a hint , but I I took a hint and uh , here I am well , having that love of language probably helps in the law it .
Malcolm Macphersonit definitely helps , for for sure it helps . Uh , I'd say it gives a slight advantage , right , just having a rich vocabulary and understanding the roots of words and interplay For sure , whether you're a solicitor or you're a barrister , it matters You've built an impressive career over the last 20 years .
Stewart MuirWhat did you do when you graduated ?
Malcolm MacphersonWell , I graduated from the Faculty of Law at the University of Toronto . Shortly thereafter I made my way back to Vancouver , loved Toronto , loved the university , but dearly missed the beauty of the West Coast . You know not to sound too sappy , but like the salmon fry , I made my way back , came back home . Yeah , and I , as you say , I've been practicing for over 20 years . I originally set out to practice in the Indigenous sphere . I was always interested in the intersection of business and all things Indigenous rights oriented . So it didn't take me long to really start getting the requisite experience needed in the Indigenous space . But I will say when I started I wouldn't say I was a pioneer , but I would say it was still early days .
Malcolm MacphersonThere's actually a lawyer that I used to do work for I won't name the shop in Vancouver , but it's a fairly prestigious one and he stopped me or I shouldn't say he stopped me , but we bumped into each other on the street and one of the things he said to me he says well , malcolm . He says how is that indigenous practice , how's that going ? And I said well , it's actually thriving , it's going really well . He said well , malcolm , he says that was very prescient of you . I turned to him and I said well , thank you , but I can assure you it didn't feel very pressing at the time . My point there is that it was still fairly early days and there's a lot of , I guess , suspicion just around the unknown of the practice area at many of the mainstream firms in Western Canada . And when you say Indigenous law .
Stewart MuirWhat kind of things are in that indigenous ?
Malcolm Macphersonlaw . What kind of things are in that ? Well , it's extremely broad and it covers everything from title and rights cases , you know , if you think of cumulative impacts , which is quite topical in the energy sphere , to solicitor work , setting up joint venture partnerships , complex legal structures to support flow throughs on a tax-free basis utilizing Section 87 . I love it because there's never a dull day . I guess , if you take an eagle's eye view of it , it's a bit of a generalist's practice , but it is getting increasingly specialized over time .
Stewart MuirYou've become known for tackling big challenges and mentoring top legal teams over these years .
Malcolm MacphersonWell , I'm glad to hear that . I would say that I've always liked the big and bold . I always thought to myself we only have so much time in our proverbial hourglass and I always thought that I wanted to make the most use of that time . I think , as a result , I've sought out sometimes it's come to me through serendipity , but I would say I've definitely sought out big bowl projects , both on the solicitor side of the equation Solicitor , by the way , for the audience that may not be familiar with lawyers is for the audience that may not be familiar with lawyers is it's yours , I guess drafter lawyers , the lawyers that work on on various business deals , including corporate structures in real estate , and then , of course , you have your barristers that go to court and advocate on behalf of clients . That being said so , I'm a trained solicitor , but I have a real interest in , I guess you could say , 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 .
Stewart MuirIs there an example of a case that has embodied these values for you ?
Malcolm MacphersonWell , actually I can't get too many details , but I can say that I've actually been involved with a few cumulative impact lawsuits . The purpose of those , of course , is not to impede development but rather to , dare I say , do the job that I think government ought to do . That is not occurring . What I mean by that is , by pushing the envelope through the court system , it forces , if you will , a real coming together at the table . Now I realize that may sound a bit counterintuitive , but let's look at Blueberry , the Blueberry example in northeastern British Columbia .
Stewart MuirAnd that's a reference to the Blueberry River , first Nation in the Peace River , where there was a momentous legal decision several years ago .
Malcolm MacphersonYeah , the citation , if memory serves me right , is Yahé versus the Crown . So it was Chief Marvin Yahé and his council back in the day that , over a decade ago , started out
Malcolm's Legal Career Journey
Malcolm Macphersonon the path to developing a cumulative impact lawsuit . No such lawsuit existed , so this was literally created from the ether to a degree . And if we look at that example and I realize in the energy community that's viewed as sort of I don't know contested , if I could put it that way , there's some frustrations around it actually pushed forward a reconciliation between the Crown business and the communities in the Northeast BC area .
