March 22, 2025 • 57 mins
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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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Malcolm Macpherson (00:00):
Why are Canada's Indigenous people dying
, in some cases decades earlierthan the average Canadian?
Why is the drinking water issuestill an issue in First World
Canada?
I mean, that's absolutelyridiculous, right.
Stewart Muir (00:22):
Hello, I'm Stuart Muir.
Welcome to Power Struggle.
On this episode of PowerStruggle, we're sitting down
with Malcolm McPherson, one ofCanada's leading voices in
Indigenous law and energy.
As the National Chair of theIndigenous Practice at Whitelaw
Twining, malcolm has spent over20 years at the cutting edge of
(00:43):
major energy projects, from oiland gas to hydrogen and
renewables, all while advocatingfor Indigenous rights.
He's known not just for hislegal expertise, but for his
ability to think creatively andpush for true economic
sovereignty for IndigenousCommunities.
Recently, malcolm joined theboard of an organization that
(01:05):
I'm involved with as a volunteerdirector of the Resource Works
Society, based in Vancouver,canada.
Malcolm's work is redefininghow power, literally and
figuratively, is shared inCanada.
This conversation will take youinside the world of energy law
and the fight for Indigenousleadership in the future of
(01:26):
power.
Welcome to the podcast, malcolm.
Thank you very much, stuart.
Pleasure to be here.
What sparked your career?
Malcolm Macpherson (01:34):
A really good question.
I always sort of knew I wantedto be involved in the practice
of law in some measure.
I was probably a kind professor.
That really led me down theright path.
I was seriously consideringbeing a professor of English
literature actually, and I had aprofessor that I went to for
(01:58):
some guidance and I told himthat I had this opportunity to
go to law school and was alsointerested, but was also quite
interested in literature.
And he must have seen somethingin me and said well, Malcolm,
if it's your life's passion tobe a professor, do that.
But he says I've got a brotherand sister that are both lawyers
(02:23):
and they've had enjoyablecareers and lives and and I'd
encourage you to think aboutthat.
So I'm not sure if there was ahint, but I I took a hint and uh
, here I am well, having thatlove of language probably helps
in the law it.
it definitely helps, for forsure it helps.
Uh, I'd say it gives a slightadvantage, right, just having a
(02:45):
rich vocabulary andunderstanding the roots of words
and interplay For sure, whetheryou're a solicitor or you're a
barrister, it matters You'vebuilt an impressive career over
the last 20 years.
Stewart Muir (03:00):
What did you do when you graduated?
Malcolm Macpherson (03:03):
Well, I graduated from the Faculty of
Law at the University of Toronto.
Shortly thereafter I made myway 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'vebeen practicing for over 20
(03:26):
years.
I originally set out topractice in the Indigenous
sphere.
I was always interested in theintersection of business and all
things Indigenous rightsoriented.
So it didn't take me long toreally start getting the
requisite experience needed inthe Indigenous space.
But I will say when I started Iwouldn't say I was a pioneer,
(03:50):
but I would say it was stillearly days.
There's actually a lawyer that Iused to do work for I won't
name the shop in Vancouver, butit's a fairly prestigious one
and he stopped me or I shouldn'tsay he stopped me, but we
bumped into each other on thestreet and one of the things he
said to me he says well, malcolm.
He says how is that indigenouspractice, how's that going?
(04:12):
And I said well, it's actuallythriving, it's going really well
.
He said well, malcolm, he saysthat 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 pressingat the time.
My point there is that it wasstill fairly early days and
there's a lot of, I guess,suspicion just around the
(04:33):
unknown of the practice area atmany of the mainstream firms in
Western Canada.
And when you say Indigenous law.
Stewart Muir (04:41):
What kind of things are in that indigenous?
Malcolm Macpherson (04:43):
law.
What kind of things are in that?
Well, it's extremely broad andit covers everything from title
and rights cases, you know, ifyou think of cumulative impacts,
which is quite topical in theenergy sphere, to solicitor work
, setting up joint venturepartnerships, complex legal
structures to support flowthroughs on a tax-free basis
(05:06):
utilizing Section 87.
I love it because there's nevera dull day.
I guess, if you take an eagle'seye view of it, it's a bit of a
generalist's practice, but itis getting increasingly
specialized over time.
Stewart Muir (05:23):
You've become known for tackling big
challenges and mentoring toplegal teams over these years.
Malcolm Macpherson (05:30):
Well, I'm glad to hear that.
I would say that I've alwaysliked the big and bold.
I always thought to myself weonly have so much time in our
proverbial hourglass and Ialways thought that I wanted to
make the most use of that time.
I think, as a result, I'vesought out sometimes it's come
to me through serendipity, but Iwould say I've definitely
(05:53):
sought out big bowl projects,both on the solicitor side of
the equation Solicitor, by theway, for the audience that may
not be familiar with lawyers isfor the audience that may not be
familiar with lawyers is it'syours, I guess drafter lawyers,
the lawyers that work on onvarious business deals,
including corporate structuresin real estate, and then, of
(06:14):
course, you have your barristersthat go to court and advocate
on behalf of clients.
That being said so, I'm atrained solicitor, but I have a
real interest in, I guess youcould say, setting up large
legal battles that are morallyimportant but equally practical
(06:35):
in bringing about reconciliationbetween Canada's first people
and the business community.
Stewart Muir (06:42):
Is there an example of a case that has
embodied these values for you?
Malcolm Macpherson (06:47):
Well, actually I can't get too many
details, but I can say that I'veactually 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, dothe job that I think government
(07:08):
ought to do.
That is not occurring.
What I mean by that is, bypushing the envelope through the
court system, it forces, if youwill, a real coming together at
the table.
Now I realize that may sound abit counterintuitive, but let's
look at Blueberry, the Blueberryexample in northeastern British
(07:29):
Columbia.
Stewart Muir (07:34):
And that's a reference to the Blueberry River
, first Nation in the PeaceRiver, where there was a
momentous legal decision severalyears ago.
Malcolm Macpherson (07:38):
Yeah, the citation, if memory serves me
right, is Yahé versus the Crown.
So it was Chief Marvin Yahé andhis council back in the day
that, over a decade ago, startedout on the path to developing a
cumulative impact lawsuit.
No such lawsuit existed, sothis was literally created from
(07:58):
the ether to a degree.
And if we look at that exampleand I realize in the energy
community that's viewed as sortof I don't know contested, if I
could put it that way, there'ssome frustrations around it
(08:27):
actually pushed forward areconciliation between the Crown
business and the communities inthe Northeast BC area.
Stewart Muir (08:29):
British Columbia, which is the end result you hope
for, but along the way it canbe very frustrating.
I'd just like to ask you toexplain a term that maybe not
everyone's familiar with, andthat is cumulative impact itself
.
Malcolm Macpherson (08:42):
Sure, what does that mean?
Well, I guess, simply put in layterms, I describe it as the
nations are of the perspectivethat there's a proverbial death
by a thousand cuts on account ofcumulative impact to their
traditional territory caused bya confluence of different
industries.
(09:03):
So if we look at NortheasternBritish Columbia and the
blueberry, they were able tosuccessfully argue that the, I
guess, energy activities, butalso forestry activities,
highway development, basicallyall forms of industrial activity
up in their area, when takentogether in totality, made it so
(09:26):
they were unable tomeaningfully exercise their
treaty rights that are protectedunder Section 35 of the
Constitution Act.
So they were able tosuccessfully argue that,
basically, the bargain that theystruck at the turn of the
century with the Crown was notbeing fulfilled on the part of
(09:49):
the Crown, and so theypetitioned the court to look
into these matters, and thecourt, upon review, found that
they agreed that so muchindustrial activity had occurred
without proper consultationthat it made the, I guess, the
effective carrying out of theirtreaty rights no longer
(10:11):
meaningful and reasonable.
But the outcome was it forced aconversation between the crowns
(10:49):
, the nation and, of course,industry was consulted through
that process that ultimatelybrought about a resolution.
But since that decision cameout there's also been
advancement with the otherTreaty 8 groups up at
Northeastern British Columbia.
So I guess, to circle back toBlueberry, the point is it sped
up a coming together of theCrown, the business community
and the nations in Northeast BCto figure out how permitting
would go forward while balancingthe interests of the nation.
Stewart Muir (11:11):
Now you're talking about Blueberry River First
Nation.
That's a story that's been inthe news again recently, and
also it so happens that thetraditional territories of this
nation and others in Treaty 8just happen to be on top of one
of the richest natural assets inBritish Columbia, that's the
Montney Shale.
Does it make a difference whenyou've got a cumulative impact
(11:33):
question being settled incircumstances where there's so
much at stake in economic terms?
Malcolm Macpherson (11:38):
Well, I think you got a few different
answers to that question.
I think if you ask thejudiciary they'd say well, it's
an impartial process.
But I think that the pragmaticanswer is that the economy
certainly does play into theequation of where resources and
attention is allocated.
We'll give you an example.
(11:59):
If you look at a group like theTuasen First Nation I grew up
in An urban First Nation.
I grew up in an urban FirstNation, so I grew up in the
Tuasen area and you know I'msure there was a confluence of
pressures which probablyassisted with.
You know how that treaty cameto be right and how it advanced.
(12:22):
Obviously, being in the lowermainland, it was strategically
important to try and get aresolution.
I think that's generally trueacross Canada.
I think that if one sits upon aresource basin whether it's a
pile of diamonds, the MontenegasBasin or what have you, yeah,
(12:48):
it'll naturally pull in theinterest of a government that
has to be accountable also tothe business community and to
the general populace right thatearns a living from these riches
of nature.
Stewart Muir (13:05):
Malcolm, tell me about your work supporting the
National Coalition of Chiefs.
Malcolm Macpherson (13:09):
Absolutely so.
The National Coalition ofChiefs was actually created by a
good friend of mine, daleSwampy, and Dale and I have
worked together over many years.
I first met him in 2010 and wegot on right away as fast
friends and we've stayed incontact ever since.
