How province pressured 6 First Nations to accept Sisson deal

A Maliseet First Nations chief says the New Brunswick government threatened to cancel lucrative tax deals with her band and other Indigenous communities if they didn't sign an agreement on the Sisson mine.

Chief Patricia Bernard of the Madawaska Maliseet First Nation says she doesn't support the proposed mine, but her band couldn't risk losing the money it gets from provincial gas, tobacco and sales taxes collected at its Grey Rock commercial development.

"The province wanted the chiefs to sign off on Sisson and made it pretty clear that if the Sisson agreements are not signed, they would not sign tax agreements with the First Nations," she told CBC News on Monday.

"They basically said they wouldn't sign new tax agreements at this time. They left it a little bit vague. But as you know, these tax agreements are vital to the programs and services that we provide to our community members. So we had little choice."

Goal became saving tax deals

Dominique Nouvet, the lawyer who negotiated the Sisson deal for the chiefs, agreed. She called saving the tax deals "a major factor" for most chiefs who signed the Sisson agreement.

Bernard said the chiefs looked at launching a legal challenge to project, but that would have taken years, and "in all honesty, we really needed to secure our short-term existence with social programs and benefits the communities get through these tax agreements."

On Friday, Premier Brian Gallant announced that the six Maliseet chiefs in the province had signed an "accommodation agreement" on the proposed $579 million open-pit tungsten mine northwest of Fredericton.

Those tax agreements are the bread and butter to the success of this community, so we did feel pressured.- Patricia Bernard, Madawaska First Nation chief

That's despite public opposition to the project by five of those chiefs as recently as last April, when they said the project would "destroy one of our last remaining areas to harvest and practise our culture."

The deal will give the six bands a projected 9.8 per cent of the revenue generated by the provincial metallic mineral tax.

It also commits the province to a joint negotiating table with First Nations representatives to assess the impact of resource development on Maliseet rights.

Rogers says chiefs raised issue

Two hours later, Finance Minister Cathy Rogers announced new 10-year gas and tobacco tax deals with the same six Maliseet nations. Those deals will see aboriginal gas retailers continue to keep 95 per cent of the tax revenue they collect, a share that will drop to 70 per cent if the amount exceeds $8 million.

Rogers suggested on Friday that the chiefs brought up the tax deals "as we were doing our duty to consult" on the Sisson project.

Bernard said the dynamic was more complicated than that and hinged on the growing Maliseet reliance on the tax deals.

Those agreements are expected to be worth $40 million provincewide next year, up from $33 million this year, including the six Maliseet deals and identical agreements with nine Mi'kmaq bands that the province is now renegotiating.

Bernard said the revenue is essential for health, education and other services on her reserve. The federal government pays for those programs but doesn't provide funding at the same level the province does to the non-aboriginal population, she said.

"Those tax agreements are the bread and butter to the success of this community, so we did feel pressured," she said. Her band received $13.6 million from the deals in 2015-16, according to government figures.

We do not approve and at no point do we approve of that mine.- Patricia Bernard, Madawaska First Nation chief

Just weeks before the last election, the previous Progressive Conservative government gave bands the required 90 days' notice that it would cancel the tax deals.

But the Liberals won the election and put the termination on hold in favour of negotiations.

That left the bands "in a constant state of uncertainty" about whether the money would abruptly stop, Bernard said.

"It was hanging over the First Nations, and particularly the Maliseet communities that rely heavily on those tax agreements," she said.

"The Sisson negotiations were ongoing, and then at some point the province brought up the tax agreements. That caused an issue [among chiefs] of, 'is that a good idea,' and then the First Nations brought it back up. So it was brought up by both parties at different times."

Agreement doesn't mean support

She said the accommodation agreement does not mean the Maliseet chiefs approve of the Sisson mine.

"We do not approve and at no point do we approve of that mine," Bernard said. "But if they're going to go ahead with the mine, we needed to take some sort of accommodation for that loss."

Bernard said chiefs heard grassroots criticism in their communities on the weekend for "approving" the mine.

"The chiefs did not approve of this mine," she said. "This accommodation agreement is compensation for something the province is going to do."

Energy and Resources Development Minister Rick Doucet said Monday that the Liberal government is "committed to upholding our obligation under the duty to consult," a constitutional requirement established by the Supreme Court.

But Nouvet said the province violated that duty when it gave environmental approval to the mine in December 2015, while the consultations were still going on.

Even so, Nouvet said the chances of a successful constitutional lawsuit were not good.

Must prove title

"The Maliseet did not in Canadian law have a veto over this project," Nouvet said. While most chiefs would have voted no to Sisson, "the courts have said this over and over again: until your aboriginal title is proven in court, you do not have a veto."

Nouvet said the 9.8 per cent share of mineral tax revenue is "quite modest" compared to similar deals in Western Canada and wasn't the deciding factor.

The accommodation agreement, including the joint process on land use, is the first of its kind in the province, she said.

"It's a historic event in New Brunswick in that sense," she said, even if seeing the mine go ahead is "not the outcome that most of the elected leadership of the Maliseet would have chosen had it been up to them."

Nouvet said the Sisson agreement doesn't extinguish Maliseet title to their traditional territories and would not affect indigenous rights to consultation on other projects such as the Energy East pipeline.