Stewart MuirBritish Columbia , which is the end result you hope for , but along the way it can be very frustrating . I'd just like to ask you to explain a term that maybe not everyone's familiar with , and that is cumulative impact itself .
Malcolm MacphersonSure , what does that mean ?
Malcolm MacphersonWell , I guess , simply put in lay terms , I describe it as the nations are of the perspective that there's a proverbial death by a thousand cuts on account of cumulative impact to their traditional territory caused by a confluence of different industries .
Malcolm MacphersonSo if we look at Northeastern British Columbia and the blueberry , they were able to successfully argue that the , I guess , energy activities , but also forestry activities , highway development , basically all forms of industrial activity up in their area , when taken together in totality , made it so they were unable to meaningfully exercise their treaty rights that are protected under Section 35 of the Constitution Act .
Malcolm MacphersonSo they were able to successfully argue that , basically , the bargain that they struck at the turn of the century with the Crown was not being fulfilled on the part of the Crown , and so they petitioned the court to look into these matters , and the court , upon review , found that they agreed that so much industrial activity had occurred without proper consultation that it made the , I guess , the effective carrying out of their treaty rights no longer meaningful and reasonable . But the outcome was it forced a conversation between the crowns , the nation and , of course , industry was consulted through that process that ultimately brought about a resolution . But since that decision came out there's also been advancement with the other Treaty 8 groups up at Northeastern British Columbia . So I guess , to circle back to Blueberry , the point is it sped up a coming together of the Crown , the business community and the nations in Northeast BC to figure out how permitting would go forward while balancing the interests of the nation .
Stewart MuirNow you're talking about Blueberry River First Nation . That's a story that's been in the news again recently , and also it so happens that the traditional territories of this nation and others in Treaty 8 just happen to be on top of one of the richest natural assets in British Columbia , that's the Montney Shale . Does it make a difference when you've got a cumulative impact question being settled in circumstances where there's so much at stake in economic terms ?
Malcolm MacphersonWell , I think you got a few different answers to that question . I think if you ask the judiciary they'd say well , it's an impartial process . But I think that the pragmatic answer is that the economy certainly does play into the equation of where resources and attention is allocated . We'll give you an example . If you look at a group like the Tuasen First Nation I grew up in An urban First Nation . I grew up in an urban First Nation , so I grew up in the Tuasen area and you know I'm sure there was a confluence of pressures which probably assisted with . You know how that treaty came to be right and how it advanced . Obviously , being in the lower mainland , it was strategically important to try and get a resolution . I think that's generally true across Canada . I think that if one sits upon a resource basin whether it's a pile of diamonds , the Montenegas Basin or what have you , yeah , it'll naturally pull in the interest of a government that has to be accountable also to the business community and to the general populace right that earns a living from these riches of nature .
Stewart MuirMalcolm , tell me about your work supporting the National Coalition of Chiefs .
Malcolm MacphersonAbsolutely so . The National Coalition of Chiefs was actually created by a good friend of mine , dale Swampy , and Dale and I have worked together over many years . I first met him in 2010 and we got on right away as fast friends and we've stayed in contact ever since . So what I do is I support Dale when requested at his conferences , and I guess the genesis , if you will , behind its creation was to address the on-reserve poverty .
Malcolm MacphersonDale himself is , I believe , from I think it's Musquechese , our First Nation in Alberta , and you know , like many , many communities , there's more poverty on the reserves than there is found elsewhere in the general Canadian public , and you know Dale thought about it and said you know it's not right , we need to start talking about it , not to say others aren't talking about it , but he took it upon himself to look at solving that issue by utilizing the natural resource riches of Canada and he spent a good deal of time over the past many years basically connecting those interested in having a real conversation about resource extraction and how that intersects with Indigenous rights .
Malcolm MacphersonSo he will , for example , bring two meetings C-suite executives from various energy companies and have them meet up with chiefs and business leaders , energy companies and have them meet up with chiefs and business leaders , and he looks to really sort of stimulate a conversation around what the future looks like in terms of a balanced conversation around resource extraction .
Malcolm MacphersonThat's moderate , right , that's , I guess if I were to describe his outlook . It's an open to business approach which is mindful of the need to respect the indigenous rights . That's actually a point that I wanted to make in an earlier question that you'd asked me , and that is that you know , if we go back to the cumulative impacts or whatever the lawsuit is , that's challenging , if you will . The governing sorry , the government's permitting process , I would say in my experience over the past few decades is that most of the leaders they're not looking to altogether stop industrial resource development . That's not the objective . Rather , the objective is to
Cumulative Impacts and Indigenous Title
Malcolm Macphersonmeaningfully participate in the resource extraction activities and I'll give you a case in point example . That's really live time in Saskatchewan right now and I actually I represent four nations in the province of Saskatchewan .