So what I do is I support Dalewhen requested at his
(13:31):
conferences, and I guess thegenesis, if you will, behind its
creation was to address theon-reserve poverty.
Dale himself is, I believe, fromI think it's Musquechese, our
First Nation in Alberta, and youknow, like many, many
(13:52):
communities, there's morepoverty on the reserves than
there is found elsewhere in thegeneral Canadian public, and you
know Dale thought about it andsaid 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 itupon himself to look at solving
that issue by utilizing thenatural resource riches of
(14:18):
Canada and he spent a good dealof time over the past many years
basically connecting thoseinterested in having a real
conversation about resourceextraction and how that
intersects with Indigenousrights.
So he will, for example, bringtwo meetings C-suite executives
(14:39):
from various energy companiesand have them meet up with
chiefs and business leaders,energy companies and have them
meet up with chiefs and businessleaders, and he looks to really
sort of stimulate aconversation around what the
future looks like in terms of abalanced conversation around
resource extraction.
That's moderate, right, that's,I guess if I were to describe
(15:01):
his outlook.
It's an open to businessapproach which is mindful of the
need to respect the indigenousrights.
That's actually a point that Iwanted to make in an earlier
question that you'd asked me,and that is that you know, if we
go back to the cumulativeimpacts or whatever the lawsuit
is, that's challenging, if youwill.
The governing sorry, thegovernment's permitting process,
(15:23):
I would say in my experienceover the past few decades is
that most of the leaders they'renot looking to altogether stop
industrial resource development.
That's not the objective.
Rather, the objective is tomeaningfully participate in the
(15:44):
resource extraction activitiesand I'll give you a case in
point example.
That's really live time inSaskatchewan right now and I
actually I represent fournations in the province of
Saskatchewan.
What I hear and it's a bit of achorus is a frustration by the
leadership of being left out ofthe conversation around the
(16:05):
participation.
So I'd like to pick on potashOil and gas and other forms of
energy such as nuclear often geta bad rep, especially in Canada
, so I'll pick on the potashindustry.
Stewart Muir (16:22):
Which is mined prolifically in Saskatchewan for
fertilizer.
Malcolm Macpherson (16:26):
It is.
And just to give you apractical example of the type of
wealth we're talking about, ifyou go to Regina and you just
look up the largest buildings,some of the largest buildings
have the names of the potashcompanies at the top.
And so the chiefs of leadershipthey say it's not right,
there's billions of dollars ofrevenues flowing through that
(16:50):
extraction and they're notmeaningfully participating.
So one of the objectives thatmyself and I guess other legal
practitioners in the space willbe working on is to try and do
something about that for thegreater good.
What I mean by that is findinga way for the nations to
(17:13):
meaningfully participate in thelocal economy created by the
extraction of the potash.
Practically speaking, what doesthat mean?
It means entering intomeaningful IBA types of
agreements, which the IBA by theextraction of the potash.
Practically speaking, what doesthat mean?
It means entering intomeaningful IBA types of
agreements, which the IBA, bythe way, stands for Impact and
Benefit Agreement.
So the nations are not lookingfor side jobs, if you will, or
(17:36):
what they describe as sort ofbroom jobs, broom and shovel
jobs.
What they're looking for is tointegrate in a meaningful way
their workforce in the jobs thatare made available.
But they also are looking toproperly participate in Columbia
, in the Yukon, with the miningindustry.
(17:58):
Oftentimes there'll be anegotiated net smelter return
(18:19):
type of concept.
So they're looking for that andone of the reasons they're
looking for that is one theywant to have a say right.
So there's an environment toconsider.
It is being considered butthey're largely not yet at the
table and they're looking tohave a If you look at the
radiocarbon dating it's anywherefrom 10,000 to recognized that
(18:41):
there was an inescapableeconomic component tied to
Aboriginal title and it also Iguess the other thing that
(19:17):
proposition that stood for isoral evidence for the first time
was considered very admissibleIn the past.
There have been a lot ofchallenges around that.
So Delgamouk talked aboutbasically there being two
landlords the Crown and then anencumbrance upon the Crown's
title by the Indigenous title.
If you fast forward over time,if you look at Chilcotin,
(19:40):
chilcotin moved the yardstickforward.
That's another decision.
That was a very significantBritish Columbia decision which
actually outright grantedIndigenous title to a large
tract of land in the interior ofBC in the Williams Lake area.
I believe the size of it lasttime I checked was somewhere
(20:02):
around 500,000 acres ofcontiguous land.
The point that I'm seeking tomake here is that the nations
are of the view and I agree withtheir perspective that they are
a co-landlord of sorts of sortsand that if you're co-landlord,
(20:28):
generally speaking that meansyou share in a reasonable way in
the rents that are collected.
And a number of the nations thatI speak with are of the view
that that's where there's a realdisconnect and that's where
there needs to be a broaderCanadian conversation around
that.
My sense is it's going tohappen, and what I mean by that
(20:53):
is, if one looks at Canada'sform of government, right, you
look at the national government,you look at the provincial
governments, the territorialgovernments, the municipal
governments they all run off ofresources, right?
They all run off of resources,right.
So in the same way that thosesort of other Canadian
governments are supported, thenations need support as well to
fund their operations, and oneof the ways that you know they
(21:27):
believe that shortfall can bemade up is possibly through a
revenue sharing type of scheme,and that's something that I'm
really interested in helping toresolve and reconcile for the
collective benefit of allparties right Of the nation,
canada and the businesscommunity.
Stewart Muir (21:38):
From what I've seen of your work, it runs
deeper than just the rights, thelegal entitlement.
It runs deeper than just therights, the legal entitlement.
It touches on respect as wellrights and respect, because it
seems like recognizing the humanneeds and wants of people,
including being respected,especially when you haven't been
(22:01):
as a culture, makes a bigdifference.
Malcolm Macpherson (22:06):
It absolutely makes a huge
difference and, yeah, Idefinitely care deeply about
that aspect.
There's been many a files to itand 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 ina few instances, the lawsuits
(22:27):
that had been started.
There's a lot to be said forcommon sense being applied in
these scenarios.
What I mean by that isespecially I guess this will
apply especially to government.
I would say business has reallycome a long way.
A blow kiss to the businesscommunity.
They've really come a long waysto studying the impasses, the
(22:52):
interference with permitissuance, and they've worked to
understand it.
And what I've largely foundwhen I've spoken to various sort
of CEOs and C-suite executivesis they get it.
They say, look, we get it.
We understand that there needsto be a greater sharing of the
(23:15):
economic pie, but our problem isthat we're already paying.
We're paying a lot and we'repaying our money to the crown.
We're paying a lot and we'repaying our money to the crown.
So it's on the crown to followDelgamook, to follow Chilcotin,
(23:40):
to follow Blueberry and connectthe rights that its own courts
have declared to exist.
And part of that recognition iseconomic right.
It has to be, otherwise how doyou run your government so sorry
?
Getting back to your probingabout it, it's more than money.
It's more than surface rightsrecognition.
It's personal.
You're absolutely right, stuartdecades, that if they perceive
(24:10):
the crown or the businesscommunity 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 reallyrecognizing the ancestors, if I
could frame it that, simplyRecognizing those that came
before, that fought for therights that are now recognized
(24:35):
in the Canadian Constitution and, quite literally, the ancestors
that have lived on thecontinent for over 10,000 years
in some instances.
Stewart Muir (24:46):
Malcolm, you've dealt with nations all over the
place, different cultural groups, different languages, different
issues.
What are some of the commonthreads you find when you meet
with First Nations leadershipsin their communities?
Malcolm Macpherson (24:58):
I've noticed over the decades a real
generosity of spirit.
So, as I said, one of the mostbeautiful things about the
communities is that generosityof spirit.
For the most part, They'llliterally give others the shirt
off their backs.
Yeah, in all my years I'vereally noticed a wonderful
(25:21):
spirit and heart, which I thinkis really remarkable and I think
ties into reconciliation.
And really why Canada inparticular?
Perhaps look at the New Zealandmodel of reconciliation.
My biggest criticism you didn'task me this question, but my
biggest criticism withreconciliation and the movement
(25:41):
is we really need to see more inthe way of action and resources
follow.
Because, you know, words to adegree are powerful, but they
can also be hollow if they'renot acted upon, and that's a
common threat of frustration.
Stewart Muir (25:59):
There's no shortage of talk, but results
not acted upon, and that's acommon thread of frustration.
Malcolm Macpherson (26:03):
There's no shortage of talk, but results
not so much.
Yeah, the term of art that wehear is reconciliaction.
Yeah, it's talked a lot about.
That's a pretty good subject.
Yeah, other threads ofcommonality would be a real
interest in generally improvingthe lot of life, improving the
standard of living.
Right, that's what Dale Swampyat the National Coalition and
others talk about.
(26:25):
It's to answer the question whyare Canada's Indigenous people
dying, in some cases decadesearlier than the average
Canadian?
Why is the drinking water issuestill an issue in First World
Canada?
I mean, that's absolutelyridiculous, right?
(26:45):
That could take up a wholepodcast, so we'll leave that
there.
Stewart Muir (26:50):
You think we'd have that one solved by this
point in time.
Malcolm Macpherson (26:53):
You'd think so.
Yeah, Another thread ofcommonality is an interest in
having the nations, whether theybe in rural Saskatchewan or
urbanized Vancouver, have themproperly, meaningfully
participate in the economy.
That's a threat.
And then there's the whole sortof right spot right, Bill C-92,
(27:18):
it's stereotypical these days anegotiated outcome with the
federal government to basicallyempower nations to pass laws
giving them control over theirown children and families.
There's a very, very highincidence of child and family
(27:39):
services coming in andapprehending children and I
think, for fairly obviousreasons, pulling apart the
fabric of families is quitedestabilizing and is really one
of, I think, one of the rootcauses of the reason for the
existing catch-up that needs tooccur between Canada's first
(28:00):
peoples and the rest of Canada.
So it's a real push.
I can give you some examples.
So I was just recently meetingwith Chief Erica Bodine of
Kittikawasas First Nation andSaskatchewan, so they're about
an hour and a half east ofRegina.
