There is a growing docket of court cases pitting First Nations against companies in the oil and gas industry, not only in Alberta but across the country, with implications still only poorly understood.

First Nations are coming at governments on a number of grounds, arguing that treaty rights, federal laws or both have been broken and that First Nations should be compensated in a number of ways, ranging from land claims to the “duty to accommodate” residents of First Nations communities affected by new development.

For many years, Bill Gallagher was a corporate lawyer in Calgary, working for companies in the oilpatch. He also has experience as a federal energy regulator and as a treaty negotiator. In his recent book, Resource Rulers: Fortune & Folly on the Road to Resources, Gallagher tallies the results of First Nations’ lawsuits over the past couple of decades. He says First Nations have won 40 court decisions against energy projects in the past two years, and 190 since 1985.

It’s a remarkable record, and it’s resulting in a profound challenge for both the industry and governments. “There is an elephant in the room, and it is the rise of Native empowerment,” Gallagher told the Edmonton Journal. “My theory is whoever aligns with aboriginals before a regulatory hearing has the best chance.”

Both the industry and government need to get policies in place that address this reality. Oil and gas companies are, by and large, playing by the existing rules: they submit their project applications, follow the existing laws and regulations and, if a project is approved, try to proceed.

But the concerns raised by First Nations mostly have to do with the rules and regulations themselves (which are set by federal and provincial regulators), the extent of consultation (which is a duty imposed by the Constitution) or the cumulative effects of the vast extent of the development that is happening (which nobody is addressing). None of these issues are directly within the control of industry players, but they’re left holding the bag.

Still, the industry has to deal with the reality of an increasingly angry and powerful contingent of Canadians. The courts have long been an important – if frequently blunt – tool for the delineation of First Nations rights. And, relying as they do on their own precedents, it’s safe to say the courts will continue to be so. As Gallagher says: “I don’t relish any corporate project being in the blender at the moment.”

The general effects are perhaps the most concerning for the industry, given that First Nations typically don’t target any particular project; rather, they argue that the cumulative effects of so much development is itself infringing on their treaty rights. If that case is made, it’s not any single company that will suffer but all of them, as this may lead to rule changes that create even more hurdles for the oil and gas industry.

The best way through the maze, as Gallagher says, includes communication, collaboration, corporate training in cross-cultural aspects of the discussion and negotiation.

It’s a message that the oil and gas industry had better hear for its own sake, and for that of Canada’s economy.

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