Malcolm MacphersonWhat I hear and it's a bit of a chorus is a frustration by the leadership of being left out of the conversation around the participation . So I'd like to pick on potash Oil and gas and other forms of energy such as nuclear often get a bad rep , especially in Canada , so I'll pick on the potash industry .
Stewart MuirWhich is mined prolifically in Saskatchewan for fertilizer .
Malcolm MacphersonIt is . And just to give you a practical example of the type of wealth we're talking about , if you go to Regina and you just look up the largest buildings , some of the largest buildings have the names of the potash companies at the top . And so the chiefs of leadership they say it's not right , there's billions of dollars of revenues flowing through that extraction and they're not meaningfully participating . So one of the objectives that myself and I guess other legal practitioners in the space will be working on is to try and do something about that for the greater good . What I mean by that is finding a way for the nations to meaningfully participate in the local economy created by the extraction of the potash . Practically speaking , what does that mean ? It means entering into meaningful IBA types of agreements , which the IBA by the extraction of the potash . Practically speaking , what does that mean ? It means entering into meaningful IBA types of agreements , which the IBA , by the way , stands for Impact and Benefit Agreement . So the nations are not looking for side jobs , if you will , or 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 that are made available . But they also are looking to properly participate in Columbia , in the Yukon , with the mining industry . Oftentimes there'll be a negotiated net smelter return type of concept . So they're looking for that and one of the reasons they're looking for that is one they want to have a say right . So there's an environment to consider . It is being considered but they're largely not yet at the table and they're looking to have a If you look at the radiocarbon dating it's anywhere from 10,000 to recognized that there was an inescapable economic component tied to Aboriginal title and it also I guess the other thing that proposition that stood for is oral evidence for the first time was considered very admissible In the past .
Malcolm MacphersonThere have been a lot of challenges around that . So Delgamouk talked about basically there being two landlords the Crown and then an encumbrance upon the Crown's title by the Indigenous title . If you fast forward over time , if you look at Chilcotin , chilcotin moved the yardstick forward . That's another decision . That was a very significant British Columbia decision which actually outright granted Indigenous title to a large tract of land in the interior of BC in the Williams Lake area . I believe the size of it last time I checked was somewhere around 500,000 acres of contiguous land .
Malcolm MacphersonThe point that I'm seeking to make here is that the nations are of the view and I agree with their perspective that they are a co-landlord of sorts of sorts and that if you're co-landlord , generally speaking that means you share in a reasonable way in the rents that are collected .
Malcolm MacphersonAnd a number of the nations that I speak with are of the view that that's where there's a real disconnect and that's where there needs to be a broader Canadian conversation around that . My sense is it's going to happen , and what I mean by that is , if one looks at Canada's form of government , right , you look at the national government , you look at the provincial governments , the territorial governments , the municipal governments they all run off of resources , right ? They all run off of resources , right . So in the same way that those sort of other Canadian governments are supported , the nations need support as well to fund their operations , and one of the ways that you know they believe that shortfall can be made up is possibly through a revenue sharing type of scheme , and that's something that I'm really interested in helping to resolve and reconcile for the collective benefit of all parties right Of the nation , canada and the business community .
Stewart MuirFrom what I've seen of your work , it runs deeper than just the rights , the legal entitlement . It runs deeper than just the rights , the legal entitlement . It touches on respect as well rights and respect , because it seems like recognizing the human needs and wants of people , including being respected , especially when you haven't been as a culture , makes a big difference .
Malcolm MacphersonIt absolutely makes a huge difference and , yeah , I definitely care deeply about that aspect . There's been many a files to it and I'm sure you're aware of some of them that I've worked on , where that's played a role in marshalling forward , I guess in a few instances , the lawsuits that had been started . There's a lot to be said for common sense being applied in these scenarios . What I mean by that is especially I guess this will apply especially to government . I would say business has really come a long way . A blow kiss to the business community . They've really come a long ways to studying the impasses , the interference with permit issuance , and they've worked to understand it . And what I've largely found when I've spoken to various sort of CEOs and C-suite executives is they get it . They say , look , we get it .