(28:20):
You might have seen a pictureof Trudeau sort of kneeling with
a teddy bear.
That picture was actually takenat the Cowessess First Nation
and she speaks openly about herinterest in learning from other
parts of Canada and sort oftaking the best, if you will, in
(28:41):
terms of different advancementsin laws and economic
development and bringing thatinformation home and helping her
people.
And her council, of course, isfalling behind that as well.
I think of Chief Eben Tebetitatof the Kakawistahal First
Nation.
(29:01):
He has done a phenomenal job interms of bringing his community
forward.
They built a bunch ofadministration buildings.
They have the largestKakawistahal flag you've ever
seen.
There's a real pride in thecommunity.
He, of course, was trained inthe army and brought some of
that training home and thenation is, I believe, is old,
(29:24):
Ticks forward in a veryorganized manner and you know
he's one to always talk aboutthe need for there to be proper
sharing of the wealth, of theresources.
If we look to British Columbia,I think of Chief Dolly Mildon
and Prince George who workedtirelessly to do her best and of
course her council is behindher to properly bring about, I
(29:48):
guess, the emergence of thevarious industries in that part
of our province.
And that part of our provinceis, I think, fair to say, more
brownfield than the other parts.
When I say brownfield I justmean that there's more
industrial activity alreadythere.
So generally speaking, whenthat happens it's easier to put
forward new projects.
So one of their interests iscultivating large energy
(30:13):
projects, whether they beconventional or green.
I'm also reminded of theKaka'la Nation in Northwest BC
and I did work with Kaka'laNation for quite some time.
(30:35):
The chief, Linda Inister, isvery interested in really
balancing the treaty rights withadvancements in the development
of the local economy.
So whether that be a shipyard,whether that be an energy
project, whether that bedevelopments with the city of
(30:56):
Prince Rupert project, whetherthat be developments with the
city of Prince Rupert, so youknow, in terms of common threads
, it's very much a conversationaround taking one's proper place
as a nation at the table in thetrue spirit of reconciliation
and balancing interplay of theenvironment with economic
(31:20):
development.
I really believe that thenations are going to be and are
the way forward for naturalresource extraction in the
country.
They literally are the resourcerulers.
They don't have a veto, but Ialways say they have a near veto
in the sense that if youcompare constitutional and
(31:41):
Section 35 ranks to other rightsheld by, I guess,
non-Indigenous Canadians,they're different and there's a
reason for the difference and, Iguess, the risk of
oversimplification.
I describe the rights assupercharged.
So it's not a veto but if youthink about it, practically
(32:06):
right, if you put up asupercharged right up against a
non-supercharged right, itdoesn't mean the supercharged
right will always win in everysetting, but I think it's pretty
common sense to see the outcomethat in most instances the
supercharged right will have anadvantage.
So for that reason I've spent anumber of years now meeting with
executives and others indifferent functions the governor
(32:30):
, actually, of a group calledSIAT, which stands for Canadian
Energy Executive Association,and through that one of the
things what I do is I talk tobusiness owners and, I guess,
leaders in the resource sector,and I encourage them to be
mindful of these superchargedrights and also to be mindful of
(32:51):
the good spirit that I talkedabout earlier all of the nations
and their willingness.
I would say, you know, it wouldbe a generalization, we could,
uh, all nations supportindustrial, but on, but I would
say, my two plus decades ofexperience, I'd say it's in that
high 90th percentile in termsof support.
It's just qualified.
I think it's qualifying supportin the sense that, well, let me
(33:14):
just turn the proverbial tableand you'll pick on you, uh,
steward, for a minute here.
So let's say, uh, let's say youwere back and your last name is
muir I I'm.
I'm going to take a wild guessit's probably scottish you'd be
right all right.
So your, uh, your, yourancestors uh managed to uh fend
off the, the normans that wereinvading, and, uh, the uh
(33:35):
anglo-saxons that were invading,and the Anglo-Saxons that were
invading from the south, and theRomans that came up right, and
let's just say hypothetically,you held on to the lands for,
let's not say 10,000 years, butlet's just go a couple hundred,
let's say two, three hundred.
You'd probably feel aconnection to the land, right,
and you'd probably want to sayover their development, right,
(33:58):
and you'd probably feel adeep-seated connection to that
lab.
Now, that's not to say likeyou'd think you have a veto, or
maybe you wouldn't, but you'dfeel you'd have a say right in
all of it.
And that's the same thing withthe indigenous nations.
The indigenous nations aresaying, look, we've been here
(34:19):
since the beginning of ourliving memory, in the economy
(34:39):
and the bountiful resources ofthese lands that our forefathers
and foremothers looked aftersince the literal dawn of time.
So, getting back to the businesscommunity, as I pass that
message on and I explain look,the best way forward is to truly
reconcile, to get at the rootof that understanding and find a
(35:03):
way to make the business wheelturn, 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 thatwheel turn right?
Well, I think it goes back toan earlier comment I made about
this two-landlord concept right,you know this two landlord
concept right Industries prepareto pay a landlord right, they
(35:24):
don't want to pay twice is inone breath saying that it
recognizes the superchargedrights, that believes in
(35:45):
reconciliation, that it fullysupports, I guess, better
conduct towards Canada's people,given colonial history.
But from the First Nationperspective they're saying, look
, we're still not participating.
So it's not a fullreconciliation, it's only a
partial reconciliation ifthere's a focus on words without
(36:07):
action and without resourcesbacking.
Stewart Muir (36:10):
You talked about participation Through the
National Coalition of Chiefswork.
You've done so much to provideevidence of participation in the
Clean Energy Summit I attendedthis year was really just
example after example afterexample of First Nations that
were engaged in clean energyprojects that they wanted
actively or were activelyinvolved in, because I guess the
(36:35):
aspirations you've talked about, malcolm, were to be found in
these projects.
Do you think that is awidespread phenomenon or was it
really just the few, theexamples you had on the stage at
the Zutina conference?
Malcolm Macpherson (36:48):
Yeah, the way I'd answer that is, you know
, I guess, to be fullytransparent.
I mean, at the NCC conference.
It does attract a businesscrowd At the NCC conference it
does attract a business crowd.
But I would say that apart, myexperience over the decades is
that there's a real interest anda willingness to engage in
(37:11):
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 ashift as well with demographics.
So it's that the younger nationmembers are much more open to
resource extraction, developmentand their forefathers and
(37:31):
foremothers.
And part of that, I believe, is,well, it's complicated, we
probably spend maybe a half dayon this, but there's a bunch of
factors that that I think havecaused that.
One is, if you look at, you know, just historical colonial
legacy, right, there's there'ssome damage, right, if we, I
think, I think we can agree thatthere is there is some
significant damage done toresidential schools and and to
(37:55):
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 voteuntil I think it was like the
50s, right?
Imagine that you couldn't vote.
I'd have to check the data.
It might actually be a bitlater, but the point is is that
(38:18):
the Union Act completelyderegulated the activities of
all economic development andalso social interaction on
reserves, and what it did is itcaused for there to be these, I
guess, economic islands whichdidn't fully participate in the
broader Canadian economy.
(38:39):
So that's one of the thingsthat has been changing.
The younger generation is morefluent in the world of computers
and technology and science, ifyou will, around the various
forms of energy, and I thinkthat that is helping to sort of
(39:00):
make it easier for them to enterthe mainstream, if you will.
Yeah, in terms of.
Stewart Muir (39:06):
Well, I think you've provided a really
important explanation as to howit is that there is a perception
I run into this all the timethat First Nations as a group
are opposed to economicdevelopment, but you've peeled
back a couple of layers toreveal how this has evolved over
(39:27):
time.
Maybe there is some truth inthat at some past time, but it's
so different now.
Malcolm Macpherson (39:33):
Yeah, it is different, you know, and there's
no right or wrong answer to thequestion 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 yourperspective?
And I believe Ivan's a memberof SawRage, first nation in
Alberta.
(39:54):
At the time I was working on alarge energy corridor project
and I noticed that it's justthis huge impasse in terms of
willingness to engage, talkabout the project.
And I asked Ivan.
I said well, why do you thinkthat is One of the things Ivan
had said.
I think he's right.
He said you have to understandthat when one has been oppressed
(40:18):
through the Indian Act andthrough aspects of colonial rule
, he says you have to understandthat 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 thinkthere's some truth to that.
If you read Rousseau, he talksabout the concept of sort of the
(40:42):
noble Indian, I thinktranslated from French, and it's
this concept that, but forthese annoying, you know, sort
of colonizer settlers, lifewould be peachy and wonderful
right.
Stewart Muir (40:58):
If one man is born free but everywhere is in
chains, but the noble Indian,perhaps an exception.
Malcolm Macpherson (41:04):
And, of course, if you read John Locke,
right, it's the very oppositeLife is nasty, brutish and short
.
Yes, so you have these extremesright of perspective, and I
would say I'll use scottishculture because my last name is
mcpherson and yours is muirright, if we think about the
scots, right?
Um, you know, I talked to my,my grandfather when he was
(41:27):
living.
He, he told me the scots weretribal, right, and at their
origin they were, and but thatchanged over time.
That changed right with withRoman and English and other rule
.
And so the point is is rightlyor wrongly right, culture
evolves and it changes.
So, getting back to Ivan, right, ivan's answer to the question
(41:50):
why is there such resistances?
There's a hearkening back to,to an imagined past right which
which may have existed but mayhave also existed in a different
way.
So the conclusion being that inmy experience, having spoken to
many nations over many decadesacross Canada I would say it'd
(42:13):
be the high 90th percentile ismost want to retain an identity
but also modernize.
Most of my friends that live onreserve or they're in
leadership enjoy modernconveniences.
They enjoy their modernvehicles, they enjoy central
heating, they enjoy plane rides,they enjoy sort of modern
(42:41):
medicine, right, all thesethings that are in some fashion
tied to a way of life that hasevolved away from how life was
hundreds of years ago.