Malcolm MacphersonWe understand that there needs to be a greater sharing of the economic pie , but our problem is that we're already paying . We're paying a lot and we're paying our money to the crown . We're paying a lot and we're paying our money to the crown . So it's on the crown to follow Delgamook , to follow Chilcotin , to follow Blueberry and connect the rights that its own courts have declared to exist . And part of that recognition is economic right .
Malcolm MacphersonIt has to be , otherwise how do you run your government so sorry ? Getting back to your probing about it , it's more than money . It's more than surface rights recognition . It's personal . You're absolutely right , stuart decades , that if they perceive the crown or the business community to be dealing in a trivial manner with their rights , then I would say money very quickly becomes deprioritized , it becomes about principle and it becomes about really recognizing the ancestors , if I could frame it that , simply Recognizing those that came before , that fought for the rights that are now recognized in the Canadian Constitution and , quite literally , the ancestors that have lived on the continent for over 10,000 years in some instances .
Stewart MuirMalcolm , you've dealt with nations all over the place , different cultural groups , different languages , different issues . What are some of the common threads you find when you meet with First Nations leaderships in their communities ?
Malcolm MacphersonI've noticed over the decades a real generosity of spirit . So , as I said , one of the most beautiful things about the communities is that generosity of spirit . For the most part , They'll literally give others the shirt off their backs . Yeah , in all my years I've really noticed a wonderful spirit and heart , which I think is really remarkable and I think ties into reconciliation . And really why Canada in particular ? Perhaps look at the New Zealand model of reconciliation . My biggest criticism you didn't ask me this question , but my biggest criticism with reconciliation and the movement is we really need to see more in the way of action and resources 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 threat of frustration .
Stewart MuirThere's no shortage of talk , but results not acted upon , and that's a common thread of frustration .
Malcolm MacphersonThere's no shortage of talk , but results not so much . Yeah , the term of art that we hear is reconciliaction . Yeah , it's talked a lot about . That's a pretty good subject . Yeah , other threads of commonality would be a real interest in generally improving the lot of life , improving the standard of living . Right , that's what Dale Swampy at the National Coalition and others talk about . It's to answer the question 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 ? I mean , that's absolutely ridiculous , right ? That could take up a whole podcast , so we'll leave that there .
Stewart MuirYou think we'd have that one solved by this point in time .
Malcolm MacphersonYou'd think so . Yeah , Another thread of commonality is an interest in having the nations , whether they be in rural Saskatchewan or urbanized Vancouver , have them properly , meaningfully participate in the economy . That's a threat . And then there's the whole sort of right spot right , Bill C-92 , it's stereotypical these days a negotiated outcome with the federal government to basically empower nations to pass laws giving them control over their own children and families . There's a very , very high incidence of child and family services coming in and apprehending children and I think , for fairly obvious reasons , pulling apart the fabric of families is quite destabilizing and is really one of , I think , one of the root causes of the reason for the existing catch-up that needs to occur between Canada's first peoples and the rest of Canada . So it's a real push .
Malcolm MacphersonI can give you some examples . So
National Coalition of Chiefs and Economic Reconciliation
Malcolm MacphersonI was just recently meeting with Chief Erica Bodine of Kittikawasas First Nation and Saskatchewan , so they're about an hour and a half east of Regina . You might have seen a picture of Trudeau sort of kneeling with a teddy bear . That picture was actually taken at the Cowessess First Nation and she speaks openly about her interest in learning from other parts of Canada and sort of taking the best , if you will , in terms of different advancements in laws and economic development and bringing that information home and helping her people . And her council , of course , is falling behind that as well . I think of Chief Eben Tebetitat of the Kakawistahal First Nation . He has done a phenomenal job in terms of bringing his community forward . They built a bunch of administration buildings . They have the largest Kakawistahal flag you've ever seen . There's a real pride in the community . He , of course , was trained in the army and brought some of that training home and the nation is , I believe , is old , Ticks forward in a very organized manner and you know he's one to always talk about the need for there to be proper sharing of the wealth , of the resources .