So it's a really interestingconversation to watch and my
view of it is that we're seeinga movement forward which
(43:04):
recognizes a beautiful,historically significant past
while modernizing.
So I've always said that theFirst Nation people of Canada
are the resource rulers.
I didn't coin that term, by theway, there was a book by that
(43:28):
moniker that's definitely wortha read.
So, going forward, I often saywhen I'm speaking to different
audiences, and I make a pointwhen I speak to the executives
in the C-suite and elsewhere,that if we agree on the fact
that the nations have thesesupercharged rights, as I like
(43:48):
to call them, when there's sortof, I guess, complementary work
around it done, then it seems tobe a no-brainer that the future
of economic reconciliation andresource extraction advancement
(44:12):
surely has to lie in the comingtogether of the business
community, the Crown and theIndigenous nations.
I truly believe that we haven'tseen anything yet in Canada,
that these are still very sortof embryonic days and that a
decade from now the rights willbe even more advanced, even more
(44:35):
enshrined, even more enshrinedand as a natural consequence of
the nations, will, um, have more, not a veto, but even more of a
say over the extraction ofresources.
So, um, you know, at the Iwould say the smart money in the
room will understand that andwill gravitate towards working
(44:55):
with the nations in acooperative way to uh to make
advancements in the resourceextraction space.
Because if that doesn't happen,it seems to me what we will
then see is just a flight ofcapital that will continue to
leave Canada as it has and goelsewhere, to other parts of the
(45:17):
world like South America andother places where environmental
regulations are much lessstringent, where the sanctity of
human rights and worker rightsis not recognized the way it is
in Canada.
All that to say, we have anabsolute abundance of natural
resources in Canada.
(45:39):
Canada, over the course of thepast 200 years, has proven that
it's very good at extractingresources.
And you know, surely, it seemsto me, surely, morally, there's
a case to be made for keepingcapital in Canada, and you know
the US, keeping capital inCanada and the US, and surely
(46:01):
Canada can continue to play aleading role in natural resource
extraction.
I have to say that as someonewho was born I was born here in
Vancouver in the mid-70s.
I find it shocking when I readthe local papers or I watch I
(46:22):
don't know the local news orfollow social media.
I find it actually shocking howquickly and I think it's quite
naive that there's this stampedeto just sort of abandon
resource extraction, and I wantto explain that.
So if we look at BritishColumbia, for example and I talk
to my client, the Clay ClayTenay a lot about this we look
(46:46):
at what Canfor's doing.
Right, they're sort of shuttingdown operations for economic
reasons Not wholly, but it'splainly obvious that a lot of
mills are shutting down and thatcapital is moving to
jurisdictions in the UnitedStates where it's more
(47:06):
profitable and more certain toextract, in that instance, trees
.
I never thought I'd see the dayin BC where one of the staple
resources would be sort ofshuttering up business.
If we look in the mining sector,it's also been challenged.
(47:30):
Now, that being said, I fullysupport the nations that have
taken the position that thelegislative framework around
mining needs to be modernized.
Absolutely it does.
But there again I sort of Oneyou're allowed what my children
(47:52):
and others will do if keyindustries shut down and new
industries don't come online insufficient abundance to replace
those that have been shut down.
Yes, we have a developing techsector in British Columbia, but
it's not LA right, so I use thatas one example.
(48:13):
My point, though, is that we'velived a good life in Canada,
largely since the 1950s.
It's been a first world type ofexistence.
People have had peace, order,good government, they've been
able to send their children togood schools, good hospitals,
(48:35):
and that has been largely paidfor by the resource extraction
sector.
That's the reality of thesituation.
So I worry I worry for mychildren, I worry for other
people's children whateveryone's going to do Now.
I do understand that there's apush in BC to I think it's to
have 30% I've heard this frombureaucrats directly to have 30%
(48:56):
of lands turned to parks by2030.
And, on the one hand, Iunderstand that it's important
to preserve the natural beautyand to have large spaces where
there can be intact, thrivingecosystems.
I understand that intact,thriving ecosystems.
(49:19):
I understand that.
On the other hand, I alsowonder who's making all those
decisions and where that'sheaded.
Will it go to 50%?
Is that the plan?
Is it 70%?
Are we all going to becomesorry?
I'm going to exaggerate here abit, but is the plan to have
park rangers and businesses thatare associated with parks.
I could see in some measurethat there could be, for example
(49:39):
, indigenous tourism.
That makes a lot of sense.
I could see an industry developfrom large contiguous protected
areas.
But I wonder aloud, just as apractical person, if those jobs
will replace and will fund, youknow, the road infrastructure,
(50:00):
the schools, the hospitals, theway of life that Canadians,
indigenous and non-Indigenousalike, have come to expect.
Stewart Muir (50:11):
So that creates a lot of pressure on the rights
rulers, because they're the oneswho ultimately have the
deciding influence on whathappens.
Malcolm Macpherson (50:20):
Absolutely.
You know there's a community inNortheast BC.
I won't say who it is, but Ithought it was a really good
sort of vignette story and inthis instance the chief had
basically remarked to me andothers that he was in support of
a linear corridor pipelinedevelopment.
(50:42):
But for the fact that itimpacted I think in this case it
could have been a species likemountain caribou and there was
insufficient communication toaddress that and as a result,
they eventually figured it out,but it took a lot longer than it
(51:03):
needed to.
And it wasn't that the nationwas opposed to development, it
was just that, as a responsibleleader of the Indigenous
community, the mountain caribouwere very central to decision
right.
So it's not a veto but a nearveto and one that needs to be
(51:24):
seriously looked at from acommon sense perspective.
Right, why are thoseconversations not happening?
Right, part of it is lack offunding, a lack of support for
those important conversations,and I just know this from having
met with so many communitiesover the years.
But they'll have like one ortwo, maybe three on staff at the
(51:49):
natural resource office andthey'll get inundated with
proposals and there's anexpectation of answering of
these packages of information.
In some instances they're likefive to 20 inches thick, right,
with a lot of dense data fromenvironmental scientists and
(52:14):
others, right, and there's thisexpectation that these large
packages setting out theproposals will be reviewed,
digested, understood,communicated back to the
membership, the leadership, andthe other assumption is that
there'll then actually be aresponse.
(52:34):
Well, for some communities, yes, they've gotten ahead of the
curve and they've been able tosort of keep up with this
avalanche of paper, if you will.
But if you put yourself in theshoes, right, if we're
empathetic, you and I, right, weput ourselves in the shoes of
an indigenous community in the Iof BC or Alberta, they might be
(52:55):
a bit challenged to speedilyreply back.
So I guess the point is thatthere still is quite not the
point, but one of the points isthat there's still quite a
discrepancy in the resourcesthat are required to support a
proper back and forth exchangeof information and conversation.
(53:17):
And I think that's where a lot,not what.
I think it's where I see, Ishould say a lot of these
projects get tripped up, isthere?
It's actually, it ends upcosting more, right?
I'll pick on the NorthernGateway Pipeline, because I was
involved with that project andpart of the answer is going to
be inflation, but it started offas a $5 billion project.
(53:40):
Right?
Sounds like peanuts today,doesn't it?
That sounds like a deal.
What a bargain, right?
Yes, I think by the time I hadceased working on that project
and that was seven years inright, it had ballooned to I
think it was over 20, right?
If we look at the TransMountain Pipeline, right there's
a story there even further.
(54:01):
So my point is it's money wellspent on the front end to
properly fund the review andconversation, because that's a
lot less expensive than you knowhaving a very challenged
regulatory review.
It's much more cost effectivethan there being a simple
(54:24):
misunderstanding right If thenation would have been in favor
but for a respectful approach orbut for contemplation of a key
element like a mountain caribouright.
Stewart Muir (54:38):
Is there a source that you would recommend to
someone who wants to go deeperinto this?
Malcolm Macpherson (54:43):
There's a lot of literature that's
developed that's readilyavailable.
I'd say, read Delgamouc, readChilcotin, read Blueberry Wow,
you'll get caught up.
If it's a bit dense, read asummary, it'll be worthwhile.
Stewart Muir (54:59):
You've mentioned three decisions that are
landmark ones Delgamouk andChokotan, and Blueberry or Yahi
and it is sometimes enjoyable togo right to the words of a
judge, because it's lucid.
They're digesting a huge amountof information, to come to the
point, and it's surprising.
You might not expect to find itas accessible as it is to read
(55:22):
one of these rulings, but it isenjoyable.
Malcolm Macpherson (55:26):
It absolutely is enjoyable and well
worth it.
It's worth the investment Iencourage everyone listening to
this podcast to if they haven'talready done so, I'm sure many
have.
But just yeah, dig a little andget caught up, because the next
decade will be shaped by thesekey decisions.
Stewart Muir (55:47):
Malcolm, as we wind up on a more personal note,
when you're not immersed inyour complex legal work, what do
you like to do?
Malcolm Macpherson (55:54):
That's a really good question.
Stewart Muir (55:56):
You're a father, family, man, young family.
Malcolm Macpherson (55:59):
Well, I would say yes, most of my time
is spent working to keep up withmy children, and I have a
two-year-old, soon to bethree-year-old, three-year-old,
soon to be four-year-old, atwo-year-old soon to be
three-year-old, three-year-old,soon to be four-year-old.
I've got a 13-year-old daughterand a 15-year-old boy.
It is a very busy household.
(56:21):
I mostly spend time with him atgymnastics and reading books,
if you can believe it, becauseI'm away a lot, lot.
As you may expect, my wife is,is the star and, uh, yeah, we
basically spend a lot of timehelping the kids get a good
(56:43):
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 arelistening to this podcast.
Let's go fishing.
Stewart Muir (56:58):
Excellent.
Is there a future lawyer inthat posse of kids you've gotten
?
Malcolm Macpherson (57:04):
I do believe there's a future lawyer, yeah,
and who knows, maybe a futureprime minister.
We'll see Okay.
Stewart Muir (57:13):
Well, look, it's been a fascinating conversation
on power struggle.
Malcolm, thanks so much forcoming.
Malcolm Macpherson (57:18):
My pleasure, Stuart.