Malcolm MacphersonIf we look to British Columbia , I think of Chief Dolly Mildon and Prince George who worked tirelessly to do her best and of course her council is behind her to properly bring about , I guess , the emergence of the various industries in that part of our province . And that part of our province is , I think , fair to say , more brownfield than the other parts . When I say brownfield I just mean that there's more industrial activity already there . So generally speaking , when that happens it's easier to put forward new projects . So one of their interests is cultivating large energy projects , whether they be conventional or green . I'm also reminded of the Kaka'la Nation in Northwest BC and I did work with Kaka'la Nation for quite some time .
Malcolm MacphersonThe chief , Linda Inister , is very interested in really balancing the treaty rights with advancements in the development of the local economy . So whether that be a shipyard , whether that be an energy project , whether that be developments with the city of Prince Rupert project , whether that be developments with the city of Prince Rupert , so you know , in terms of common threads , it's very much a conversation around taking one's proper place as a nation at the table in the true spirit of reconciliation and balancing interplay of the environment with economic development . I really believe that the nations are going to be and are the way forward for natural resource extraction in the country . They literally are the resource rulers . They don't have a veto , but I always say they have a near veto in the sense that if you compare constitutional and Section 35 ranks to other rights held by , I guess , non-Indigenous Canadians , they're different and there's a reason for the difference and , I guess , the risk of oversimplification . I describe the rights as supercharged .
Malcolm MacphersonSo it's not a veto but if you think about it , practically right , if you put up a supercharged right up against a non-supercharged right , it doesn't mean the supercharged right will always win in every setting , but I think it's pretty common sense to see the outcome that in most instances the supercharged right will have an advantage .
Malcolm MacphersonSo for that reason I've spent a number of years now meeting with executives and others in different functions the governor , actually , of a group called SIAT , which stands for Canadian Energy Executive Association , and through that one of the things what I do is I talk to business owners and , I guess , leaders in the resource sector , and I encourage them to be mindful of these supercharged rights and also to be mindful of the good spirit that I talked about earlier all of the nations and their willingness . I would say , you know , it would be a generalization , we could , uh , all nations support industrial , but on , but I would say , my two plus decades of experience , I'd say it's in that high 90th percentile in terms of support . It's just qualified . I think it's qualifying support in the sense that , well , let me just turn the proverbial table and you'll pick on you , uh , steward , for a minute here . So let's say , uh , let's say you were back and your last name is muir I I'm . I'm going to take a wild guess it's probably scottish you'd be right all right .
Malcolm MacphersonSo your , uh , your , your ancestors uh managed to uh fend off the , the normans that were invading , and , uh , the uh anglo-saxons that were invading , and the Anglo-Saxons that were invading from the south , and the Romans that came up right , and let's just say hypothetically , you held on to the lands for , let's not say 10,000 years , but let's just go a couple hundred , let's say two , three hundred . You'd probably feel a connection to the land , right , and you'd probably want to say over their development , right , and you'd probably feel a deep-seated connection to that lab . Now , that's not to say like you'd think you have a veto , or maybe you wouldn't , but you'd feel you'd have a say right in all of it . And that's the same thing with the indigenous nations . The indigenous nations are saying , look , we've been here since the beginning of our living memory , in the economy and the bountiful resources of these lands that our forefathers and foremothers looked after since the literal dawn of time .
Malcolm MacphersonSo , getting back to the business community , as I pass that message on and I explain look , the best way forward is to truly reconcile , to get at the root of that understanding and find a way to make the business wheel turn , because there's a way to do it . Now , if you ask me the question , which I'll answer it , say Malcolm , how do you make that wheel turn right ? Well , I think it goes back to an earlier comment I made about this two-landlord concept right , you know this two landlord concept right Industries prepare to pay a landlord right , they don't want to pay twice is in one breath saying that it recognizes the supercharged rights , that believes in reconciliation , that it fully supports , I guess , better conduct towards Canada's people , given colonial history . But from the First Nation perspective they're saying , look , we're still not participating . 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 .
Stewart MuirYou talked about participation Through the National Coalition of Chiefs work . You've done so much to provide evidence of participation in the Clean Energy Summit I attended this year was really just example after example after example of First Nations that were engaged in clean energy projects that they wanted actively or were actively involved in , because I guess the aspirations you've talked about , malcolm , were to be found in these projects . Do you think that is a widespread phenomenon or was it really just the few , the examples you had on the stage at the Zutina conference ?
Malcolm MacphersonYeah , the way I'd answer that is , you know , I guess , to be fully transparent . I mean , at the NCC conference . It does attract a business crowd At the NCC conference it does attract a business crowd . But I would say that apart , my experience over the decades is that there's a real interest and a willingness to engage in industrial development . If I could turn it that broadly , I would say I've noticed a shift as well with demographics . I would say I've noticed a shift as well with demographics . So it's that the younger nation members are much more open to resource extraction , development and their forefathers and foremothers .
Malcolm MacphersonAnd part of that , I believe , is , well , it's complicated , we probably spend maybe a half day on this , but there's a bunch of factors that that I think have caused that .
Malcolm MacphersonOne is , if you look at , you know
Resource Rulers: First Nations as Co-Landlords
Malcolm Macpherson, just historical colonial legacy , right , there's there's some damage , right , if we , I think , I think we can agree that there is there is some significant damage done to residential schools and and to know , um , uh , you know , I guess , all kinds of of policies , the implementation of the Indian Act , if you think about it , indigenous people couldn't vote until I think it was like the 50s , right ?
Malcolm MacphersonImagine that you couldn't vote . I'd have to check the data . It might actually be a bit later , but the point is is that the Union Act completely deregulated the activities of all economic development and also social interaction on reserves , and what it did is it caused for there to be these , I guess , economic islands which didn't fully participate in the broader Canadian economy . So that's one of the things that has been changing . The younger generation is more fluent in the world of computers and technology and science , if you will , around the various forms of energy , and I think that that is helping to sort of make it easier for them to enter the mainstream , if you will . Yeah , in terms of .
Stewart MuirWell , I think you've provided a really important explanation as to how it is that there is a perception I run into this all the time that First Nations as a group are opposed to economic development , but you've peeled back a couple of layers to reveal how this has evolved over time . Maybe there is some truth in that at some past time , but it's so different now .
Malcolm MacphersonYeah , it is different , you know , and there's no right or wrong answer to the question posed . A friend of mine answered that , I thought , quite an insightful way . Ivan's his name . I said Ivan . I said why is it from your perspective ? And I believe Ivan's a member of SawRage , first nation in Alberta .
Malcolm MacphersonAt the time I was working on a large energy corridor project and I noticed that it's just this huge impasse in terms of willingness to engage , talk about the project . And I asked Ivan . I said well , why do you think that is One of the things Ivan had said . I think he's right . He said you have to understand that when one has been oppressed through the Indian Act and through aspects of colonial rule , he says you have to understand that there's a natural interest in wanting to hold on to a past , because one couldn't . I thought about that . I thought you know , I think there's some truth to that . If you read Rousseau , he talks about the concept of sort of the noble Indian , I think translated from French , and it's this concept that , but for these annoying , you know , sort of colonizer settlers , life would be peachy and wonderful right .
Stewart MuirIf one man is born free but everywhere is in chains , but the noble Indian , perhaps an exception .
Malcolm MacphersonAnd , of course , if you read John Locke , right , it's the very opposite Life is nasty , brutish and short . Yes , so you have these extremes right of perspective , and I would say I'll use scottish culture because my last name is mcpherson and yours is muir right , if we think about the scots , right ? Um , you know , I talked to my , my grandfather when he was living . He , he told me the scots were tribal , right , and at their origin they were , and but that changed over time . That changed right with with Roman and English and other rule . And so the point is is rightly or wrongly right , culture evolves and it changes . So , getting back to Ivan , right , ivan's answer to the question why is there such resistances ? There's a hearkening back to , to an imagined past right which which may have existed but may have also existed in a different way . So the conclusion being that in my experience , having spoken to many nations over many decades across Canada I would say it'd be the high 90th percentile is most want to retain an identity but also modernize . Most of my friends that live on reserve or they're in leadership enjoy modern conveniences . They enjoy their modern vehicles , they enjoy central heating , they enjoy plane rides , they enjoy sort of modern medicine , right , all these things that are in some fashion tied to a way of life that has evolved away from how life was hundreds of years ago . So it's a really interesting conversation to watch and my view of it is that we're seeing a movement forward which recognizes a beautiful , historically significant past while modernizing . So I've always said that the First Nation people of Canada are the resource rulers . I didn't coin that term , by the way , there was a book by that moniker that's definitely worth a read .