Thanks for having me on.
Why are Canada's Indigenous people dying
, in some cases decades earlierthan the average Canadian?
Why is the drinking water issuestill an issue in First World
Canada?
I mean, that's absolutelyridiculous, right.
Stewart Muir (00:22):
Hello, I'm Stuart Muir.
Welcome to Power Struggle.
On this episode of PowerStruggle, we're sitting down
with Malcolm McPherson, one ofCanada's leading voices in
Indigenous law and energy.
As the National Chair of theIndigenous Practice at Whitelaw
Twining, malcolm has spent over20 years at the cutting edge of
(00:43):
major energy projects, from oiland gas to hydrogen and
renewables, all while advocatingfor Indigenous rights.
He's known not just for hislegal expertise, but for his
ability to think creatively andpush for true economic
sovereignty for IndigenousCommunities.
Recently, malcolm joined theboard of an organization that
(01:05):
I'm involved with as a volunteerdirector of the Resource Works
Society, based in Vancouver,canada.
Malcolm's work is redefininghow power, literally and
figuratively, is shared inCanada.
This conversation will take youinside the world of energy law
and the fight for Indigenousleadership in the future of
(01:26):
power.
Welcome to the podcast, malcolm.
Thank you very much, stuart.
Pleasure to be here.
What sparked your career?
Malcolm Macpherson (01:34):
A really good question.
I always sort of knew I wantedto be involved in the practice
of law in some measure.
I was probably a kind professor.
That really led me down theright path.
I was seriously consideringbeing a professor of English
literature actually, and I had aprofessor that I went to for
(01:58):
some guidance and I told himthat I had this opportunity to
go to law school and was alsointerested, but was also quite
interested in literature.
And he must have seen somethingin me and said well, Malcolm,
if it's your life's passion tobe a professor, do that.
But he says I've got a brotherand sister that are both lawyers
(02:23):
and they've had enjoyablecareers and lives and and I'd
encourage you to think aboutthat.
So I'm not sure if there was ahint, but I I took a hint and uh
, here I am well, having thatlove of language probably helps
in the law it.
it definitely helps, for forsure it helps.
Uh, I'd say it gives a slightadvantage, right, just having a
(02:45):
rich vocabulary andunderstanding the roots of words
and interplay For sure, whetheryou're a solicitor or you're a
barrister, it matters You'vebuilt an impressive career over
the last 20 years.
Stewart Muir (03:00):
What did you do when you graduated?
Malcolm Macpherson (03:03):
Well, I graduated from the Faculty of
Law at the University of Toronto.
Shortly thereafter I made myway 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'vebeen practicing for over 20
(03:26):
years.
I originally set out topractice in the Indigenous
sphere.
I was always interested in theintersection of business and all
things Indigenous rightsoriented.
So it didn't take me long toreally start getting the
requisite experience needed inthe Indigenous space.
But I will say when I started Iwouldn't say I was a pioneer,
(03:50):
but I would say it was stillearly days.
There's actually a lawyer that Iused to do work for I won't
name the shop in Vancouver, butit's a fairly prestigious one
and he stopped me or I shouldn'tsay he stopped me, but we
bumped into each other on thestreet and one of the things he
said to me he says well, malcolm.
He says how is that indigenouspractice, how's that going?
(04:12):
And I said well, it's actuallythriving, it's going really well
.
He said well, malcolm, he saysthat 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 pressingat the time.
My point there is that it wasstill fairly early days and
there's a lot of, I guess,suspicion just around the
(04:33):
unknown of the practice area atmany of the mainstream firms in
Western Canada.
And when you say Indigenous law.
Stewart Muir (04:41):
What kind of things are in that indigenous?
Malcolm Macpherson (04:43):
law.
What kind of things are in that?
Well, it's extremely broad andit covers everything from title
and rights cases, you know, ifyou think of cumulative impacts,
which is quite topical in theenergy sphere, to solicitor work
, setting up joint venturepartnerships, complex legal
structures to support flowthroughs on a tax-free basis
(05:06):
utilizing Section 87.
I love it because there's nevera dull day.
I guess, if you take an eagle'seye view of it, it's a bit of a
generalist's practice, but itis getting increasingly
specialized over time.
Stewart Muir (05:23):
You've become known for tackling big
challenges and mentoring toplegal teams over these years.
Malcolm Macpherson (05:30):
Well, I'm glad to hear that.
I would say that I've alwaysliked the big and bold.
I always thought to myself weonly have so much time in our
proverbial hourglass and Ialways thought that I wanted to
make the most use of that time.
I think, as a result, I'vesought out sometimes it's come
to me through serendipity, but Iwould say I've definitely
(05:53):
sought out big bowl projects,both on the solicitor side of
the equation Solicitor, by theway, for the audience that may
not be familiar with lawyers isfor the audience that may not be
familiar with lawyers is it'syours, I guess drafter lawyers,
the lawyers that work on onvarious business deals,
including corporate structuresin real estate, and then, of
(06:14):
course, you have your barristersthat go to court and advocate
on behalf of clients.
That being said so, I'm atrained solicitor, but I have a
real interest in, I guess youcould say, setting up large
legal battles that are morallyimportant but equally practical
(06:35):
in bringing about reconciliationbetween Canada's first people
and the business community.
Stewart Muir (06:42):
Is there an example of a case that has
embodied these values for you?
Malcolm Macpherson (06:47):
Well, actually I can't get too many
details, but I can say that I'veactually 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, dothe job that I think government
(07:08):
ought to do.
That is not occurring.
What I mean by that is, bypushing the envelope through the
court system, it forces, if youwill, a real coming together at
the table.
Now I realize that may sound abit counterintuitive, but let's
look at Blueberry, the Blueberryexample in northeastern British
(07:29):
Columbia.
Stewart Muir (07:34):
And that's a reference to the Blueberry River
, first Nation in the PeaceRiver, where there was a
momentous legal decision severalyears ago.
Malcolm Macpherson (07:38):
Yeah, the citation, if memory serves me
right, is Yahé versus the Crown.
So it was Chief Marvin Yahé andhis council back in the day
that, over a decade ago, startedout on the path to developing a
cumulative impact lawsuit.
No such lawsuit existed, sothis was literally created from
(07:58):
the ether to a degree.
And if we look at that exampleand I realize in the energy
community that's viewed as sortof I don't know contested, if I
could put it that way, there'ssome frustrations around it
(08:27):
actually pushed forward areconciliation between the Crown
business and the communities inthe Northeast BC area.
Stewart Muir (08:29):
British Columbia, which is the end result you hope
for, but along the way it canbe very frustrating.
I'd just like to ask you toexplain a term that maybe not
everyone's familiar with, andthat is cumulative impact itself
.
Malcolm Macpherson (08:42):
Sure, what does that mean?
Well, I guess, simply put in layterms, I describe it as the
nations are of the perspectivethat there's a proverbial death
by a thousand cuts on account ofcumulative impact to their
traditional territory caused bya confluence of different
industries.
(09:03):
So if we look at NortheasternBritish Columbia and the
blueberry, they were able tosuccessfully argue that the, I
guess, energy activities, butalso forestry activities,
highway development, basicallyall forms of industrial activity
up in their area, when takentogether in totality, made it so
(09:26):
they were unable tomeaningfully exercise their
treaty rights that are protectedunder Section 35 of the
Constitution Act.
So they were able tosuccessfully argue that,
basically, the bargain that theystruck at the turn of the
century with the Crown was notbeing fulfilled on the part of
(09:49):
the Crown, and so theypetitioned the court to look
into these matters, and thecourt, upon review, found that
they agreed that so muchindustrial activity had occurred
without proper consultationthat it made the, I guess, the
effective carrying out of theirtreaty rights no longer
(10:11):
meaningful and reasonable.
But the outcome was it forced aconversation between the crowns
(10:49):
, the nation and, of course,industry was consulted through
that process that ultimatelybrought about a resolution.
But since that decision cameout there's also been
advancement with the otherTreaty 8 groups up at
Northeastern British Columbia.
So I guess, to circle back toBlueberry, the point is it sped
up a coming together of theCrown, the business community
and the nations in Northeast BCto figure out how permitting
would go forward while balancingthe interests of the nation.
Stewart Muir (11:11):
Now you're talking about Blueberry River First
Nation.
That's a story that's been inthe news again recently, and
also it so happens that thetraditional territories of this
nation and others in Treaty 8just happen to be on top of one
of the richest natural assets inBritish Columbia, that's the
Montney Shale.
Does it make a difference whenyou've got a cumulative impact
(11:33):
question being settled incircumstances where there's so
much at stake in economic terms?
Malcolm Macpherson (11:38):
Well, I think you got a few different
answers to that question.
I think if you ask thejudiciary they'd say well, it's
an impartial process.
But I think that the pragmaticanswer is that the economy
certainly does play into theequation of where resources and
attention is allocated.
We'll give you an example.
(11:59):
If you look at a group like theTuasen First Nation I grew up
in An urban First Nation.
I grew up in an urban FirstNation, so I grew up in the
Tuasen area and you know I'msure there was a confluence of
pressures which probablyassisted with.
You know how that treaty cameto be right and how it advanced.
(12:22):
Obviously, being in the lowermainland, it was strategically
important to try and get aresolution.
I think that's generally trueacross Canada.
I think that if one sits upon aresource basin whether it's a
pile of diamonds, the MontenegasBasin or what have you, yeah,
(12:48):
it'll naturally pull in theinterest of a government that
has to be accountable also tothe business community and to
the general populace right thatearns a living from these riches
of nature.
Stewart Muir (13:05):
Malcolm, tell me about your work supporting the
National Coalition of Chiefs.
Malcolm Macpherson (13:09):
Absolutely so.
The National Coalition ofChiefs was actually created by a
good friend of mine, daleSwampy, and Dale and I have
worked together over many years.
I first met him in 2010 and wegot on right away as fast
friends and we've stayed incontact ever since.
So what I do is I support Dalewhen requested at his
(13:31):
conferences, and I guess thegenesis, if you will, behind its
creation was to address theon-reserve poverty.