Malcolm MacphersonSo , going forward , I often say when I'm speaking to different audiences , and I make a point when I speak to the executives in the C-suite and elsewhere , that if we agree on the fact that the nations have these supercharged rights , as I like to call them , when there's sort of , I guess , complementary work around it done , then it seems to be a no-brainer that 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 . I truly believe that we haven't seen anything yet in Canada , that these are still very sort of embryonic days and that a decade from now the rights will be even more advanced , even more enshrined , even more enshrined and as a natural consequence of the nations , will , um , have more , not a veto , but even more of a say over the extraction of resources . So , um , you know , at the I would say the smart money in the room will understand that and will gravitate towards working with the nations in a cooperative way to uh to make advancements in the resource extraction space . Because if that doesn't happen , it seems to me what we will then see is just a flight of capital that will continue to leave Canada as it has and go elsewhere , to other parts of the world like South America and other places where environmental regulations are much less stringent , where the sanctity of human rights and worker rights is not recognized the way it is in Canada . All that to say , we have an absolute abundance of natural resources in Canada . Canada , over the course of the past 200 years , has proven that it's very good at extracting resources . And you know , surely , it seems to me , surely , morally , there's a case to be made for keeping capital in Canada , and you know the US , keeping capital in Canada and the US , and surely Canada can continue to play a leading role in natural resource extraction .
Malcolm MacphersonI have to say that as someone who was born I was born here in Vancouver in the mid-70s . I find it shocking when I read the local papers or I watch I don't know the local news or follow social media . I find it actually shocking how quickly and I think it's quite naive that there's this stampede to just sort of abandon resource extraction , and I want to explain that . So if we look at British Columbia , for example and I talk to my client , the Clay Clay Tenay a lot about this we look at what Canfor's doing . Right , they're sort of shutting down operations for economic reasons Not wholly , but it's plainly obvious that a lot of mills are shutting down and that capital is moving to jurisdictions in the United States where it's more profitable and more certain to extract , in that instance , trees . I never thought I'd see the day in BC where one of the staple resources would be sort of shuttering up business .
Malcolm MacphersonIf we look in the mining sector , it's also been challenged . Now , that being said , I fully support the nations that have taken the position that the legislative framework around mining needs to be modernized . Absolutely it does . But there again I sort of One you're allowed what my children and others will do if key industries shut down and new industries don't come online in sufficient abundance to replace those that have been shut down . Yes , we have a developing tech sector in British Columbia , but it's not
The Future of Indigenous Resource Management
Malcolm MacphersonLA right , so I use that as one example .
Malcolm MacphersonMy point , though , is that we've lived a good life in Canada , largely since the 1950s . It's been a first world type of existence . People have had peace , order , good government , they've been able to send their children to good schools , good hospitals , and that has been largely paid for by the resource extraction sector . That's the reality of the situation . So I worry I worry for my children , I worry for other people's children what everyone's going to do Now .
Malcolm MacphersonI do understand that there's a push in BC to I think it's to have 30% I've heard this from bureaucrats directly to have 30% of lands turned to parks by 2030 . And , on the one hand , I understand that it's important to preserve the natural beauty and to have large spaces where there can be intact , thriving ecosystems . I understand that intact , thriving ecosystems . I understand that . On the other hand , I also wonder who's making all those decisions and where that's headed . Will it go to 50% ? Is that the plan ? Is it 70% ? Are we all going to become sorry ? I'm going to exaggerate here a bit , but is the plan to have park rangers and businesses that are associated with parks . I could see in some measure that there could be , for example , indigenous tourism . That makes a lot of sense . I could see an industry develop from large contiguous protected areas . But I wonder aloud , just as a practical person , if those jobs will replace and will fund , you know , the road infrastructure , the schools , the hospitals , the way of life that Canadians , indigenous and non-Indigenous alike , have come to expect .
Stewart MuirSo that creates a lot of pressure on the rights rulers , because they're the ones who ultimately have the deciding influence on what happens .