Dale himself is, I believe, fromI think it's Musquechese, our
First Nation in Alberta, and youknow, like many, many
(13:52):
communities, there's morepoverty on the reserves than
there is found elsewhere in thegeneral Canadian public, and you
know Dale thought about it andsaid 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 itupon himself to look at solving
that issue by utilizing thenatural resource riches of
(14:18):
Canada and he spent a good dealof time over the past many years
basically connecting thoseinterested in having a real
conversation about resourceextraction and how that
intersects with Indigenousrights.
So he will, for example, bringtwo meetings C-suite executives
(14:39):
from various energy companiesand have them meet up with
chiefs and business leaders,energy companies and have them
meet up with chiefs and businessleaders, and he looks to really
sort of stimulate aconversation around what the
future looks like in terms of abalanced conversation around
resource extraction.
That's moderate, right, that's,I guess if I were to describe
(15:01):
his outlook.
It's an open to businessapproach which is mindful of the
need to respect the indigenousrights.
That's actually a point that Iwanted to make in an earlier
question that you'd asked me,and that is that you know, if we
go back to the cumulativeimpacts or whatever the lawsuit
is, that's challenging, if youwill.
The governing sorry, thegovernment's permitting process,
(15:23):
I would say in my experienceover the past few decades is
that most of the leaders they'renot looking to altogether stop
industrial resource development.
That's not the objective.
Rather, the objective is tomeaningfully participate in the
(15:44):
resource extraction activitiesand I'll give you a case in
point example.
That's really live time inSaskatchewan right now and I
actually I represent fournations in the province of
Saskatchewan.
What I hear and it's a bit of achorus is a frustration by the
leadership of being left out ofthe conversation around the
(16:05):
participation.
So I'd like to pick on potashOil and gas and other forms of
energy such as nuclear often geta bad rep, especially in Canada
, so I'll pick on the potashindustry.
Stewart Muir (16:22):
Which is mined prolifically in Saskatchewan for
fertilizer.
Malcolm Macpherson (16:26):
It is.
And just to give you apractical example of the type of
wealth we're talking about, ifyou go to Regina and you just
look up the largest buildings,some of the largest buildings
have the names of the potashcompanies at the top.
And so the chiefs of leadershipthey say it's not right,
there's billions of dollars ofrevenues flowing through that
(16:50):
extraction and they're notmeaningfully participating.
So one of the objectives thatmyself and I guess other legal
practitioners in the space willbe working on is to try and do
something about that for thegreater good.
What I mean by that is findinga way for the nations to
(17:13):
meaningfully participate in thelocal economy created by the
extraction of the potash.
Practically speaking, what doesthat mean?
It means entering intomeaningful IBA types of
agreements, which the IBA by theextraction of the potash.
Practically speaking, what doesthat mean?
It means entering intomeaningful IBA types of
agreements, which the IBA, bythe way, stands for Impact and
Benefit Agreement.
So the nations are not lookingfor side jobs, if you will, or
(17:36):
what they describe as sort ofbroom jobs, broom and shovel
jobs.
What they're looking for is tointegrate in a meaningful way
their workforce in the jobs thatare made available.
But they also are looking toproperly participate in Columbia
, in the Yukon, with the miningindustry.
(17:58):
Oftentimes there'll be anegotiated net smelter return
(18:19):
type of concept.
So they're looking for that andone of the reasons they're
looking for that is one theywant to have a say right.
So there's an environment toconsider.
It is being considered butthey're largely not yet at the
table and they're looking tohave a If you look at the
radiocarbon dating it's anywherefrom 10,000 to recognized that
(18:41):
there was an inescapableeconomic component tied to
Aboriginal title and it also Iguess the other thing that
(19:17):
proposition that stood for isoral evidence for the first time
was considered very admissibleIn the past.
There have been a lot ofchallenges around that.
So Delgamouk talked aboutbasically there being two
landlords the Crown and then anencumbrance upon the Crown's
title by the Indigenous title.
If you fast forward over time,if you look at Chilcotin,
(19:40):
chilcotin moved the yardstickforward.
That's another decision.
That was a very significantBritish Columbia decision which
actually outright grantedIndigenous title to a large
tract of land in the interior ofBC in the Williams Lake area.
I believe the size of it lasttime I checked was somewhere
(20:02):
around 500,000 acres ofcontiguous land.
The point that I'm seeking tomake here is that the nations
are of the view and I agree withtheir perspective that they are
a co-landlord of sorts of sortsand that if you're co-landlord,
(20:28):
generally speaking that meansyou share in a reasonable way in
the rents that are collected.
And a number of the nations thatI speak with are of the view
that that's where there's a realdisconnect and that's where
there needs to be a broaderCanadian conversation around
that.
My sense is it's going tohappen, and what I mean by that
(20:53):
is, if one looks at Canada'sform of government, right, you
look at the national government,you look at the provincial
governments, the territorialgovernments, the municipal
governments they all run off ofresources, right?
They all run off of resources,right.
So in the same way that thosesort of other Canadian
governments are supported, thenations need support as well to
fund their operations, and oneof the ways that you know they
(21:27):
believe that shortfall can bemade up is possibly through a
revenue sharing type of scheme,and that's something that I'm
really interested in helping toresolve and reconcile for the
collective benefit of allparties right Of the nation,
canada and the businesscommunity.
Stewart Muir (21:38):
From what I've seen of your work, it runs
deeper than just the rights, thelegal entitlement.
It runs deeper than just therights, the legal entitlement.
It touches on respect as wellrights and respect, because it
seems like recognizing the humanneeds and wants of people,
including being respected,especially when you haven't been
(22:01):
as a culture, makes a bigdifference.
Malcolm Macpherson (22:06):
It absolutely makes a huge
difference and, yeah, Idefinitely care deeply about
that aspect.
There's been many a files to itand 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 ina few instances, the lawsuits
(22:27):
that had been started.
There's a lot to be said forcommon sense being applied in
these scenarios.
What I mean by that isespecially I guess this will
apply especially to government.
I would say business has reallycome a long way.
A blow kiss to the businesscommunity.
They've really come a long waysto studying the impasses, the
(22:52):
interference with permitissuance, and they've worked to
understand it.
And what I've largely foundwhen I've spoken to various sort
of CEOs and C-suite executivesis they get it.
They say, look, we get it.
We understand that there needsto be a greater sharing of the
(23:15):
economic pie, but our problem isthat we're already paying.
We're paying a lot and we'repaying our money to the crown.
We're paying a lot and we'repaying our money to the crown.
So it's on the crown to followDelgamook, to follow Chilcotin,
(23:40):
to follow Blueberry and connectthe rights that its own courts
have declared to exist.
And part of that recognition iseconomic right.
It has to be, otherwise how doyou run your government so sorry
?
Getting back to your probingabout it, it's more than money.
It's more than surface rightsrecognition.
It's personal.
You're absolutely right, stuartdecades, that if they perceive
(24:10):
the crown or the businesscommunity 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 reallyrecognizing the ancestors, if I
could frame it that, simplyRecognizing those that came
before, that fought for therights that are now recognized
(24:35):
in the Canadian Constitution and, quite literally, the ancestors
that have lived on thecontinent for over 10,000 years
in some instances.
Stewart Muir (24:46):
Malcolm, you've dealt with nations all over the
place, different cultural groups, different languages, different
issues.
What are some of the commonthreads you find when you meet
with First Nations leadershipsin their communities?
Malcolm Macpherson (24:58):
I've noticed over the decades a real
generosity of spirit.
So, as I said, one of the mostbeautiful things about the
communities is that generosityof spirit.
For the most part, They'llliterally give others the shirt
off their backs.
Yeah, in all my years I'vereally noticed a wonderful
(25:21):
spirit and heart, which I thinkis really remarkable and I think
ties into reconciliation.
And really why Canada inparticular?
Perhaps look at the New Zealandmodel of reconciliation.
My biggest criticism you didn'task me this question, but my
biggest criticism withreconciliation and the movement
(25:41):
is we really need to see more inthe way of action and resources
follow.
Because, you know, words to adegree are powerful, but they
can also be hollow if they'renot acted upon, and that's a
common threat of frustration.
Stewart Muir (25:59):
There's no shortage of talk, but results
not acted upon, and that's acommon thread of frustration.
Malcolm Macpherson (26:03):
There's no shortage of talk, but results
not so much.
Yeah, the term of art that wehear is reconciliaction.
Yeah, it's talked a lot about.
That's a pretty good subject.
Yeah, other threads ofcommonality would be a real
interest in generally improvingthe lot of life, improving the
standard of living.
Right, that's what Dale Swampyat the National Coalition and
others talk about.
(26:25):
It's to answer the question whyare Canada's Indigenous people
dying, in some cases decadesearlier than the average
Canadian?
Why is the drinking water issuestill an issue in First World
Canada?
I mean, that's absolutelyridiculous, right?
(26:45):
That could take up a wholepodcast, so we'll leave that
there.
Stewart Muir (26:50):
You think we'd have that one solved by this
point in time.
Malcolm Macpherson (26:53):
You'd think so.
Yeah, Another thread ofcommonality is an interest in
having the nations, whether theybe in rural Saskatchewan or
urbanized Vancouver, have themproperly, meaningfully
participate in the economy.
That's a threat.
And then there's the whole sortof right spot right, Bill C-92,
(27:18):
it's stereotypical these days anegotiated outcome with the
federal government to basicallyempower nations to pass laws
giving them control over theirown children and families.
There's a very, very highincidence of child and family
(27:39):
services coming in andapprehending children and I
think, for fairly obviousreasons, pulling apart the
fabric of families is quitedestabilizing and is really one
of, I think, one of the rootcauses of the reason for the
existing catch-up that needs tooccur between Canada's first
(28:00):
peoples and the rest of Canada.
So it's a real push.
I can give you some examples.
So I was just recently meetingwith Chief Erica Bodine of
Kittikawasas First Nation andSaskatchewan, so they're about
an hour and a half east ofRegina.
(28:20):
You might have seen a pictureof Trudeau sort of kneeling with
a teddy bear.
That picture was actually takenat the Cowessess First Nation
and she speaks openly about herinterest in learning from other
parts of Canada and sort oftaking the best, if you will, in
(28:41):
terms of different advancementsin laws and economic
development and bringing thatinformation home and helping her
people.
And her council, of course, isfalling behind that as well.
I think of Chief Eben Tebetitatof the Kakawistahal First
Nation.
(29:01):
He has done a phenomenal job interms of bringing his community
forward.
They built a bunch ofadministration buildings.
They have the largestKakawistahal flag you've ever
seen.
There's a real pride in thecommunity.
He, of course, was trained inthe army and brought some of
that training home and thenation is, I believe, is old,
(29:24):
Ticks forward in a veryorganized manner and you know
he's one to always talk aboutthe need for there to be proper
sharing of the wealth, of theresources.
If we look to British Columbia,I think of Chief Dolly Mildon
and Prince George who workedtirelessly to do her best and of
course her council is behindher to properly bring about, I
(29:48):
guess, the emergence of thevarious industries in that part
of our province.
And that part of our provinceis, I think, fair to say, more
brownfield than the other parts.
When I say brownfield I justmean that there's more
industrial activity alreadythere.
So generally speaking, whenthat happens it's easier to put
forward new projects.
So one of their interests iscultivating large energy
(30:13):
projects, whether they beconventional or green.
I'm also reminded of theKaka'la Nation in Northwest BC
and I did work with Kaka'laNation for quite some time.
(30:35):
The chief, Linda Inister, isvery interested in really
balancing the treaty rights withadvancements in the development
of the local economy.
So whether that be a shipyard,whether that be an energy
project, whether that bedevelopments with the city of
(30:56):
Prince Rupert project, whetherthat be developments with the
city of Prince Rupert, so youknow, in terms of common threads
, it's very much a conversationaround taking one's proper place
as a nation at the table in thetrue spirit of reconciliation
and balancing interplay of theenvironment with economic
(31:20):
development.
I really believe that thenations are going to be and are
the way forward for naturalresource extraction in the
country.
They literally are the resourcerulers.
They don't have a veto, but Ialways say they have a near veto
in the sense that if youcompare constitutional and
(31:41):
Section 35 ranks to other rightsheld by, I guess,
non-Indigenous Canadians,they're different and there's a
reason for the difference and, Iguess, the risk of
oversimplification.
I describe the rights assupercharged.
So it's not a veto but if youthink about it, practically
(32:06):
right, if you put up asupercharged right up against a
non-supercharged right, itdoesn't mean the supercharged
right will always win in everysetting, but I think it's pretty
common sense to see the outcomethat in most instances the
supercharged right will have anadvantage.
So for that reason I've spent anumber of years now meeting with
executives and others indifferent functions the governor
(32:30):
, actually, of a group calledSIAT, which stands for Canadian
Energy Executive Association,and through that one of the
things what I do is I talk tobusiness owners and, I guess,
leaders in the resource sector,and I encourage them to be
mindful of these superchargedrights and also to be mindful of
(32:51):
the good spirit that I talkedabout earlier all of the nations
and their willingness.
I would say, you know, it wouldbe a generalization, we could,
uh, all nations supportindustrial, but on, but I would
say, my two plus decades ofexperience, I'd say it's in that
high 90th percentile in termsof support.
It's just qualified.
I think it's qualifying supportin the sense that, well, let me
(33:14):
just turn the proverbial tableand you'll pick on you, uh,
steward, for a minute here.
So let's say, uh, let's say youwere back and your last name is
muir I I'm.
I'm going to take a wild guessit's probably scottish you'd be
right all right.
So your, uh, your, yourancestors uh managed to uh fend
off the, the normans that wereinvading, and, uh, the uh
(33:35):
anglo-saxons that were invading,and the Anglo-Saxons that were
invading from the south, and theRomans that came up right, and
let's just say hypothetically,you held on to the lands for,
let's not say 10,000 years, butlet's just go a couple hundred,
let's say two, three hundred.
You'd probably feel aconnection to the land, right,
and you'd probably want to sayover their development, right,
(33:58):
and you'd probably feel adeep-seated connection to that
lab.
Now, that's not to say likeyou'd think you have a veto, or
maybe you wouldn't, but you'dfeel you'd have a say right in
all of it.
And that's the same thing withthe indigenous nations.
The indigenous nations aresaying, look, we've been here
(34:19):
since the beginning of ourliving memory, in the economy
(34:39):
and the bountiful resources ofthese lands that our forefathers
and foremothers looked aftersince the literal dawn of time.
So, getting back to the businesscommunity, as I pass that
message on and I explain look,the best way forward is to truly
reconcile, to get at the rootof that understanding and find a
(35:03):
way to make the business wheelturn, 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 thatwheel turn right?
Well, I think it goes back toan earlier comment I made about
this two-landlord concept right,you know this two landlord
concept right Industries prepareto pay a landlord right, they
(35:24):
don't want to pay twice is inone breath saying that it
recognizes the superchargedrights, that believes in
(35:45):
reconciliation, that it fullysupports, I guess, better
conduct towards Canada's people,given colonial history.
But from the First Nationperspective they're saying, look
, we're still not participating.
So it's not a fullreconciliation, it's only a
partial reconciliation ifthere's a focus on words without
(36:07):
action and without resourcesbacking.
Stewart Muir (36:10):
You talked about participation Through the
National Coalition of Chiefswork.
You've done so much to provideevidence of participation in the
Clean Energy Summit I attendedthis year was really just
example after example afterexample of First Nations that
were engaged in clean energyprojects that they wanted
actively or were activelyinvolved in, because I guess the
(36:35):
aspirations you've talked about, malcolm, were to be found in
these projects.
Do you think that is awidespread phenomenon or was it
really just the few, theexamples you had on the stage at
the Zutina conference?
Malcolm Macpherson (36:48):
Yeah, the way I'd answer that is, you know
, I guess, to be fullytransparent.
I mean, at the NCC conference.
It does attract a businesscrowd At the NCC conference it
does attract a business crowd.
But I would say that apart, myexperience over the decades is
that there's a real interest anda willingness to engage in
(37:11):
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 ashift as well with demographics.
So it's that the younger nationmembers are much more open to
resource extraction, developmentand their forefathers and
(37:31):
foremothers.
And part of that, I believe, is,well, it's complicated, we
probably spend maybe a half dayon this, but there's a bunch of
factors that that I think havecaused that.
One is, if you look at, you know, just historical colonial
legacy, right, there's there'ssome damage, right, if we, I
think, I think we can agree thatthere is there is some
significant damage done toresidential schools and and to
(37:55):
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 voteuntil I think it was like the
50s, right?
Imagine that you couldn't vote.
I'd have to check the data.
It might actually be a bitlater, but the point is is that
(38:18):
the Union Act completelyderegulated the activities of
all economic development andalso social interaction on
reserves, and what it did is itcaused for there to be these, I
guess, economic islands whichdidn't fully participate in the
broader Canadian economy.
(38:39):
So that's one of the thingsthat has been changing.
The younger generation is morefluent in the world of computers
and technology and science, ifyou will, around the various
forms of energy, and I thinkthat that is helping to sort of
(39:00):
make it easier for them to enterthe mainstream, if you will.
Yeah, in terms of.
Stewart Muir (39:06):
Well, I think you've provided a really
important explanation as to howit is that there is a perception
I run into this all the timethat First Nations as a group
are opposed to economicdevelopment, but you've peeled
back a couple of layers toreveal how this has evolved over
(39:27):
time.
Maybe there is some truth inthat at some past time, but it's
so different now.
Malcolm Macpherson (39:33):
Yeah, it is different, you know, and there's
no right or wrong answer to thequestion 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 yourperspective?
And I believe Ivan's a memberof SawRage, first nation in
Alberta.
(39:54):
At the time I was working on alarge energy corridor project
and I noticed that it's justthis huge impasse in terms of
willingness to engage, talkabout the project.
And I asked Ivan.
I said well, why do you thinkthat is One of the things Ivan
had said.
I think he's right.
He said you have to understandthat when one has been oppressed
(40:18):
through the Indian Act andthrough aspects of colonial rule
, he says you have to understandthat 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 thinkthere's some truth to that.
If you read Rousseau, he talksabout the concept of sort of the
(40:42):
noble Indian, I thinktranslated from French, and it's
this concept that, but forthese annoying, you know, sort
of colonizer settlers, lifewould be peachy and wonderful
right.
Stewart Muir (40:58):
If one man is born free but everywhere is in
chains, but the noble Indian,perhaps an exception.
Malcolm Macpherson (41:04):
And, of course, if you read John Locke,
right, it's the very oppositeLife is nasty, brutish and short
.
Yes, so you have these extremesright of perspective, and I
would say I'll use scottishculture because my last name is
mcpherson and yours is muirright, if we think about the
scots, right?
Um, you know, I talked to my,my grandfather when he was
(41:27):
living.
He, he told me the scots weretribal, right, and at their
origin they were, and but thatchanged over time.
That changed right with withRoman and English and other rule
.
And so the point is is rightlyor wrongly right, culture
evolves and it changes.
So, getting back to Ivan, right, ivan's answer to the question
(41:50):
why is there such resistances?
There's a hearkening back to,to an imagined past right which
which may have existed but mayhave also existed in a different
way.
So the conclusion being that inmy experience, having spoken to
many nations over many decadesacross Canada I would say it'd
(42:13):
be the high 90th percentile ismost want to retain an identity
but also modernize.
Most of my friends that live onreserve or they're in
leadership enjoy modernconveniences.
They enjoy their modernvehicles, they enjoy central
heating, they enjoy plane rides,they enjoy sort of modern
(42:41):
medicine, right, all thesethings that are in some fashion
tied to a way of life that hasevolved away from how life was
hundreds of years ago.
So it's a really interestingconversation to watch and my
view of it is that we're seeinga movement forward which
(43:04):
recognizes a beautiful,historically significant past
while modernizing.