Malcolm MacphersonAbsolutely . You know there's a community in Northeast BC . I won't say who it is , but I thought it was a really good sort of vignette story and in this instance the chief had basically remarked to me and others that he was in support of a linear corridor pipeline development . But for the fact that it impacted I think in this case it could have been a species like mountain caribou and there was insufficient communication to address that and as a result , they eventually figured it out , but it took a lot longer than it needed to . And it wasn't that the nation was opposed to development , it was just that , as a responsible leader of the Indigenous community , the mountain caribou were very central to decision right . So it's not a veto but a near veto and one that needs to be seriously looked at from a common sense perspective . Right , why are those conversations not happening ? Right , part of it is lack of funding , a lack of support for those important conversations , and I just know this from having met with so many communities over the years . But they'll have like one or two , maybe three on staff at the natural resource office and they'll get inundated with proposals and there's an expectation of answering of these packages of information . In some instances they're like five to 20 inches thick , right , with a lot of dense data from environmental scientists and others , right , and there's this expectation that these large packages setting out the proposals will be reviewed , digested , understood , communicated back to the membership , the leadership , and the other assumption is that there'll then actually be a response . Well , for some communities , yes , they've gotten ahead of the curve and they've been able to sort of keep up with this avalanche of paper , if you will . But if you put yourself in the shoes , right , if we're empathetic , you and I , right , we put ourselves in the shoes of an indigenous community in the I of BC or Alberta , they might be a bit challenged to speedily reply back . So I guess the point is that there still is quite not the point , but one of the points is that there's still quite a discrepancy in the resources that are required to support a proper back and forth exchange of information and conversation .
Malcolm MacphersonAnd I think that's where a lot , not what . I think it's where I see , I should say a lot of these projects get tripped up , is there ? It's actually , it ends up costing more , right ? I'll pick on the Northern Gateway Pipeline , because I was involved with that project and part of the answer is going to be inflation , but it started off as a $5 billion project . Right ? Sounds like peanuts today , doesn't it ? That sounds like a deal . What a bargain , right ? Yes , I think by the time I had ceased working on that project and that was seven years in right , it had ballooned to I think it was over 20 , right ? If we look at the Trans Mountain Pipeline , right there's a story there even further .
Malcolm MacphersonSo my point is it's money well spent on the front end to properly fund the review and conversation , because that's a lot less expensive than you know having a very challenged regulatory review . It's much more cost effective than there being a simple misunderstanding right If the nation would have been in favor but for a respectful approach or but for contemplation of a key element like a mountain caribou right .
Stewart MuirIs there a source that you would recommend to someone who wants to go deeper into this ?
Malcolm MacphersonThere's a lot of literature that's developed that's readily available . I'd say , read Delgamouc , read Chilcotin , read Blueberry Wow , you'll get caught up . If it's a bit dense , read a summary , it'll be worthwhile .
Stewart MuirYou've mentioned three decisions that are landmark ones Delgamouk and Chokotan , and Blueberry or Yahi and it is sometimes enjoyable to go right to the words of a judge , because it's lucid . They're digesting a huge amount of information , to come to the point , and it's surprising . You might not expect to find it as accessible as it is to read one of these rulings , but it is enjoyable .
Malcolm MacphersonIt absolutely is enjoyable and well worth it . It's worth the investment I encourage everyone listening to this podcast to if they haven't already done so , I'm sure many have . But just yeah , dig a little and get caught up , because the next decade will be shaped by these key decisions .
Stewart MuirMalcolm , as we wind up on a more personal note , when you're not immersed in your complex legal work , what do you like to do ?
Malcolm MacphersonThat's a really good question .
Stewart MuirYou're a father , family , man , young family .
Malcolm MacphersonWell , I would say yes , most of my time is spent working to keep up with my children , and I have a two-year-old , soon to be three-year-old , three-year-old , soon to be four-year-old , a two-year-old soon to be three-year-old , three-year-old , soon to be four-year-old . I've got a 13-year-old daughter and a 15-year-old boy . It is a very busy household . I mostly spend time with him at gymnastics and reading books , if you can believe it ,
Personal Reflections and Closing Thoughts
Malcolm Macphersonbecause I'm away a lot , lot . As you may expect , my wife is , is the star and , uh , yeah , we basically spend a lot of time helping the kids get a good start in life . Um , in terms of like , you know , what do I do to relax ? I love fishing and I I really , I really must get more fishing in my life . So some of my friends are listening to this podcast . Let's go fishing .
Stewart MuirExcellent . Is there a future lawyer in that posse of kids you've gotten ?
Malcolm MacphersonI do believe there's a future lawyer , yeah , and who knows , maybe a future prime minister . We'll see Okay .
Stewart MuirWell , look , it's been a fascinating conversation on power struggle . Malcolm , thanks so much for coming .
Malcolm MacphersonMy pleasure , Stuart . Thanks for having me on .
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