So I've always said that theFirst Nation people of Canada
are the resource rulers.
I didn't coin that term, by theway, there was a book by that
(43:28):
moniker that's definitely wortha read.
So, going forward, I often saywhen I'm speaking to different
audiences, and I make a pointwhen I speak to the executives
in the C-suite and elsewhere,that if we agree on the fact
that the nations have thesesupercharged rights, as I like
(43:48):
to call them, when there's sortof, I guess, complementary work
around it done, then it seems tobe a no-brainer that the future
of economic reconciliation andresource extraction advancement
(44:12):
surely has to lie in the comingtogether of the business
community, the Crown and theIndigenous nations.
I truly believe that we haven'tseen anything yet in Canada,
that these are still very sortof embryonic days and that a
decade from now the rights willbe even more advanced, even more
(44:35):
enshrined, even more enshrinedand as a natural consequence of
the nations, will, um, have more, not a veto, but even more of a
say over the extraction ofresources.
So, um, you know, at the Iwould say the smart money in the
room will understand that andwill gravitate towards working
(44:55):
with the nations in acooperative way to uh to make
advancements in the resourceextraction space.
Because if that doesn't happen,it seems to me what we will
then see is just a flight ofcapital that will continue to
leave Canada as it has and goelsewhere, to other parts of the
(45:17):
world like South America andother places where environmental
regulations are much lessstringent, where the sanctity of
human rights and worker rightsis not recognized the way it is
in Canada.
All that to say, we have anabsolute abundance of natural
resources in Canada.
(45:39):
Canada, over the course of thepast 200 years, has proven that
it's very good at extractingresources.
And you know, surely, it seemsto me, surely, morally, there's
a case to be made for keepingcapital in Canada, and you know
the US, keeping capital inCanada and the US, and surely
(46:01):
Canada can continue to play aleading role in natural resource
extraction.
I have to say that as someonewho was born I was born here in
Vancouver in the mid-70s.
I find it shocking when I readthe local papers or I watch I
(46:22):
don't know the local news orfollow social media.
I find it actually shocking howquickly and I think it's quite
naive that there's this stampedeto just sort of abandon
resource extraction, and I wantto explain that.
So if we look at BritishColumbia, for example and I talk
to my client, the Clay ClayTenay a lot about this we look
(46:46):
at what Canfor's doing.
Right, they're sort of shuttingdown operations for economic
reasons Not wholly, but it'splainly obvious that a lot of
mills are shutting down and thatcapital is moving to
jurisdictions in the UnitedStates where it's more
(47:06):
profitable and more certain toextract, in that instance, trees
.
I never thought I'd see the dayin BC where one of the staple
resources would be sort ofshuttering up business.
If we look in the mining sector,it's also been challenged.
(47:30):
Now, that being said, I fullysupport the nations that have
taken the position that thelegislative framework around
mining needs to be modernized.
Absolutely it does.
But there again I sort of Oneyou're allowed what my children
(47:52):
and others will do if keyindustries shut down and new
industries don't come online insufficient abundance to replace
those that have been shut down.
Yes, we have a developing techsector in British Columbia, but
it's not LA right, so I use thatas one example.
(48:13):
My point, though, is that we'velived a good life in Canada,
largely since the 1950s.
It's been a first world type ofexistence.
People have had peace, order,good government, they've been
able to send their children togood schools, good hospitals,
(48:35):
and that has been largely paidfor by the resource extraction
sector.
That's the reality of thesituation.
So I worry I worry for mychildren, I worry for other
people's children whateveryone's going to do Now.
I do understand that there's apush in BC to I think it's to
have 30% I've heard this frombureaucrats directly to have 30%
(48:56):
of lands turned to parks by2030.
And, on the one hand, Iunderstand that it's important
to preserve the natural beautyand to have large spaces where
there can be intact, thrivingecosystems.
I understand that intact,thriving ecosystems.
(49:19):
I understand that.
On the other hand, I alsowonder who's making all those
decisions and where that'sheaded.
Will it go to 50%?
Is that the plan?
Is it 70%?
Are we all going to becomesorry?
I'm going to exaggerate here abit, but is the plan to have
park rangers and businesses thatare associated with parks.
I could see in some measurethat there could be, for example
(49:39):
, indigenous tourism.
That makes a lot of sense.
I could see an industry developfrom large contiguous protected
areas.
But I wonder aloud, just as apractical person, if those jobs
will replace and will fund, youknow, the road infrastructure,
(50:00):
the schools, the hospitals, theway of life that Canadians,
indigenous and non-Indigenousalike, have come to expect.
Stewart Muir (50:11):
So that creates a lot of pressure on the rights
rulers, because they're the oneswho ultimately have the
deciding influence on whathappens.
Malcolm Macpherson (50:20):
Absolutely.
You know there's a community inNortheast BC.
I won't say who it is, but Ithought it was a really good
sort of vignette story and inthis instance the chief had
basically remarked to me andothers that he was in support of
a linear corridor pipelinedevelopment.
(50:42):
But for the fact that itimpacted I think in this case it
could have been a species likemountain caribou and there was
insufficient communication toaddress that and as a result,
they eventually figured it out,but it took a lot longer than it
(51:03):
needed to.
And it wasn't that the nationwas opposed to development, it
was just that, as a responsibleleader of the Indigenous
community, the mountain caribouwere very central to decision
right.
So it's not a veto but a nearveto and one that needs to be
(51:24):
seriously looked at from acommon sense perspective.
Right, why are thoseconversations not happening?
Right, part of it is lack offunding, a lack of support for
those important conversations,and I just know this from having
met with so many communitiesover the years.
But they'll have like one ortwo, maybe three on staff at the
(51:49):
natural resource office andthey'll get inundated with
proposals and there's anexpectation of answering of
these packages of information.
In some instances they're likefive to 20 inches thick, right,
with a lot of dense data fromenvironmental scientists and
(52:14):
others, right, and there's thisexpectation that these large
packages setting out theproposals will be reviewed,
digested, understood,communicated back to the
membership, the leadership, andthe other assumption is that
there'll then actually be aresponse.
(52:34):
Well, for some communities, yes, they've gotten ahead of the
curve and they've been able tosort of keep up with this
avalanche of paper, if you will.
But if you put yourself in theshoes, right, if we're
empathetic, you and I, right, weput ourselves in the shoes of
an indigenous community in the Iof BC or Alberta, they might be
(52:55):
a bit challenged to speedilyreply back.
So I guess the point is thatthere still is quite not the
point, but one of the points isthat there's still quite a
discrepancy in the resourcesthat are required to support a
proper back and forth exchangeof information and conversation.
(53:17):
And I think that's where a lot,not what.
I think it's where I see, Ishould say a lot of these
projects get tripped up, isthere?
It's actually, it ends upcosting more, right?
I'll pick on the NorthernGateway Pipeline, because I was
involved with that project andpart of the answer is going to
be inflation, but it started offas a $5 billion project.
(53:40):
Right?
Sounds like peanuts today,doesn't it?
That sounds like a deal.
What a bargain, right?
Yes, I think by the time I hadceased working on that project
and that was seven years inright, it had ballooned to I
think it was over 20, right?
If we look at the TransMountain Pipeline, right there's
a story there even further.
(54:01):
So my point is it's money wellspent on the front end to
properly fund the review andconversation, because that's a
lot less expensive than you knowhaving a very challenged
regulatory review.
It's much more cost effectivethan there being a simple
(54:24):
misunderstanding right If thenation would have been in favor
but for a respectful approach orbut for contemplation of a key
element like a mountain caribouright.
Stewart Muir (54:38):
Is there a source that you would recommend to
someone who wants to go deeperinto this?
Malcolm Macpherson (54:43):
There's a lot of literature that's
developed that's readilyavailable.
I'd say, read Delgamouc, readChilcotin, read Blueberry Wow,
you'll get caught up.
If it's a bit dense, read asummary, it'll be worthwhile.
Stewart Muir (54:59):
You've mentioned three decisions that are
landmark ones Delgamouk andChokotan, and Blueberry or Yahi
and it is sometimes enjoyable togo right to the words of a
judge, because it's lucid.
They're digesting a huge amountof information, to come to the
point, and it's surprising.
You might not expect to find itas accessible as it is to read
(55:22):
one of these rulings, but it isenjoyable.
Malcolm Macpherson (55:26):
It absolutely is enjoyable and well
worth it.
It's worth the investment Iencourage everyone listening to
this podcast to if they haven'talready done so, I'm sure many
have.
But just yeah, dig a little andget caught up, because the next
decade will be shaped by thesekey decisions.
Stewart Muir (55:47):
Malcolm, as we wind up on a more personal note,
when you're not immersed inyour complex legal work, what do
you like to do?
Malcolm Macpherson (55:54):
That's a really good question.
Stewart Muir (55:56):
You're a father, family, man, young family.
Malcolm Macpherson (55:59):
Well, I would say yes, most of my time
is spent working to keep up withmy children, and I have a
two-year-old, soon to bethree-year-old, three-year-old,
soon to be four-year-old, atwo-year-old soon to be
three-year-old, three-year-old,soon to be four-year-old.
I've got a 13-year-old daughterand a 15-year-old boy.
It is a very busy household.
(56:21):
I mostly spend time with him atgymnastics and reading books,
if you can believe it, becauseI'm away a lot, lot.
As you may expect, my wife is,is the star and, uh, yeah, we
basically spend a lot of timehelping the kids get a good
(56:43):
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 arelistening to this podcast.
Let's go fishing.
Stewart Muir (56:58):
Excellent.
Is there a future lawyer inthat posse of kids you've gotten
?
Malcolm Macpherson (57:04):
I do believe there's a future lawyer, yeah,
and who knows, maybe a futureprime minister.
We'll see Okay.
Stewart Muir (57:13):
Well, look, it's been a fascinating conversation
on power struggle.
Malcolm, thanks so much forcoming.
Malcolm Macpherson (57:18):
My pleasure, Stuart.
Thanks for having me on.
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